Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence, November 7, 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.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum. This session of the Standing Senate Committee on Legal and Constitutional Affairs is met to proceed to clause-by-clause consideration of Bill C-7, in respect of criminal justice for young persons and to amend and repeal other acts.
Honourable senators, before we begin, I wish to thank everybody. This has been a marathon session. We have heard almost 60 witnesses. We have been meeting three times a week for a month. This has been a difficult and troubling bill.
Before we begin, I wish to bring honourable senators up to date on some of the things that have happened. Then we will discuss how we wish to proceed, because I am in your hands.
Over the last few days, we have had a continuous outpouring of postcards from Quebec requesting that this committee not pass Bill C-7. On the postcards appear the names of various organizations, including student organizations from various universities and colleges, the Bloc Québecois and others. None of those groups requested to appear before us on this bill.
This morning, as honourable senators can see, our clerk has received 135 resolutions from the municipalities in the province of Quebec, through the office of Mr. Michel Bellehumeur, MP, requesting that Quebec be excluded from the application ofBill C-7. If honourable senators wish to consult them, they are here.
Senator Andreychuk: These resolutions requesting thatQuebec be excluded from Bill C-7 are all the same?
The Chairman: Yes.
Senator Rivest: There are many more to come.
Senator Fraser: Might we know if Montreal, Quebec City and Sherbrooke are among those municipalities?
Senator Rivest: Not yet, but they are en route.
Senator Joyal: On a point of order, I do not wish to delay the proceedings, but I have given a letter that I received from the director of the Quebec Human Rights Commission to the clerk. There are copies for all senators.
This letter relates to the statement the minister made last Thursday when she testified. She quoted a report of the Quebec Human Rights Commission on the implementation of the bill. It is important that this letter be attached as an appendix to today's minutes, because it would be well if the objective of that report were at the forefront of the minds of honourable senators when discussing this bill.
With the authorization of honourable senators, I should like to read this one-page letter into the record.
The Chairman: Please proceed, but I must tell that you this is not a point of order.
Senator Beaudoin: It is an announcement.
Senator Joyal: I respectfully defer to your ruling.
[Translation]
This letter, dated November 6, was sent to me by the Director of Legal Services of the Commission des droits de la personne et des droits de la jeunesse du Québec.
Dear Senator,In reply to your request for information sent to us last Friday, please find enclosed the position of the Commission des droits de la personne et des droits de la jeunesse concerning the application of so-called strict monitoring regimes for children in care pursuant to the Youth Protection Act (Y.P.A.).
As you will note, the Commission's position only concerns placements under the Y.P.A. and not placements effected under the Young Offenders Act (Y.O.A.). Indeed, the Y.O.A. contains provisions concerning the placement and conditions surrounding it in closed custody, such that its application does not raise the same legal problems in this regard.
As to the Bois-Joly case your assistant referred to in the conversation I had with him on November 2, it raises procedural matters of two orders. The first and most important pertains to the restrictions on the freedom of children in care pursuant to the Y.P.A. This aspect refers directly to the Commission's position, which I am enclosing with this letter, and constitutes a divisive issue between the Commission des droits de la personne et des droits de la jeunesse and the Centres jeunesse.
The other problems raised in the Bois-Joly file are particular problems experienced by this rehabilitation centre during a certain period of time. We cannot conclude that they are representative of the intervention philosophy of all of the rehabilitation centres in Quebec, nor that they should allow us to call into question the important work that is done in Quebec in the area of rehabilitation services for young offenders.
I hope that this information will be of use to you.
Yours truly,
Hélène Tessier, Counsel
Director of Legal Services
[English]
This letter clearly establishes the distinction between the commission's implementation of the Young Offenders Act versus what was implemented in the context of a particular youth centre in Quebec.
Senator Cools: Senator Joyal read the letter into the record and it is there in French. I suppose the translation will be side by side in the report.
The Chairman: I suggest that we make a "shopping list" of clauses that honourable senators wish to address in clause-by- clause consideration. Normally, we group the non-controversial clauses together and spend our time discussing the controversial ones.
I will not cut anybody off in this discussion. We are prepared to stay here until midnight, if need be, to finish this today.
Senator Moore: Clause 38, and also clause 50.
Senator Beaudoin: I have four clauses: 76, 110, 125 and 146.
Senator Andreychuk: I have clauses 2, 19, 50 and 125. There may, inferentially, be others, but those are the main ones.
Senator Grafstein: I have clause 2 - that is on pages 3 and 4 - and clause 61, on page 38.
Senator Beaudoin: You said clauses 2 and 61, and what are the two others?
Senator Grafstein: They are all part and parcel of the same thing. It is clause 2 on page 3, certain lines on page 3 and page 4, and clause 61.
The Chairman: Also clause 2.
Senator Grafstein: This is one issue. They are all tied in. I hope that we can discuss them on an issue basis.
The Chairman: It will be difficult to go through clause-by-clause consideration of the bill on an issue basis, so we will start at the top and group those in between. However, when you are talking about the first one, mention the others, so that we can consider them too. That will cut down our debate considerably, as we will not have to repeat ourselves.
Senator Cools: I wish to add clause 25.
Senator Joyal: I have two clauses as well. I have clause 2, which is already on the list - and I would add a new clause at the end of the bill - and clause 158 on page 150.
The Chairman: Senator Joyal mentioned clause 158, but that is not the last clause. You are actually speaking about three clauses, Senator Joyal?
Senator Joyal: Yes.
The Chairman: If that covers everyone's concerns, starting from the top, I now have clauses 2, 19, 25, 38, 50, 61, 76, 110, 125, 146, 158 and a proposed new clause.
Senator Beaudoin: Do you have clause 129?
The Chairman: No, I do not.
Senator Andreychuk: Some are consequential because of the reference.
Senator Beaudoin: There is no issue. It is clause 125 and that is already there.
The Chairman: I will try to put them in between these numbers.
Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-7, in respect of criminal justice for young persons and to amend and repeal other acts?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 2 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Does anyone have amendments?
Senator Grafstein: I have amendments. I am prepared to circulate them in French and in English. To save discussion time, I will give you the amendments to clause 2 and the amendments to clause 61, because they are all part and parcel of the same issue. They are all centred on the same thing, so we will not have to repeat ourselves later on.
I would like to draw everyone's attention to the presumptive definition on page 3. To put it on the record, my motion is as follows. I move:
That Bill C-7 be amended in clause 2
(a) on page 3, by replacing lines 30 to 38 with the following:
You will see it in the written document. I will not review what is there, but I will explain it in a moment. Furthermore, I move:
That Bill C-7 be amended on page 4, by replacing lines 5 to 15 with the following:
It is replacing certain lines.
The Chairman: Certain lines in clauses 2(a) and 2(b)?
Senator Grafstein: Right. You will see the words there. I will not repeat them because it will save some time. If you take a look at the second page, the motion is also to amend clause 61 by deleting, on page 38, lines 23 to 28, and by renumbering the clauses. I will then explain what it is all about.
The Chairman: We will discuss the second one now, but we will not vote on it. Let's not confuse ourselves.
Senator Grafstein: Yes, but they are part and parcel of the same thing.
The Chairman: While we are waiting, it might be a good time to point out to honourable senators that the clerk is impartial. She is the clerk of the entire committee. It would help proceedings a great deal if, when putting forward amendments like this, we gave them to the clerk in advance. It would save a lot of this paper shuffling.
Senator Grafstein: There are two amendments, but they relate to the same principle. Madam Chairman, I will try to be as brief as possible. I am sure the committee has already heard my comments with respect to these provisions.
Essentially, these provisions deal with the question of granting to the lieutenant-governor in council of a province the option of reducing the age from 16 to 14. What I have really done is taken the presumptive offence, changed the definition, and then ultimately, in 61, deleted that option. Essentially, it keeps the age at 16, as opposed to giving an optional provision to allow each province to opt to a lower age.
Without arguing the case, I will quickly give you the principles as to why I am presenting this. As we have heard from, I think, many witnesses, certainly the balance of witnesses, and summed up best in the words of Professor Doob, this provision is unprincipled and unnecessary. We heard from the John Howard Society and the Elizabeth Fry Society about that. We have also heard that it is unconstitutional. It is probably unconstitutional as it applies to the delegation of the criminal power. It is probably not in compliance with the Charter. We have also heard strong evidence to suggest that it is not in compliance with theUN Convention on the Rights of the Child.
On those grounds, not only is it a question of policy, but also of constitutionality. Therefore, I move that those provisions be amended so that we do not grant to the lieutenant-governor in council of a province the option to reduce the age from 16 to 14.
The Chairman: I think, Senator Grafstein, it would probably be a good idea if you read the amendment into the record.
Senator Grafstein: I move:
That Bill C-7 be amended in clause 2,
(a) on page 3, by replacing lines 30 to 38 with the following:
"(a) an offence committed, or alleged to have been committed, by a young person who has attained the age of sixteen years, under one of the following provisions of the Criminal Code:"; and
(b) on page 4, by replacing lines 5 to 15 with the following:"(b) a serious violent offence for which an adult is liable to imprisonment for a term of more than two years committed, or alleged to have been committed, by a young person after the coming into force of section 62 (adult sentence) and after the young person has attained the age of sixteen years, if at the".
Essentially, this would delete clause 61, which grants the option to the lieutenant-governor to reduce the age from 16 to 14.
The Chairman: Is there any discussion?
Honourable senators, before we begin, if we are to have recorded votes, I will be voting.
If there is no further discussion on this amendment, is it agreed?
Senator Andreychuk: Agreed.
Senator Beaudoin: Agreed.
Senator Buchanan: Agreed.
Senator Cools: Agreed.
Senator Di Nino: Agreed.
Senator Fraser: Agreed.
Senator Grafstein: Agreed.
Senator Joyal: Agreed.
The Chairman: Against.
Senator Moore: Agreed.
Senator Pearson: Against.
Senator Rivest: Agreed.
The Chairman: I declare the motion and the amendment carried.
Are there any further amendments to clause 2?
Senator Andreychuk: As you know, I have had great concerns about this bill and the fact that it may not comply with the Convention on the Rights of the Child. The minister indicated, although she was very cautious in her statements, that we are a party to that convention. She went on to say that we have signed and ratified the Convention on the Rights of the Child. The dispute or difference of opinion has arisen over whether we have any enabling legislation to ensure that we are in full compliance.
By Canadian law, and I will not belabour the long history, ratification does not mean that it is part of our national law. It simply means that we have some moral obligation to comply with what we have signed internationally. The best practice would be to have enabling legislation on our international conventions to ensure that our national law complies with international law, and hopefully, vice versa.
The minister indicated that she thought this act was in full compliance with the United Nations Convention on the Rights of the Child as far as the juvenile justice sections of the convention apply. However, she did not go so far as to say it is enabling legislation. The way the act is worded presently, it does not give that full assurance and full legal import that the convention should have.
We led the UN in discussions and negotiations on the Convention on the Rights of the Child. In fact, historically, we have been insistent on having more rights for children. We were very concerned to see children receive the full benefit of the law when dealt with in a judicial court. We were concerned that the rights of children not be tampered with, even for good reasons such as thinking we were doing it in their best interests.
There was much discussion in the 1980s and the 1990s of the need to respect children. Senator Pearson has been an advocate for children as individuals who have their own rights.
