Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 14 - Evidence for October 31, 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 3:45 p.m. to give consideration to the bill.

[English]

Ms Jill Anne Joseph, Clerk of the Committee: Honourable senators, I have been advised by the chairman and the deputy chairman that they are unavoidably detained in the chamber. As clerk of the committee, I am prepared to receive a motion for acting chairman until such time as the chairman or the deputy chairman arrives.

It is moved by the Honourable Senator Fraser that the Honourable Senator Moore serve as acting chairman. Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Senator Wilfred P. Moore (Acting Chairman) in the Chair.

The Acting Chairman: I call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order. This is our tenth meeting to consider Bill C-7 in respect of criminal justice for young persons and to amend and repeal other acts.

We have with us from the John Howard Society, Mr. Stewart and Ms Pate from the Elizabeth Fry Societies.

Mr. Stewart, please proceed.

Mr. Graham Stewart, Executive, John Howard Society: Honourable senators, I thank you for the opportunity to present to this committee on Bill C-7. The young offender legislation has been a concern to the John Howard Society for many years. The society is a national organization that is in 60 communities across Canada. It encompasses about 15,000 supporters, staff and volunteers in a range of programs related to criminal justice, with the overall view of helping those who have been engaged in the criminal justice system to establish themselves as law-abiding citizens.

Our response to Bill C-7 is generally positive. There are a number of things that we think are important improvements to Bill C-7 over the Young Offenders Act, YOA. We are pleased to see that it is put in the context of the limits that criminal justice law can achieve in terms of reducing crime. Its focus on crime prevention and other factors are crucial, and we are glad to see that recognized in the overall strategy.

We are aware that there is a great variation between crime rates across Canada. We bring to your attention that the variation in crimes cannot be attributable to differential access to the justice system. We have the same law across Canada, and we have the same police structure, with the same access to courts and so on.

While we have made access to the justice system equitable across the country. However, access to other matters such as employment, school and social conditions have not been achieved to the same level. It is in that area primarily that we see the differences for the reasons in participation in criminal activity.

Some of the improvements to the YOA consist of the principles that we think are coherent and relevant. We are pleased with the extrajudicial measures that were not available in the YOA. We think it is important to include in this proposed legislation post-trial hearings for adult sentences, supervised conditional release, intensive rehabilitation orders, intensive custody, and supervision orders. Our major criticisms of this legislation are the provisions that allow for varying application of the bill in different provinces across Canada.

I will go into more detail. We like the preamble and the principles in the bill. We think that the principles are coherent and not mutually exclusive. They are not a catchall for every ideology, but they comprise a coherent set of principles that will go much further in giving courts some sense of direction and guidance.

The emphasis on rehabilitation and reintegration is very positive, as shown in the primary way that the bill attempts to address matters of public safety. The inclusion of the international covenants is positive and puts the proposed legislation into international context, which is valid and important.

We feel positively about the extrajudicial measures as they are articulated in the bill. The principles, objectives and broad options give a proper emphasis on measures other than judicial processing. We are enthusiastic about the authorization for formal warnings and cautions. This is a good move and can be helpful, again in reducing access to the criminal justice system.

We feel positively about the youth justice committees because of the potential they have to engage citizens. However, we have some concerns about how citizen committees are selected. We want to ensure that the committees are not used in inappropriate ways for the particular political agendas of some provinces.

The matter of optionality is of some concern to us. In those clauses we see the ability of provinces to opt out of particular extrajudicial measure as noted in clauses 7, 8 and 10 (2)(a) that relate to cautions and extrajudicial sanctions.

The use of alternatives to prison are dependent in some cases on those alternatives being available in provinces, which suggests that prison is the first option and the alternative is the second option. We think it should be the other way around.

The intensive support supervision measures seem to be optional in some provinces and also to require the consent of the provincial director. That has the possibility of restricting options.

The presumptive sentences can apply at different ages in different provinces, depending on what they choose. In fact, the sanction that is available for a 15 year-old in one province could be dramatically different from that which is available in another province.

The definition of "levels of custody" is weak, and it only refers to degrees of restraint, which we think gives tremendous scope for provinces to have very different definitions of what constitutes open custody. We would like to see the bill set some standards and to give some guidance about those differences.

In the matter of sentencing the principles are powerful and positive, while recognizing the importance of consistency and fairness. We also recognize the emphasis they place on reducing existing custody. Intensive support and supervision orders are good. However, they could be made better if certain consent requirements were included in the provisions, particularly where measures being used are highly intrusive, confrontational, involve risk taking or seriously impede participation in normal school and work activity.

The intensive rehabilitative custody and supervision orders have great potential if they are implemented properly. We are pleased to see that they are restricted to those that have presumptive sentences. It is important that such measures be targeted to those who are in greatest need, rather than become a common occurrence in the sentencing process. We are pleased to see the provisions for leaves from custody. It is through leaves from custody that programs and rehabilitation can be achieved. It is in that environment where it is often the most effective.

We very much like the conditional supervision provisions that have been introduced. Most people assume that there are conditional supervision processes in place for young offenders, given that they have something similar for adults. However, we also think the implementation of conditional supervision in this bill is far better than that which was implemented in the adult system.

In particular, we are pleased to see that the court is required to articulate at the time of sentencing, that a period of supervision is included in the sentence to avoid the notion that some how conditional release undermines the sentence that the court intended. In our view, and indeed I think considerable research has been done to show that gradual release is the most effective way to reduce recidivism for those who have been sent to custody. One should assume that such measures are in place.

Indeed, it is not, in our view, a measure that one takes as a sense of clemency or reward for good behaviour, but it is a necessary condition attached to imprisonment. If we are to remove people from the community, we must be concerned for their reintegration. We are pleased that it is mandatory in virtually all cases.

We are also pleased that measures have been taken not to make it additional to the time that would be served and, as a result, lengthening sentences. We are concerned that there is a lack of standards articulated in the bill in respect of the nature of that community support and supervision. We do not want the support and supervision to be inane but to have some substance to it. That is because it could well lead to a circumstance some years down the road where it would appear to be infective. That would be a tragedy. We know that such measures can be effective.

The general theme or emphasis on reducing or restricting the use of custody throughout the bill is very good, and we support that.

With respect to the matter of adult sentences, first we should point out that our society is not been in favour of adult sentences being used for young people in the past. In our view it undermines the whole nature of the young offender legislation to treat them as adults. Given that it has been a feature of the legislation for many years, and it is likely to remain so, there are a number of aspects of the adult sentencing process that we think are substantial improvements over the current provisions with the Young Offenders Act.

In particular, moving to post-trial hearings and sentencing rather than pre-trial transfer hearings is a major improvement. As a person who has testified at a number of transfer hearings, it is a very unsettling process to be involved in the determination of how dangerous a person is before there has been a determination of whether the person is guilty.

There is one case that I was working on where the person was acquitted in adult court after being found too dangerous for a youth court trial. It also expedites the process. It is not uncommon to see two years of transfer hearings before a person even gets to trial.

We are not in favour of presumptive adult sentences. That works against the nature of the Young Offenders Act. They should not be presumptive, the person would not be transferred and the case needs to be made, rather than the other way around.

The test for adult sentences is an improvement over the current legislation, which focuses on balancing the needs of the child against the protection of the public. This one talks about accountability. It is adequate to be accountable. There are those who will argue that accountability is a code word for harshness, but our reading of the bill does not say that. That is not our interpretation, and it would be a shame if that were the case.

We will not know how many of these measures will work until they have been litigated or courts have begun to make decisions. In principle, we think that the notion of accountability includes the notion of restraint and proportionality. The notion of public protection does not include those. As such, this is a better test.

We would suggest that even though young people may be sentenced subject to the sentences of adults through this measure, they should still be subject to the principles of the youth criminal justice bill.

Overall, we think that the adult sentencing provisions are a significant and substantial improvement from that of the Young Offenders Act.

With respect to placement in adult institutions, we have both positive and negative comments of concern. We are pleased to see that those who have been given adult sentences will be kept in the young offender system, generally, until age 20. We think that is positive. On the other hand, we are concerned that those who are given youth sentences should stay in the youth system and not be transferred to the adult system under any circumstances.

On the matter of serious violent offences and presumptive sentences we are not in favour of presumptive adult sentences. However, Bill C-7 will significantly improve the definition of what constitutes a serious violent offence from the definition that was found in Bill C-3. We are pleased to see that. It gives a much clearer interpretation.

With respect to publication of names under some circumstances, we are, in general, opposed to the publication of names. Young people should be given some opportunity to deal with their offences without being subject to that kind of public attention, particularly when you consider that with young people more so than with adults publicity could have a substantial impact not only on that individual but on that person's family, siblings and others in the community around them.

The changes from Bill C-3 to Bill C-7 with respect to the admission of otherwise inadmissible statements are an improvement, but they are not an improvement over the notion that inadmissible statements should not be admitted.

We are opposed to the provisions that have been put in the bill that allows provincial jurisdictions to recover legal fees from the parents of young offenders. This could lead to encouraging young offenders to plead guilty in some circumstances either to avoid the harm to their parents or, in some cases, parents might even encourage them to do so in order to avoid the legal costs.

That contributes to the notion that parenting is the only or primary influence that relates to criminal activity when there are many other factors in the community. It would be very difficult to sort out how parenting could be the only important factor when you see children growing up in this country with incredibly different variations in their circumstances and social background.

The Acting Chairman: Mr. Stewart, the brief that you submitted is dated January 2000. I believe you submitted it to the House of Commons.

Mr. Stewart: Yes.

The Acting Chairman: Do you have any other comments that you wish to make by way of update or in consideration of evidence that has been given to the committee by previous witnesses? Is that your statement for now?

Mr. Stewart: That is my statement for now. I am sorry that I was unable to revise the brief.

The Acting Chairman: I just noticed the date.

Mr. Stewart: That was the submission, and I have tried to address the important changes in my comments.

Ms Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: I would like to thank the committee on behalf of the Canadian Association of Elizabeth Fry Societies for being invited to appear before you and present information. I bring regrets from my board of directors. There were two young women who had hoped to attend who unfortunately were unable to attend with us.

The Canadian Association of Elizabeth Fry Societies is an association of 24 member Elizabeth Fry Societies across the country whose mandate it is to work with and on behalf of young women and adult women in the justice system. It includes services with young people and adult women who have been victimized, those who have been criminalized and those who have been jailed.

We are in substantial agreement with what Mr. Stewart has presented on behalf of the John Howard Society of Canada. I would like to focus more specifically on some of the pieces that we see will have a particular impact on young women. I would be happy then to comment on the more general pieces as well.

It will be no secret to many of you that many organizations, including ours, were initially not happy with the introduction of Bill C-7 which we saw as a proposal to repeal the Young Offenders Act and to replace it. The concern was that much of the perceived need to repeal the current act seemed to hinge on public perception and, more to the point, public misperception of what was happening and what is happening to young people as opposed to the need for a new legislative regime.

I am happy to say, however, that there have been significant improvements. We have concerns about some areas, but there have been significant improvements in this iteration of the bill to which I would like to speak.

In the preamble and the manner in which the principles and the objectives of the bill are outlined, we are happy to see a focus on the need to enhance public education as articulated through the change of the tone to look at the long-term implications as opposed to the short-term objectives of what happens when you have particular types of interventions with young people. The bill sets out to encourage a focus on integration of young people in a more holistic, inclusive way through rehabilitation and other means of integration, both within the youth justice system as well as other systems, as opposed to the fuelling more reliance on short-term objectives. That necessarily means things like removal of individuals that have led to approaches like the increased use of incarceration or custodial dispositions for young people.

This is particularly the case when we look at young women. In addition to the issues that were raised by Mr. Stewart, we have seen that the range of options available for young women, because of their relative small numbers in the system, have been even more restrictive in the terms of number as well in terms of nature.

We see young women whether they are housed on remand status, in open custody, receiving treatment or in secure custody or closed custody, ending up being held in extremely secure settings, often isolated from the other young people. In some institutions where there are boys or young men and often, because of incidents of sexual assault, sexual harassment and sometimes pregnancies, the girls end up being held in even more isolated conditions.

The focus on looking at the broader picture and looking at the need to educate the public about actually who is in the system and the rate at which young people are being injected into the incarceration component of the system is absolutely important, and we support that.

We also support the tightening up of the definition of terms such as "serious harm." We are still concerned that those provisions allow a great deal of latitude on the part of those who are involved in the system in terms of the subjective interpretation of police officers, social workers, Crown prosecutors and of the judiciary when it comes to interpreting who has committed an offence that shows a substantial risk of causing serious harm. We are concerned that individual guidelines and the orientation and education that is provided, as well as the training to those involved in the system, will largely dictate how the available resources will be utilized and whether we see more or fewer young people ending up being injected into the system. Most of those guidelines are not articulated at this stage.

We are also concerned about the provincial discrepancies, but Mr. Stewart has adequately covered that. I will not reiterate.

We are pleased to see clause 35 that specifically encourages referrals to child welfare settings in cases where that is the primary issue. Historically, many young women have been held in custody, both pre-trial and for dispositional options, largely because there is no other place for them to go. Our comment is that this clearly signals to the judiciary and to the entire youth justice system that this is not appropriate.

We do have concerns nevertheless that one of the manners in which this will be determined is whether it is reasonable to refer someone to the system. The current lack of resources throughout the country raises concerns for us about whether this provision will be implemented and whether life will be breathed into it in the manner in which it is intended.

We think that clause 39 of the bill is clearly articulated and that there is a need to look at the resources that are available in the community. Our concern is that unless there is a strong push in terms of the cost-sharing agreements with the province to ensure that resources are directed toward community-based options, we will continue to see young people, particularly young women housed and jailed pre-trial and post-trial largely because of the lack of resources in the community. It would be seen as unreasonable to refer them to the child welfare system in a context where that may very well be where they would be best placed.

I encourage the honourable senators to review some of the work that has been done by some judges in Saskatchewan where one judge in particular attempted to refer back Aboriginal young people identified as having fetal alcohol syndrome and fetal alcohol effect. The decision was reversed because she had referred to resources that were not available. She then demanded that the minister of social services build those services.

That is an example of the sorts of concerns that we have about the implementation of the bill. Our preference would be to see a clear articulation that homelessness and lack of resources in a child welfare system cannot and will not be seen as a reasonable justification for not using that system.

Similarly, the intensive rehabilitation and custody in supervision orders are appropriate. They should be used for the most serious cases.

Our concern is that by having preferential resourcing of those provisions, we fear that we will see what has happened in the adult system start to happen more in the youth justice system. In the adult system, we are seeing that women, both young and old, who have historically been overrepresented in mental health and psychiatric facilities, are falling through the cracks into the street. Such behaviour would normally not be criminalized. It would normally be seen as a function of their mental illness or cognitive disability but it is now leading them into the justice system.

