JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 9, 2000

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): Welcome, everyone. Today we're resuming the hearing of witnesses on the subject of Bill C-3, an act in respect of criminal justice for young persons and to amend and repeal other acts.

Today we have with us four groups of witnesses, I believe: the Canadian Council of Provincial Children's Advocates, with Judy Finlay, chief advocate and manager of the Office of Child and Family Service Advocacy, Province of Ontario, along with Richard Rothenburger and Matthew Geigen-Miller, member of the youth advisory committee; the Quebec coalition of alternative justice organizations, with Serge Charbonneau; the John Howard Society of Canada, with Graham Stewart, executive director; and the St. Leonard's Society of Canada, with Elizabeth White, executive director.

Welcome, all.

Now, my clerk tells me that our computer demands that we put an end on our schedule so that it will show up on a piece of paper. We've had some concern expressed by some members of the committee in terms of the time it takes, particularly today, with four groups of witnesses. So while we've identified from 3:30 to 5:30 today, I want you all to know that as much as it may be troubling to members to hear this at this late time, the reality is that I wouldn't want anyone to feel constrained.

Our way of proceeding here is that opening statements will be made, with each organization given 10 minutes. Then we will engage the committee in discussion.

It is very nice to see all of you here, new friends and old. With that, I will start with the Canadian Council of Provincial Children's Advocates.

Perhaps you have decided who wants to speak first.

Mr. Matthew Geigen-Miller (Representative, Canadian Council of Provincial Children's Advocates): Good afternoon, everyone. I'm here with my friend, Richard Rothenburger, representing the Canadian Council of Provincial Children's Advocates. That is the council of the seven provincial child advocacy offices across Canada.

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All of the advocacy offices have very different mandates. However, they all believe very much in the UN Convention on the Rights of the Child, and especially in article 12, which says that young people have a right to be heard in decisions affecting them. For that reason, the advocates have deferred to Richard and to me to present, because we both have experience with the young offender system. I'm going to present first.

I'd like to speak about the provisions in the new Youth Criminal Justice Act regarding the provincial director having control over the level of custody, specifically open custody versus closed custody. Under the Young Offenders Act, of course, this decision was made by a judge. There are a number of concerns we have about this provision.

We can take a look at my own experience in Ontario, where they have a classification system known as level 1, which is a label that is attached to serious offenders in the correctional system in Ontario. These offenders, regardless of whether they are in open or secure custody, would not be able to do such things as temporary releases for education or rehabilitation. They would not be able to participate in many of the recreation programs.

Our chief concern is that if the provinces have control over the level of custody, many provinces will have policies that are quite contrary to the new Youth Criminal Justice Act's emphasis on reintegration and rehabilitation. If there are provinces that feel all offenders of a certain kind should be treated more harshly, then we're quite concerned that because of this offenders will not have the same reintegration and rehabilitation programming available to them.

The example in Ontario sends it straight home. I was in open custody, but because I was a level 1 offender, even though it was open custody and it's quite normal under these circumstances to be able to go on temporary absences to prepare for reintegration into the community, I was not able to do so, nor were any of my peers who were also classified as level 1 offenders. That made it very difficult for me and for my friends who were struggling to reintegrate.

Our other concern is this: if the provinces are to have control over open versus closed custody via the provincial director, a separate appeals body must be in place and the youth must have the right to counsel. We believe it's absolutely imperative that the youth's rights be respected in this way.

I'm now going to turn it over to Richard.

Mr. Richard Rothenburger (Representative, Canadian Council of Provincial Children's Advocates): I'm with the Canadian Council of Provincial Children's Advocates. I'm from Saskatchewan. I sit on a youth board, a provincial youth delegation, which is a youth advisory committee to the Saskatchewan Children's Advocate, and I also have experience with the young offender system.

I'd like to talk to you about privacy and the publication of names of young offenders. Personal experience has shown me that.... I became public with my young offender record last year when a lot of this was starting to take place. As a result, I ended up losing a job and I ended up with backlash from the community. This was a few years after I was in the young offender system.

What can also happen is that possibility of a lack of employment. If people know you're a young offender, they may or may not want to hire you. There's a stigma attached to being a young offender, that is, for the young people in the schools, on the streets, they are going to be considered bullies and they're going to have a hard time reintegrating into society as a normal young person.

The status symbol on the street, also based on personal experience, has shown me that if a young person is known for a crime they've committed and they are not at that point able to recognize some of their issues, they may think of that as a power thing. That can also hinder them in the community.

My final point on privacy and publication of names is that publication of names of young offenders violates the youth's rights as outlined in the UN Convention on the Rights of the Child. If we look at the UN Convention Rights of the Child, we see that we signed that back in 1991. We need to respect that.

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Thank you very much.

The Chair: Thank you very much.

Mr. Matthew Geigen-Miller: Actually, if we still have time remaining, we did have one more quick point.

We're deeply concerned about some of the provisions in the new Youth Criminal Justice Act around transfer to adult court. Canada is a state party and signatory to the UN Convention on the Rights of the Child, and article 37 clearly states that young people who are deprived of their liberty will be housed separately from adults.