The bill goes as far as including a preamble to indicate that we are party to the United Nations Convention on the Rights of the Child. That is not enabling legislation. That does not make us bound by the convention, nor does it signal to the courts that we have passed enabling legislation.
At best, as we know from Baker and other cases, the courts can look to international law for guidance, and they can look to Canada's moral obligations, but this does not give us that legal certainty that I think a country as mature as Canada and as committed to youth needs.
Therefore, if we are to be sincere in our attempts, to be absolutely certain, we need something in the body of the bill that can be construed to mean that we intend to be fully bound by the United Nations Convention on the Rights of the Child, save and except, of course, where we have a reservation, and I will not go into that at this point.
The courts, as in the Baker case, have been moving towards considering our international obligations, but I do not think they are fully comfortable with the situation, nor do they have the tools they need. As you know, we passed specific enabling legislation for the International Criminal Court. There is no doubt where we stand on that convention. In this case, I think we are less than certain.
Given my concerns about whether we are complying fully with the spirit and intent of the Convention on the Rights of the Child, I think we want to be sure that the preambular statement indicates that a given piece of legislation is passed to fulfil a specific treaty commitment, although even that would be stretching it. I think we need to go further and say that this bill is our enabling legislation for the purposes of juvenile justice issues under the Convention on the Rights of the Child.
I move:
That Bill C-7 be amended in clause 2,(a) on page 2, by adding, immediately before line 3, the following:
"2.(1) An object of this Act is for Canadian law to be in compliance with the United Nations Convention on the Rights of the Child, and the Act shall be given such fair, large, and liberal construction and interpretation as best assures the attainment of this object."; and
(b) by renumbering subclauses 2(1) to (3) as (2) to (4) and any cross-references thereto accordingly.In my opinion, this would give a clear signal that the courts should take this bill as intending to comply with the convention. They would then be able to look at the convention to see if in fact we are in full compliance. I think that is the kind of signal that Canada should give.
I do not think it is sufficient to say, "Well, we are a party to the agreement." There is a legal line to be drawn here, and it is time that we did more in our law, particularly if we are interested in children. I am very mindful of the fact that Senator Pearson pointed out on many occasions in this committee, when I had some questions on clauses, "We are doing this to ensure the rights of the child and that we comply with the convention." Simply stated, the amendment that I am asking for will leave no doubt that we are complying with the convention and that the courts can avail themselves of it as a tool to ensure that we are in full compliance.
Senator Pearson: Senator Andreychuk has brought forward a challenging amendment. I tend to be a very pragmatic person, as opposed to legalistic or theoretical. To a great extent, I agree with the sentiment that she is conveying, but I have some problems. Since my general sense of the whole bill is that it is better for kids than what already exists, I am torn.
I am sure Senator Beaudoin would be interested to know that I have been reading from Anthony Aust on Modern Treaty Law and Practice, published by Cambridge University Press in 2000. There is an extremely interesting chapter on treaties and domestic law that has helped me to better understand the difference between dualism and monism in terms of international treaties. It explains why virtually all the countries - 53 out of 57 - that were part of the original empire, and are now part of the Commonwealth, have developed dualistic approaches to the question of international and domestic treaties.
Dualism holds that the constitution of the state affords no special status to treaties. The rights and obligations created by them have no effect in domestic law unless legislation is in force to give them effect, which is what you are trying to say. However, when legislation is made for this purpose, the rights and obligations are incorporated into domestic law.
I felt that the preamble was adequate, just as I felt that the preamble in Bill C-27, which dealt with sex tourism and was the first bill to refer to the Convention on the Rights of the Child, was adequate. I can understand that this might add force.
We have a different way of approaching these things. The real point I want to make has to do with the convention itself, and with Canadian public opinion.
I am sometimes uneasy saying this, but I am a senator from Ontario, and in some ways, I must represent Ontarians.
Senator Di Nino: Are you saying that is a bad thing?
Senator Pearson: No, it is not a bad thing, except I do not always agree with the policies of the current Government of Ontario. On the other hand, I do feel an obligation to reflect, to some extent, public opinion in the province that I represent.
Having had some extremely unpleasant encounters with a number of people over the issue of the Convention on the Rights of the Child, I have been wary of pushing it too far too fast, but not because I am not willing to push it all the way eventually. Of course, I may not live that long.
Senator Cools: What are the implications? We should all know.
Senator Pearson: If we amend the bill and it goes to the House of Commons, the whole issue will arise again. Then we will get back into the issue of public opinion. We in the Senate are admirable, but we are not elected. Therefore, while we are responsible for all kinds of constituencies, which is both to our advantage and our disadvantage, it does limit my sense of being able to do everything I would want.
I do not know whether I expressed that well, but that is my challenge. I feel we can only go so far ahead of where the public is prepared to go. We cannot forget that, in spite of my general appreciation for what Senator Andreychuk is trying to do.
Senator Andreychuk: I understand the difficulty, but I have weighed the issues carefully. Not many people want this bill. However, if this bill complies with the convention, and if I can be assured that that will be the test in court, then I am prepared to put that clause in and go with it. It is the right of the executive federally to enter into these agreements. Once they do that, and the provinces have come onboard, we have to do our duty. We have to do our duty to the children. We have delayed long enough.
The preamble is admirable. It is just not sufficient to have any import in our law. If the bill meets the standard of the covenant, then I am prepared to live with many things that I find difficult from an administrative and practical point of view.
Senator Pearson: A recent report out of B.C. said that our compliance is not perfect - we know it is far from perfect - but it did not say that the bill does not comply.
Senator Beaudoin: This is the first time that we have complied with the decision of the Privy Council of 1937 that we must legislate to give effect to a treaty. That is part of the Constitution. Whether we like it or not, it is there. We must legislate, and I support that 100 per cent. At least we will have something within the statute that gives effect to the treaties that we have signed and with which we are obliged to comply. That is all I have to say. I could not agree more.
Senator Fraser: Senator Pearson, I find this bill challenging. I fear a ricochet effect, whereby, having stated explicitly that we are implementing one part of the convention, the rest of it will lose whatever modest weight it now has or might have.
I can envisage cases being brought under a number of headings. There are many rights of the child outlined in that convention. If we were to attach a report, I would not mind the first recommendation being that the Attorney General's next order of business should be full implementing legislation. I am troubled by a partial move.
Senator Grafstein: Some fundamental issues have been raised here. Let me address them. We did wrestle with whether or not there was de jure compliance through the words at the beginning of the bill stating that Canada is a party to the convention and recognizes that children have rights, including those in the Charter, and specific guarantees. Then we heard the minister's evidence to further support that by saying the bill is in full compliance.
I wish to deal with the question of public opinion in Ontario. Honourable senators will recall my cross-examination of the Attorney General of Ontario when he told us the view of the Government of Ontario. I said that view did not represent the views of the people of Ontario, and he did not disagree with that. He said there were other views. Public opinion of the provincial government's approach to this is obviously split.
We heard the evidence of the John Howard Society, the Elizabeth Fry Society and others who said that this was a real challenge.
We have a split opinion. What gives me comfort is that we also heard clear and unequivocal evidence that fear of crimes committed by children under the age of 16 is out of proportion to the reality, as is the perception of violent crime generally. We have the statistics to show that it is going down. Everyone says that there is a difference between perception and reality. I would rather deal with reality than with perception, and the statistical basis says to me, "This is not a serious problem. It is an isolated problem that is hyped by the media." If that is the issue that we must confront on the other side, I think it is a fair debate.
I think this is a brilliant amendment. It does not go as far as Senator Pearson is suggesting, but it is a cause of interpretation. I am trying to give it a plain reading. This is not an amendment for full compliance. This is an amendment stating that it is a question of interpretation, and as such, you should give a liberal construction to the rights of the child.
I think that this is a safe, half-way house. This substantiates the minister's position, because if we are complying, all Senator Andreychuk is saying is that she wants to ensure a liberal interpretation of that compliance. However, she is not suggesting that we are fully implementing the convention. That should allay Senator Pearson's concerns.
Senator Di Nino: As everyone knows, I am not a member of this committee. I am pinch-hitting for my colleague, Senator Nolin, who is travelling with the Illegal Drugs Committee.
I have listened to the discussion, and Senator Grafstein made the point that I wanted to make, but he did it much more eloquently than I could have done. However, I would like to speak on something Senator Pearson said as well.
If each time we must deal with a thorny or controversial issue, we hide behind the non-elected tab that we place on ourselves, then we are not doing our jobs. We have awesome power in the Senate. We seldom use it, and even more seldom do we use it fully. It is our duty and our responsibility, if we see that we can improve legislation, to do so. We are not defeating legislation. We are suggesting to the government that there are areas for improvement; that is the right, the authority and the responsibility given to us under the laws of this land. I do not see this as an argument. On the contrary, I take the opposite view, and in that sense, I am supporting the amendment.
[Translation]
Senator Rivest: My comments will be along the same lines as Senator Di Nino's. In the absence of any evidence to the contrary, to the extent that the Senate is a part of Canadian institutions, we must not hesitate, even though it must be said that we can take more risks than elected representatives. The very nature of our institutions is such that we must on important issues - and this is one of them - accept our responsibilities, especially where children are concerned. This is an area with which Senator Pearson is very familiar since she worked in this field for a long time and knows it much better than I do. It is a very worthwhile field.
The Canadian government has signed international treaties that mean that it has committed itself to the other signatories at the international level and, of course, to children and adolescents. Whether we are talking about the legislative apparatus of the House of Commons or of the Senate, they hesitate to follow the Canadian executive, for all kinds of reasons.
Senator Pearson mentioned that the province of Ontario had a certain number of reservations, and it is her duty to raise them here. But if we did the same thing for Quebec, we would go even further, because the state of public opinion in Quebec on the issue of young offenders is very much in keeping with the letter and the spirit of the international convention.
I would add that Senator Andreychuk's proposal is moderate to the extent that it only conveys a signal to the court. It is basically an interpretation provision that generates no rights or obligations at the legal level, but which does give the courts a very clear signal that Canadian legislators, like the executive, are aware that it is vitally important to respect the values which underlie the international convention. It is for these reasons that I support Senator Andreychuk's motion.
[English]
Senator Joyal: I wish to point out to all honourable senators, and especially to Senator Pearson, that the Government of Ontario, like all the other nine provinces, has confirmed its acceptance of the convention. It has been put to us that this is part of the reality. Of course, the provincial government - as is the case with the federal government - may undergo changes after an election and place a different emphasis on some of the principles or obligations that sustain the convention. However, we are not doing something here that the Government of Ontario would have refused to recognize. The Government of Ontario, like all the other nine provinces of Canada - including Nova Scotia as well as Quebec - have, through Order in Council, accepted the convention. We are not imposing principles on Ontario that it would have formally refused to accept.
Senator Pearson: The provinces sent letters. Alberta sent its letter two years ago. They pointed out several reservations. These were letters and not Orders in Council. We did ratify the convention without the letter of consent from Alberta, which technically, we should not have done. However, we did so because we wanted to ratify the convention.
Before we signed the convention in the first place, which was in May 1990, the provinces had to commit themselves to investigating their own legislation to see if it was in compliance. They then sent a second letter, which was signed by the premiers.
Senator Andreychuk: The federal-provincial process was in place for studying and leading to signing treaties. That is the best we have.
Senator Pearson: The provinces are obligated. Having studied this bill carefully, I believe it is in better compliance than the existing act. The existing act has several limitations that both Senator Andreychuk and I determined the last time around. That is why I have concerns about Quebec wanting to opt out, because it will be less in compliance under the current act.