Paradoxically, the response of the system to address those needs has led to the development of resources in prison settings that are not available in the communities. The result is that we are seeing more women being sentenced to imprisonment. We are seeing judges actually starting to comment that they hope the person will get the treatment that they need in this setting because it is a nice new regional prison. They are saying that a new institution is a new place where an individual can access treatment programs.

Our concern is that by setting up this kind of intensive rehabilitative custody order, we could end up seeing the flip of what is actually intended by those who are working on it, which is to see fewer young people in the system. If there is not a corresponding development of resources in the community, particularly the mental health services, we likely will see the courts looking to put more young people into these settings. That is an implementation and resourcing concern.

Focusing on the public educational component the staff working within the Department of Justice has done a good job of ensuring that information is more public about the extent to which young people are or are not involved in serious violent offences. Although there has been an increase in the percentage representation of young women who commit violent offences and offences, those are percentage increases and not increases in real numbers. They are percentage increases largely based on reporting data, policing data, prosecutorial data and, obviously, sentencing data. We are not seeing real increases in the numbers of young women who are actually committing offences. Self-report data shows that is the case, as well.

While there is a perception that young women are becoming more violent, there has been no increase in the numbers. Our organization has sent along some material that we hope will provide additional details on that subject. We think that Bill C-7 proposes some very good improvements to the legislation.

We also are fundamentally opposed to young people being moved into the adult system. There is a brief story of one of the young women who was going to be here today who could not join us. She spoke before the House of Commons committee and presented her story, which represents the probable improvements in this legislation. Many who have studied the bill believe that young woman would not have been transferred into the adult system had the current proposed legislative amendments been passed. She would not have been held in a segregated maximum-security unit in a Saskatchewan penitentiary for men. She would not have come to my attention after she had tried to kill herself for the second time. She would not be in the situation where she is today of still being homeless, without resources and being released to the community with virtually no support.

There are some very beneficial provisions and important reasons to support the bill. We underscore the importance of the strongest message possible being sent both from this committee, as it is being sent from members within the Department of Justice, organizations such as ours and John Howard Society and others, that one of the keys is that the resources must be placed in the community.

We would prefer to see no further resources made available for custodial options. The significant manner in which the Young Offenders Act was derailed was because so many of the resources were focused on custodial options and not on community based options.

I look forward to any questions.

Senator Grafstein: I take it that the two of you agree on at least two fundamental points. Clause 61 states:

The lieutenant governor in council of a province may by order fix an age greater than fourteen years but not more than sixteen years for the purpose of the application of the provisions of the Act relating to presumptive offences.

Is that clause is unacceptable to you both?

Mr. Stewart: Yes.

Ms Pate: Yes.

Mr. Stewart: We would prefer to see the age set at 16 years of age by all provinces.

Senator Grafstein: What is the rationale for that?

Mr. Stewart: First of all, we think that presumptively transferring a 14 year-old into the adult system is unnecessary. At that age, the presumption should be that the person is not in the adult system. The fact is that, even under the current legislation, they could be transferred, but it does not have that presumption.

The second point is that there could be a huge variation in the potential sentence. If a person was 15 years of age in one province, he or she could, in some cases, face a maximum of 10 years and in the other province it could be a life sentence. That kind of variation within Canada and within a single Criminal Code seems to be unwarranted.

Ms Pate: Our concern is, in addition to that, the fact that corrections officers, corrections staff and policy-makers agree that some of the most difficult individuals to manage in an institutional setting are the youngest. They are often in the throws of what is perceived to be the normal rebellion and challenges phase.

There are three ways that prisoners can be classified as "maximum security" in our federal system. One way is the presenting offence, as so many young people would be classified, because this is a serious offence. Even if they were not, if they were perceived as a risk of taking flight or a risk if they were released into the community, they then might be considered for maximum security.

In our experience the most significant reason most young people are classified, and many women are classified, as maximum security is that they are difficult to manage: they may be suicidal, may self-injure, may scream, yell, or may be emotional. Our concern, in addition to what Mr. Stewart has already discussed, is the fact that disproportionately those young people end up in the most isolating conditions. Therefore, they end up being in a state of incarceration that was never contemplated by the legislators, in my experience, or by the courts that were sentencing them, and they end up released into the community after being in some of the most brutalizing prison conditions available.

Therefore, their ability to integrate back into the community with additional concerns, additional challenges and problems from pre-incarceration, would be exacerbated, to understate the situation. Those are the same young people that we know. The younger the people coming into the adult system the more likely it is that they will continue their cycle through it.

Senator Grafstein: It is the incarceration problems and the recidivism problems.

When we look at the evidence before us, there is strong support for the removal of presumptive offences and the option to reduce the age, based on all the reasons you suggested.

I am curious. Each of you represents an outstanding organization within the community. Your respective organizations have high reputations of doing important work right across Canada. How have we come to this state? Where does this mischievous pressure to treat children as adults come from? Where does clause 61 come from, in your view? You mention that there is a mixed perception between reality and fact, in terms of increased violent offences. Where does it come from?

Mr. Stewart: I do not know, is the short answer. Certainly, we have seen, as a phenomenon around North America and indeed the world, the general hardening of attitudes toward young people. It is probably true that they have had bad press in many respects. I also think it is a function of asking the wrong question. If you ask people if they think the system is too soft and should we toughen it up they tend to say "yes." On the other hand, if you ask people if they think the Canadian justice system should be the toughest in the world, they say "no." If you ask people what they believe the priority of the justice system should be, they almost inevitably say "rehabilitation." It is very much a question of how it is presented to the public.

There are those who have an interest in alarming and frightening people. In that context, they elicit those short and immediate responses. When you look at the research of people like Dr. Anthony Duke in Toronto, we find that, when you look beyond that, the public is not -

Senator Grafstein: He calls this provision "unprincipled."

Ms Pate: In addition, prior to the Young Offenders Act, there was no access for the media. Thanks to the media attention, there is more focus on young people. Just this morning I was asked to comment on a case in Alberta where one of the provisions of the Young Offenders Act that protects the victims of young people, has been struck down by the Alberta Court of Queen's Bench. That case was more about protecting the media and providing them with access so that they could pursue their goals, than it was about protecting victims.

Since 1984, the media has had access to youth court. When they lost the bid to lift the publication bans at the Supreme Court of Canada that fuelled their argument on the basis of freedom of speech. We saw a concerted effort to vilify both the act and young people. However, I do not blame it all on the press.

Prior to that, people did not know what was happening in the youth system.

Senator Grafstein: That is because of the ban.

Ms Pate: Yes, because they were not allowed access. There are benefits to having open court, absolutely, and there are things that happened before the Young Offenders Act that I do not think should continue or should have happened in the first place. That has been a benefit of exposing it.

The flip side has been public reaction. As we know, it is the most heinous, most outrageous cases that capture media attention. That tends to drive people's perceptions of who is before the courts.

People are genuinely shocked when they learn that the Canadian statistics reveal that eight of the nine most common offence categories where people are charged are committed by young people who actually serve longer sentences than adults. They are shocked when they hear that four times the number of young people are jailed than the number of adults. When they hear that we are worse than the United States in that respect, they are shocked. All of those things are part of it.

Senator Fraser: Mr. Stewart, I have two points. First, for clarification, I thought I heard you say that you not opposed to recovery of legal costs from parents. Then, as you continued, I gathered that you were strongly opposed to that.

Mr. Stewart: Yes, I am opposed.

Senator Fraser: On the matter of sentencing, we had some submissions at this committee's hearing last night from people who were distressed that the maximum youth sentence, for even serious offences, was three years. They were arguing for much higher maximum youth sentences.

Could you tell us about the difference between what youth sentences accomplish and what adult sentences accomplish?

Mr. Stewart: I can say a couple of things. First, even as it is, it is very rare in our youth justice system that a person is sentenced to the maximum now. Raising the maximum is something of a fiction in that the vast majority of offences by young people warrant much less than three-years in terms of a sentence.

Second, there are reasons for some restrictions on sentences linked with young people because we know the time spent in custody on the whole is destructive. Research recently completed by Professor Paul Gendreau at the University of New Brunswick consisted of a method analysis on every major study on imprisonment as it relates to recidivism in North America over the last 30 years or so. Using only the studies that met the criteria to properly conduct the study, he included 53 studies. He found that in every case the studies showed that longer periods of incarceration either had no impact on recidivism, or had a negative impact on recidivism in that people were more likely to return to criminal activity.

In drafting the legislation, it was recognized that the notion that the longer prison terms are equated with public safety is simply wrong. It is more than a myth. It is deliberate misinformation to policy makers today.

We are looking at this already. We are talking about young people, the vast majority of whom will grow out of their criminal activity. Much of it is very juvenile, as one might expect. We know that in a system in which there is substantial help, both in terms of addressing the problems that lead them to prison, such things as cognitive skills, drug addiction, family disruption and illiteracy, combined with good after care and follow through in the community afterwards can substantially reduce recidivism. It makes so much sense, particularly when we are talking about young people who might otherwise be trapped in the system for a very long time as adults that putting some restraint on the youth incarceration is very beneficial.

A recent study came out of the United States comparing criminal offences committed by young people in Maryland and the District of Columbia. The District of Columbia, because of court orders had to dramatically decrease the prison population for remand whereas Maryland did not. As a result, Maryland had a prison population four times that of the District of Columbia.

In both cases, the crime rates decreased, as they have generally across North America, but they went down far more quickly in the District of Columbia where the courts had forced the correctional officials to use alternatives to prison than in Maryland where they relied on it. That type of study is done time and time again. Prisons are a last resort. Though you can do some good things in prison, the very fact of prison itself is a long-term destructive impact in our view and should be used minimally. To us, that is consistent with the notion of a separate act for young people with limits on the use of prison.

Ms Pate: Mr. Stewart has talked about the research.

Senator Grafstein: Could you give us the citation for the study to which you referred?

Mr. Stewart: Paul Gendreau of the University of New Brunswick did the study. Correctional Services published it.

Senator Grafstein: When was that done?

Mr. Stewart: Approximately two years ago.

Ms Pate: It is available on their Web site.

Senator Grafstein: 1999.

Mr. Stewart: I can provide that for you.

Ms Pate: Mr. Stewart has given you the research base. To put a bit of a face on it, you can read about the story of "K" who is another young woman who is in very similar circumstances to this woman but was not transferred up to adult court. She had senior counsel who decided to devote considerable energy, many of his own resources, to a transfer hearing. I raise this because private resources were made available to support this young woman. This young woman last year called me as she was finishing her exams in her third year of university. Substantially, she had the same involvement with the justice system through a murder case. It is the one about which most people are concerned. Both of these young women are repentant of their involvement. They have moved in completely different paths. Both of them were young women of race. Yet one, for whatever reason, captured the interest of one senior lawyer, and that lawyer devoted considerable personal energy, time, effort and resources, as did his law firm, into representing this young woman.

She was not transferred up. She remained in the youth system. Therefore, she did not have the stigma of being named publicly and is now finishing university this year. She is in her fourth year.

That is the different reality than the reality that this other young woman faces.. She was known in the community, publicized in the community and has virtually no opportunities to live to anything but that label.

There is also the case of Lisa Neeb that is fairly well known. She is another young woman who still struggles due to her involvement with the youth justice system.

Those anecdotal pieces in combination with the research may provide you with a fair degree of evidence of why moving youth into the adult system is not at all helpful. It is certainly not in the long-term interests of the public, public safety or the interests of the community or future victimization.

Senator Pearson: It is invaluable for us to get a sense of what is happening in the system than we sometimes do from the more theoretical witnesses. I know the story of K and know the young woman.

I was very interested in your comment that younger girls sometimes present difficult problems partly because our resources are not adequate to treat them, partly because they are at a stage of rebellion and acting out. I have just come back from a meeting in Saskatoon, Saskatchewan at which I was shown the horrible, in my view, presentation of the restraint mechanism that the Province of Saskatchewan has just ordered. They told us that the primary use will be on young girls. They had a young girl who volunteered to be wrapped up in this thing. It is called the "wrap," or something like that. Do you know about it?

Ms Pate: Yes, I do.

Senator Pearson: She is then handcuffed to the wrap. She has to sit up; she cannot lie down or turn over one-way or another. They have a handle at the back where they can pull the girl around. This is used also in treatment centres. It is not just used in the young offender system. They do this because in Saskatchewan, which has a rather tough corrective attitude, the men do not like to do physical restraint of girls because they might be charged with harassment. The strap comes right across their breasts. It would be terribly painful quite apart from anything else.

A concern about standards was raised at this meeting, about which I am beginning to feel very strongly. What kinds of standards does this legislation enable us to impose for intrusive measures? Part of the problem to me is that I am not sure that it does allow that.

There are many different kinds of intrusive measures. We know about the case this is Ontario where youths have been sat upon until they suffocated. Intrusive measures may be physical, chemical and so on. The use of them is fairly common, plus this kind of isolation that you speak about with K who has been put for days, months, years in isolation for 23 and a half-hours a day.

What possible good can that do for a child? It is not much good for an adult, but in that case an adult is seen as punitive. However, for a child, if your entire intention is rehabilitation, it cannot be good. This being said, young people, that have been interviewed in Ontario, have said there are times when some kind of restraint is necessary for them. If they are out, they recognize that some sort of calming down is necessary. I see it as being particularly bad for girls, but what can we do about imposing standards, protocols, treatment and training? Obviously, this bill does not establish those things, because it gives so much power to the provincial authorities. However, is there something that we should recommend? Is there anything in the way of regulation that we could add to the bill that might help?

Ms Pate: In respect of the matter of restraint and isolation, the Arbour Commission report, under Madam Justice Louise Arbour, made some good recommendations in the inquiry that looked into the situation of female adult prisoners at Kingston, Ontario. Those recommendations encompassed the use of isolation, punitive sanctions and the need for judicial review of those sanctions. The idea of an ability to charge and hold the criminal justice system accountable, in this case the youth justice system, when the measures that are utilized violate charter rights, human rights and the principles of the act, would be one suggestion that would help. Those recommendations are in Madam Justice Arbour's report, also available on the same Web site as Mr. Paul Gendron's work.

Also, some of the recommendations about the use of standards that are taken from the most progressive elements of child welfare and mental health policies would be useful.

There could also be some greater focus on the need to ensure that peer support is used. I am familiar with some of the work at Justice for Girls; National Youth in Care Network and Save the Children are doing around developing those kinds of resources. Time and again, we hear from young people and adults that those who are in the system with them are often the best able to calm them down rather than the having to use the restraints.

We have too many horror stories of young women, who routinely ask to be put in restraints because they then have to be monitored by staff. Young women may be accustomed to isolation for 23 hours per day. We have had instances where young women recorded why they asked for restraints was that staff would have to sit with them and they would have someone to talk to. It comes back to the issue of standards but also to the issue of resources and the appropriateness of resources being placed, not in custodial options but in more supportive options, first and foremost in the community.