First of all, we're concerned about lowering the age for presumptive offences to include 14- and 15-year-olds. A 14- or 15-year-old in the adult correctional system is a thought I find quite disturbing because of my own experiences there. We feel very strongly that under no circumstances should a young person under the age of 18 be placed in an adult correctional facility. Currently there are about seven or eight in Canada, and that is quite upsetting for me.

A number of years ago, while I was serving custodial disposition here in Ontario, I had some experiences when, because of a disturbance at a youth centre where I was staying, I and about 40 other young people were transferred to an adult correctional facility and housed in an adult unit there. The adult standards of supervision, programming, etc., were applied to us under those circumstances. I find it difficult to express just how difficult that was for all of us. Young people do require a great deal of supervision and support. Watching three young people brutally beat another inmate for hours upon end when there was no supervision was quite painful. I was really helpless to do anything about it.

A fellow inmate of mine, whose name was James Lonney, was brutally beaten to death by another young person while he was being kept in an adult segregation cell in an adult detention facility. He was a young offender at the time; so was the other person who beat him to death. He died. Once again, the adult standards of supervision and support were applied to children under the age of 18.

We feel very strongly about this, and we're aware that there is strong public pressure to elevate young offenders into the adult system. If that must be the case, we would feel much more comfortable if there were some specific language that required that young people be kept in the youth system until they reached the age of 18—or older if it's appropriate.

Thank you for your time.

The Chair: Thank you very much.

I will now go to Mr. Charbonneau and Madame Tamborini from the Quebec coalition of alternative justice organizations.

[Translation]

Mr. Serge Charbonneau (Coordinator, Regroupement des organismes de justice alternative du Québec): I would like to thank the committee for this invitation to appear. We did recently send you a brief, but for this presentation we will focus on the material in the folders that were distributed. Our appearance here today was confirmed only at the last minute, so we apologize for having forwarded the documents so late. That said, we will not be using the brief for this presentation.

Allow me to explain who we are. The Regroupement des organisations de justice alternative du Québec comprises 39 community organizations in Quebec. Collectively, these organizations deal with some 12,000 young offenders. Approximately half of them come to us through the implementation of alternative measures, while the other half are referred by court orders or community work orders, or come to us because of improvements in societal attitudes.

Our associations already have 140 people on staff working with young people. The point of view we will put forward today is based on comments from these 140 people, and on their expert knowledge.

The package we distributed contains excerpts from the 13th Standing Committee report to the government, which contains a number of recommendations. We fully agree with many of the proposals in that document. However, we would even go further. Our purpose here today is not to discuss specific details of the bill. The message we want to put across is that the bill is on the wrong track. We would like to explain why, and why its principles are not in line with what most countries in the West are doing. Most western countries are moving in a different direction altogether. We will try to illustrate this, and highlight certain aspects already commented on by many witnesses. These are things you have to some extent brought to the government's attention, making recommendations which in our opinion were not followed.

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On page 12 of your 13th report, you state that the committee believes these two paragraphs should constitute the fundamental purpose of the Young Offenders Act and of the youth justice system. You point out that protection of society is the main goal of the criminal law, and cite these two paragraphs in their entirety. This excerpt is provided in the package we have distributed. What disappears with this new bill—and it is a very important factor—is the requirement to take young offenders' needs into account. This is a fundamental notion which the government has eliminated, yet which remains in all western legal systems. Your committee recommended that this aspect remain, but it has disappeared. It is no longer found in the guiding principles.

You also cited some countries, including New Zealand, whose systems are based on restorative justice. You gave Ireland as an example as well, indicating the principles forming the basis for their legal provisions that take account of young persons' vulnerability, responsibility, and needs. You cited Ireland, New Zealand, New South Wales, and the British Columbia Civil Liberties Association, to back up your recommendations that both principles in the existing Young Offenders Act continue to guide us, and to suggest that the government clarify the issue of the priority given to protecting society, as recognized by the Supreme Court.

You also stated that, during the testimony that preceded drafting of the report, you were struck by the difference between youth crime rates and the youth justice system as they actually are, and crime rates and the youth justice system as the public perceives them. You pointed out that the public overestimated the incidence of violent crimes in Canada, and discussed whether sentences actually have a deterrent effect. You cited authors whose conclusions, based on empirical research, systematically show that heavy sentencing has no impact on recidivism. You talked about the boot camps set up in two American states, pointing out that in both states the camps are associated with a sound rehabilitation program crucial to the success of this approach.

It seems to us that the concerns you had, which were based on empirical considerations, are being considered less important today. You also cited Ms. Reid-MacNevin of the John Howard Society, who carried out a survey among Canadians. The survey showed that the majority of respondents obtained most of their information on youth crime from TV and the newspapers.