I was not saying that, because we are unelected, we do not have any power. That is not it at all. I was simply saying that the challenge for all of us is to produce a bill that will be accepted by a broad spectrum across the country, and not just the best part. That is all I wanted to say about that.
Senator Joyal: Madam Chairman, I would like to point out that the Quebec government has bound itself by two decrees. They are numbered 61676-91 of December 9, 1991, and 1438-76 ofApril 21, 1976, which is in reference to the other convention.
That element is important in terms of the principles that are at stake. Some provinces may have simply written letters, but there is no doubt that each province has a real will to recognize the convention and to try, as much as possible, to abide by it. We are definitely not over-emphasizing the situation in saying that.
Senator Buchanan: I want to comment on what Senator Pearson said. I am sure that Senator Beaudoin would agree that an Order in Council, of course, binds a government, but a written letter signed by the premier can also bind the province, probably 100 per cent of the time. Contracts signed by a premier or a minister can bind a province. The Order in Council is the ultimate, but there was a Supreme Court of Nova Scotia case in which it was determined that even oral comments or positive statements by a premier could bind a government. A letter signed by a premier would bind the government. I have done it.
Senator Pearson: Then you might wonder why some premiers are not doing more.
Senator Cools: To respond to Senator Pearson's point, I would say that it largely has no application or validity in this instance because, number one, the clause in question is an interpretation clause.
That is the first item, but the important point that I wish to address is the question that Senator Pearson raised as to the authority of the Senate to amend legislation.
Senator Pearson: I do not raise that question at all. That was not my point.
The Chairman: She has made herself clear on that one.
Senator Cools: Chairman, I have not finished.
The Chairman: Senator Cools, if you have a further comment to make on some other subject -
Senator Cools: This is on the same subject. I took a correction that was very much in order. I am not big on all these international initiatives; I view many of them as "new empire." However, when governments go abroad and enter into these treaties, they are acting under prerogative powers. There has never been a time in history when prerogative powers needed more scrutiny and examination by Parliament than in the current era.
In this particular instance, the proposal before us is not to limit the prerogative power. It is very interesting. It is to support our prerogative power as it has been exercised; therefore the concern of Senator Pearson is quite well satisfied. It is a prerogative power, and that is what people are proposing to approve.
The Chairman: Thank you, Senator Cools. Before we come to a vote on this, I would like to raise something for the senators and the legal minds to think about. I have been informed that this amendment under clause 2 may relate to subclause 3(2) at the top of page 8:
This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).
There could be some conflicts there.
Senator Grafstein: No, no.
Senator Beaudoin: If I may intervene, that clause is very often used. There is absolutely no contradiction because they are both going in the same direction. In addition, the amendment atclause 2 is adding something that, so far, has not been in our statute and should be.
Senator Andreychuk: I would move a subamendment to my amendment of clause 2. Senator Moore, who has greater drafting skill than I, suggests that "Canadian law" should read "the law of Canada," and, in the second line, "the act" should read "this act."
Senator Beaudoin: That would be quite acceptable.
Senator Grafstein: That is better.
Senator Joyal: That is better.
Senator Andreychuk: We were told, time and again, that this bill goes no further than to exercise the powers of the federal government in criminal law, that it is not an intrusion into provincial affairs. This clause is meant to liberally construe federal legislation. It is not to infringe on provincial legislation. Some of the discussions we had were really not necessary, because we are talking about federal rights.
Senator Beaudoin: I would not change anything in the French. It is "le droit canadien" or "le droit au Canada."
Senator Grafstein: It is the same.
Senator Beaudoin: It should read "le droit du Canada." The other provinces have legislation and the common law. In Quebec, we have the civil code and the other legislation.
The Chairman: Are we clear on the subamendment to both the English and French versions?
Honourable senators, are we agreed that this subamendment to the amendment carry?
Hon. Senators: Agreed.
The Chairman: Are we agreed, honourable senators, that the amendment carry? The clerk will call the roll, please.
Senator Andreychuk: For the amendment.
Senator Beaudoin: Yes.
Senator Buchanan: Yes.
Senator Cools: Yes.
Senator Di Nino: Yes.
Senator Fraser: No.
Senator Grafstein: Yes.
Senator Joyal: Yes.
Senator Milne: No.
Senator Moore: Yes.
Senator Pearson: Abstain.
Senator Rivest: Yes.
The Chairman: The amendment is carried.
Are there further amendments to clause 2?
Senator Joyal: Madam Chairman, I have an amendment to clause 2, too.
Honourable senators, most of us have had the privilege of hearing the various experts and we remember the issue of three strikes. This bill contains what the experts call "automatism," which kicks in when a young person has committed three offences. Sometimes, an offence might only be a breach of a court-ordered curfew. If a youth returns at 12:05 instead of 12:00, that could be a strike against him or her.
The witnesses who spoke on this included the human rights commission of Quebec, the Quebec bar, l'Association des centres jeunesse du Quebec and others.
The major criticism is that, in the rehabilitation process, an element of consideration should sometimes be used to temper that three-strike automatism. I am moving amendments as proposed by those witnesses, but not to recognize recidivists. It is possible for youths to be brought back into the system because they committed another offence. I want to ensure that there is an element of discretion here to avoid the harshness of a sentence that, in fact, thwarts the rehabilitation process. We have had witnesses here, especially from -
[Translation]
Witnesses from the Association des centres jeunesse du Québec explained the implications of this automatic mechanism as regards recidivism. The amendment I am proposing aims to allow the Attorney General himself to determine whether he wants the young person to receive a longer sentence, rather than applying the automatic provision that would normally apply.
This reintroduces an element of discretion into the bill and allows for an assessment, a change which corresponds to the suggestions made by all of those we have heard on this matter. It does not change the objective, but adds an element of discretion to the Attorney General's power.
[English]
That is why I move:
That Bill C-7 be amended in clause 2, on page 4, by replacing line 21 with the following:
"committed a serious violent offence and if at the time of the commencement of proceedings the Attorney General does not elect, in writing, to decline to treat the offence as a presumptive offence."
[Translation]
In English, it is moved that Bill C-7 be amended in clause 2, on page 4, replacing line 21 with the following:
"[...] committed a serious violent offence and if at the time of the commencement of proceedings the attorney general does not elect, in writing, to decline to treat the offence as a presumptive offence."[English]
Senator Beaudoin: Does the Attorney General award this latitude in favour of the young offender?
Senator Joyal: Yes, it is what our witnesses have suggested. They did not suggest completely removing the automatism. They said that a young offender who commits another offence or who breaches a court order is certainly not in compliance with the original sentence. However, before we put more pressure on the offender, we should have an element of discretion to decide whether the subsequent offence is serious enough to trigger the full mechanism of the presumptive sentence.
The young offender here has not respected some element of the original sentence. This amendment would introduce some flexibility to allow for any readjustment that the probation officer might suggest.
Senator Grafstein: I think we understand.
Senator Beaudoin: I am satisfied with the answer.
Senator Fraser: With respect, Chair, I do not think a probationary offence would be enough. We are talking about two preceding judicial determinations at different proceedings. This does not cover someone who is apprehended for a number of infractions committed on one day. At different proceedings, the young person must be found to have committed a "serious violent offence."
Breaching a probation order does not constitute a serious violent offence. This clause does not apply to someone who commits a minor infraction. I cannot believe that a court would accept that interpretation.
Senator Andreychuk: You have to know the facts of the situation.
Senator Fraser: The word "violent" is in there. There are two qualifiers before the "three strikes" kicks in. The offender must have committed a serious violent offence twice before, and then once again.
Senator Andreychuk: It seems to me that we are not hamstringing the Attorney General. I had not thought of this. To me, that makes a lot of sense. We are leaving the discretion with the right person, the Attorney General, who has to think of the safety of the public and the young person. We are contemplating that there may be some offenders whom we do not want to be caught by the three strikes provision.
Senator Fraser: I understand that argument, but I want us to be sure that we are not confused about how broad is the net of the clause as it now stands.
The Chairman: Is there any further discussion on this amendment?
Are we in favour of the amendment, as moved by Senator Joyal?
Senator Fraser: Abstain.
Some Hon. Senators: Agreed.
The Chairman: Are there any further amendments to clause 2?
With no further amendments, shall clause 2 carry as amended?
Hon. Senators:Agreed.
The Chairman: Shall clauses 3 to 18 carry?
Hon. Senators:Agreed.
The Chairman: Shall clause 19 carry?
Senator Andreychuk: I move:
That Bill C-7 be amended in clause 19, on page 17, by adding after line 17 the following:
"(5) Rules established under subsection (3) for the convening and conducting of conferences must
(a) provide for the right of the young person to attend with counsel; and
(b) comply with the principles of procedural fairness and natural justice."
Historically, under the Juvenile Delinquents Act, people with the best of intentions would get together to discuss the best interests of the child. We found out then that our paternal interest in the child violated some of the fundamental rights of that child. Consequently, we moved to the Young Offenders Act.
This bill, whether I agree with it or not, affords to the young person due process and rights, except when it comes to conferences. Some of the fundamental, life-altering decisions that will affect that young person are made at those conferences. We do not know who will be at the conference, how it will be conducted, or what will be taken back into the judicial system. The conference can be triggered by the decision of a judge or by others. While I think clause 19 has the best of intentions, it is not an alternate measure; it is embedded in the process of the bill.
Surely, if a conference is to be held on sentencing to decide how best to deal with the child, the child should be part of it, with counsel. The principles of natural justice and fairness should apply. We have such a legal due process model at every stage of the proceedings in this bill, from start to finish, except in this very visible conference issue. To be consistent, and to be fair to the young person, the conferences should also follow the full due process model.
Senator Beaudoin: The right to counsel is solidly enshrined in our Charter. In many cases, the jurisprudence has been very liberal. If it is like that for adults, a fortiori, it must be the same for young offenders, because they need a little more protection. I agree that with this amendment, we provide for the right of the young person to attend with counsel.
[Translation]
Senator Rivest: Might there be cases where it would be in the interest of the child that members of the advisory council discuss things in his or her absence, with the provision that the child's lawyer be present? That the lawyer always needs to be present is a given, as he or she is a professional. I am asking this question because I am not a specialist. I do not know exactly how things are done.
[English]
Senator Andreychuk: If you look at the conferences section, subclauses 19(3) and (4), the Attorney General will be establishing rules. My amendment simply says that I want to see some principles of fairness and natural justice in any proceeding. I think there may be some instances where it would not be in the best interests of the young person, which would fit within our law. Even in adult court, you can proceed in certain instances without counsel. We want to ensure that these conferences do not turn into the kind of life-altering situations for the young person where there is a tendency to do what we think is in the best interests of the child. It is simply to establish rules using natural justice, but I do not see it precluding the kind of situation you are talking about.
Senator Fraser: Senator Rivest raises a very important point. I would be substantially happier - and I have a feeling this amendment may pass - if we just passed (b). For example, if the conference is considering certain medical information about the child, some of that might be of a nature that medical experts deem the child should not have, such as a genetic predisposition to certain conditions that can be aggravated by whatever - a conference - I do not know. I just give you an example. Some of it is very scary. The child walks around with a condition that his or her life has been organized to work around and does not know about it. Suddenly, the person has to be there when the conference is being told why such-and-such steps that otherwise might seem wonderful cannot be adopted. There could be a range of other factors. It could be something as simple as, "This child is absolutely hated by everyone in his class." On top of everything else, the kid gets to hear quasi-judicial proceedings in which he or she is formally identified as the most unpopular person on the planet.