Mr. Stewart: On this point, the bill sets a number of standards, when it comes to sentencing. Judges in the courts have been given a clear set of principles and direction, which I think is very sound.

I also agree with the direction that it is taking. Standards, in my view, are matters relating to corrections. I am concerned that you can have a consistent process of sentencing, but if the actual implementation of that sentence for corrections has huge variation across the country, that completely undermines the intentions of the bill. Even in such matters as the levels of custody can only be differentiated by the degree of restraint. Both could be highly restrained environments.

Clearly, the notion of open custody was that those institutions would be in the community and that they were ones in which perimeter security was quite limited and the whole nature of the institution would be one in which you engage community resources, school, work and family in the process of caring for that child. Under this proposed legislation, you could have literally a wing within a maximum-security youth institution with slightly reduced rules and call that "open custody." It would meet the requirement before the bill.

In the federal adult system, there is an entire act that is directed toward corrections. It is the Corrections and Conditional Release Act, which attempts, in many pages to set some standards. Even there, there were problems. As Ms Pate mentioned, the Arbour inquiry found some very serious breaches of those requirements. However, it points to the fact that if you want to set standards, you cannot just leave it to whim.

The fact is that those who run institutions have a difficult job. There are some people in institutions that are very difficult to deal with. It is not an easy job, but it is also true that, when you work in that environment, you can always justify more power, restraint and control. There has never been a limitation on flogging, on segregation or on any form of punishment that you can think of in Canada in which those who ran the institutions did not feel, at the time, that that was a necessary provision to have.

My argument would be that it would be difficult to work all that is necessary into this bill. The question of national standards for corrections is an important issue. Perhaps that needs to be dealt with under complementary legislation. I also think that it simply will not happen.

The provinces will necessarily adopt the same set of values and principles, and even attempt to implement this legislation, in a fair and progressive way across the country.

[Translation]

Senator Rivest: I think you know that many witnesses, from Quebec in particular, are strongly opposed to the bill put forward by the Minister of Justice.

I have two questions, but I do not want to create any conflict or quarrels between you and your colleagues from Quebec. First, statistics in Quebec on youth crime, rehabilitation and reintegration seem very impressive as compared to the rest of Canada.

Is it because of the statistical method used, or is it true that the Quebec system seems to produce better results than those used elsewhere in Canada?

Second, do you think that the people who work with young offenders, professionals of all types, who have come to express their opposition to and concerns about the bill, did so because it would jeopardize their practices? Do you think their fears are justified, in light of the reservations and question marks you raised?

[English]

Mr. Stewart: There is no question that, under the young offenders legislation, Quebec appeared to implement that legislation in a more progressive way than in most other parts of Canada: they relied less on incarceration; they were less likely to charge and process people; and they got better results. That is completely consistent with the research and the evidence that I have, and that Ms Pate has also been presenting here today.

I should also point out that you are quite right that the values and the ideology behind professionals in Quebec, and what you are hearing today are quite consistent. We are moving in the same direction. There is some difference in our perspective on how this bill would affect that, in part because we are looking at it from different experiences. My experience has been primarily in Ontario, which has taken a very different attitude to young offenders and uses them as regularly as cannon fodder for political purposes, it seems. They have tried to undermine many of the important principles of the act over the years.

I have not yet been convinced, in reading the briefs from our colleagues in Quebec, that the act would really force them to do anything differently than they are doing now.

I can understand the concern and I know that there were language issues. There seems to be a much greater fear of the use of a word like "accountability," for instance, as criteria for transfer to adult, than in English-speaking Canada.

I am not convinced at this point that there are provisions in this bill to force Quebec to implement a much tougher system, with the possible exception of presumptive transfers, which we oppose. At the same time, there are provisions in this bill that would encourage or require other parts of Canada to adopt some measures that are similar to those that are in place in Quebec or would be expanded to be consistent with those directions.

Ms Pate: I would agree with those comments. I will add that certainly an issue that has been raised from our membership in Quebec is that there may be a difference in terms of the treatment under the juvenile justice legislation, but in fact the number of young people who are institutionalized may not be significantly different. In some ways, it is consistent with what is being proposed in this legislation.

I would agree with Mr. Stewart that it is possible for Quebec to continue with what it has been doing. There may be some greater protections for young people in Quebec as well. Certainly, Quebec's reflex to spend more resources on other systems and other mechanisms for young people could be supported through this bill, except for the provisions that call for presumptive moves.

I believe the manner in which the system would interpret those provisions, which is an issue I raised at the beginning in terms of subjectively how they would be interpreted, would be more progressive in Quebec than in other areas.

Mr. Stewart: May I add that one of the other benefits of the bill is that it does provide significant funding to Quebec and all provinces for very intensive treatment initiatives under the intensive treatment programs.

That could do two things. First, those provisions could make it more difficult to transfer a young person to adult court in the first place. Second, I do not think we should underestimate the importance of having considerable new resources targeted toward those young people about whom we are most concerned.

Ms Pate: There is the caveat that in places outside the Province of Quebec we may see more young people criminalized and more seriously designated as criminal, in order to access those resources. That is the concern about ensuring that the cost-sharing agreement also includes resources for other parts of the system.

The Chairman: I remind everyone, including our witnesses, that we may well have a vote in the chamber this afternoon. The bells may begin to ring at five o'clock. It will be a half-hour bell. At that point, if we are not completed here with our questioning, we shall have to suspend the hearing and come back to you. It would be kind if we could let our witnesses go before then.

[Translation]

Senator Rivest: One of the concerns that was mentioned, for example, is about the new provisions in the bill. Some principles have been added, which, at first glance, may seem consistent. There is a great deal of legal uncertainty that could last for some time, because each of these principles will have to be tested by the courts.

In Quebec, in particular, people who work in this field had managed to establish an imperfect legal framework, but one that was clear enough to work. Since this bill starts over again at square one, although it may contain good intentions, they will be challenged by defence lawyers in appeal courts in all the provinces, in the Supreme Court, and so on. Do you see any problems with the way the legislation on young offenders is administered? There certainly are some. Do you think they are serious? Would it have been preferable to amend the Young Offenders Act to include the improvements contained in the bill, rather than starting over again, with an entirely new piece of legislation?

[English]

Ms Pate: That was our beginning position. It is clear there will be some new legislation. Our position at this stage is that it would have been nice to see the entire Young Offenders Act changed to reflect the most positive moves that are in Bill C-7. However, that is not where we are.

From our perspective, we could continue to make that point, but at this stage we are more interested in seeing progress directly in terms of the youth justice system and how young people are being dealt with. The areas that we argue could have been resolved in the Young Offenders Act, and there is definitely argument there, were not. Things were going in quite the opposite direction. Perhaps with a new start, those who are dealing with it will yield some better results in terms of being clearly focused on not first and foremost jettisoning young people into the system. That is our hope, certainly.

Mr. Stewart: I am not a lawyer, so I cannot comment with any great authority on the implications of the complexity of the bill and the likelihood of litigation arising from it. I think it is likely that there will be litigation. It is a complicated bill. It is 175 pages, and there is new terminology.

At the same time, if one wishes to set a new direction, it is difficult to do that using the same words, phrases and concepts that existed in the past legislation.

The important thrusts are clear in terms of principles and so on. You are quite right that there will be areas in this legislation that would need to be tested in the courts. I do not know how that could be entirely avoided.

Senator Joyal: I was struck by the story of the young women. What is most distressing, besides the harm that has been inflicted on those two young women, is the fact that one had an opportunity to have better access, because, as you said, she had a better lawyer.

As we know, the majority of young persons that find themselves in trouble with the law generally come from a poor milieu with a social and family background that puts them in the lower scale of income. Most of those people cannot afford well-trained and well-known lawyers with the ability needed to understand this bill. The concern that has been expressed repeatedly to us is that it is a very complex bill to read. As you have said yourself, even though you are not a lawyer, you can appreciate what will happen with the passage of clause 42 and its subclauses that cover nine pages.

How can we tackle that problem?I share your view that the bill is full of good intentions in many places. In practical terms, are we not sending back the deficiency of the objectives of this bill in the hands of the lawyers? As we know it, most of the lawyers who defend those young persons will be paid by Legal Aid. I am not saying that Legal Aid lawyers are not competent and helpful, but your own story shows that if you have a very good lawyer, you might end up profiting from everything that is good in the system. In practical terms, what are we doing in terms of real impact?

Ms Pate: To be clear, the young woman I was speaking about did have a Legal Aid lawyer. It happened to be a lawyer who had other resources at his disposal. I would not want to say that necessarily the other woman's lawyer was not doing his job or was not competent, but certainly he did not have the same resources available. This is a lawyer who then left the practice. He was at the end of his career. It was sort of a swan song as well.

The point is well taken. It goes back to a point that Mr. Stewart was asked to clarify.

If you wish to ensure that that does not happen focus on the principles that articulate that young people should be kept out of the youth justice system first and foremost, wherever possible. When they are in a situation where the only way to hold them accountable is perceived to be in the youth justice system, keep them out of custody, and absolutely at all costs keep them out of adult custody. Those are important steps.

Our other recommendation is that clauses such as 25(10) the ability to go after parents for legal costs, is struck. In the two situations we discussed, the lawyers, through legal aid certificates, represented both young women.

It is important reason to strike out that section or recommend that that clause be struck. Otherwise, you are more likely to see young people pressured. We already see young people pressured to plead guilty so that the parents do not have to take time off work. I am not intending this to be an attack on parents, but when you are talking about marginalized parents who are working minimal wage jobs and must miss two weeks or three days of work in order to be supportive of their children, it is not surprising that we are seeing increased numbers of those young people not having parents present or the parents pressuring them to enter a guilty plea to end it.

Senator Joyal: You mentioned Aboriginal people in Saskatchewan. I understand that you might be active in those provinces where there are large Aboriginal communities. Could you briefly describe the result of your experience in dealing with the condition of young Aboriginal women in comparison to other populations so that we have a perception of what the impact is on the Aboriginal people?

Ms Pate: I believe my numbers are correct. Of the nine young women who have been transferred from youth to adult court in Saskatchewan, all were Aboriginal. The numbers are relatively small admittedly.

Senator Cools: All?

Ms Pate: Sorry, three of the nine were young Aboriginal women from Saskatchewan who were transferred up. All of them were placed in segregated maximum-security units in the men's prisons in the Saskatchewan Penitentiary or in the regional psychiatric centre in Saskatoon. All of them have been kept in isolation for the majority of their time. Most of the young people who are transferred up racialized young women.

Senator Grafstein: What do you mean by "racialized" women?

Ms Pate: I mean they may be Aboriginal, Black or women of colour. They are not white youth. They also tend to come from provinces or areas where those individuals are over represented in the prison system already.

We know that Manitoba transfers the greatest number of young people and almost all of them are Aboriginal. In Saskatchewan jails, the greatest number of young people is Aboriginal. There is certainly an overrepresentation of young people in those areas. "K" was from Manitoba, and there are two women right now who are in the system who are young women from Saskatchewan, all three Aboriginal.

Senator Joyal: In terms of your experience with that community, how would you describe the means that they have in their community to try to support them? As I understand some of the objectives of the bill, alternative measures are very important. How can that concept be transferred to the Aboriginal reality?

Ms Pate: I certainly do not profess to have all the answers. Certainly, some of the things that have been recommended in some of the individual young women's case that we have worked with are to have resources allocated to shore up community supports. That is a point we have been stressing.

If these young women had resources in the first place, they would have been eviscerated. There are few resources there to ensure that there is adequate support mechanisms and adequate supervision that is required depending on the nature of the offence and the accountability required.

The primary need is to shore up those resources. If we have most of the resources ending up going into the custodial options, which is where the push is coming at the moment from the provinces, then we will see a continuation of the current trend.

Mr. Stewart: Today in Saskatchewan, a young male has a better chance of going to jail than graduating from public school.

Senator Grafstein: What are the statistics for that?

Senator Fraser: All young men?

Mr. Stewart: Aboriginal young men. The point is that is not a failure of the criminal justice system but a failure of the overall social environment for young people who are Aboriginal in that province.

The point that is being raised is a very good point. I would simply say that one of the things that I like about this proposed legislation is that it is trying to put it in a context beyond criminal justice. It is very important that we keep that in mind. You can do what you want with criminal justice legislation. It does not make an awful lot of difference to crime.

Senator Cools: Do you have a similar numbers for Black youth?

Ms Pate: The Cosby report in Alberta said that by the age of 30 years, 90 per cent of young Aboriginal men have a record whereas the number who would have a university degree is much lower.

Mr. Stewart: This is not a very good statistic, but I remember talking to a John Howard worker from Yellowknife who said that the Yellowknife detention centre had 265 inmates. Of those, 264 were Aboriginal. The one who was not Aboriginal was Black.

We have the study that David Cole did in Toronto. That was more concerning adults and systemic discrimination. There is no reason to believe that of the kinds of problems that we are seeing in terms of overrepresentation of visible minorities in prisons do not cover all visible minorities.

Senator Cools: The equivalent figure in the U.S. is that one in four Black men will go to prison. The representation is higher for Blacks.

Senator Grafstein: Do both of you agree that the provisions dealing with publication of names in this bill serves no useful purpose?

Ms Pate: That is right.

Senator Grafstein: It may be harmful both to the youth as well as to the families.

Ms Pate: Yes, that is correct.

Senator Grafstein: Do you consider that to be a constitutional question of unreasonable treatment of youth? Is that a constitutional question for you at all, or is that just a policy issue?

Ms Pate: It is both.

Senator Grafstein: Could you give me a sentence or two on the constitutional side.

Ms Pate: I am hoping that this case that just came out in Alberta will be challenged. Where we have seen those protections put in place, even when they have been violated, we have tended not to see them prosecuted. There is a need for that challenge.

There has not been such a challenge. The difficulty would be in getting resources to fund that kind of challenge.

Senator Grafstein: Constitutionally, you have had a concern with that provision as well.

Ms Pate: Yes, I do.

Senator Andreychuk: You had said that three of the women who had been raised to adult court from Saskatchewan were Aboriginal. Were all three from the one incident in North Battleford?

Ms Pate: One was from Manitoba and two were from Saskatchewan. I did say three from Saskatchewan. Two are from the North Battleford incident.

Senator Cools: Do you both agree that clause 25(10) should be deleted. Did you recommend that formally? I missed your presentation. Do you recommend that clause 25(10) be deleted.

Mr. Stewart: I would want it more than deleted. I would want a clause in the legislation that would prohibit it.

At present, my understanding is that under the bill there is no provision, but it is taking place in some provinces. This is allowing a practice that was already in place in some provinces. That has been something that has been done to accommodate those provinces.

I do not think that it is good in principle. I would prefer to see the reverse, legislation that does not allow provinces to sue parents for legal fees.

Ms Pate: I would agree with that.