As we might expect, Ms. Reid-MacDevin observed that over 60% of respondents knew nothing about youth detention. Sixty-five percent of respondents overestimated the number of crimes committed by young people falling into the category of young offenders, while 70% overestimated the number of violent crimes committed by young people. We continued to ask why this bill is necessary, because we have perceived a significant shift. The existing legislation is called the Young Offenders Act. But the title of the bill includes the words criminal justice. The word “criminal” has been added, while the words “needs of young people” have disappeared, because some people think that increasingly violent crimes are being committed and because the population is increasingly frightened. But if Canadians were properly informed, their perceptions might change. We have seen that here, you have said it yourself, and many people who have testified here believe it. In our brief, we highlighted the results of studies by the Canadian Council on Social Development, which indicates that Canadians are really not panicking. Therefore, in my view the bill you are studying today might actually increase panic among Canadians, and should be withdrawn.

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Ms. Tamborini will now speak to you about a series of relevant texts presented by Lode Walgrave, a professor at Louvain University. These will help us take a critical look at Bill C-3.

Ms. Josée Tamborini (Regroupement des organismes de justice alternative du Québec): In the package distributed by the clerk, you will find a paper by Lode Walgrave, who suggests a model comprising three ways of looking at the issue: the first is based on criminal justice, the second on rehabilitation, and the third on restorative justice. You'll find that on a separate sheet.

The Young Offenders Act, which our organization currently works with, is based on a rehabilitation approach: it takes account of the needs of the young offender, and makes it possible to find means of treatment.

However, over the past several years, people working with our organization have tended toward the restorative justice approach, in line with what is happening in many other parts of the world. When they see young offenders, they examine the damage that has been done, and focus both on the young offender himself and on his victims. In my view, that approach is being successfully applied, and tends to satisfy all parties concerned.

In our opinion, the current bill represents a step backwards. It goes back to criminal law, which focusses not on the young offender or his victims, but rather on the offence itself. Priority is on appropriate sentencing, and the particular situation of the victims comes second. Yet the Throne Speech expressed a desire to move towards restorative justice.

We find it difficult to explain the wide gap between the recommendations in your 13th report and this bill. Our experience with restorative justice and involvement by victims lead us to believe that we should officially move towards restorative justice, rather than going backwards and inflicting suffering with the sole aim of ensuring a fair sentence.

We should promote participation by the parties involved. As we say in our brief, our experience has shown that in almost 85% of cases, both victims and the young offenders themselves are satisfied with the restorative approach.

Mr. Serge Charbonneau: Thus, the international trend is contrary to the trend in Canada. It would be wrong to pretend that we are getting in line with other western countries by adopting this kind of bill. The Young Offenders Act opened new avenues. It could be amended and things could be changed without treating youth more severely.

Thank you.

The Chair: Thank you very much.

[English]

For the information of members present, the lights are indicating a vote to move to orders of the day. It's a half-hour bell, so our clerk is going to be held responsible for getting us there on time.

Again, as I said before, although we're scheduled to be finished at 5:30 p.m.—and I don't mean to intrude on anybody's schedule—the reality is that we don't have to get out of here at that time. With that, we'll come back after.

Mr. Stewart from the John Howard Society.

Mr. Graham Stewart (Executive Director, John Howard Society of Canada): Thank you, Mr. Scott. I'm pleased, again, to be here in front of you to discuss what I think is very important legislation.

I represent the John Howard Society of Canada, which is a national organization of social service organizations from Iqaluit to St. John's to Victoria, 70 organizations that are involved in approximately 90 youth-serving programs. It's an organization that's always very concerned about the treatment of youth, growing out of our traditional work with adults and seeing so many of them come through our youth justice system.

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I'd like to speak very briefly today, first, about what I like about the bill; secondly, about what I don't like about the bill; and then, if I have time, to go to some of the 24 specific recommendations that are included in our brief, which I believe you have.

Just in terms of general notions first, I'd like to say that the John Howard Society comes from the perspective that harsh punishments do not generate public confidence. Young offender legislation has been amended continuously since the Young Offenders Act was introduced, and none of those amendments have accomplished what would seem to be intended. If harsh penalties led to public confidence, the harshest systems in the world would have the highest levels of public confidence, and that's not the case, nor does it lead to effective corrections. That's a value and a perspective that we have as a society.

I'd like to say that I don't agree with those who say that this act contributes nothing that can't be achieved under the Young Offenders Act. It's our view that there are a number of measures in this act that are distinct and different and important, and I will address those.

Finally, I think it's very important that federal legislation in the criminal justice field, and particularly young offender legislation, should treat people equally across the country. We're very concerned about legislation that allows for provincial differences that are substantial.

What we like.

There's a lot in this bill that we think in fact is both substantial and positive that needs to be given our support, and we're happy to do so. We like the preamble. We like the fact that the preamble focuses on our international conventions and at least recognizes those in the legislation, even though we may not comply in all respects with them. We like the fact that the preamble recognizes the very high rate of incarceration for young people in Canada. We are world leaders in that respect. I think we have to look beyond ourselves to the international community, and the bill needs to be premised on that recognition, even though the public may not understand that in Canada.

The principles of the bill we agree with as well. We think they are an improvement over the YOA because they are much more coherent than the YOA. The Young Offenders Act had within its principles very contradictory notions, with no guidance on how to resolve those contradictions. They're also comprehensive and I think they give much better direction to the court.

We're very enthusiastic about the extrajudicial measures—their scope, their detail, the fact that they're present, and the fact that there are measures encourage their use.