Senator Andreychuk: The rebuttal is, either you have a due process model, which this bill does for 170 pages, or you accept what advocates of the old juvenile justice system argued for, which is that children should not have a full due process model or the right to counsel because they cannot handle it, and because certain information would be damaging to them as young people.
If that is the way you want to go, then the rest of the bill makes no sense, because it does give them full rights. This is too discretionary.
Subclause (1) states, in part, that:
A youth justice court judge, a provincial director, a police officer, a justice of the peace, a prosecutor or a youth worker may convene or cause to be convened a conference for the purpose of making a decision required to be made under this Act.
However, all the adults then get together somewhere to talk about what this child needs. They have already made their minds up before they enter the court. They then say, "This is what we propose." How do children rebut that and fight back, with their lawyer, to have their day in court, when the people who make the decision have already made up their minds? How fair is that? Either we have a model that makes sense and affords rights - that is, affords the right to withhold information from them when it is necessary - but not routinely and certainly not without justification.
Senator Grafstein: This provision bothers me because of the requirement for the young person to attend with counsel. Amongst other things, clause 2 sets out the purpose of the conference, namely, to give advice on appropriate extra-judicial measures and conditions for judicial interim release sentences, including review of sentence integration. This is a better process, because if there is a formal conference, there must be notes. If either counsel or the children feel it is unfair - unfair because they have not been able to be part of the process - then they will have a Charter challenge.
My concern here is that we are trying, as much as possible, to move the system from a judicial model to a therapeutic model. I thought this was one of the transitional provisions that give flexibility to provide a therapeutic model as opposed to a criminal model. If the children's rights are infringed unreasonably, there is a clear Charter challenge.
Senator Andreychuk: However, you are forcing the young person to make that decision.
Senator Grafstein: The young person's counsel makes that decision. I was impressed with what the police officers, and others, said about this. They said, "As soon as you get into a judicial process, lawyers are lawyers, as they should be. They are there for a single purpose. They are not necessarily there in "the interests" of the child but in the interests of their client." Lawyers find themselves in that type of conflict all the time. You try to ride both horses, but it is very difficult to do so.
I am sensitive to what Senator Andreychuk says here, but the good part of this bill is that they are trying to move, as best they can, to extra-judicial and informal processes that focus on the interests of children, as opposed to being restricted by the criminal justice process. I would hesitate to support this particular amendment.
Senator Di Nino: I am confused. We are talking about two things, if I understand correctly. One is the fundamental right of youth to be represented by counsel. I think that is a good thing. The other, raised by Senator Rivest, is whether the child should be in attendance.
Senator Grafstein: The amendment states that the child must be in attendance.
Senator Di Nino: That is the issue. Those are the two things. One is that the child must attend. Senator Rivest raised the point that it is sometimes better if the child does not attend. I am raising the other question, namely, what about the fundamental right to be represented by counsel? Generally, a child, depending on the age, will most likely not be able to make that kind of assessment. I agree with Senator Andreychuk. There must be some representation of the child. Is there any way that this can be looked at? Is another amendment coming forward? Perhaps that will solve the problem.
I am not suggesting this as an amendment, but it should provide the right for the young person to be represented by counsel. We can then work on the attendance issue. Is that what are you trying to suggest?
Senator Pearson: I am sympathetic to the idea here because of the child's right to take part in any proceedings, administrative or otherwise, under article 12 of the convention. However, I do not sufficiently understand how it will work to vote one way or the other. I am sensitive to what Senator Fraser said, namely, that it might limit some of the things that could be discussed if the child were there.
Senator Di Nino: It could.
Senator Pearson: I would have to work out how important this is. I think the principles of procedural fairness and natural justice are already considered in the bill. That is not the one I am worried about. I know what you are saying. I think that applies to many things about kids in the child welfare system, for example, who do not have any chance. Some of these kids have been locked up for weeks on end by child welfare. I am not talking about justice, but about the child welfare system, where they have fewer due-process rights.
Senator Andreychuk: It is wrong.
The Chairman: That is off the subject.
Senator Pearson: I do not sufficiently understand one way or the other, so I will abstain.
Senator Moore: In case there may be no amendment forthcoming, like Senator Pearson, I do not know that we need paragraph (b). I do not know why paragraph (a) could not read "provide for the right of the young person to be represented by counsel." I think that is what Senator Di Nino was alluding to. As long as you have the representative there to look after the child's legal interest, that would answer your concerns.
Senator Andreychuk: I will take half a loaf, if you would like to make the amendment.
The Chairman: Senator Moore, you are amending this to replace the words "attend with counsel."
Senator Moore: With the phrase, "to be represented by."
The Chairman: "Be represented by?"
Senator Grafstein: No, not represented. Provide a right. It is to provide the right, not necessarily for counsel to attend, but to provide the right for counsel to attend if the young person so chooses. That is what Senator Rivest was saying.
Senator Beaudoin: I agree with that.
The Chairman: I am waiting for some wording, please.
Senator Grafstein: I suggest "provide for the right of the young person to be represented by counsel."
The Chairman: That is what I said.
Senator Beaudoin: If children are represented, then they will not be there, will they?
Senator Di Nino: It is assumed that they would be there.
Senator Beaudoin: There is something wrong here. It is the right of young people to attend with their counsel.
Senator Fraser: That is part of the discussion. There might be cases where it is actually in the true best interests of the child not to hear some of the things that need to be said in such a conference. We could be talking about a 12-year-old.
Senator Beaudoin: There are two things, the right to attend, and the right to attend with counsel. It is that, or nothing. That is why I suggest that you leave it as it is.
The Chairman: Do we have a subamendment?
Senator Andreychuk: Apparently not.
The Chairman: We do not have a subamendment. The amendment has been moved.
All in favour of Senator Andreychuk's amendment as originally written?
Senator Di Nino: For clarification, we were talking about the right to be represented by counsel; it is now "to attend."
The Chairman: "To attend with counsel;" this is Senator Andreychuk's amendment.
Senator Cools: Does that mean counsel can attend without the young person? Does that mean that the young person can send counsel? The counsel can go without the child. It is a right, not an order. It says, "provide for the right of the young person to attend with counsel." The question is, can counsel attend without the young person?
Senator Rivest: The right to attend, or be represented, is a principle of natural justice.
The Chairman: One at a time, please.
Senator Beaudoin: The right to represent means that the young people might not be there. I do not think this is what we want. We want the young people to be there, with counsel, not just represented by counsel.
Senator Rivest: There are some cases where it would be preferable for the young person not to be there.
Senator Joyal: The provision, as typed, says that we add, after line 17, a new paragraph that provides that:
"(5) Rules established under subsection (3) for the convening and conducting of conferences must
(a) provide for the right of the young person to attend with counsel; and
(b) comply with the principles of procedural fairness and natural justice."
The statute so guarantees; that is the way I interpret it. It is not limiting. It just says, in that case, the rules provide for certain things. The rules can provide for other things, too.
Senator Cools: Why do we need part (b)? I would assume that most rules comply with the principles of procedural fairness.
Senator Andreychuk: Not necessarily. We are talking about an informal conference. I am trying to say that if there are life-altering decisions to be made because of a young person's criminal behaviour, that at least these minimum standards should be met. The exceptions to these standards should be according to normal legal practices.
My fear is that the conferences will begin to take away from children some of the decisions about themselves that we have fought to get back through the Convention on the Rights of the Child, through the Young Offenders Act and through this bill. This is a model for teaching children something about account ability. We are giving them rights and responsibilities. We are weighing responsibilities and accountability against rights. This is an avenue, or an invitation, to avoid that process. I want to ensure that the process does not degenerate into a situation where adults will start talking about children and acting on behalf of their best interests, but without the children being present.
There are possibilities and factors that should not be utilized in the analysis and subsequent decisions when children commit criminal acts, which is what happened with the Juvenile Delinquents Act.
We were trying to turn Johnny into a good boy, all with the best of intentions - and I was part of that process - but we lost sight of the fact that he was there because he committed a criminal act.
The Chairman: All those in favour of the amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
Some Hon. Senators: Abstain.
The Chairman: Call the role, please.
Ms Jill Anne Joseph, Clerk of the Committee: We will start with the Chair.
The Chairman: No.
Senator Andreychuk: Yes.
Senator Beaudoin: Yes.
Senator Buchanan: Yes.
Senator Cools: Yes.
Senator Di Nino: Yes.
Senator Fraser: No.
Senator Grafstein: Abstain.
Senator Joyal: Yes.
Senator Moore: Yes.
Senator Pearson: Abstain.
Senator Rivest: Abstain.
The Chairman: The amendment is carried.
Shall clause 19, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 20 to 24 carry?
Hon. Senators: Agreed.
The Chairman: Honourable senators, we are now considering clause 25. Are there any amendments to clause 25?
Senator Cools: Yes, I have an amendment in respect of subclause 25(10). The clause is rather bizarre. It has the rather odd legal effect of not preventing the lieutenant-governor in council of a province from establishing a program to authorize the recovery of the cost of a young person's counsel from the young person or the parents.
Therefore, I move:
That Bill C-7 be amended in clause 25, on page 21,
(a) by deleting lines 21 to 31; and
(b) by renumbering subclause 25 (11) as subclause (10) and any cross-references thereto accordingly.
In this particular instance, the proposed amendment is almost self-evident, almost self-explanatory. In a substantive way, I would have concerns about a government setting up enormous bureaucracies to extract very small sums of money from people of often-limited financial means.
The real reason why I think this clause could easily be deleted is because of the scripting itself. It says, nothing in the bill prevents it. One does not need an act to say that nothing prevents an action. If nothing prevents the action, it is not prevented. With the deletion of this clause, there is still nothing in the bill that prevents it. It is a very odd clause.
I submit it is one of those clauses that, on the face of it, and like many in this bill, look innocent, but I have no doubt it would find some sinister application. I assert that nothing prevents it. Therefore, it is redundant.
Having said that, I propose that we delete it.
Senator Fraser: I suppose it is redundant, although I have seen this formulation in other pieces of legislation. I think it is absolutely, profoundly immoral to establish a policy of recaptur ing legal aid costs from the parents of the child. We have heard testimony from several witnesses to the effect that this policy may lead to genuine miscarriages of justice by placing pressure on a child to plead guilty.
That said, some provinces are already doing that. We heard testimony to that effect, because the law has allowed them to do so. I suspect that you could get a reasonable argument in court that they have jurisdiction over how they run their legal aid programs.
I wish to observe to this committee that we are embarked here on a high-risk exercise. We are proposing amendments to an extremely contentious piece of proposed legislation that has had a terribly difficult birthing. If there are amendments that this committee really believes are desirable, I suggest that our position will have more credibility if we try to limit our actions to those areas that truly are necessary. I do not think this one is necessary. I sympathize with Senator Cools's dedication to rigour and clarity in legal texts, but I do not think this is necessary.
Senator Cools: It says that nothing prevents it. Even the deletion of this clause would not prevent it. Nothing equals nothing.