Senator Cools: I raised a question about that clause last night, because it is even scripted in the most unusual way. It is not an enabling clause, but it is rather peculiar in that it is negative. Clause 25(10) states:

Nothing in this Act prevents the ...

You are asserting that this is already happening in certain provinces even though the authority may not be that clear. Do you have any idea of the dollar amounts that are involved? What amounts have been recovered?

Mr. Stewart: It is a very small amount.

Senator Cools: It would have to be very small. I would submit that it would take more resources to administer a program to do this than would even match the amount of dollars that would be recovered.

Mr. Stewart: Not only that, but I think that when it is used, it will be used in a very discriminatory way.

Senator Cools: This committee said that at some time it would look at a study of sentencing. The agreement, or the plea bargain, or whatever we want to call it, technique has become so enormous that many people are being pressured to plead guilty on the grounds that it is easier, simpler and less time consuming. Do you have any idea of the numbers of young people who are pleading guilty for the simple reason of administrative convenience?

Mr. Stewart: I am not aware of any data on that. I can differentiate from those who are truly guilty and just want to get on with things.

Senator Cools: In another field I do a significant amount of work with men in domestic abuse cases in marriages and divorces. Much of the time they are being counselled to plead guilty to get it over and done with.

Mr. Stewart: We see that quite frequently. There is no reason to think that young offenders would be immune from that process.

Senator Cools: If you were even to look at the fee schedules and the fee schemes that lawyers receive, you realize that it becomes very attractive to have a case disposed of quickly. There is no faster way to dispose of a case than with a guilty plea.

I was just curious if you have any numbers on that.

Ms Pate: I do not have numbers either. It is difficult to obtain such numbers unless you are actually studying the process specifically. I do not know of any studies like that, so it is not available.

The Chairman: It would be difficult to determine if they were actually guilty without having a trial.

Thank you.

The committee suspended at 5:12 p.m.

The committee resumed at 6:08 p.m.

The Chairman: We are resuming the meeting again on Bill C-7. We have before us Ms Danyluk, from the Federation of Canadian Municipalities; Mr. Trépanier, from the University of Montreal; and Mr. Schwartz, from the British Columbia Bar Association. Please proceed.

[Translation]

Ms Vera Danyluk, Chair, Standing Committee on Community Safety and Crime Prevention, Federation of Canadian Municipalities: Madam Chair, honourable senators, on behalf of the Federation of Canadian Municipalities, I would like to thank the members of your committee for agreeing to give us an opportunity to express our views on Bill C-7 on the youth justice system.

The Federation of Canadian Municipalities represents the interests of all municipalities as regards the federal government's policies and programs. The municipal governments that belong to the Federation of Canadian Municipalities represent over 20 million Canadians.

Bill C-7 meets a number of the concerns expressed previously by the FCM through resolutions and two briefs, presented in 1995 and 1996, on the Young Offenders Act.

[English]

FCM believes strongly that the principles governing the bill should consider both the protection of the public and the needs of the young person involved. FCM agrees that public safety is a paramount concern. However, communities in the global sense, have a responsibility to act for the benefit of all.

Municipal officials understand this challenge. The monetary cost of crime to municipalities explains the priority this issue is receiving in municipalities throughout Canada. Policing costs alone account for more than $3 billion annually a significant portion of most municipal budgets.

FCM is pleased that the proposed legislation purports to rely less on custody and to focus more on reintegration by requiring the last one-third of custodial disposition to be served in the community under supervision. Municipal officials acknowledge that most offenders eventually return to the same communities where the offence occurred. The rate of recidivism is influenced by the offender's support network as well as by opportunities for gradual reintegration into the community. Moreover, FCM supports the provision in the bill to provide more sentencing options, including community-based sentencing and restorative justice measures.

[Translation]

There are two principles that govern FCM's approach to crime prevention. The first is that municipal governments are the undisputed experts when it comes to identifying local crime problems and potential solutions. The second is that effective solutions require interagency co-operation and partnerships. Municipal governments are eager to participate in the planning and implementation of a new youth justice strategy, and have much to contribute.

To ensure the success of this new orientation, the federal government must ensure that the already strained local infrastructure is not unduly burdened by the new measures in the act. Some of the $206 million to be allocated to support policing and community-based programs and services must be available and accessible to municipal governments. Funds must be available for prevention, in-custody treatment and rehabilitation, community sentencing and additional police training.

The FCM is also concerned with the proposed implementation period of only four months. In order to allow municipal governments the opportunity to establish the extrajudicial measures provided for in this bill, a minimum of 12 months is required for preparation. Municipal preparations will need to include further police training. As well, municipalities will need more time to establish community-based programs to address the root causes of youth crime.

[English]

FCM supports many of the measures in the bill, including extrajudicial measures such as pilot projects and community-based programs; youth, 14 to 17 years of age convicted of serious crimes of violence should be subject to adult sentencing; and that the lieutenant governor of a province may by order fix an age greater than 14 years but not greater than 16 years for the purpose of the application of the bill for presumptive offences. This was a strong preoccupation for the Quebec members of the FCM standing committee on community, safety and crime prevention over which I preside. We also are in favour of the publication of names of youth convicted of a serious violent crime.

FCM understands that this would apply to youth sentenced as adults or to youth convicted of a presumptive offence but sentenced as a youth. We also support provisions that the presumptive offences should be simplified and clarified; more serious measures to deal with repeat offenders and the principle that the bill should not extend to children under 12 years of age.

FCM urges the federal government to encourage the provinces to impose victim fine surcharges and ensure that the recoveries are directed to victim's services. We support measures developed in consultation with Aboriginal people; and, finally the principles proposed in the preamble and declaration of principles, namely, the pursuit of a fair justice system and a system of justice that provides for a meaningful response by distinguishing between the majority of non-violent young offenders and violent offenders.

[Translation]

The FCM is also concerned with issues such as the custodial facilities, the admissibility of statements and restitution to victims. Section 76 of the proposed legislation states that the youth justice court should determine where a young person is placed when subject to a prison term. Provincial adult correctional facilities and penitentiaries are among the possibilities. The FCM strongly believes that youth sentenced as adults should never be incarcerated in adult facilities in order to reduce the risk of being exposed to adult criminals.

Regarding the admissibility of statements, clause 146(6) of the bill allows a judge to admit a statement even if there are technical irregularities if he or she is satisfied that this would not bring the administration of justice into disrepute. FCM members often complain that too many statements are discarded on a technical basis. Nevertheless, FCM strongly urges the federal government to ensure that the standards for admissibility of evidence be defined differently for a 12-year-old than for a 17-year-old.

[English]

In other respects, although FCM supports the principle that a youth convicted under the Youth Criminal Justice Act should make restitution to the victims, FCM feels strongly that this should not place an undue burden on the parents of the convicted young offender. FCM suggests that Bill C-7 should provide a means test to be considered before restitution could be ordered.

For the same reasons, FCM does not support civil recovery from parents for damages or losses arising from the criminal acts of their children. FCM understands that this is not within the purview of this bill. Nonetheless, it is FCM's view that holding parents accountable for restitution on behalf of young offenders is opposed to the goal of promoting the family unit and increasing parental involvement. Financial restitution or civil recoveries, especially for low-income families, can punish other siblings and thwart family support for young offenders.

[Translation]

In conclusion, FCM acknowledges that many of its concerns with the youth justice system are addressed in the proposed Youth Criminal Justice Act. FCM urges the federal government to consider some of the outstanding issues that are raised in this submission and which FCM believes also contribute to the protection of society and a fair justice system.

[English]

Mr. Richard Schwartz, Chair, Youth Justice Section, Canadian Bar Association of British Columbia: Honourable senators, I thank the committee for the opportunity to discuss this issue, which is of personal concern to me given my professional involvement and is also a significant issue for the country.

I am a lawyer in private practice in Victoria, B.C. I was called to the bar in 1980. I have more than 21 years of experience dealing with youth justice issues. I began my career prosecuting young offenders and adults. Since then, I have engaged in primarily a defence practice. I also continue to do prosecutions from time to time.

I am here today because I am the current Chair of the Youth Justice Section of the Canadian Bar Association of British Columbia. I want to be clear that I am not speaking as an authorized person, the Bar having vetted my comments. These comments that I make are mine to the extent that they are correct or that they are wrong; but they are my responsibility. To the extent they are disagreeable they are my responsibility.

My practice includes being specifically contracted to represent wards of the Director for Children and Family in Victoria Youth Court. The equivalent would be the Children's Aid Society in Ontario. I do not know the equivalents in other provinces.

I have also been involved in the community in a way that gives me some further insight into the workings of the youth justice system. I have been on the Board of Directors of an alternative high school and of the John Howard Society. I had the benefit of hearing Mr. Stewart earlier this afternoon. I know Mr. Stewart and he is one of the most credible people on this issue whom I have ever come across. He is a wealth of information, and I urge your careful consideration of his remarks, with which I almost entirely agree.

I have been on the Youth Programming Committee of the Minister of the Attorney General of British Columbia, the Victoria Family Court Committee, the Victoria Downtown Advisory Committee and the Victoria Advisory Planning Commission. I have developed a sense of how the youth criminal justice system works, from the perspective of the Crown, the defence, the families of accused young offenders, social agencies dealing with these issues, and the community at large.

Having told you something about myself, I will tell you about my youth clients. They come in all shapes, sizes, colours, religions and genders. They come from every part of town, from every income group, with different abilities or disabilities and from the highest IQ's to the slowest of learners. They may be ADHD, ADD, FAE, FAS, HEP-C, or HIV. They come from two-parent, one-parent and no-parent families. They have whole siblings, half siblings, foster siblings, street siblings or no siblings. They may have been used or abused in every possible way.

The ones who cause us the most concern are repeat violent offenders, usually male. These boys are often born damaged or have little chance of making it through their formative years in good shape. Fetal Alcohol Syndrome, FAS, is a common cause of the lower intelligence and uncontrollable impulsivity of this small group of repeat offenders. Also, extreme neglect and abuse can create similar effects by the early years. Parental substance abuse leading to poverty, violence and family disintegration also take their toll. Family disintegration, where the child perceives emotional abandonment by one or both parents, is especially effective at creating angry children.

I should just say it is almost without exception that is a factor with my clients. It is not always the case. Split families are not a consistent factor, but split families where a parent abandons, is.

Violent and frustrated step-parents who try to set things right in the home cause further problems in their children.

Parenting and dysfunctional families aside, some kids have their own mental health issues that make life difficult for themselves and for those around them. When those kids grow up and become parents, their offspring are disadvantaged and the cycle repeats itself.

It is a cliché that "criminals are made, not born," remains a useful principle to keep in mind, when drafting new legislation that attempts to address long-term solution to long-term problems.

My reading of Bill C-7 is that it is an attempt to deal more effectively with serious youth crime, but at the same time, to exercise greater restraint in the use of formal sanctions and punitive responses to young offenders, who are not serious risks to our communities. I agree with this approach. The criminal justice system, either adult or youth, should be reserved for serious matters. It is a waste of scarce resources, and it results in the diminishment of respect for formal sanctions, to utilize them when they are unnecessary.

A problem, however, with this bill is that it creates uncertainty where predictability is to be preferred. Uncertainty breeds litigation. As a responsible member of my own community, I regret the waste of resources and frustration inherent in the delays that uncertainty breeds. I should say that, when defence lawyers read this bill, they might read it with some relish, because there is much to be litigated.

There are positive changes with this bill. Bill C-7 has changed the law of raising youth to adult court. The Young Offenders Act, YOA, required the decision of whether to raise a youth to adult court and thereby obtain longer adult sentences to be made before trial. Pre-trial raise hearings had to rely on police reports and untested evidence. With Bill C-7, the raise decision is deferred to post-trial so that it is made only on the basis of proven facts, and that is a good change.

Furthermore, this bill clarifies and narrows the basis on which courts may order adult sentences for young offenders. Clause 72 clarifies the only reason that a youth should be sentenced as an adult is because the available youth sentence is not long enough to deal with all the circumstances of the case and the individual.

The bill mandates the restrained use of formal criminal justice resources. Part 1 creates a multi-layered regime of alternative measures that should be effective in filtering out from the system cases that do not need to be there. I am reminded of a point made at a conference on youth justice a few years ago. A person asked: who among us can say that between the ages of 12 and 17 that they did not commit an act of delinquency: a playground shove, a snowball at an unsuspecting target, a candy bar not paid for, initials scraped on a desk, an angry threat or a marijuana joint? Were we good or were we lucky?

I say, let the court system focus on what is important by providing less formal means of providing what is less serious and Bill C-7 does this.

I am told that Canada has one of the highest, or the indeed the highest rate of incarceration of young offenders in the world. Obviously, if this even approaches the truth, then we must carefully examine the landscape that underlies it and make the appropriate changes to ensure that only those youth who absolutely need to be in custody are in custody. This bill makes some promising changes in that direction.

The bill has a new declaration of principle in clause 3. It is a more humane statement compared to that of the YOA. It focuses on the rehabilitation of young offenders to achieve long-term protection of the public. The emphasis is reinforced in Part 4, which deals with sentencing. Unlike the YOA, Bill C-7 has its own statement of purposes and principles for sentencing.

Clause 38 (1) states:

The purpose of sentencing under section 42 is to hold a young person accountable for an offence through the imposition of just sanctions and that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

I have underlined in my paper, both the word "and" and the word "long-term." Those are significant words in the interpretation of that clause, because it will force judges to consider all of those factors together in determining a fit sentence.

For greater clarity, clause 38 provides further specific rules concerning when custody is a permissible sentence. Consequently, youth sentences now must do certain things: they must promote rehabilitation and reintegration into society; they must not be longer than and adult would receive in similar circumstances; they must be the least restrictive possible, given all the circumstances; and they must be the most likely sentence to rehabilitate the offender, given all of the circumstances. I find that particular phrase in the bill to be one that I look forward to using in arguments on behalf of my clients. The phrase "most likely sentence to rehabilitate," as a necessary part of a sentence, is going to be a very powerful tool in persuading judges to choose the less restrictive alternative.

Furthermore, custody is effectively eliminated from cases where the offence is non-violent and the offender has no record. All these measures improve on the YOA.

Equally important in reducing the overuse of custody is clause 29 of the bill that deals with judicial interim release or bail provisions for youths. In combination, clause 29 and clause 39 make it less likely that youth jails will continue to be used as substitutes for resources that should be provided by child welfare or mental health ministries.

Having said what is good from my perspective about the bill I do have a number of concerns. I am reminded, having heard the earlier witnesses, is clause 25(10). It is not in my material. It is the clause that deals with permitting provinces to recover costs from parents where the youth has availed them of a legal aid program in the province. That is a negative aspect of the bill.