With respect to sentencing, there are measures there that we agree with. We think the focus on meaningful consequences, with meaningful being meaningful for the young person, is appropriate. We're particularly pleased to see the focus on rehabilitation because we believe there is no justice without rehabilitation. Corrections is not contradictory to a criminal justice system; it's all that makes sense of it. A justice system that does not rehabilitate is a system that has truly failed.

We agree very much with the restraint on custody that goes through the bill in many of its measures.

We're particularly pleased to see the introduction of conditional release supervision. Many people, we find, are astonished to find that that is in fact not already a feature of the young offender legislation in Canada, and consistent with our long-standing interest in reintegration into the community, it seems to us extremely odd that every young person leaving an institution in Canada would not have, immediately and available to that person, some support net process.

We think it's a major improvement to abandon transfer hearings in favour of post-trial sentencing hearings. In our view, it's always been a strange anomaly that we would have hearings in front of court that would determine how dangerous a person was based on the commission of an offence for which that person has never been convicted. Taking that hearing to the post-trial phase is a substantial and important improvement.

We think the test for adult sentences, in some respects, is an improvement over the YOA, although we also recognize that we never know what will happen until the courts actually start interpreting these measures. We think focusing on accountability as opposed to focusing specifically on public protection is a notion that has some restraint built into it, and we have to recognize the most onerous penalties we have in criminal law are based on notions of public protection.

We also think the intensive rehabilitative custody and supervision orders are a very important improvement if they are used properly and implemented properly, and again they could help us find much more constructive ways of dealing with seriously disturbed young people than simply relying on putting them, for endless periods of time, in adult institutions.

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There are some aspects of the bill that we would like to see changed. We're not happy with what's referred to as “optionality” in terms of certain measures, particularly screening, extrajudicial measures, intensive support and supervision measures, all of which can be provided or not provided in any given province.

We're also concerned that although the legislation talks about discrete levels of security, they're not defined. So we could have the anomaly in certain situations where provinces have what would be open custody in fact being very secure. We think that requires much more definition as to what really constitutes the difference between what would be an open-custody facility and a secure-custody facility.

We think the provisions that allow young offenders to be held in adult facilities in some circumstances are weak and could be much firmer. We're concerned that administrative convenience becomes the basis on which people are placed in facilities with adults, rather than the principles of the act.

We don't believe adult sentences should be presumptive. We see no need for that. We don't see why, if we're going to have to use adult sentences at all, that can't be done on a selective basis by the crown. We're particularly concerned that this is being expanded in this legislation to include 14- and 15-year-olds.

We're concerned about the serious violent offence category being including as a presumptive offence. We think it's a very awkward aspect of the legislation. It can be extremely broad; it can include a huge number of young people, and it will inevitably, in our view, lead to a huge disparity across the country with respect to the use of those measures.

We see no need for the publication of names. We think this is damaging to young people. It's effectively a process of humiliation. We just don't see how it contributes in any way either to public confidence or to facilitate the reintegration of young people into the community.

We're concerned about the changes around the admission of statements that would otherwise be inadmissible in court. We're talking about people who are more vulnerable in these circumstances, more easily intimidated, less aware of their rights. We think some measures that would allow both kinds of statements to be admitted are not appropriate for youth justice legislation.

We're concerned that the legislation permits the recovery of legal aid costs from parents.

I'm not sure where I am with my time, but if I have time, I could go into some of the specific recommendations. But that's an overview of the positions we're taking in the areas we're concerned about.

The Chair: Actually, you have a couple of minutes left. But we're in a bit of a dilemma. We probably have eight minutes before we have to go back. I hate to cut Elizabeth off in the middle of her presentation. Perhaps you could get into some of your recommendations. When you've finished, we'll break, and then you'll get your full time.

Mr. Graham Stewart: Okay. Then what I'll do is go through some of the key recommendations, if that's all right, the ones we think are most important.

We're recommending that subclause 6(2) be revised. This legislation relates to the failure of police to consider alternative options not being grounds for having charges dismissed. We think in some circumstances the judge should be able to discharge those circumstances. It's an important way of judges taking an active role in determining what's an appropriate matter to come before the court and in some cases to send a message that it's indeed a serious responsibility to consider alternatives. We're talking of course of minor circumstances, and such a measure I think is not undue.

We think the measures that allow provinces to opt out of extrajudicial measures and sanctions should be removed from the bill, that alternatively provisions should exist that would allow the court to order that a measure be used in any case where the court is satisfied that the objectives of the measure are not likely to be met through other measures that are available in the jurisdiction.

Subclause 37(2), which says that the sentences given to a young person should not be greater than that given to an adult, we think should be more explicit and say it should be “less than”. In our minds, it's quite consistent with the notion of lesser responsibility, that we should clearly try to distinguish sentencing and not simply set it in parallel with the adult system.

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With respect to conditional release, we note that there are no standards set for that, and we're concerned that we could in fact have legislated a system of conditional release, but with no commitment from provinces to actually make that conditional release supervision and support meaningful. What troubles us about that, of course, is that it's a sure-fire way to make the process fail. Our view is that this is of crucial importance and can be very effective if done well, but of course it will have absolutely no effect and only generate public criticism if it fails.