Senator Joyal: I agree that it might be the practice in some provinces. That is to say, some province might contemplate it in the future if this clause is not included. I do not like this clause because it might encourage people to think about recovering legal aid funds. Many witnesses - and Senator Fraser put it better than I could have done so - told us of the possible effects of this procedure regarding the recovery of fees. Some people could be forced to forgo counsel and do whatever they can in the circumstances. I will not repeat the arguments. We have already heard them here.
Although I understand the point, this bill is so complex that you must understand what you are doing to the entire bill when you change one part of it. This is simple to understand and I agree with the objective.
Senator Beaudoin: I think it should be deleted. The mere fact that it is there will result in some people, somewhere, sometime, thinking about it. If they do it now, they will do it in the future. I am against it.
Senator Cools: There are also moral concerns. We have been told, again and again, that this bill is huge, cumbersome, clumsy and difficult to understand. It is not particularly helpful or useful to impose something so clumsy on the public and then have a situation where a huge bureaucracy may have to be created - which is, again, expensive - and governments will have to confront their own citizens. That is the relationship. There is something very unhealthy in the relationship of a government to its citizens being suggested in that clause.
I can go at it from the substantive angle, but I went at it from the procedural one.
The Chairman: Is there any further discussion?
Senator Andreychuk: I agree with this amendment for one reason: The bill is going in a totally different direction. If provinces are doing it, as was said, then it was between the province and the people. I would prefer that there be a debate within a province as to whether to exercise that power and whether it is necessary. One wonders why the federal government is signalling everyone to do it. It is not in keeping with the principles or the tenor of the bill. In this case, I am sure it was the result of some of this balancing act that I was talking about among competing interests, with some people wanting a certain kind of process and others wanting another. I think this was one of the "saw-offs," if I can put it that way. It puts it right back where it should be, namely, in the hands of the provinces, for them to think about. I would therefore delete it from here.
The Chairman: If there is no further discussion, are you ready for the vote? All in favour of the amendment?
Some Hon. Senators: Yes.
The Chairman: Against?
Senator Fraser: I did not want to force a recorded vote, but I do not want it on the record that this was unanimous.
The Chairman: On division, then.
Senator Cools: I want a recorded vote.
The Chairman: On division?
Senator Fraser: On division.
The Chairman: No, call the roll. It has been requested.
The Chairman: Against.
Senator Andreychuk: Yes.
Senator Beaudoin: Yes.
Senator Buchanan: Yes.
Senator Cools: Yes.
Senator Di Nino: Yes.
Senator Fraser: No.
Senator Joyal: Agreed.
Senator Moore: Yes.
Senator Pearson: Abstain.
Senator Rivest: Yes.
The Chairman: The amendment is carried.
Shall clause 25, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 26 to 37 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Are there amendments to clause 38? We all have one in front of us. Is anyone moving this amendment?
Senator Moore: Yes. It has been distributed in both official languages. I do not think that the bill goes far enough in trying to care for Aboriginal young offenders. We heard some very sad statistics with respect to Aboriginal youth in custody in Manitoba and Saskatchewan. We heard from a judge about the demeanour, or lack thereof, of the Aboriginal youth toward the white man's system of justice. That was the implication of what he said.
We must do more to try to care for these young people. Therefore, I move:
That Bill C-7 be amended in clause 38, on page 38,
(a) by replacing lines 27 and 28 with the following:
"for that offence;
(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of Aboriginal young persons; and
(e) subject to paragraph (c), the sentence"; and
(b) by renumbering all references to paragraph 38 (2)(d) as references to paragraph 38 (2)(e).
That is the same wording as appears in section 718.2(e) of our Criminal Code.
Senator Andreychuk: I strongly support this amendment. I do not think that today, in this Senate, where we have an Aboriginal committee and where we have studied the dilemmas of the Aboriginal youth and the Aboriginal peoples, that we can accept a bill that does not identify, at least to the extent that this amendment does, that something different is necessary for Aboriginal people.
I would hope that this amendment would indicate, as signalled by the minister, that they are trying to do more. I think this is a strong signal from the Senate that Aboriginal justice has to be looked at, particularly in regard to youth. The over-representation of young Aboriginal people in the criminal justice system that we see in my province will not change until we start collectively dealing with that issue. That means every one of us. Our Constitution gives us a special responsibility for Aboriginals in this society. We cannot continue to ignore it repeatedly.
I feel strongly that nothing in this bill will change things for Aboriginal youth. Perhaps this signal will at least be a prod to some to do more. Therefore, I am very much in favour of this amendment.
Senator Grafstein: I support this amendment. The evidence is overwhelmingly in support of it. There was not one witness who commented on the question of Aboriginals who did not say that this is a particular problem in the youth justice system. I congratulate Senator Moore, because this reflects the evidence. This is a pure reflection of the overwhelming evidence and Senator Moore has phrased it very succinctly.
Senator Fraser: I seem to be assuming the role of standing for the status quo, which is not actually my preferred position.
Senator Cools: Then change your position.
Senator Fraser: No. On this one, if it comes to a vote, I will abstain. I would just observe that we were all horrified by the evidence we heard about Aboriginal youth in our justice system. It is a national scandal of massive proportions. However, one of the things that I actually like about this bill - there are many I do not - is that the whole thrust of it is to push the provinces into taking into account the circumstances of all children, including their community circumstances. I cannot but think that that is what Aboriginals need. I do not, therefore, think that this clause would change anything in the way this bill would work. I have difficulty with the concept of using laws to send signals.
Senator Cools: This bill is full of that.
Senator Fraser: I will not vote against the bill. I will abstain. I think this is just one more in a long list of amendments.
Senator Beaudoin: I am for the amendment for two reasons. The Minister of Justice said clearly, and often, that we have to take care of the Aboriginals. Second, we have the power to amend. Section 91(24) of the Constitution is clear. They come under our jurisdiction. Third, the jurisprudence has said clearly that Parliament has the fiduciary duty to look after the Aboriginals.
Senator Pearson: I do not disagree with the sentiment of the amendment. We all agree with that. I am also mindful of the young people who appeared before us who stated that too much Aboriginal sensitivity had sent some of them into treatment in Aboriginal centres that was not appropriate, and they would have preferred to go somewhere else.
My conclusion is to abstain. We already have the reference in the declaration of principles about respecting gender, ethnic, cultural and linguistic differences in responding to the needs of Aboriginal young people, but we always have to be careful about unintended impact.
I know some questions have been raised about sentencing. This has not always redounded to the best interests of the Aboriginal people. I will abstain on this.
Senator Joyal: I am of the opinion that this is a minimum. Considering the plight of the young Aboriginals in the youth justice system, I tell you that we cannot boast about our audacity in introducing, for the sentencing of Aboriginal young offenders, the same principle that exists in the Criminal Code for Aboriginal adults. I do not think that we are being innovative; we are not giving more to the young offenders that the adult offenders received following the Gladue case. Representatives of the Aboriginal community explained that to us. I would have liked to see many more definitions of the status and conditions of Aboriginal people in section 2, in the declaration especially, than we have, but I think this is really the minimum and I certainly support the amendment.
The Chairman: Is there any more discussion? All in favour of the amendment?
Some Hon. Senators: Agreed.
The Chairman: The amendment is carried.
Senator Pearson: On division.
The Chairman: On division, yes. Shall clause 38 carry as amended?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clauses 39 to 49 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 50 carry? We have an amendment before us on clause 50.
Senator Moore: This ties into what we just passed. I move:
That Bill C-7 be amended in clause 50, on page 57, replacing line 23 with the following:
"except for paragraph 718.2(e) (sentencing principle for aboriginal offenders), 722 (victim impact state-".
Senator Di Nino: This is just as a consequence of the previous amendment.
Senator Moore: Yes.
The Chairman: Is there any further discussion on this amendment? Are honourable senators in favour of the amend ment?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 50, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clauses 51 to 60 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 61 carry?
Senator Grafstein: We did circulate an amendment toclause 61, Chair?
Senator Grafstein: Perhaps I should read it for the record.I move:
That Bill C-7 be amended,(a) in clause 61, on page 68, by deleting lines 23 to 28; and
(b) by renumbering clauses 62 to 200 as clauses 61to 199 and any cross-references thereto accordingly.
Essentially, this amendment follows on the earlier motion to delete the discretion granted to the lieutenant-governor in council to reduce the age.
The Chairman: Is there any further discussion on this amendment?
Senator Beaudoin: I have a problem with it. We have discussed it. It is before the Court of Appeal. You raised some doubts, and I understand that, but the fact is that the jurisprudence is going in another direction. I am in a difficult situation.
Senator Grafstein: I understand. There are two grounds upon which I am seeking this change. The first is on policy grounds, which I think were summed up best by Professor Doob, who said it is unprincipled and unnecessary and that there is a lot of evidence to show that this is not a positive policy. As well, there have been serious reservations raised on constitutional questions, Charter issues and the question of compliance with the United Nations charter. Essentially, the policy is offensive, whereas I think the Constitution will be protective.
The Chairman: Honourable senators, I would point out that having passed the amendments to clause 2, we should pass this one for the sake of consistency.
Shall the amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried, on division. Shall clause 61, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried, on division. Shall clauses 62 to 75 carry?
Hon. Senators: Agreed.
The Chairman: Carried. We move now to clause 76. Are there amendments to clause 76?
Senator Beaudoin: Yes, I move:
That Bill C-7 be amended, in clause 76, on page 79, by replacing lines 16 to 19 with the following:
"(b) a youth custody section of a provincial correctional facility for adults, in which young persons are kept separate and apart from any adult who is detained or held in custody; or
(c) if the sentence is for two years or more, a youth custody section of a penitentiary, in which young persons are kept separate and apart from any adult who is detained or held in custody."
The reason for this amendment is that the Supreme Court has said very clearly, at least in one or two cases, that the youth system should be different from the adult system. Justice should not only be done, but should be seen to be done. It should be seen to be done in the penitentiaries and prisons.
I also have an amendment on the following page concerning subclauses 6(b) and (c). It is important that young people not be with adults.
The Chairman: I do not have that second one, Senator Beaudoin.
Senator Beaudoin: It is on page 80.
The Chairman: I have an amendment to clause 76 on page 79.
Senator Di Nino: Is it exactly the same thing?
Senator Beaudoin: It is exactly the same thing. We just discovered it.
The Chairman: Perhaps we will move this one and do the intervening clauses.
Senator Beaudoin: We have to draft it.
Senator Fraser: Are you amending your motion, Senator Beaudoin, to make the same change to the clause you just mentioned?
The Chairman: You are now moving a subamendment to amend the wording of (6)(b) and (c) in precisely the same way.
Senator Beaudoin: In the same way, with the same words.
The Chairman: We will discuss the whole thing simultaneously.
Senator Moore: It is not the same lines, though.
The Chairman: We will get the line references correct as well. It is clause 76 on page 80, lines 18 to 21.
Is there any discussion?
Senator Beaudoin: As I said, since the court has already said clearly that we should have a different system, I do not see why it should not be the same in a penitentiary or prison. One prisoner may influence another. Since there is a special justice system for youth, I think it should be visible physically in the jails and the penitentiaries. It is new.
The Chairman: I agree with you, Senator Beaudoin, that they should be separate, but this may have quite severe implications for smaller centres. I am thinking of Nunavut, where they may not be able to build a separate penitentiary or correction facility.
Senator Beaudoin: They have money.
The Chairman: They may be building a correctional institute for one person.
Senator Cools: They can assign one cell.
Senator Fraser: One room.
Senator Joyal: It does not say that you have to have a separate building.