It will have a chilling effect on youths using lawyers through the Legal Aid system. Parents will, I expect, be informed of that provision when their child applies for services through a legal aid application and that might result in families making a decision that is really not in the best interests of the youth. I share that concern about clause 25(10)

Bill C-7 does declare in the statement of principle that the system must emphasize timely intervention, promptness and the speed with which persons responsible for enforcing the act must act given the young person's perception of time.

In other words, the bill says that it is very important for there to be as short a period of time as possible between the offence and the sentence, if there is to be a sentence, or the offence and the trial and acquittal, if there is to be an acquittal. Thus, all the provisions in this bill should go to support that.

I find, however, that there are some real problems that will act against that. I am concerned with subclause 2(1):

"serious violent offence" means an offence in the commis sion of which a young person causes or attempts to cause serious bodily harm.

That definition refers directly to the definition of serious bodily harm. What is serious bodily harm? There is no litigated definition on that yet. I fear that from court to court, judge to judge, province to province, we will end up with some differing results and that would be unfortunate.

What is an attempt to cause serious bodily harm? One can speculate about different scenarios that might or might not be an attempt to cause serious bodily harm. That sort of vagueness in legislation, in my view, does not help the prompt or efficient resolution of cases in youth court.

What is a violent offence? Clause 39 uses the phrase "violent offence." If you are looking in the dictionary under the definition of violent, you find a definition that is broad enough to park many different acts that come before the youth court.

Does subclause 38(2)(a) really intend that every youth sentencing incorporate reference to the equivalent adult sentencing? If it does, that is interesting. If not, this will be a clause that will be seriously argued in youth court.

It appears to create a two-tiered sentencing procedure where you determine what the youth sentence might be and then you must determine what the adult sentence in the same circumstances might be. You then must ensure that the youth sentence is no more than the adult sentence would have been. That is not a provision that leads to the quick resolution of matters in youth court.

Paragraph 39(1)(c) uses the phrase "pattern of findings." I am told that phrase may have been litigated already in the dangerous offender legislation. I did not know that. In any event, it is certainly a vague phrase, and there will be a period of time before the meaning becomes clear.

A serious issue I have is with the sentencing choice of reprimands. Right now, among other sentences, we have under the YOA and we will have under Bill C-7, the choice of absolute discharge. What is the difference between an absolute discharge and a reprimand? Why should I take up valuable court time arguing on behalf of my client that my client should get a reprimand rather than an absolute discharge? It is not clear to me which is better. It is not clear what a reprimand will mean in future for a person who is convicted and then reprimanded. The bill does not make clear whether that is a disposition that will be considered a formal youth court disposition for future proceedings.

Those are examples of my concerns. If these clauses are left as they are, they will encourage inconsistency across the country, unpredictability in the court process and the wasting the scarce judicial resources.

My hope is that the transition will be smooth and that the bill will accomplish its goals. Of crucial importance to accomplishing these goals will be that those aspects of the system that require enhanced funding will find it.

Intensive rehabilitation costs more than the alternative. Intensive support and supervision costs more than the alternative. Conferencing will absorb scarce resources. Requiring every custody sentence to incorporate conditional release will require more resources.

The success of Bill C-7 will depend on the full implementation of the innovations contained within it. I hope that the federal government can commit the requisite funds to ensure all provinces have the ability to implement this bill.

In British Columbia, the provincial government has indicated its intention to severely reduce the budgets of the ministries directly responsible for youth corrections and the administration of justice.

I can tell you that we already have youth languishing in custody who are on waiting lists for rehabilitation programs that they would otherwise be released to if funding were available.

I thank you for your time and the opportunity to address this very important topic.

Senator Fraser: I wish to congratulate Ms Danyluk on her award.

[Translation]

Mr. Jean Trépanier, Professor, University of Montreal: I have been working in the youth justice system for 35 years. I have seen a number of changes over that time. The proposed changes, particularly those proposed since the amendments to the act in 1995, are part of a trend that I cannot support.

I expressed some very serious reservations about the bill to the House of Commons committee. The Minister of Justice has already made a number of amendments. Unfortunately, these amendments do not ease my reservations, and I regret that very much.

The main point is that there is no cause for alarm as regards the youth crime rate. According to Statistics Canada, there has been a reduction in youth crime since 1992, and in violent crime since 1995. The homicide rate has been see-sawing up and down for 30 years, so there is no reason to think that it is particularly urgent to amend the bill.

I agree fully with some of the objectives set out by the Minister of Justice, particularly the attempt to reduce the number of young people referred to the courts, and the attempt to reduce the use of custody, particularly short-term custody. However, is it necessary to change the whole act in order to achieve these objectives? When we look at the number of young people before the courts and the custody rate in the various provinces, we see that the figures for Quebec are much below those of all the other provinces, even with the Young Offenders Act.

Our conclusion is that it is important to set up proper programs that prevent too many young people from being referred to the courts and placed in custody. Even though we are changing the act, we will not solve the problem if we do not offer judges alternatives to custody or make it more difficult for youths to be placed in custody. We must have the resources to offer them so that they have an alternative to custody, and, at the same time, we must establish proper alternative measures. This is something that not all the provinces have done. Some provinces have been very reluctant to do so, which means that they refer far too many young people to the courts. These objectives can be achieved under the current act.

In addition, some of the points in the bill head in a direction that I cannot support. I will mention only a few of them. There are of course the presumptive adult sentences. The amendments made to the act in 1995 introduced presumptive transfers to adult courts for 16 and 17-year-olds charged with very serious offences.

That had not existed formerly. Transfers were possible, but the need to transfer a young person had to be proven by the Crown, which had the burden of proof. Then presumptive transfers were introduced. I objected to them at the time, and my views have not changed. It is not that I am opposed to ever transferring young people to the adult system. Unfortunately, we have to admit that the youth system has failed some young people. I am thinking, for example, of young people who have been back before the courts over and over again on a variety of offences. These are young people, who despite the time they spent in custody, have not only not agreed to be part of a rehabilitation program, but in addition, through their behaviour, have been an obstacle to the rehabilitation of other young people in their groups. Unfortunately, in these cases, we have to admit failure and transfer the young person to the adult system.

However, the criterion used in the case of presumptive transfers - that is the seriousness of the offence - is in my view a poor criterion for determining which cases should be referred to adult court. What is much more important is the situation of the young people as a whole, and their reaction to the various measures imposed on them. Thus, when presumptive transfers are used, there should be simple criteria, such as the offence. However, the offence is a poor criterion, which means that the presumptive transfer mechanism is inadequate, in my opinion.

I would like to add this: extending presumptive transfers to young peopled aged 14 and 15 beyond the technical aspects of the presumptive transfer, sends out a very important message. It means that Parliament thinks that the normal sentence for a 14-year-old found guilty of very serious offences is an adult sentence. I could never support such a procedure. As a civilized country, we should not be resorting to such measures.

A week and a half ago, I took part in a work seminar at Cambridge University in England, at which there were other colleagues from North America and Europe. It was striking to see our European colleagues ask why North Americans talk about transferring young people to the adult system. They are not familiar with that in their countries and the justice system works very well! Presumptive transfers merely exacerbate the problem.

Beyond the issue of presumptive transfers, which affects only a very few young people, I would add that if we look at the way in which the youth justice system usually works, the changes proposed in the bill unfortunately make the youth justice system rather similar to the adult justice system in a number of respects. I cannot support some of these changes.

We have to look at the convergence of some of the points. First of all, there is the principle of proportionality, which completely predominates in the decisions about the measures to be taken. When we look at subclause 38(2)(d), which begins with the words "subject to paragraph (c)" we see that the principle of proportionality takes precedence over certain objectives, such as the objectives of rehabilitating and reintegrating the young person.

This bill defines the principle of proportionality along the lines it has been traditionally defined in criminal law, that is that the sentence must be proportional to the seriousness of the offence and the responsibility of the young person. When we look at various UN instruments, such as section 40 of the Convention on the Rights of the Child and section 17 of the Beijing Rules, the principle of proportionality is defined very differently, rather than being focused solely on the seriousness of offence and the responsibility of the young person. It consists of three elements: the seriousness of the offence, but also the needs of the young person and the needs of society.

Thus, the way in which the bill defines the principle of proportionality is very different from the way in which the same principle is defined in various UN documents. I would draw committee members' attention to this point.

I would add that I am concerned about another provision in the bill. It shows to what extent the principle of rehabilitating young people does not seem to be enshrined in specific provisions of the bill. I would draw committee members' attention to the rule according to which, when a custody and supervision order is issued, the young person must automatically leave the rehabilitation centre after two-thirds of the time has been served. There will no longer be any question as to whether or not the young person is ready to leave the centre. There will no longer be any question as to whether the rehabilitation program has prepared the young person to leave at that time. Young people will be told: "Two-thirds of the time is up, so you are out. Whether you are ready or not, you are leaving."

If the bill had really been designed with rehabilitation in mind, as of a certain time, which could be after two-thirds of the time, the question would be asked whether the time had come to reintegrate the young person into the community so as to ensure a gradual, harmonious social reintegration. The measures must be geared to individual cases. Introducing automatic provisions such as those in the adult system is a step in the wrong direction in my view.

I would also like to draw committee members' attention to another provision. It is the one where the judge, at the time of sentencing, must take into account the time spent by the young person in temporary detention. This is done in the adult system, which is essentially punitive in nature. This is understandable in a punitive system.

Let us take a specific example to see the perverse effects, probably undesired effects, that could happen as a result of the enforcement of the bill. In taking into account the time spent in temporary detention, it is very possible that judges could apply the same rule they apply for adults. They may not do that, but they might. In the case of Quebec, the Quebec Court of Appeal has established a guideline, which I will call the two-for-one guideline. That means that for every day spent in temporary detention, the convicted person is given a credit of two days in prison.

Let us take a concrete example in which the judge would say to the young person: "You have been found guilty of such and such an offence. Depending on the seriousness of the offence, I can sentence you to custody up to six months. I have here a pre-sentence report which states that, in light of your situation, a minimum of six months inside, in custody, is necessary to begin a valid rehabilitation process." Under the current system, the young person goes into custody for six months, and if the people at the centre feel that the young person can leave before that time, they go back before the judge and ask that the young person be released early. What will happen if the bill is passed? It is very possible that the young person has spent time in temporary detention, and if we include the time taken to write the pre-sentence report, for example, and if we include as well the time required for the trial, it would not be unusual at all for a young person to have spent two months in temporary detention. For the same case, if the judge applies the same standard as for adults, he or she would say: "I can impose a sentence of six months' custody and supervision. Now I have to reduce that by four months, because two have been served in temporary detention." That means that there are only two months left and of these two months, one-third must be eliminated, so the young person would only spend one and a third months in detention.

I think the result of this will be that it will become impossible to provide rehabilitation within the facility. I would like to make it clear that I am not in favour of locking young people up. I think custody must be used very sparingly, but there are cases where this option must be considered. I would add that if judges apply the two-for-one rule to temporary detention, the danger is that defence lawyers will not object to the temporary detention of their clients at the time of the bail hearing during the proceedings. Some defence lawyers have told me that this will be their approach if the bill is passed. They will tell their clients: "It is very likely that you will be placed in custody, you know, so you may as well start accumulating some credits, because every day you spend in temporary detention will mean two fewer days in custody." This means that there could be an increase in temporary detention and a reduction in the time spent in custody.

I would like to remind committee members that at the time of temporary detention, the young persons are still considered innocent and they consider themselves innocent as well, because their guilt has not yet been proven. Rehabilitation programs cannot be undertaken at this point. So this perverse effect of the bill is very likely to undermine rehabilitation efforts significantly. I would find that extremely unfortunate.

I will not dwell on the complexity of the bill. One need only read it to see how complex it is. Young people will have even less ownership of their case. The lawyers will be in charge in the courts even more than they are at the moment at a time when access to lawyers may become more difficult, specifically because the parents may have to pay at least some of the legal aid costs.

In closing, I would like to say that there are genuine problems in the youth justice system. This was demonstrated clearly in Quebec in the Jasmin report, and these problems have to do much more with the way in which the act is administered than with the act itself. I am thinking, for example, of what we found in our research on three Quebec cities: Montreal, Joliette and Valleyfield. We found that parents were absent from court hearings in 50 per cent of the cases, and that when one of the parents was present, it was the mother. Both parents were present in only 10 per cent of the cases. The presence or absence of the parents is a very real problem, but it is a problem related to the administration of justice. The Jasmin Report showed very clearly to what extent the issue was the attitude of the people involved much more than the act itself.

I would also like to discuss time periods. We have found that the average time between the day on which the offence was committed and the day on which the judge imposed a sentence, in cases brought before the courts, was five months in Joliette, six months in Montreal and nine months in Valleyfield. What possible meaning can a sentence have for a young person nine months after the commission of the offence? The young person has had plenty of time to rationalize what was done, to concoct a story, so that when the judge imposes the sentence, the young person has trouble making the connection between the offence and the sentence. In some cases, the young person will be thinking: "Judge, you are talking to me about an offence I committed nine months ago. If you only knew how many I have committed since then." These delays are such that the link between the offence and the sentence is destroyed.

Fortunately, a bit of an effort was made in one of the amendments to Bill C-7, in clause three or four, but it seems very inadequate to me. These are problems with the administration of justice. Let me conclude on these two examples, the presence of parents and the delays, to point out the fact that the main problems seem related to the administration of the law. Unfortunately, these problems will not change if the law is changed.

Senator Beaudoin: My first question is for Ms Danyluk. If this bill were to be passed as it is, do you think that it will be possible for Quebec to continue working with the current system?

Ms Danyluk: Before answering, let me explain my situation. I represent the Montreal Urban Community, which has the biggest police force in Quebec. In Quebec, there is strong opposition between the Minister of Justice and the Minister of Public Security regarding this bill. This evening, I am speaking on behalf of the Federation of Canadian Municipalities. I chair a committee of the Federation of Canadian Municipalities composed of elected politicians representing the province of Quebec as well as municipalities across Canada. On this standing committee of the FCM, everyone agrees with this bill, but with some reservations. Mr. Schwartz and Mr. Trépanier also spoke about their reservations.

To come back to your question, I am convinced that in Quebec we will be able to integrate our former practices with the ones in the bill. This would change very little in our way of dealing with youth. First, the act contains some uncertainties, but police officers will be able to find other options for youth. This would soften the treatment somewhat through diversion.

[English]

The Chairman: Ms Danyluk, I apologize for interrupting. I have just been informed that we should adjourn for the vote. We will return as soon as we possibly can.

Senator Grafstein: Can we continue in your absence?

The Chairman: We have been asked to suspend the committee.

Senator Beaudoin: The problem is that we may sit if we have quorum, but apparently, if no one from the other party is here, we cannot sit. It is not mandatory, but it is common practice.

Senator Grafstein: Madam Chair, I am familiar with the vote. It is a procedural issue, in my view. It makes me comfortable staying here, as opposed to going there.

Senator Beaudoin: I was very surprised. The government was divided and the opposition voted with the group.