We agree with the Canadian Sentencing Commission when it proposes that there should be a category of offence that is simply non-imprisonable. There are many trivial offences. The Canadian Sentencing Commission identified many that fell into that category, and we think, in terms of starting with the premise that we use prisons as a last resort, there are some offences that simply would fall into that category.

As for specific recommendations with respect to the differentiation between higher levels of security, we think the legislation should add in subclause 84(1) the phrase: “and also distinguished”—this is the levels of custody—“by the degree of daily access to the community for work, school, program participation, treatment and family contact”. In some cases levels of security are defined only in terms of perimeter security. In fact open custody means community access, community involvement with family, and we think that needs to be part of that definition to make it meaningful.

Placement decisions by provincial authorities have some concern for us. In particular, we are concerned that those decisions can only be reviewed by provincially appointed review boards. In our view, if responsibility is going to be given to the provincial authorities to make that determination, it should be reviewable by the court and there should be appropriate legal assistance for young people to do that.

We do not think any young person serving a youth sentence should ever serve any portion of that in an adult institution. To be given a youth sentence and then serve it in an adult institution, in our minds, really undermines that and makes the youth sentence a fiction.

Finally, for those youth who are given adult sentences, we see no reason the principles associated with the sentencing, which are encapsulated in clause 37, should not be applied to those same young people. In our view, even though a person may be sentenced to a longer term than what would be provided by the Young Offenders Act, the principles of the Young Offenders Act should still apply—those principles focusing on rehabilitation and reintegration, the principle that the sentence should be shorter than what an adult would receive. We do not view the fact that a person has committed a serious offence as an indication of maturity, and the provisions that reflect that lack of maturity should also be reflected in the practices.

I'll leave that now.

The Chair: We're about fifteen minutes away, so rather than have Elizabeth start, we'll make our way to the chamber. I believe I have to suspend. Everybody hang tight. It's going to be exciting.

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The Chair: I will call the meeting back to order.

When we raced down the hall for the vote, we had just forced Mr. Stewart to stretch, as we say. Now we'll go to Elizabeth White from the St. Leonard's Society, and then we'll begin the rounds of questions.

Ms. Elizabeth White (Executive Director, St. Leonard's Society of Canada): Thank you very much. And thank you very much for allowing St. Leonard's to be present again in front of this committee to express our views about the new Youth Criminal Justice Act.

I'm not going to go through my brief. You have copies of it. I am simply going to point out some of the areas we find of interest and concern and elaborate on some of the priorities that we feel are important in this legislation.

We have followed the developments of this new act over the last few years with considerable interest. Some of you may know that we were on record originally expressing the viewpoint that the Young Offenders Act did not need to be changed, that its problems were those of implementation. We have, through watching the needs of clients and through watching the climate in this country and listening to the language of fear, decided that it is important to support a new direction with a comprehensive framework that allows there to be a consistent application of youth justice across Canada, rather than the somewhat fragmented system we have now. Rather than the potential for fragmentation that exists in the new act, we would support stronger guidelines to the framework. That is contained within our recommendations within the brief.

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There were five elements that we thought of primary interest in the new act. One is that it sets a clear direction for youth justice, that it affirms in no uncertain terms a separate system, and that it includes a broad range of options for both front-end and back-end systems. It believes in age-appropriate rehabilitative measures, and so do we.

We find a second point—that it balances accountability and opportunity—to be very important. Now, you'll see in our brief that we don't think it always succeeds in finding the appropriate balance, but we do think it makes an effort to do so, and we think that the truth will come in the monitoring and implementation and guidelines to fine-tune that balancing act. That of course requires adequate resourcing so that the good programs can go ahead.

We also are concerned about the best interest test as a third point in the new act. Throughout it indicates the best interests of youth. Throughout it strives to find that. Ultimately, the best interests of youth will create the greatest community safety. It is essential that we consider the interests when we are balancing best interests of the youth, victims, and the community at large. We have to be careful that no one overrides the other, but that they are seen as a complementary whole.

The fourth point of interest is the tension between youth and many adults. This country is striving so hard to turn our young people into miniature or big adults long before they are ready. We feel that this is expressed in this new act by its focus on the action the youth has done rather than on the personality and individual needs of youth that require to be addressed. So within the new act, we think that where there are flaws it is in the tendency to treat youth as adults rather than as young people.

We're also concerned about the adequacy of support to youth. When we treat youth as adults we ask them to take on greater responsibilities than those of which they are capable. We must adequately support them with representation by counsel, with a good due process framework. I would suggest to you that this act has a comprehensive due process framework, with a few flaws by letting the provinces have a bit too much say and the judges not quite enough say, but overall a good due process framework. We must hang on to that for the safety of youth.

Today I just want to talk about three brief points. They are our priorities. First is the importance of the principles at the beginning of the act and the role that front-end measures play in supporting those principles. Second is the importance of having appropriate sentencing principles, which we feel the act does have, and the role of conditional release in supporting that. Finally, we have some comments on the wisdom of a justice system that is for youth.