The Chairman: It says, "separate and apart."
Senator Beaudoin: It may be in the same building, of course.
The Chairman: Is there any further discussion?
Senator Di Nino: The term "separate and apart" already exists in both of those clauses. It is really a continuation of the same wording.
Senator Pearson: I certainly agree with keeping them separate and apart. I did not read it in quite the same way, so I will abstain on the matter until I am convinced that what you are proposing is necessary.
Senator Joyal: I raised this issue in my speech on second reading. If there is one principle in the international convention that is quite clear, it is that we cannot mix young offenders with adult offenders. Organize however you want, this is the reality. I do not think the amendment goes too far. It does not say that you have to build an autonomous entity in another place. The French version of the amendment is clear.
[Translation]
"Separate and apart from"
In principle, that means that the young persons must be detained somewhere where they cannot communicate with adults. Of course, if abundant funds are available, such places can be built for young persons, but that is not specified in the amendment.
[English]
This amendment signals that the best interests of children should be taken into account when you put them in an adult detention centre.
The Chairman: We will vote on the subamendment and the amendment at the same time. All in favour of the subamendment and the amendment?
Hon. Senators: Agreed.
Senator Pearson: On division.
The Chairman: Motion carried, on division. Is it agreed that clause 76 pass, as amended?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chairman: Carried, on division. Is it agreed thatclauses 77 to 109 carry?
Hon. Senators: Agreed.
The Chairman: Carried. We now turn to clause 110.
Senator Beaudoin: The amendment reads as follows:
That Bill C-7 be amended in clause 110, by replacing line 29 with the following:
"(2) When the youth justice court, on application of the prosecutor, determines that the public interest will best be served, subsection (1) does not apply."
That is at page 113 and relates to the publication of names. Senator Fraser discussed this subject often.
Senator Fraser: Can you explain the purpose of this amendment?
Senator Beaudoin: This amendment speaks to the latitude given to the prosecutor. Senator Joyal gave certain latitude to the Attorney General, and here we give certain latitude to the prosecutor when we say that a subclause does not apply.
Senator Fraser: Would you still permit publication of the names of these young people?
Senator Beaudoin: If it is in the public interest, yes.
Senator Di Nino: That is what this does.
Senator Beaudoin: The question is whether we give that latitude or not.
Senator Grafstein: This is again a halfway house between the untrammelled right to publicize names and putting a higher onus on the system to justify publication in exceptional circumstances, and if it is in the public interest. That is the rationale. It does not foreclose publication, but it establishes a higher bar for publication to clear when it says "the public interest."
Senator Beaudoin: Exactly. The operative words are "public interest."
Senator Fraser: We have raised the bar from 14 to 16 for all cases, have we not?
Senator Beaudoin: Yes.
Senator Fraser: Did we do that for adult sentences as well?
Senator Di Nino: You raised the bar for both with the two amendments.
Senator Beaudoin: A person must construe the two amendments together, your amendment and this one. That is possible.
Senator Fraser: Sublause 62(b) has been retained, and that refers to 14 years of age.
Senator Beaudoin: This is a discretion given to the prosecutor.
The Chairman: No, the discretion is given to the youth justice court, on application of the prosecutor.
Senator Fraser: Senator Beaudoin, if you are trying to help young people, you should know that there are a significant number of provinces where the prosecutors will never make this application.
Senator Beaudoin: They will never use that latitude; is that what you are saying?
Senator Fraser: They will never apply for preservation of confidentiality.
Senator Di Nino: That discretion is available in the different areas.
Senator Fraser: I want that to be plain. I am not sure this will change anything very much from what would happen anyway.
Senator Beaudoin: The motive that was considered is this, and I will read it in French:
[Translation]
[...] to set aside the automatic publication of the name of the delinquent and to impose the onus on the Crown to justify it.[English]
It is to set aside the automatic publication of the name of the delinquent and to impose the onus on the Crown to justify it. It is helping young people.
Senator Fraser: I withdraw, then. I am sorry.
Senator Di Nino: I thought you misunderstood it.
Senator Fraser: I got it backwards.
Senator Andreychuk: Senator Nolin was very much in favour of this amendment. Unfortunately, he is travelling with another committee. He is concerned that in a province like Quebec - and that was your point, Senator Fraser, also - it may be that attorneys general or prosecutors will look at this differently. That is their privilege; there is enough scope in there. However, a province like Quebec, which seems not to want publication as much as others, could exercise this clause to do what it believes to be in the best interests of the public and the youth. It gives discretion to provinces that the bill does not. Without it, it is mandatory. Senator Tkachuk was rather keen on this clause. I hope I have stated his position correctly.
The Chairman: Is there any further debate on the amendment?
Senator Cools: I am having difficulty reading where subparagraph (a) falls back into place. Currently, this is replacing line 29. Therefore, after one reads "does not apply", then subparagraph (a) continues.
The Chairman: All the other subclauses follow. It is adding a clause.
Senator Beaudoin: You set aside clause 29. It starts, "When the youth..."
Senator Moore: The period has to come out.
Senator Beaudoin: You then start clause 2 with, "When the youth justice court..."
Senator Cools: The period does not apply. It is faulty.
Senator Moore: Delete the period at the end of your amendment and it will work.
Senator Cools: Yes. Delete the period after the word "apply."
The Chairman: If I can throw another curveball, if we go back to clause 75 on page 78, subclause (3), it states that "on application of the young person or the Attorney General, a youth justice court may order a ban on publication of information that would identify the young person as having been dealt with under this act." Is this not redundant?
Senator Fraser: No. This is reversing the onus. That would refer to, I assume, other kinds of information that might leak out.
Senator Cools: This one is about ordering bans.
Senator Beaudoin: We are putting an onus on the Crown to justify the publication.
Senator Andreychuk: This is the identity. The other is information.
Senator Fraser: It is very similar, but it is a different onus.
Senator Joyal: It is on application of the young person. It is quite different.
Senator Cools: This one, on page 78, is making it possible for the young person to make such an application.
The Chairman: At this point, we will have counter applications.
Senator Moore: Senator Beaudoin's amendment ends with the words "does not apply," period. The period should be removed.
The Chairman: The period is after the quotation marks.
Senator Moore: Fine.
The Chairman: The period does not apply because it is after the quotes.
All in favour of the amendment?
Hon. Senators: Agreed.
The Chairman: Carried, on division. All in favour ofclause 110 as amended?
Hon. Senators: Agreed.
The Chairman: Carried, on division. Shall clauses 111 to 124 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Honourable senators, we have three amendments and a brand-new clause yet to go.
Senator Beaudoin: Senators, I wish to move an amendment to clause 125. I move:
That Bill C-7 be amended in clause 125,(a) on page 129, by deleting lines 1 to 8; and
(b) by renumbering subsections 125(5) to 125(8) as subsections 125(4) to 125(7) and any cross-references thereto accordingly.
This is purely consequential.
The Chairman: Senator Beaudoin, do you want to defend your motion?
Senator Di Nino: I would like to know the explanation for it.
The Chairman: I am asking Senator Beaudoin to explain it.
Senator Beaudoin: We do not want the file of the young offender to be given to an insurance company, unless it is directly for the purposes of an insurance claim. This is the reason for my amendment.
The Chairman: If a young person does all kinds of damage, then the insurance company cannot get the information when they are investigating a claim arising out of an offence committed by that young person.
Senator Beaudoin: I know that you will conclude it is a very special protection for the young person. However, one purpose of this bill is to rehabilitate the young person. Of course, the public interest is always of concern. The fact is that the bill has more than one objective.
The Chairman: This would completely eliminate any sort of insurance claim.
Senator Grafstein: No.
Senator Beaudoin: We do not want the insurance company to intervene, except, of course, when it is for insurance purposes. The file of the young offender will remain secret, if I can put it that way; the insurance company will not consider it.
The Chairman: I do not understand that. It seems to me your explanation is running counter to what the amendment does.
Senator Beaudoin: We can come back to it later.
Senator Joyal: The effect of the amendment is to remove or delete paragraph (4). It does not prevent an insurance company from making a claim. What it does say, essentially, is that it cannot use the record.
Senator Fraser: It says that the peace officer cannot tell the insurance company anything.
Senator Beaudoin: The subclause now says that a peace officer may disclose information to an insurance company for the purpose of investigating a claim. We want to delete that.
Senator Fraser: I know you do, senator. I am suggesting that in deleting this, you are making a far more sweeping change than I would have expected. You all heard me rant in committee about the notion of giving young offenders' names to insurance companies, and having those names, with records attached, disappear into the companies' files. I never did get a clear answer as to why this was useful, although I was told it is done now. I think I was told that. It is all very strange.
However, even I must agree that it ought to be possible for an insurance company, after a car has been stolen, for example, to go to the cops and say, "Do you have a complaint that this car was stolen? Have you recovered it?" Something like that would be excluded by your amendment.
The Chairman: This may mean that if I am at a stoplight and am rear-ended by a 17-year-old, my insurance company could not get the traffic report.
Senator Di Nino: It may be much more serious than that. This young person could have burned down a church, for example, as a consequence of which, someone died. I cannot agree with this amendment.
I agree with what Senator Beaudoin said. This says that a peace officer may disclose information arising out of an offence committed or alleged to have been committed by the young person to whom the record relates.
It is directly related to the crime committed by this young person, if I understand it correctly. They are not saying, "Give me all the stuff." All they are saying is, if the police apprehend a young person for car theft, rear ending another car, burning down a church, or committing any crime that would involve the insurance company in some way, we have to allow them to obtain the information related to that offence.
Senator Fraser: Withdraw it. If you were to rework it, you could bring it in on third reading.
Senator Beaudoin: It is not my amendment.
Senator Fraser: I had a feeling it might not be. You would have done it better.
Senator Beaudoin: I have no objection to withdrawing the amendment.
Senator Andreychuk: I move:
That Bill C-7 be amended in clause 125,(a), on page 129, by replacing line 32 with the following:
"(7) A youth justice court judge shall disclose to a representative of any school board or school or any other educational or training institution any information con tained in a record kept under section 114 if the disclosure is necessary
(a) to ensure compliance by the young person with an authorization under section 91 or an order of the youth justice court;
(b) to ensure the safety of staff, students or other persons; or
(c) to facilitate the rehabilitation of the young person"; and
(c) on pages 129 and 130, by renumbering subclauses 125(7) and (8) as subclauses (8) and (9) and all cross-references thereto accordingly.
My point is this: The existing clause, concerning a provincial youth director, a youth worker, an Attorney General, a peace officer or any other person engaged in the provision of services to young persons, including the schools and training institutions, is broad and permissive. I think it is worthy to stand as is. However, I heard a compelling case from teachers. As you recall, Priscilla de Villiers said that many of the victims are young people, and when the offender is a young person, they can be put back in the same class. There is safety for teachers and other students to worry about, and this is also a legitimate concern in the rehabilitation of young offenders.
It seemed to me that their initial request to change the word "may" to "shall" was too all-encompassing and caught up all these other records, because you have to go back to 114, 115 and 116. It would perhaps even invite a challenge by the Privacy Commissioner, et cetera. Those records are too extensive to give to the school, and while it might perhaps be helpful, it is not absolutely necessary. It seems to me that discretion for the youth court judge in giving a disposition, and with the precautions of (a), (b) and (c), is worthy of consideration. I think teachers have been an undervalued resource for young offenders, and judges and youth workers would say that we have to bring the teachers, especially, into the youth system, so they can be a positive rather than a competing resource for the child.