The Chairman: We have five minutes, and I have suspended the meeting.

The committee suspended at 7:05 p.m.

The committee resumed.

The Chairman: Honourable senators, a vote has been completed and we are back, with my profound apologies for leaving you in mid-sentence. Senator Beaudoin will continue with his questioning.

[Translation]

Senator Beaudoin: You told me, Ms Danyluk, that if the bill were to pass as it is, Quebec could carry on with its preferred system?

Ms Danyluk: I am convinced that the answer is yes. Mr. Trépanier will certainly answer no.

Senator Beaudoin: So, basically, your answer is yes.

Ms Danyluk: Yes, basically, with a few minor concerns. We must ensure, because of new elements in the act, that we have sufficient time to train policemen who will now have to make choices. As Mr. Schwartz mentioned, some elements in the act are ambiguous, and they should be clarified and specified because they are not clear. We have no clear definition of the way we should deal with statements by youth aged 12 to 16, which are different from those made by young persons aged 16 to 17. Generally, Quebec will ahve no problem with applying this act. However, everyone agrees that the big problem in the young offenders system is the lack of resources to offer adequate services for youth. In this act, as in the previous one, nothing has been changed in the services offered to youth, and this is unfortunate.

Senator Beaudoin: This question was also addressed to you, Mr. Trépanier.

Mr. Trépanier: My concern is not only with Quebec, but with Canada as a whole. It is quite true that for certain provisions, such as the one, extending the presumption of adult sentences to youth aged 14 and 15, one of the amendments to the bill aims to allow a province which does not want to apply this presumption to avoid it. I hope that, for Quebec, the government will choose not to apply this presumption, so that on this very specific point, nothing would change. However, I think that it would be deplorable for this change to be implemented in the rest of Canada, because it seems to me to be a bad policy. That being said, I am not saying that everything will change with this bill. Some things will continue to be done, and of course, everything will not change.

However, let me go back over part of the presentation I made a few moments ago, when you had to leave for the vote. I tried to show, with an example, the undesirable effects that will likely result from the combined impact of various factors like, for instance, the use of the principle of proportionality, that takes precedence over everything else. There is also the fact that the last third of the custody and supervision measures must always be done outside, without considering whether the youth is ready to be released or not. This would be essential, if rehabilitation is to be acted on as an objective. It is not enough to mention this objective in the beginning of the bill. The body of the bill must also contain the means for attaining it. Introducing automatic release, like in the adult system, where after two thirds of the sentence has been served, there is automatic release without investigating whether the individual is ready to be released or not, seems to be contrary to the objective of rehabilitation. There will be a very real change. If the judges apply the rule established by the Quebec Court of Appeal regarding the factor of temporary detention of adults, judges must set the length of the prison term by deducting twice the time spent in temporary detention from the sentence.

The bill mentions that when setting sentences for youth, judges must factor in the time spent in temporary detention. I gave an example where a judge, given the seriousness of the offence, said that he could justify six months of custody. In the current system, he could sentence a youth to six months in custody, and a pre-sentence report would show that six months in custody were needed for rehabilitation purposes. The judge could impose a six-month custody sentence, and youth workers could ask the judge to change the sentence later if the young person was ready to be released earlier. If we apply the bill, if the youth has spent two months in temporary detention - which is not unusual - the judge would sentence him to six months of custody and supervision, minus two times two months because of the temporary detention, which leaves two months, the last third of which will be spent outside in the community.

So the youth will spend the remaining one and a third months inside. Young people will not arrive with the intention of getting rehabilitated, but with the sole idea of serving their sentence, as is the case for adults. This reduces our ability to use the network of halfway houses to really rehabilitate these individuals. I certainly do not want to suggest that custody is the only way to rehabilitate people. We should try, as much as possible, to keep the individual out in society with a strict minimum of internment. This is currently being done in Quebec, and it is the Canadian province with by far the lowest number of young people in custody.

We must encourage these measures, but we must recognize that there are youths who have to be kept in custody. If we want to rehabilitate these youths, we have to have a minimum amount of time.

Senator Beaudoin: Is that possible?

Mr. Trépanier: Yes. However, the bill might have an adverse effect that may make this much more difficult. If the judges apply the rule that time spent in temporary detention counts double, defence lawyers might well advise their clients, at the bail hearing, not to object to temporary detention, thus taking advantage of double time. Situations might come up where the time spent in temporary detention is increased to the detriment of the time spent in custody. During the time spent in temporary detention, on account of the presumption of innocence and considering the youth's attitude while he has not yet been found guilty, we cannot apply any rehabilitation programs. This is time that cannot be used for rehabilitation and this unproductive time might even increase at the expense of the time that could be usefully served in custody.

[English]

Senator Fraser: Madam Chair, in deference to the late hour and to what I know are other demands on our witnesses' time, I will pass on my question.

Senator Grafstein: Mr. Schwartz, you agreed in your testimony with Mr. Stewart that the provision of giving the Governor General in Council the power to reduce the age from 16 years to 14 years is not desirable.

Mr. Schwartz: I think that it is not desirable and to revert to the other question, it is questionable.

Senator Grafstein: Unconstitutional, in your view?

Mr. Schwartz: It may be unconstitutional.

Senator Grafstein: You have a concern with respect to publication questions. That was one of his clear points.

Mr. Schwartz: I share his concerns, however, it is not as big a point for me as for others.

Senator Grafstein: I would like to deal with the Federation of Canadian Municipalities presentation. I am interested in your analysis of costs. Have you done an analysis on behalf of the federation of what it cost to incarcerate a youth on an annual basis?

Ms Danyluk: We have all of the statistics that were prepared. I should have brought them with me. We know that the costs of incarcerating youth are very high.

Senator Grafstein: What would you think that they are on an annual basis?

Ms Danyluk: I do not know if Ms Hanley has it with her, but we have the costs. This is why in our brief we do say that we, first of all do not agree with incarceration of young people in adult places of imprisonment or incarceration. The FCM does recognize that the resources that are attributed to either centres of help for young people or services for the help of young people are insufficient. That is why I said earlier that the law is one thing but, in terms of the resources we recognize that there are shortcomings.

Senator Grafstein: One or two of the witnesses suggested that there should be a reallocation of intention. One number that was mentioned is that it costs $45,000 a year.

Ms Danyluk: I think it is more than that.

Senator Grafstein: Let us take that as a base number for the cost of incarceration as opposed to a much lower number if a person is being served through alternate or extrajudicial means. Has your group looked at those questions and come to a conclusion that it would be much more desirable to deal with non-incarceration?

Ms Danyluk: Definitely. That is why in our brief we say that we are for alternative methods of dealing with young people who come into contact with the law. We are in favour of restorative justice. Many of our municipalities already have partnership projects where they work on restorative justice and alternative methods.

Also, it is timely in a way that this legislation, with the weaknesses it may have in it, comes at a time when the federal government through the National Centre for Crime Prevention, has increased the amount of money that is given out through the national strategy that allows municipalities and partnerships with the judicial system and others to finance projects that will support restorative justice and alternative methods.

Senator Grafstein: I understand, but I am confused by your brief. On one hand you do clearly say that you believe youth should never be incarcerated in adult facilities. On the other hand, your second recommendation is that:

Youth 14 to 17 years of age convicted of serious crimes of violence should be subject to adult sentencing.

Are you saying adult sentencing, but not in an adult facility?

Ms Danyluk: On that issue, that is exactly what we mean. We say that there must be another way of dealing with these young people. We do not want to see them incarcerated in places where they are next to adult criminals.

Senator Grafstein: You say that you should not extend the bill to children under 12 years old. Why not extend it to 10 years of age. Why did you pick 12 years of age?

Ms Danyluk: As I said in the beginning of my comments, you must understand that I am speaking on behalf of municipalities across Canada. I have members on our standing committee. We have members from Quebec who are saying that we are opposed to a great deal of what is in the bill. We have members from other provinces across Canada who want more severity in the bill. At the end, those who want more severity and the ones who want less agreed, that they do not want the law to touch young people that are under 12 years of age.

There was consensus around the table at the Federation of Canadian Municipalities because we recognize that we have members from Quebec. There was consensus on the issue because of the fact that we said there was enough flexibility in the law to allow Quebec to continue doing what it is doing so that Quebec was not caught in a bind on that issue. That is why I said that there were certain issues that were a compromise to ensure that we had consensus from all our municipalities.

[Translation]

Senator Joyal: Mr. Trépanier, you mentioned in your presentation that you have worked in the field of youth justice for over 35 years. You referred to article 40 of the Convention on the Rights of the Child as well as article 17 of the Beijing Rules. You are aware of the international instruments for protecting children's rights.

Mr. Trépanier: I know something about them, especially as I was invited, with Mr. Willie McCarney, who is a children's judge in Belfast in Northern Ireland, to draft a chapter of a training guide for judges and lawyers. The guide will eventually be published by the Office of the United Nations High Commissioner for Human Rights in Geneva. We were invited to draft the chapter on children's rights in these United Nations documents.

Senator Joyal: Does this specifically deal with youth justice?

Mr. Trépanier: This is exactly what we worked on. The chapter we handed in in 1997 has not been published yet. Sometimes, some organizations concerned with the rights of youth involved with the justice system may take quite a while to publish things.

Senator Joyal: We heard testimony from at least 60 groups of witnesses from different backgrounds. Some of these people questioned whether this bill was compatible with the basic elements in international instruments for protecting the rights of children and adolescents.

In your analysis of this bill, what would you say are the elements that might run counter to the objectives or goals set by the international instruments we just mentioned?

Mr. Trépanier: I have not studied the matter exhaustively, I must say. However, one point strikes me in particular, regarding the definition of the principle of proportionality, which is absolutely central to this bill. Clause 38(2)(d), states that the principle of proportionality overrides other principles, like the principle of promoting the young's person rehabilitation and reintegration into society.

In the bill, the principle of proportionality is defined in the same way as it is defined in traditional criminal law, where a sentence must be proportional to the seriousness of the offence and the degree of responsibility of the offender.

In the instruments of the United Nations, the principle of proportionality has a very different definition. They state that measures imposed on youth must be proportional to the seriousness of the offence, the needs of the youth, as well as the needs of society.

This means that the seriousness of the offence does not override the needs of the youth according to the UN instruments, whereas in the bill, the seriousness of the offence overrides the needs of the youth. It seems like a very substantial divergence to me.

In this respect, I think that the Young Offenders Act, which does not establish the paramountcy of the principle of proportionality, seems to me much more in keeping with what we find in international instruments. This does not mean that we should not invoke the principle of proportionality under the Young Offenders Act. The Supreme Court in fact said this very clearly in the M. (J.J.) decision, where Justice Cory stated that when applying the Young Offenders Act, the principle of proportionality must be used, but not to the same degree as in the adult system.

Senator Joyal: Regarding the issue of publishing names in the Beijing Rules, some witnesses have interpreted this as meaning that the names of youths must not be published. Do you have a problem with this?

Mr. Trépanier: I am afraid so, inasmuch as the bill provides that youths subjected to what the bill calls specific sentences - which means sentences for minors - will have their identity disclosed, if they are sentenced for a specific offence.

This does seem to pose a problem. In many cases, these measures will be imposed on youths when there is a presumption of adult sentencing. The possibility of publishing names in such cases is, in fact, contrary to the spirit of these rules.

The Convention on the Rights of the Child, as well as the Beijing Rules, that clarify, to some extent, the contents of the Convention on the administration of juvenile justice, as a whole are very much focused on the interests of the young person, but these interests are balanced by the interest of society.

In general, I think that the spirit of these UN instruments is much closer to the general spirit of the Young Offenders Act than to the bill, which is closer to traditional criminal law.

I do not mean that the bill generally goes against the rules in the UN instruments. However, the overall orientation of the bill seems to be less in keeping with the UN instruments than that of the Young Offenders Act.

[English]

Senator Andreychuk: I want to ask Ms Danyluk from the Federation of Canadian Municipalities a question. Ms Danyluk, your brief is on behalf of all of Canada, and you have spoken specifically about Quebec. Is this feeling prevalent in all of your municipalities? To what extent are you doing the cost benefit analysis? In some areas, the police are a provincial responsibility and in some areas they are a municipal responsibility. In some provinces, the required resources are provincial and are delivered by the province. In some areas they are provincial resources, but they could be delegated to the municipality. It is difficult to get a handle on the costs of young offenders.

When you say you have cost analysis, can you provide that to us? Does it show how each province works?

Ms Danyluk: In the brief that we have presented the cost of policing represents all levels of policing. In municipalities where policing is provided by, let us say the RCMP, the cost is in total, whether it is the RCMP, the provincial police or the local police. In terms of analysis, we receive statistics on the cost of incarceration of young people from all levels of government. We put that information together for the benefit of the FCM. When I say I am speaking on behalf of the FCM, obviously, the municipalities are members of FCM. They represent 20 million people in Canada. They are all the elected people from all of these municipalities who come together on standing committees to establish the position of the municipalities. That is the reason why on some questions concerning the age level of treating young people or referring young people to the adult courts, you have a great disparity between parts of Western Canada, Quebec and Eastern Canada.

You have here a representation of a cross-section of all of Canada and how municipally elected officials feel about this bill. In general, they are supportive of the bill, but with certain preoccupations. These preoccupations include the time necessary to form and train police officers and elements where there is discretion given to a judge on using declarations of young people. There is a preoccupation of possible abuse of this discretionary power on the part of the judge.

There are several areas where more clarity needed. As Mr. Schwartz said earlier, we feel that there are some places where there is uncertainty in the bill when we talk about the different presumptive offences. Define them better. Also, make a difference within the law.

If you are lowering the age for young people to be sent or to be treated as adults, at least let us clarify if there is a difference on how you treat the younger ones in a certain situation as adults and the older ones. I do not think that you can have an across the board way of treating young people who are 14 years old and the ones who are 17 years old. That is what Canadian municipalities think.

The Chairman: I thank the witnesses for being so patient with us when we interrupted you. You have made very good presentations to us.

We will now hear the next witness who is our last witness for the evening.

I would remind honourable senators that the meeting is still in session.

We have before us the Honourable David Young, Attorney General and Minister Responsible for Native Affairs, Ontario.

The Honourable David Young, Attorney General and Minister Responsible for Native Affairs (Ontario): Honourable senators, because of scheduling difficulties this evening is somewhat upside down. I do have a commitment that would be difficult to rearrange at this late hour. I wonder if we might work within a schedule that would allow me to leave at about 8:35 p.m.

The Chairman: I believe that you have a plane to catch.

Mr. Young: I have a plane and an interview with someone who has been waiting downstairs for some time.

I would like to begin by thanking you all for providing me with the opportunity to address this committee. I am here to talk about an issue that is of great importance to the people of Ontario and, undoubtedly, of great importance to the residents of this great country.

The increasing violence among our youth is a problem in neighbourhoods and communities. We believe in Ontario that it is a problem that requires an aggressive national response.