On the importance of principles for the overall tone of the act, it leads into the importance of managing youth at the pre-judicial stage. The only concern we have with the principles is that they do give priority to protection of the public, to the detriment of the other principles that are stated. We would suggest that the best protection of the public does come by working in concert with the other principles as equal, not as lesser.

However, that being aside, there are key messages in these principles, and those key messages are that youth can, with a second chance and attention to their needs, learn and become law-abiding adults. We do not need to instantly involve them in the criminal justice system, albeit these front-end measures exist as precursors to that formal adjudicative system.

Rehabilitation is and remains the best protection for society. There are innovations in the act that very much support that: the intensive supervision orders have been mentioned; the sanctions that are tailored to youth; the requirements to look at all types of sanctions prior to determining which one is best for the youth. All of this leads to a rehabilitative focus.

Now, what does not lead to a rehabilitative focus, as Mr. Rothenburger pointed out, is the publication of names. This is one very good way where we can undermine the benefit of having strong extrajudicial measures.

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The role of extrajudicial measures is to bring life to the principles and to encourage integration of youth in the community and the community with youth. We mustn't lose sight of the fact that this is a symbiotic relationship. Too often the community backs away from its responsibility. Through extrajudicial measures we see a strong role for the community working with youth.

The result is that presently we over-incarcerate youth under the current system. The early parts of this new act should result in us having fewer youth in prisons, fewer youth coming through to the sentencing stage and needing to take up those very expensive resources, which tend to be counterproductive to the rehabilitation of youth in the end. So we can avoid the failings of over-incarceration if we give strong support, resourcing, guidelines, framework, and a consistent Canadian approach to extrajudicial measures.

The second point is to strongly support the principles of sentencing as set out in clause 37. They direct us to measures as least intrusive as possible. They provide interventions to be assigned only as necessary. The very important fact about that is that we know from adult research clearly that if a person does not need extensive intervention, then to intervene overly harshly or overly extensively with them can lead to increased recidivism. So the point is do no harm. Don't do more than you need to do.

The further point around the principles of sentencing is that they give us a way of doing community-based treatment—not simply treatment in custody, not holding young people in custody longer than they should be so that they can get the benefits of treatment, but a way of having a continuum of care so that you can have treatment begun in custody and continue it afterwards. That's why the role of conditional release is of course so important and such an excellent innovation to this bill. We are absolutely delighted to see that youth are now going to be given the same kinds of opportunities that adults have long enjoyed in that area.

The period immediately following release from custody is particularly difficult, and support in supervision during that time is necessary. We are particularly pleased by clause 89 provisions for the assignment of a youth worker to plan for integration and do the supervision during the community portion. This is the continuity of care. This is the resourcing issue. This is where there are, shall we say, the difficulties in implementation one must guard against. The early stages of implementation of this new act will be fraught with peril while you try to figure out how best to resource the appropriate interventions in a way that allows them to become consistently applied.

My last point has to do with the wisdom of a separate system. In the brief you will see some of our concerns about the mechanisms that we think make the Youth Criminal Justice Act lean a little bit too far to the adult system. We are not pleased with the possibility of adult sentences. We do acknowledge that this is a step better than the Young Offenders Act, where the entire trial could take place in the adult system.

We do not think that adult sentences are appropriate for youth. We believe in proportionality. The good thing about the way this separate system is set out is that it is an extremely detailed approach. Now, that makes it very difficult to read, I admit. However, if you do go through this bill by each clause, it establishes a full framework for establishing a truly youth-focused system of protections and opportunities.

So I would say that we can set expectations for mature behaviour from youth, but if we think they will learn and become mature by fear of sanctions, we are fooling ourselves. One of the essential elements of being a teenager, and we are talking about teenagers here, is the consequences are often far from the forefront in planning—for adults too, but particularly for teenagers. Youth can be as tall as adults, can have the physical characteristics of adults, and too many of them may have had lives in which they did not have a true childhood, but they're not adults. Their development is still in its early stages. As adults, we have a responsibility to work with them so that they can grow through the system to become law-abiding as they become adults. We have to afford them representation and give them adequate due process safeguards, and I address many of those factors in our brief.

• 1700

We do think that the Youth Criminal Justice Act framework will support a consistent Canadian approach to youth justice interventions. Thank you.

The Chair: Thank you very much.

Our apologies for the interruption and the rather disjointed way we're going to react to what we've heard, but such is life here. We look forward to a helpful and enlightened exchange.

With that, I turn to the opposition, Mr. Cadman, for seven minutes.

Mr. Chuck Cadman (Surrey North, Ref.): Thank you, Mr. Chair.

I'd like to thank you all for coming and presenting to us today.

I've a question that may or may not be simple, but it's a pretty straightforward one. I've heard a lot here about the rights of the child, the best interests of the offenders, and the best interests of the youth. I don't think you're going to get too much disagreement on that. I'd just like to know from each of you where you fit things such as responsibility, accountability, deterrence, restitution, and, yes, denunciation into the overall scheme of things. That's addressed to whoever wants to take it.