Therefore, it is important that we send a signal that we do believe teachers are a good resource for young people, and this amendment does not, in any sense, provide what they asked for, but simply restricts it to what I think is a real need-to-know basis.
Senator Grafstein: Is that not what subclause (6) says?
Senator Andreychuk: No, it is permissive. This is mandatory.
Senator Fraser: Senator Andreychuk will not be surprised to hear me say I will not vote for this. We have already had intense discussions on this matter. Technically, it seems to me you are not replacing line 32, you are replacing subclause (6).
Senator Andreychuk: Yes, okay.
Senator Grafstein: The two are in conflict with one another.
Senator Fraser: Then line 32 would pick up withsubclause (7).
Senator Andreychuk: It is meant to maintain (6), put in anew (7) and move the others.
The Chairman: I am confused now.
Senator Fraser: It should be inserted before line 32, or following line 31.
Senator Di Nino: It will follow, when you read the second part, that you renumber 125(7) and so forth.
Senator Fraser: If we replace line 32, then we have to put it back in again, because she is keeping the original subclause (7).
Senator Andreychuk: I know what I wanted to do and I asked the drafters. I was told it should be drafted in this way.
Senator Grafstein: It is technically complicated because of (6), (5) and (7). Again, unless we are really clear about this, perhaps we should suggest to the senator that she withdraw it. Once she has it all clarified, we can move an amendment on third reading.
Senator Andreychuk: I would prefer to do it here and now. I ask for your support.
The Chairman: Then perhaps, Senator Andreychuk, you had better explain exactly, because on page 129, by replacing line 32, which is: (7), a person to whom information is...
Senator Fraser: You do not want to take that out.
Senator Di Nino: It can be fixed by renumbering. That is what it is intended to do. Whether the drafting is correct or not, you are putting this new one in between (6) and (7).
The Chairman: May I suggest, then, Senator Andreychuk, you reword it by saying, "by inserting after line 31"?
Senator Andreychuk: All right.
Senator Di Nino: And consequential amendments thereto.
Senator Andreychuk: To be clear, it is to keep (6), put in a new (7), and move the others down and renumber them.
The Chairman: Is there any debate?
Senator Pearson: While I am sympathetic to many of the things that Senator Andreychuk has put forward today, I disagree with this particular one quite strongly, especially after talking with some young offenders. It is not that it is not permitted or possible to disclose information that might help to ensure compliance and so on. The current experience in Ontario is such that a young boy was charged for something he wrote, which is an example of school boards' reluctance to deal with these issues. When they do get information, they often ensure the kid does not attend school at all. I do not feel comfortable with making it mandatory. I do not have the confidence that Senator Andreychuk has. I have a lot of respect for teachers, but they are like the rest of us, some are great and some not so great.
Senator Andreychuk: I am glad you made that last comment, because it seems to me that thousands of teachers across this country are probably the best resource, and in some cases, better than parents.
Senator Di Nino: In some cases, they are the only resource.
Senator Andreychuk: It does them a disservice to point out that there are some negative teachers. There are negative people in every profession. We must build in a competence for those doing their job well.
The other factor that persuaded me was that more than50 per cent of young people who come before the court are in custody. The ability exists, as of right, to disclose to the teachers whatever they wish about those children in custody. I mind that very much. This is a way of equalizing all children, and not putting those who are disadvantaged because of parental difficulties into a different category.
I feel strongly that we should, as a community that supports teachers, at least go as far as this amendment. This is not giving them what they asked for; it is only a small part. There is control over access to the judicial knowledge, and it does not give them all the other records they asked for. This is a clear signal that we should be supporting teachers. We underpay and undervalue them, but they are, in many cases, the most important resource.
I feel very strongly about supporting the teachers. If I do not get the support here, I will try again on third reading.
Senator Fraser: I have a point of clarification. I would observe that, as with the rest of us, teachers include in their ranks a number of sadists, or other perhaps slightly less objectionable, but nonetheless offensive persons. The main difference between them and the rest of us is that we already give them huge authority over our children. I side strongly with Senator Pearson on this. I would want to keep the discretion on whether a given teacher, or even a given school, should or should not be given information that could ruin a child's life.
Senator Di Nino: I support the amendment because I think it could save a child's life. It was not written for frivolous reasons. The issues are spelled out clearly and strongly. I do not know how anybody could be against this kind of initiative or suggested change.
We are talking about providing the schools with the ability to help rehabilitate the kid, as well as ensuring that other kids are not being harmed. I agree with my colleague that the teachers are, too often, the only resource available. I think this is a good amendment.
Senator Cools: In the case of young offenders who, for example, must comply with certain probationary conditions, how can the teachers help them if they cannot be told about those conditions? What is the intention of this amendment?
Senator Andreychuk: It is mandatory.
Senator Cools: This is not mandatory.
Senator Andreychuk: It says, "shall disclose."
Senator Di Nino: Under strict conditions.
The Chairman: It is discretionary under subclause (6).
Senator Cools: I am not sure if the entire amendment is flawed, or whether there is a mistake in one or two words. As I understand it, it says that the judge shall disclose under certain conditions. The first is that the disclosure must be necessary. Then there is another set of conditions on necessity, (a), (b) and (c). You can say that it is mandatory, but it is highly qualified; is that your intention?
Senator Andreychuk: Yes. I do not want the disclosure to take place unless it is necessary, and (a) tells you to ensure compliance. Then you go to (b) or (c). The judge goes through those hoops before releasing the information to the school. That is my point.
Subclause (6) is permissive for a host of information items, from 114 to 116. I thought that was excessive. If you read 114, it explains what will be disclosed. That is all. This is a step in the right direction. Much of the other information that might be helpful to a school should also have a counterweight. Some of those records are opinion-laden and could be prejudicial to a youth. This is the finite stuff that comes out of a court.
Senator Cools: I am prepared to support it.
Senator Grafstein: I cannot believe that a judge, if confronted with a fair and equitable application, would not exercise the discretion appropriately. However, there may be other reasons for a judge to so order; the particular applicant or the circumstances in the school may be relevant. There may be a raft of reasons that may not be caught by (a), (b) or (c).
The youth justice system is premised upon using skilled and experienced youth court justices, specialists who, on the whole, are sound, and giving them discretion.
At the end of the day, this is not discretion. I can see contentious applications before the courts, where there is a contest between what the judge and the school board thinks, particularly when there is a heightened atmosphere of danger because of the offence. We have seen schools blown up.
I understand the motivation for this amendment, but it distorts the essence of the bill, which is to put decisions in the hands of responsible people, with proper checks and balances.
I must agree with Senator Pearson and others on this. Either you trust the youth justice system or you put undue power into the hands of people you cannot necessarily contain.
I can see lots of applications involving huge contests. This could clog up the courts in very emotional circumstances. If the senator would change the word "shall" to "may," I would have no problem. However, I cannot go along with "shall."
The Chairman: If there is no further discussion on the amendment, I will ask the clerk to call the roll.
Senator Andreychuk: Agreed.
The Chairman: No.
Senator Beaudoin: Agreed.
Senator Buchanan: Yes.
Senator Cools: Yes.
Senator Di Nino: Yes.
Senator Fraser: No.
Senator Grafstein: No.
Senator Joyal: Abstain.
Senator Moore. No.
Senator Pearson: No.
Senator Rivest: Yes.
The Chairman: Carried. Shall clause 125, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried on division. Shall clauses 126 to 145 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 146 carry?
Senator Beaudoin: Honourable senators, I move:
That Bill C-7 be amended in clause 146,(a) on page 145, by deleting lines 37 to 46; and
(b) on page 146, by renumbering subclauses 146 (7) to (9) as subclauses (6) to (8) and any cross-references thereto accordingly.
The Canadian bar has proposed this amendment. They suggested that we automatically exclude the statements and the evidence coming from the young offender if there is a technical irregularity. It is a question of evidence. It is a question of rights and of procedure.
I agree with the Canadian bar. There is no valid reason for keeping subclause (6). If there is a technical irregularity in the statement referred to in 2(b) to (d), the youth justice court should not admit it into evidence. It is special protection, again, for the young offender, but the Charter is always interpreted in a liberal way. Court procedure is fundamental to our system. If there is such an irregularity, I do not see why we should give latitude to a youth justice court. I think it would be better, as the Canadian bar has suggested, to automatically exclude the evidence or the statements.
If they were not obtained according to due process of law, I do not see why we should keep them.
Senator Grafstein: Again, when I look at this clause, I have two views. We are trying, as much as possible, to move toward a non-criminal, non-legalistic process model - a non-paradigm. I thought the protections here were adequate. I heard the Canadian Bar Association, and I understand why they raised it, but let's look at the clause you are seeking to delete.
(6) When there has been a technical irregularity ... the youth justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected.
In effect, they are getting more than Charter rights here. They are almost getting United Nations charter rights, under which children receive enhanced protection. There is adequate protection here on technicalities. We have heard contravening evidence from the police, who said that sometimes they get technically improper but very substantive and appropriate evidence in terms of mediation and dealing with extra-judicial remedies.
The courts must already meet a high standard in admitting evidence that is technically irregular. For example, as you know, a confession can be admitted, even with technical irregularities. It goes to the question of truth. Our system is different from the Americans' in that respect. The test, as it stands, is good and sound and gives maximum flexibility to the court to get to the heart of the problem, to address not just the offence, but also its nature. I am not uncomfortable with this.
Senator Beaudoin: The bar was uncomfortable, as was the Conseil Canadien des organismes provinciaux and many others who appeared before us. They all went in that direction.
The Supreme Court has ruled that irregular evidence may be accepted in some circumstances. However, in the case of young offenders, if there is any possibility that the evidence or the collected statements could be rejected as irregular, the benefit must certainly go to the young offenders. They need more protection than adults. I would agree with you.
Senator Grafstein: There is a higher test here. Look at the bottom of the paragraph.
- if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection...That is a higher test, a higher protection than for adults, to ensure that they are treated fairly and their rights protected.
The police gave the example of a youth who is apprehended and admits everything before any rights are read. In order to use that, the courts must be satisfied that admitting the confession, notwithstanding that it is, at that point, technically irregular, meets a higher standard of protecting the child.
Senator Beaudoin: I do not see why we should change it, although I understand the position taken by the Canadian bar.
Senator Pearson: That is not what I heard them say.
Senator Beaudoin: They asked for the suppression of subclause 146(6), but I would be satisfied with (6).
Senator Pearson: I understood that the bar association requested those amendments from the House of Commons committee, and that when they came before us, they said they were satisfied with the amendments.
Senator Beaudoin: The House of Commons is the House of Commons. I am more interested in the Senate.
Senator Pearson: That was my memory. I may be wrong. I will have to see the transcript.
Senator Beaudoin: They were not alone.
Senator Pearson: I have stated my point. Perhaps the transcript will prove me wrong. My memory was that, interesting ly, they were happy with the amendments that had been made, because that was their problem before.
Senator Beaudoin: Are you saying that they agreedwith 146(6)?
Senator Pearson: That is my memory. I may be wrong.
The Chairman: We are looking for it right now.