We are deeply concerned that Bill C-7, the federal government's proposed Youth Criminal Justice Act, will not do nearly enough to address this very serious problem. I expressed my gratitude a moment ago. I say to you that I am particularly grateful because I have not had a prior opportunity to speak in Ottawa about this issue. As you may well know, I asked for an opportunity to address the Justice and Human Rights Committee of the House. I will not dwell on it, but the silence was deafening and the rejection was quite emphatic. That was the same experience that my colleagues from Queen's Park received.

The Chairman: Mr. Young, we need not dwell on that because we did hear from them last night. We pointed out to them that the Senate is different than the House of Commons.

Mr. Young: I am pleased to be here. I was set to move on, and I shall do so right now.

I am hopeful, though, that this opportunity that we have will allow for some rather major changes to be made to the proposed legislation before Royal Assent is granted.

Honourable senators, the people of Ontario want to feel safe in their homes. They want to feel safe in their communities. They want to feel safe from violent youth crime. For this to happen, we need meaningful laws that will protect the public and hold young offenders accountable for their crimes.

For the past two decades, the federal government in our respectful submission, has failed to provide effective youth crime legislation first, with the Young Offenders Act and now, with a seriously flawed replacement bill, Bill C-7.

Headlines tell us about youth gangs, teenagers viciously attacking other teenagers and students bringing weapons into their schools. Recent statistics from Statistics Canada paint the same very troubling picture. The Statistics Canada study to which I just referred found the number of youth charged with a violent offence last year increased by 7 per cent. It also found that the number of youth charged with sexual assault last year rose by a staggering 18 per cent.

In a most troubling trend that certainly spans far more than one calendar year, we have found that violence among female youth has jumped a dramatic 81 per cent between 1989-99. This is not the society that we want for ourselves, and it is not the society that we want for our children.

Madam Chair, I am not here to simply complain about federal legislation. That does not fulfil the wishes of a particular province. I am prepared to do much more than that. I am here to offer solutions.

Ontario has put forward concrete proposals, constructive proposals, I believe, that would tighten up the proposed Bill C-7. Our government believes that is we owe it to victims, and we believe that we owe it to their families to do everything in our power to combat violent crime. That is why we drafted the no more free ride young offenders act that contains 100 serious and constructive amendments to improve Bill C-7.

Ontario's proposed amendments would result in "adult time for adult crime," mandatory jail time for weapons offences and public notification of violent young offenders.

Let me first, if I may, deal with the issue of adult time for adult crime. Under the proposed Bill C-7, there would be no automatic adult sentences no matter how serious the offence. Under Ontario's proposed amendments, all 16 year-olds and 17 year-olds charged with a serious offence - offences that include murder, attempted murder, and manslaughter - would automatically be tried and sentenced as adults.

Fourteen and 15 year-olds charged with serious offences would also be sentenced as adults unless it could be demonstrated that the offender should be sentenced as a young person. We set out criteria in our proposed amendments.

Our amendments would also mean that adult parole provisions would apply to young offenders who have received an adult sentence for murder. Under Bill C-7, that is not the case.

A young person sentenced as an adult for murder is subject to a more lenient parole eligibility period than adults.

Under Ontario's proposed amendments, judges would be able to impose tougher sentences for violent young offenders. In particular, if the amendments we put forward are adopted it will mean mandatory jail time for weapons offences. Any young person found guilty of an offence involving the use or attempted use of a weapon would have to serve at least six months in custody. Under the proposed Youth Criminal Justice Act, there are no mandatory minimum sentences for youth convicted of weapons offences.

Bill C-7 also fails to include a minimum youth sentence for murder. Ontario's amendments would create a mandatory non-discretional sentence for 12 year-olds to 15 year-olds who receive a youth sentence for murder. The mandatory youth sentence for first-degree murder would be ten years. They would serve six years in custody and four years in conditional supervision.

For second-degree murder the mandatory youth sentence would be seven years. They would spend four years in custody and three years in conditional supervision.

Our amendments would also increase the maximum youth sentence for youth offences other than murder to five years less one-day. Under Bill C-7, the maximum youth sentence for offences other than murder is just three years.

Another troubling aspect of Bill C-7 is the continued protection of young offenders at the expense of victims. That is why our proposed amendments would permit the publication of the identity of young offenders in more instances. Ontario's proposed amendments would permit the publication of identity when any young offender receives an adult sentence and when a young person 14 years of age or older is found guilty of a serious offence such as murder or aggravated assault.

In addition, appropriate school officials, honourable senators, would be given access to youth court records so they have the information they need to ensure the safety of students and staff, and also to ensure that the young offender receives the assistance that he or she requires.

While I was drafting the 100 amendments that I referred to a moment ago, I met with representatives of the Ontario Public School Board Associations. I met with them at their request to talk about the issue of notification. They asked me to ask you -

The Chairman: We have had them before us, Mr. Young, and they asked us in person.

Mr. Young: Then you know I am sincere in telling you that they want access to that information, and I think they have compelling reasons to request it.

Our government has concerns about the costs of implementing Bill C-7. I know that we are toward the end of a long day and this is not your first day of hearings. I know that many of the other presenters have spoken about the cost issue, so I will be relatively brief.

I do want you to know that it is our view that the amount of federal funding offered to support implementation of this legislation is woefully insufficient, in our respectful opinion. As a result, provincial governments will be unable to implement the bill as intended. I am here to say to you, as have many of my colleagues and counterparts from other provinces that we must return to a 50-50 federal-provincial cost-sharing arrangement for youth justice services.

In the case of Ontario we spend approximately $254 million on youth justice each and every year. While the federal agreements offer us less than 25 per cent, I think it is closer to about 22 per cent, of sharable costs, it is clear that is simply not enough.

Since 1989-90, Ontario has lost about $440 million in youth justice revenue due to the decline in federal funding. It is our belief that the federal government has a duty to pay its fair share of the costs for youth justice. Given the fact that the proposed legislation is a bill that will undoubtedly be far more cumbersome, time consuming and expensive to administer, this concern is very real and must be addressed.

Some critics have suggested that it is not our place - not the place of any province, including Ontario - to interfere in the drafting of federal legislation, and that we had no right or role to involve ourselves in the drafting of amendments to what is clearly a federal bill that falls within the criminal area. I disagree. I believe it is entirely appropriate that we assist the federal government on a matter of public concern.

As well, it is appropriate and important to remember that it is provincial Crown attorneys, the men and women who work for me every day, who go into the courts across the Province of Ontario to explain to families and to victims why a violent young offender only received what we view as a slap on the wrist. I believe that victims deserve better than this. I believe that victims deserve justice.

I know you have heard from many of those victims yesterday. I have read the transcript of those people who have come forward to you as they have to me to express their sheer and utter dissatisfaction with the criminal justice process. They feel that they have been victimized yet again. I will not repeat their stories because I know that you have heard them. However, I want there to be some reference in my presentation that deals with their reality.

I will tell you that we are not alone, in our view. I appreciate there are other provinces who have some markedly different views of the way that youth criminal justice and the laws surrounding it should work in this country. I will say to you that we are not alone. You heard from individuals yesterday who are very much involved. You have heard from the police. I drove from the airport today with the head of the Ontario Provincial Police Association who encouraged me to come here and to put forward the 100 amendments that we drafted and which he has reviewed. He asked me to ask you, on behalf of his member's who must deal with this problem, to give serious thought to what we have put forward.

He believes, as I do that the procedure that is mapped out under the bill is a complex one. It will require a complicated and time-consuming system to move a young offender to adult court and to have that individual sentenced as an adult. Members of the public and other stakeholders have told my government, and most recently the Ontario Crime Control Commission, that violent and repeat offenders - I want to be clear, violent and repeat offenders - must be dealt with appropriately so that the public is safe.

We say Bill C-7 is not the answer. It is not the answer the people of Ontario are looking for. Bill C-7 contains very little that is different from the Young Offenders Act. What we said before is what we believe now it is the same book with a different cover.

During the past 17 years, the public has made it clear that it is unhappy with the Young Offenders Act. The last Angus Reid Poll that I could find was from 1997, and it clearly said that 72 per cent of Canadians had little or no confidence in the Young Offenders Act. I say to you they will have little or no confidence in its replacement act unless it is amended.

I recently had an opportunity to be with the Superintendent of the Peel Regional Police Force. He is a gentleman who has devoted a good deal of his time to working with young people. One day a reporter asked him why he thought the Young Offenders Act is not working. He looked at this seasoned Queen's Park reporter and said that the reporter should come down any day of any week to the Brampton youth court and see the young offenders stand around the court with smirks on their faces, knowing that they have nothing to fear and being very complacent and clear about their total disregard for the justice system.

Honourable senators, this should not continue. We have expressed this view consistently.

You have an opportunity to bring in far more effective legislation and we implore you to utilize this opportunity to do so.

Madam Chair, I would like to express my gratitude for the opportunity to express my concerns and the concerns of the Government of Ontario. I hope that honourable senators will take this opportunity to act in the best interests of the people of Ontario and the people of Canada. The public has a right to laws that will not only serve young offenders well, but laws that will also serve the needs of victims and hold serious violent offenders accountable for their actions.

We believe that public safety across this country can and should be improved. With that in mind, we would ask you to assist us in addressing what is a provincial and serious, national problem. I will be happy to answer any questions you may have.

The Chairman: I see you have suggested amendments to almost every clause of the bill.

Mr. Young: With respect, Madam Chair, there are 100, but there are many clauses of the proposed legislation that we have not suggested need be altered in any way, shape, or form. We have suggested that the majority of clauses do not need be altered. However, there are some flaws that we believe should be addressed.

Senator Fraser: Thank you for being so patient with us. It is nice to know that we have a witness who understands the parliamentary vagaries of life.

I am interested in your remarks on cost. Am I correct in my understanding that Ontario has not signed the federal-provincial funding agreement on youth measures?

Mr. Young: I believe that the Minister of Corrections has. I certainly can get that information for you.

Senator Fraser: My recent information is that Ontario has not signed, and that means that Ontario is foregoing many tens of millions of dollars a year.

Mr. Young: You may be right. If that is the case, it is because the agreement we were asked to sign is an agreement that would have required us to do even more than we thought necessary.

There was a belief that the money we were getting from Ottawa was not enough to allow for us to do what we thought would need to be done under that agreement. I can get clarification of whether we signed it or not.

Senator Fraser: Much of this money would go to what we have known as alternative measures and what will be extrajudicial measures.

We have heard repeated testimony to the effect that alternative measures are not fool proof. However, they are more effective. We have heard testimony to that effect. It strikes me that could not be more expensive than paying for the repeated incarceration of recidivists.

It puzzles me that such a wealthy province as Ontario claims that these systems are too costly when my own have-not Province of Quebec decided years ago, and has stuck with that decision over some very difficult budgetary times, that this is a sound investment. You are making this a political choice, rather than a budgetary choice. You have decided not to go for the broad panoply of alternative measures. Would you agree with that statement?

Mr. Young: I will address that question in two parts. First, I want to be clear, I am not here today to tell you that I have no interest or confidence in alternative measures, quite the contrary. In the short time that I have been in office, I have greatly expanded the number of youth justice committees across the province. I have spoken at length and frequently about how successful they can be and are in many communities across Ontario and across Canada. I do feel there is a place for diversion and I am not just talking the talk, I am walking the walk. I am expanding the programs. However, when you are talking about a first-time non-violent offender, when you are talking about a 12-year-old who is caught for shoplifting, I do not want that young person to be thrown in front of judge, or to see the inside of a jail, not at all. With respect, I know that I have come on strong with some views that may be different than other witnesses, but do not think that is what I want.

I would ask you to acknowledge that there is a difference between a 12-year-old shoplifter and a 17-year-old charged for the third time with sexual assault. Under the proposed Youth Criminal Justice Act, if it were adopted the way it came out of the House of Commons, it would be most difficult for the Crown to have the 17-year-old individual tried and sentenced as an adult. One would have to be prophetic in many respects. It is a cumbersome and expensive act that does not serve the public.

We believe in diversion and alternative measures in the right circumstances. We are following that and believe in that in many respects. We do not think that is appropriate in other incidents.

Senator Fraser: How much have you increased your budget for alternative measures?

Mr. Young: We have tripled the number of sites across the province and there is an equivalent increase in the budget.

Senator Pearson: My questions relate to the alternative measures situation in Ontario. There has been a considerable effort to move youth to detention-out-of units that are attached to adult detention facilities. Do you have a projected date for all youth to be in stand-alone youth detention centres, separate and apart from adults?

Mr. Young: I am not in a position to provide that information. I can undertake to provide it to you. In Ontario, we have a Minister of Corrections in charge of that. I do not have that information for you.

Senator Pearson: Ontario is peculiar in that there are two jurisdictions for young offenders; the 12-year-olds to 15-year-olds under the Ministry of Community Services, and the 16-year-olds and 17-year-olds under the Ministry of Correctional Services.

Do you think that youth between 12 years and 18 years of age are being given equitable service because of this division and are standards of care and programming equivalent for both groups?

Mr. Young: There is some overlap in terms of standards of care. Different age groups are treated differently. I am not here to advocate that all youth are to be treated the same, or as adults and incarcerated in the same institutions in every instance. Where a young person receives an adult sentence, the sentence regardless of its tenure, would not be served with adult prisoners.

They are well served by our system. It is in tune with particular needs and is set up in a very fundamental way to address those different needs.

I would ask you not to take my approach as being one that lumps all young people and young offenders into the same grouping. I do think that the system has to respect difference in terms of age, repeat number of offences and the severity of the offences. I think that our system does that.

Senator Pearson: In view of the shortness of your time, I pass to the next questioner.

Senator Beaudoin: Do you believe in alternative measures for a violent crime?

Mr. Young: I do not think that it is appropriate to divert someone who has committed a violent crime. No, they should appear in front of a judge. It is not appropriate for those individuals to be diverted from the judicial system.

Senator Beaudoin: I will ask the question differently. You say that you are in favour of alternative measures, but I have the impression that as soon as you are dealing with a different type of crime that you are no longer in favour of alternative measures.

Mr. Young: What you have said correctly characterizes how I feel about the issue.

Senator Andreychuk: You have said that you have a different philosophy when it comes to how violent offences should be treated as opposed to other offences. You seem to have made a distinction with age. Where does your philosophy come from that you believe that violent and repeat offenders in this age group, before they are full adults, should go before a judge? What is the philosophical base for that?

Mr. Young: There are a number of factors that must be considered in order to best determine how to deal with criminals, including young offenders. It is most appropriate to consider a number of things, including holding the young offender accountable and sending messages to other young offenders: in other words deterrence. That is my opinion and the opinion of my province, and of almost every one of the hundreds of people who have come forward, to make presentations to the Crime Control Commission. It is our submission that those are legitimate factors that should be considered when reaching a decision as to how to sentence individuals.