Mr. Graham Stewart: I'll start, if you like. I think in terms of balancing the rights, any legislation in criminal justice tries to accomplish two things: it tries to address the right of the public as a whole not to be victims of crime. That's why we criminalize things. That's what the act is for. We try to avoid the victimization of the individual by the state through excessive power of the state. That's why we have the provisions of due process. Both are very serious risks, and it's the nature of a democracy that we put significant emphasis on the right of people to be protected from the state. That's one of the reasons so many people in the world want to come to Canada. It's not the criminals in the countries they come from that they worry about, it's the state.

In terms of responsibility, I think that is the goal. The purpose of the legislation is in fact to help a person develop a sense of responsibility. A person feels more responsible in the world in which they live if they feel they have bonds within that world, that it's something they can identify with and have an investment with, and then their sense of responsibility grows. So we want a youth justice system that in fact encourages responsibility and does that by encouraging people to develop pro-social, positive bonds with the community around them. The healthier the community with those kinds of bonds, a sense of belonging, a sense of the community around them, the better it is for them and the more they'll feel that sense of responsibility.

In terms of deterrence, what we know is that there's a certain degree of deterrence that comes from the possibility of apprehension. We also know there's very little deterrence that comes from the penalties themselves.

An example I gave when I was talking to some youth is that we have a quarry near Kingston, where I live, and it has a very steep cliff beside it. For years kids have found it to be an interesting and entertaining sport to leap off this cliff and clear a 12-foot ledge to land in the quarry. I've seen that happen, and I can tell you it's absolutely breathtaking. Of course there have been injuries, and last year there was a death, where a young fellow hit the ledge and fell into the water and drowned.

I think what this really says is that young people, particularly young males, are actually attracted to risk. They're not deterred from it. If the possibility of death or injury cannot deter a young person from jumping off a 30-foot cliff to clear a 12-ledge, then I wonder what deterrence we would use to stop a 12-year-old girl from stealing a lipstick because she would look attractive to her friends.

The simple fact is that deterrence is a notion we hold onto out of frustration, I think, but there's very little reason to believe it actually makes a difference. Indeed, to a certain degree—and this has been shown by some research that was done out of Toronto—the risk associated with criminal activity is actually attractive, particularly to males, and will involve them. One piece of research showed that after police intervention amongst high school students who had been involved in criminal activities, amongst males the criminal activity actually went up, whereas with girls it went down.

So in essence what I'm saying is that all of these notions are particularly important in terms of responsibility, balance, and concern for the community, but as a strategy for changing behaviour, deterrence is probably the weakest. It's also the most expensive.

• 1705

The Chair: Do any others wish to comment?

Mr. Matthew Geigen-Miller: I'm sure a lot of people who are legal experts have come in and talked about weighing the balance between the right of society to be protected and the due process rights of young people in conflict with the law. That's not my area of expertise, so I'm not going to comment as much on that.

I think we all understand very well that when we take away a young person's or any person's liberty—and I'm particularly concerned with young people who are in custody—we're assuming a huge responsibility for their safety. My main area of concern is our collective responsibility for the safety of young people who are deprived of their liberty. It's not there right now, and we're certainly not going to see the situation improve if we're putting kids in federal penitentiaries. I think we really have to very openly acknowledge that responsibility to the young people we incarcerate.

As far as the issue of denunciation and shaming is concerned, I'm not really sure if it has any place in youth criminal justice legislation, because it's something that occurs naturally, and in fact you couldn't get rid of it. You couldn't legislate it away. It happens naturally in families, in neighbourhoods, and in schoolyards. I've experienced it. Anyone who has committed a semi-visible or well-known crime in their communities has experienced it. I don't see how exaggerating and augmenting that experience is going to aid in the reintegration of these young people into their communities. It's hard enough for young people, for myself and I'm sure for Richard and for all of our peers, who are coming out of a custodial setting to get back living with our families, to move back into our old neighbourhoods, and to face those people. It requires a lot of support. It is very difficult to look people in the eye when everyone knows you're a criminal.

I understand there are a lot of people talking about how there should be the publication of the names of offenders. I do not see how increasing that shaming from what already occurs naturally in communities in any way aids in reintegration and rehabilitation, which of course are very much in the interest of protecting the society's right to be safe and protected from criminal activities.

Those are my comments.

Mr. Richard Rothenburger: If I could comment now, based on my experiences, yes, I had to take responsibility, and I had to be accountable for my actions. For every crime I committed and everything I did, I had to be accountable and to take responsibility. I never denied that.

But with some of the changes that are being proposed, I don't think that's going to help responsibility.

What helped me take responsibility and be accountable for my actions was people sitting down and listening to me. If they took the time, even if I didn't want them to, even if I was angry with them, even if I hated them, if they sat there and listened to me, it helped me take responsibility because it helped me look inside to see who Richard was and why Richard did what he did.

As for the shaming and denunciation and the publication of names, that falls into privacy. In the rural community I grew up in and that I left when I was 13, once I got involved with the young offenders system, word got back to them that I was a criminal, and I was no longer welcome in that town. I had cousins and an aunt and uncle there, but I was no longer welcome to walk down the streets of that town. In the high schools I attended, once I was in court and it got around, I was looked down upon. The people who I felt were my friends walked away. My teachers, the administrative staff of the schools, turned away and said “Oh, well, let's just forget about Richard. He's a lost cause.” As a result, I fell through the cracks of the education system.