Senator Fraser: I agree strongly with Senator Grafstein's very clear and eloquent statement of position. I would add an example of what might end up being considered a technical irregularity under this bill, under paragraphs 2(b) to (d). Paragraph 2(b) states that, before children make a statement, they have to be given an explanation in language appropriate to their age and understand ing. I can see a clever lawyer saying, "My client was 13 years and 11 months old, and in your warning, you used language that my international reading scales say is suitable for a 14-year-old." Under your amendment, the statement would be thrown out. With respect, I think that statement ought to be admitted, as long as the enhanced procedural protection rule applies, which it does.
The Chairman: On this point, I will read from the transcript. It may clarify things. Senator Pearson is right. I am quoting:
Further to our representations on the last draft -
That was Bill C-3 before the House of Commons, which we did not see.
- the government did change sections which dealt with the admissibility of statements of young people. We were happy to see the change. We were unhappy with the last version. The change now gives judicial discretion to render inadmissible statements of young people in cases of technical breaches. It is not as inclusive as the present law, and the present law was fair. We believe that perhaps it is not necessary in the circumstances.Senator Joyal: That is what I remember.
Senator Beaudoin: Did they say that before the Senate?
The Chairman: They said it before this committee. When they were talking about the "last draft," they meant Bill C-3.
You can withdraw it, reconsider your position and, perhaps, move an amendment at third reading.
Senator Grafstein: If that partial excerpt from the transcript is not accurate and there was other evidence, nothing prevents you from moving an amendment at third reading. I will take a closer look at it. Again, I thought this was a much higher standard than normal. That is why I assumed this might have even been amended since the original draft.
Senator Andreychuk: My recollection is that this is not a higher standard. There was a question about how the police would interpret technical irregularities and present them in court. You are talking about how defence counsel might do that. We have just discussed the teachers. I am trying to get to the highest common denominator, not the lowest, in ensuring that the professionals act appropriately. Quite frankly, I would like to look at this more closely. I remember there was a little more to it than the statement that has been read out. Of course, we still have the right to move an amendment on third reading.
I remember something about tapes being turned off as an example of the abuses. Something was raised about there being 18-minute gaps. I read that two ways. Would it be to the advantage of the police or the accused? I do not know. We should look at it.
Senator Joyal: The Canadian Council of Criminal Defence Lawyers stated in their brief that they do not support the erosion of the clear waiver protections in the "technical irregularity" provisions in subclauses (5) and (6) of clause 146. They also state that a waiver, especially from a young person, must be clear and unequivocal and not open to technical irregularity, either accidental or on purpose. They stated that undefined technical irregularities are a potential area for abuse.
Senator Fraser: The fact is we do have the requirement for enhanced procedural protection. I am satisfied with that.
Senator Joyal: We had the same recommendation from the John Howard Society. They stated that subclause 145(6), a provision that permits the court to admit otherwise inadmissible evidence, should be removed. They explained why.
Senator Beaudoin: I think we should vote on this. I am satisfied.
The Chairman: Are honourable senators ready for the question? Are we in favour of the amendment to clause 146? I am not.
Senator Andreychuk: Yes.
Senator Beaudoin: Yes.
Senator Buchanan: Yes.
Senator Cools: Yes.
Senator Di Nino: Yes.
Senator Fraser: No.
Senator Grafstein: Abstain.
Senator Joyal: Yes.
Senator Moore: No.
Senator Pearson: No.
Senator Rivest: Yes.
The Chairman: The amendment carries. Shall clause 146, as amended, carry?
Some Hon. Senators: On division.
The Chairman: Shall clauses 147 to 157 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 158 carry?
Senator Joyal: The objective of this proposal is to ensure that three years after the coming into force of the act, and at the end of every five years, the Minister of Justice shall undertake a comprehensive review of the operation of this act and cause to be laid before both Houses of Parliament a report thereon, including any recommendation pertaining to the amendments to this act that the minister considers necessary or desirable; and, for the purpose of the report, the minister shall consult the attorney general of every province and persons, groups or class of persons or a body appointed or designated by or under this act or an act of the legislature of a province and a representative of Aboriginal people of Canada.
The amendment would provide that as soon as the report of the Minister of Justice has been laid before both Houses, a comprehensive review of the report and of the provisions and operation of this act shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established by the Parliament to determine if the objectives of the act are met in various provinces across Canada.
The committee referred to shall, within six months after the completion of the review undertaken, pursuant to that subsection or within such further time as Parliament may authorize, submit a report and a review to Parliament, including a statement, if any, as to any changes the committee recommends. Of course, we will then need to renumber the following clauses.
The reasoning is easy to understand. This is a new system and its implementation will be complex. It calls upon the provinces to play a significant role in achieving the objectives of this bill. It involves additional sums of money that we all expect and hope will be forthcoming and directed to where it is needed in the system. This is not just an overhaul of the system, but in fact a restarting on a new basis. I feel that in all fairness, Parliament should have an opportunity to review how successfully the objectives have been met, what the problems are, what amendments should be brought forward, and ensure that in due time, a report is made. Then we can satisfy ourselves that the objectives that have been explained and accepted by a large number of us on the basis of this bill have been met. That is the purpose of this amendment.
The Chairman: Any discussion?
Senator Fraser: I have two difficulties with this proposal. The first, I think, is purely a matter of drafting. In your proposed 159(1), Senator Joyal, you say that the review should be undertaken by a committee of the Senate, of the House or of both Houses. You leave open the possibility that the Senate could be excluded from this review. If you want the Senate to be part of it, it has to be a committee of the Senate and a committee of the House of Commons, or a committee of both Houses. I can see people laughing because they heard me on the consideration of another bill very recently. Trust me, I am right on this one. I will, however, proceed to my substantive difficulty with this.
I have heard commentary on this matter by expert people, including Senator Andreychuk. One of the things I have learned in our long study is that it takes years to find out how a youth justice bill is working, how it should be changed, how the courts are interpreting it, and then to win agreement on changes. I think after tonight, we may find that the Young Offenders Act will be with us for another 10 years. As much as I am a fan of parliamentary reviews, I do not think that in this particular case, regular reviews would do anything except confuse the issues even further.
Senator Rivest: In what sense?
Senator Fraser: We would be starting the review after three years. In fact, the system would still be out there being tested before the courts in every single province. We hope that various provinces are still working to get their new institutions set up. In a process that takes as long to get going properly as a youth justice system, I am not persuaded that a three-year review is realistic. Rolling five-year reviews after that will run into the same kind of problem.
The Chairman: Before we go to the next two speakers, I want to clarify what you said, Senator Fraser. You suggested, and I believe Senator Joyal agreed with you, that in 159(1), a committee of the Senate should undertake to review the operation of this act.
Senator Fraser: Such committees of the Senate and of the House of Commons, or such committee of both Houses of Parliament as may be designated.
The Chairman: Senator Joyal agrees. Would Senator Joyal also agree to change the first sentence of that part to "the Minister of Justice's report?"
Senator Joyal: Yes, of course.
The Chairman: Is it correct in the French?
[Translation]
Senator Joyal: In English, it is:
Such committees of the Senate and of the House of Commons -
[English]
Senator Andreychuk: I will respond to Senator Fraser. Had the Young Offenders Act had some sort of review, it might not have fallen into disrepute as quickly as it did. Had people other than those involved, the ministers of justice and the system, reviewed it, they might have signalled that the stalling of the implementation for so long was its death knell. Had there been some reinforcement for those trying to implement it, both in the Department of Justice and all the departments across Canada, plus the services, it might have had a better chance of success. It might also have signalled that the alternative measures were the key to that act and resources should have been provided. No one outside the system talked about that. Parliament went away satisfied that the act was working.
We hear politicians - and we are politicians - saying that children are our future. Surely, if we are to study anything, this is it. You heard Senator Carstairs yesterday. We should put some priority on our work. There is one that I would put first over many other things we are doing. I was not going to recommend a review, but since there is a willingness on the part of others to introduce it, I would want to support it.
Second, Senator Pearson, Senator Beaudoin and I were there. We had grave doubts about some parts of the amendments - the transfer provision. Did it comply with the convention? We were told by the minister of the day that it did comply, did not violate the convention and was an appropriate mechanism. Perhaps we should be rethinking this. At that time, we agreed to the amendments and gave the benefit of the doubt to the minister on the basis that there would be a review by a joint committee. What happened? We did not get into that circle.
You can see what has happened now. All of us who have serious concerns and have followed this act are pointing out that had we been part of the circle, had the Aboriginals been part of the circle, we might have come to a better consensus. I do not think we could have had total consensus, but we could have had a better success rate. I say now that for me, this is not where the bill falls or stands, but if there is a willingness to go this way, I am willing to work very hard to ensure it works.
Senator Di Nino: I associate myself with the words of Senator Andreychuk completely. I carried the bill, the Young Offenders Act, in the early 1990s. I was very involved and attended many youth courts. I tried to truly understand the issues.
Even at that time, there were recommendations and suggestions made quietly to the minister, because we were in government at that time. The response was, "Yes, sure, we will do this." Nothing was ever done. However, there was some strong opposition to this bill from a number of different groups. This is one of those areas where a mandated review would be useful and serve the youth of our country. I strongly support Senator Joyal's amendment.
Senator Grafstein: I agree with this amendment because it will be easy, early on, to see if the bill is working or not. We must remember what the minister told us about this bill, which is why I am supporting it, with some of these amendments. She told us that this bill would deal with the major problems confronting the youth justice system. First, the high rate of incarceration will be reduced; second, the Aboriginal incarceration rate, which is higher than normal, will be reduced; third, adult sentencing that is disproportionate as it applies to youth will be ameliorated; and fourth, funding will be sufficient and adequate to deal with this new system. These are four major objectives. I do not know why that cannot be studied quickly.
My experience is not too distant from Senator Di Nino's. At the end of the day, the fight to deal with legislation in Parliament is always intense. We know that today, Chairman. I agree with Senator Andreychuk: There cannot be a higher priority in our criminal justice system than reviewing this particular problem. Look at the time we have spent on this bill, on quite a non-partisan basis, in order to come to grips with it, and all because we agree with Senator Pearson that the interests of the child are paramount.
I do not see how the minister could object to this amendment. It would compel her to do what she said she would do in any event, which is keep the system under surveillance and report to us if it needs amelioration or modification. I commend my colleague for bringing this forward.
The Chairman: We are dealing with new clauses 158 and 159, as proposed by Senator Joyal, with the two minor changes to clause 159. All those in favour of these amendments?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division. Senators, we will call the roll.
The Chairman: No.
Senator Andreychuk: Yes.
Senator Beaudoin: Yes.
Senator Buchanan: Yes.
Senator Cools: Yes.
Senator Di Nino: Yes.
Senator Fraser: No.
Senator Grafstein: Yes.
Senator Joyal: Yes.
Senator Moore: Yes.
Senator Pearson: No.
Senator Rivest: Yes.
The Chairman: The motion is carried.
We will now deal with old clause 158 to old clause 200. Are we clear? All in favour of those clauses?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the schedule carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the preamble carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Is it agreed that the bill be adopted, with amendments?
Hon. Senators: Agreed.
The Chairman: Carried. Is it agreed that I report this bill, as amended, at the next sitting of the Senate?
Hon. Senators: Agreed.
The Chairman: Carried.
Thank you, senators. This has been a marathon session on this bill. I shall report the bill tomorrow, as amended. Before we adjourn, I remind all honourable senators that we will be meeting again tomorrow morning at 10:45 in room 705, Victoria Building, to hear the Chief Electoral Officer.
The committee adjourned.