Senator Andreychuk: I do know that there is one school of thought that says that if we are trying look at the maturation of a young person and make him be able to cope with the world he will face, we should start teaching him some of the lessons of what an adult system would be and what adult accountability would be in the youth courts, we will not be serving them well when they become adults. Is that what you are trying to say?

Mr. Young: You have properly reviewed my approach. Let me say it in my own words, if I may.

It is important to send a message to the individual involved. It is important to send a message of deterrence to society and others who may be contemplating that sort of aberrant behaviour.

Let us not forget victims, it is important to ensure that victims feel there is accountability; that there is some justice in the system. It should not be the only factor. I am not here to say that, but I do not want to forget about victims.

Collectively governments of all political stripes for a long period of time did forget about the victim. The pendulum is swinging. That is why I am here with hope and optimism.

It is essential that we not forget there are others, some here last night, whose lives are altered forever more. Their view cannot be the only view, but it cannot be forgotten either.

If you are asking me how to treat individuals involved in violent crimes, individuals who continue to offend and reoffend, yes, I think the factors I have reviewed are the most appropriate to consider.

Senator Andreychuk: Do you think that there are sufficient resources in your social services system? Are they dealing with the potential difficulties that young people find themselves in, which then puts them on the road to crime? Have you paid any attention therefore to the preventive, rehabilitation aspects? Are you satisfied that your province is doing that?

Mr. Young: Our spending in those categories increases each and every year. I know that my colleague, Minister Baird, has programs that he and I have come forward with over the past short while.

The answer is yes; there are sufficient resources available. That must continue to be the case.

I come back to what I said before. It comes as somewhat of a surprise to the honourable senators that we in Ontario have increased the number of youth justice committees so drastically in the last while. It is not a black and white situation. There must be continued emphasis and resources available.

Senator Andreychuk: When the Young Offenders Act came in, one of the stumbling blocks to implementation was that some provinces had the age of majority at 16 years of age and others had 18 years of age as the age of majority. That had been the traditional difference in the Juvenile Delinquent Act. I know Ontario was at 16 years of age as well as Saskatchewan.

In Saskatchewan, the philosophy at that time was to say that we would treat all people under the age of majority as young offenders and not make a distinction. There was a mad scramble to get custody facilities, which to that point had not been differentiated from social services facilities. To get custodial facilities in the juvenile system took all the implementation resources and more. We never caught up to getting full implementation. That has been a problem with the act.

In Ontario you chose to continue 16 years of age as a demarcation and found that it was easier, as I recall, at that time to convert adult facilities to portions being youth facilities for 16 year olds and 18 year olds.

Do you think that colours why you look at 16 year olds and 17 year olds slightly differently than you do those under the age of 16 years?

Mr. Young: I do not think that is the reason for it. It may be another indication of our philosophical approach to it. I do not think that it is necessarily the root cause of it, but you make an interesting point.

Senator Andreychuk: The minister has said federally that the agreements have been signed, and that nine provinces are in favour of the legislation. You are proposing 100 amendments. Should the bill be passed could you implement it in Ontario?

Mr. Young: Thank you for the question. It is my job to uphold the law and apply the law. I will do so to the best of my ability, but I am aware of the fact that most if not all attorneys general across this country have expressed serious concerns about whether they will have the resources, and to speak frankly, the dollars available to do so.

We will do the best that we can but I have some real doubts. I know that members of committee have referred to Ontario as a have as opposed to a have-not province, but we too have financial pressures.

Adding this pressure at this time for what is an inappropriate purpose will be extremely difficult. That is the best answer I can give.

Senator Grafstein: I am interested in your views about the attitude of the public in Ontario. We just had very compelling evidence from the John Howard Society and the Elizabeth Fry Society who do not agree with you. They have a diametrically opposed view in terms of philosophical approach and statutory standpoint.

Mr. Young: I am respectful of that. I have given you the results of the Angus Reid Poll. When it comes to talking about youth justice in my riding all I hear are dissatisfied voices.

Senator Grafstein: We have heard that there is little connection between perception and reality, and we are here to deal with reality. Let me give you the basics of that reality. In the media and in the publics' mind there is what I call "spike attitudes" or "wedge attitudes" about youth crime. However, when I look at the statistics, and here again we might agree or disagree, from the reams of statisticians including the Criminal Centre, I gather that youth crime is down over the last 10 years.

There are some slight spikes in some violent crimes, but overall, those spikes are lower. If we take it to the year 2000, we essentially have downward trends. The clear and present danger appears to be more a perception of the public media, stirred up by the media and others, as opposed to a reality.

Mr. Young: First, we can probably agree that you and I could debate statistics for a considerable period of time and not agree. I have given you some statistics that I find most alarming about an increase in youth crime. I would take exception, and I say that respectfully. Mr. Wamback appeared before you last night and he is living the reality. Ms de Villiers, who was also here last night, is living the reality. It is not a perception. The children have been taken or harmed in a way that effects their lives each and every day, and they are dissatisfied with the system.

Senator Grafstein: We are not quarrelling about horrible cases, yet on the other hand, we have horrible cases in respect of the fact that we have amongst the highest incarceration statistics in the world. You would go even further and increase incarceration on a mandatory basis, and then we would end up in a situation where everyone agrees that incarceration does not reduce recidivism but rather it increases recidivism. We are on the horns of a dilemma here.

Mr. Young: I appreciate that is your position.

Senator Grafstein: It is not my position; it is the evidence.

Let me get to two other matters. I am not sure if you have amended clause 61. I do not have an exact amendment dealing with that. We have heard about a case that provides strong evidence that clause 61 is unconstitutional. That clause allows the Governor General in Council of each province to decide whether or not he or she wishes to, for presumptive crimes, reduce the age from 16 years to 14 years. A consequence of that, according to strong evidence before us, is that it is unconstitutional, because it might be ultra vires delegation; because of the Charter; and because of what my colleagues told us in respect of being in breach of the UN Charter for the Treatment of Children. What is your legal view about that?

Mr. Young: As Attorney General, I am reluctant to comment on a case before the court. I understand the Province of Quebec has brought forward a challenge.

Senator Grafstein: They have an attorney general on the case of delegation of powers.

Mr. Young: I will tell you this. We are looking at the legislation with a view to questioning the constitutionality of it. By coming forward with our amendments, we are suggesting that, if you will go in that direction, this is a better approach, practically. I am not opining one way or other about the constitutionality of it today, sir.

Senator Grafstein: We have the attorney general from Saskatchewan telling us that, on the contrary, by reducing the age from 16 years to 14 years, the federal government may be treading on provincial power dealing with youth. We have the mirror image of the same issue, provincialized.

Mr. Young: I am familiar with Mr. Axworthy's position. It is a position that is worthy of some consideration, but I am reluctant to offer an opinion at this point.

Senator Joyal: I was surprised to find that your responsibility covers the native issues.

Mr. Young: Yes, sir.

Senator Joyal: You have sent the amendments to our chair, which, unfortunately, I have not had the opportunity to review. Are there any amendments regarding natives?

Mr. Young: As I said to the chair at the commencement, there are many aspects of legislation that we do not want to see changed in the proposed legislation. Many of those, in fact, relate to native communities. By and large, I like the approach. There are some small differences that are enunciated, but for the most part, we believe in the type of community approach that has been brought forward.

Senator Joyal: However, there are no specific amendments that mention the reality of the Aboriginal community in Ontario. I do not have the text of the amendments, so I cannot refer to that. We have been informed by Aboriginal groups across Canada, and lawyers especially who have been involved in the Gladju case in Ontario, that they are very concerned that section 17 of the Criminal Code, which is the substance of the Gladju judgment from the Supreme Court of Canada, be part of the bill because it reflects the native reality in Canada.

Mr. Young: There are no specific changes that we have suggested, that would all alter that. The only tangential change would be where we talk about conferencing being used on a slightly more limited basis. One could argue that that relates to it. By and large, we agree with the approach.

Senator Joyal: My second question deals with the constitutionality of the bill. We have heard from a number of attorneys general, and we are aware of the reference made in the Court of Appeal of Quebec. I understand that your decision is not made on the basis of the participation or the involvement that the U.S. Attorney General will take on the issue of the constitutionality of the bill.

Mr. Young: That is correct.

Senator Joyal: Do you have any pronouncement on the fact that this bill is mentioned in the reference to the Quebec Court of Appeal that it might be in breach of the international covenants, which you, as a province, have endorsed?

Mr. Young: We are considering that argument and we are reviewing the legislation with that in mind. I can say that, in the not-too-distant future, we will provide our opinion to you and to others.

The Chairman: Senator Joyal, I have the amendments in front of me. The proposed amendment would be specifically to clause 3(1)(c), which would literally remove the parts that mention Aboriginal youth.

Senator Moore: Minister, what percent of the youth offender population in Ontario are Aboriginal youth?

Mr. Young: I do not have that statistic. I could get it for you.

Senator Moore: We have heard some very alarming numbers concerning Aboriginal youth in Saskatchewan and Manitoba. Those provinces are attempting to rely more on the traditional native system of justice to help to deal with these youth. Has Ontario implemented any sort of traditional native system of justice to deal with Aboriginal young offenders?

Mr. Young: We do accept that a community approach is appropriate in many instances, senator, although as our amendments have indicated we do think that in certain instances diversion or community approaches should be abandoned, especially when you are dealing with repeat, serious violent offenders.

Senator Moore: Are you saying that you treat all youth the same?

Mr. Young: Regardless of whether they are in an Aboriginal community or not?

Senator Moore: Yes.

Mr. Young: We have in the past had some successes across the province in native communities where there have been some community solutions. Some of the youth justice committees operate somewhat differently, but are similar in other respects.

Senator Cools: I have a couple of questions. I am very well acquainted with the problems of serious violent offenders. I know how difficult it can be.

There is no doubt that there have been significant increases in youth crime in the last several years. I have had enough conversations over the years with the chiefs of police who tell me the number of crimes that are not being prosecuted any more.

When you talk about the increases in crime rates among females, quite often what you are measuring now is the increase in prosecutions. I was a youth worker many years ago, and when children of both sexes got into trouble the boys would be arrested, charged and prosecuted whereas the girls would be sent home. That is not the case any longer. Now, girls are being arrested, charged and prosecuted also.

I am sure you know how I think about the equality between men and women. I do not subscribe to this notion that women are more virtuous. I believe that sin and evil afflict both genders.

Senator Grafstein: I am here to protect my mother's interests. She is 101 years old.

Senator Cools: That is what most men have been doing all their lives. Down to the coalmines.

We know this bill pretty well. I think the bill is flawed; there is no doubt about it. It is an insufficient response to the problems out there. I think I know where you stand. You are my provincial attorney general.

I had one meeting with Mr. Flaherty, your predecessor, on the related phenomenon of fatherlessness. For those of us who have been in the field for many years, we know that the greatest indicator of crime, social deviance and anti-social behaviour is family structure. It is emerging in the literature across the United States of America that the relationship between family structure, family configuration, and crime - for example, mother-led poor homes - is so strong that it is overcoming the relationship between race and crime and between low income and crime. That conclusion is showing up time and time again in the literature. I am not a social engineer, but I could go on forever.

We have many problems created by government through flawed divorce legislation and flawed social welfare legislation. Much of this has the effect of shutting men out of children's lives. It is shutting good legitimate fathers out of children's lives with the consequence that children are growing up in need of guidance and care.

All of your initiatives to reduce youth crime have not been that effective. What are you doing to promote the relationship between children and their fathers?

Mr. Young: We have watched with interest the federal government's review of this matter. This issue came up at the federal-provincial-territorial conference that we started in September before the great tragedy occurred in New York. We adjourned as a result. I spoke to Minister McLellan about that issue. Although you would not know it from my comments today, I do respect that it is a federal matter. They are involved in a difficult process, but I have made some suggestions to the minister as to how I think she might proceed. We watch with interest to see what will happen from the federal government.

Senator Cools: You are awaiting a federal lead? If I could persuade the Minister of Justice to aggressively support families, you would follow?

Mr. Young: If you phrase it in that way, how could any one be against the support of families?

Senator Cools: I just regret that the minister has to go. It is not often we get an Ontario minister.

Mr. Young: I am prepared to stay longer if there are more questions. This is quite important. The interview can wait and the flight can wait.

Senator Cools: I have been listening quite attentively, and I am amazed that this overwhelming problem of family breakdown has not been raised. Literature is showing time and time again that it is the breakdown of family structure that has had a key role in contributing to juvenile delinquency and young offenders. We have to start to support these relationships again. I was just trying to see if we could not begin to bring this into the dialogue. Across the United States of America there are huge initiatives trying to bring fathers back to their children.

Mr. Young: I will be introducing a bill into the Legislative Assembly of Ontario that will simplify and expedite a number of matters, including the reciprocal enforcement of judgments in support situations. Manitoba has already done so and the other provinces have committed to doing so, therefore, we are trying to address it at the level that we can. I appreciate you were talking about a broader issue and I understand that that is being addressed, or at least reviewed, by the federal government. I look forward to hearing what they have to say.

By the way, I do not always disagree with the federal government. I have publicly applauded my federal counterpart on a number of occasions over the time I have been in office.

Senator Cools: I would like you to put more pressure on them to be father friendly.

Senator Grafstein: As the senior law officer for the Crown in Ontario, and responsible for prosecutions, you are obviously familiar with the Criminal Code and the historic notion of mens rea as amplified by the Supreme Court. I have a concern and I want to know if you share my concern. By reducing the age of criminality from 16 years to 14 years of age, do you not think that under the current notions of mens rea, as amplified or restricted by the Charter, that mens rea for someone at 16 years of age is entirely different from someone of 14 years?

I will be more specific. According to the cases, if it is a serious violent offence the accused must have particular knowledge of the nature of the crime and the prohibited act. The other question that must be asked of a prosecutor is whether or not the accused is fit to stand trial. In order to determine whether the accused is fit to stand trial one has to judge whether or not that accused - we are talking about a 14-year-old child now - has the ability to control his own defence. To my mind, these present serious problems of a criminal justice system applying to someone who is 14 years of age. Do you agree or do you share any of my concerns about that?

Mr. Young: No, senator, I understand the issue and it is a legitimate issue to consider, but my response would be that I have the utmost confidence in the judiciary to consider whether or not the mens rea aspect of these serious crimes exist. There may well be cases where you are right, that some 14-year-olds could not develop that intent. However, I say to you there are other cases where they can and do have knowledge of the nature of their crime and have the requisite awareness of the fact that it is a prohibited act. I for one am prepared to allow the judiciary of this country to make that determination and I do not believe that we as legislators should take away their right to do so.

The Chairman: Thank you very much for waiting so patiently on us tonight, and I appreciate the time that you have spent with our committee.

We will meet again tomorrow morning at 10:45. The minister and department officials will appear before the committee.