• 1710

I guess what I'm trying to say is, yes, everybody in this room, everybody in Canada, whether you are 13 or 30, has to take responsibility and be accountable for their actions. However, we have to maintain that everybody in this room and in Canada deserves respect.

I would also like to say, going back to the publication of names, that by doing that, by shaming the kids that way, what's going to happen is...quite possibly, if they were anything like I was...I had low self-esteem. By having my name all over TV, all over the streets, I'm willing to bet that my self-esteem, as low as it was, would have gone lower and I would have cared even less, because I didn't think anybody cared about me.

Thanks.

The Chair: Does anybody else wish to answer Mr. Cadman's invitation?

[Translation]

Mr. Serge Charbonneau: Yes. I would just like to say that it is important to decry crimes that are committed and to make youth face their responsibilities. However, we should also draw lessons from methods that have already been applied. Formerly, society would retaliate in very public ways. Nonetheless, I do not think that we want to go back to that model.

I think that rather than publishing names, we should just inform victims about the events following the arrest, to let them know what is happening and tell them how the young offender is progressing in the facility or in serving his community service sentence. With such provisions, Canadians would perceive that we have reacted to the crime and that something has been done about it.

When we explain what has been done—and we know this from the studies that were done—we find that people have a very open-minded attitude. Victims of crime may at first feel vindictive, but then, once they have understood the dynamics of the situation that explain, in part, the behaviour of young people, they are open to other solutions.

Thus, there is not only one way to reprove criminal acts, there are many ways. I will not raise the matter of deterrence for youth again. Obviously, young people are not deterred by heavy sentences.

The Chair: Thank you very much.

Mr. Bellehumeur.

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): First of all, Mr. Charbonneau and Ms. Tamborini, thank you for coming to speak to us about Bill C-3 and for trying to enlighten the members of this committee. I do not have many questions to put to you because I share your approach entirely. I am against this bill and I will firmly resist its adoption, at least in its current form. If possible, I'll try to get Quebec exempted from it. I will carry on working for this.

But I do have a question for Mr. Stewart. I did not read your whole brief, and I will read it because you took the trouble to make what looks like a very well-structured and well-written presentation. However, I did listen to you. As you say, the advantages of this new bill can all, in my opinion, be obtained by applying the Young Offenders Act. The only things in this that are not already in the Young Offenders Act are all the drawbacks contained in this new bill.

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You mentioned alternative sentencing, intensive rehabilitation, and follow ups. If we apply the Young Offenders Act properly, we can have alternative sentencing, give intensive treatment to these young offenders, ensure a follow-up and obtain court orders.

Sincerely, I'd like to understand what new advantages this new act brings, that are not already included in the Young Offenders Act if it is correctly applied.

You'll have the floor next, Madam.

[English]

Mr. Graham Stewart: I guess there are two things I would say. First of all, I think there are a number of measures that simply allow for things taking place under this act that are not permitted under the Young Offenders Act. The provisions around conditional release and supervision are significant. They reduce the period of time in custody and they ensure that there's an after-care mechanism, which does not exist under the Young Offenders Act.

Would it help us address the fact that Canada has one of the highest incarceration rates in the world? If we want to address that, the only way to address it is to either put fewer people in jail or shorten the period of time they're there, or both. I see that as a concrete measure.

The second is the movement of the change around the transfer hearings for youth. Currently the act only permits transfer hearings prior to trial. To me, that is a very prejudicial hearing process to go through. I've been at a number of these hearings, and it's very distressing in my mind to go through an extended hearing in which both the crown and the defence talk about how dangerous a person is when he hasn't been convicted of an offence. I can't help but believe that those who are found to be dangerous prior to trial can have the same fairness in their trial process as those who aren't, although there have been cases where people were acquitted in the adult court, but I still think that's a fundamental and important change to due process, which you cannot get around in the Young Offenders Act.

The test itself for transfer is a different test. I think it will be applied differently. I think it will be understood by courts differently. I think it's an improvement.

The provisions for intensive custody and supervision orders and the fact that there will be funding that goes with that I think is an important change. It may be that the provinces would, on their own, be prepared to put forward a great deal of money and expense to generate those, but they're not, in all cases at least. This in fact encourages and allows those kinds of measures to take place in provinces that currently don't do that.

There are other measures that are given much greater emphasis and that the court process encourages that could be achieved with the Young Offenders Act. Some of these measures certainly are there and would be there in Quebec, but they're not taken equally seriously across the country. So while I think it presses some provinces to be more involved in these areas, it certainly doesn't detract from those that are currently involved.

Finally, I think some of the measures that we know about in Quebec, which we think are positive measures...none of them, as I see it, would be negatively affected by the legislation. In other words, I don't see anything in this legislation that would force Quebec to take actions that would be harsher and more destructive to young people than currently is allowed under the Young Offenders Act.

[Translation]

Mr. Michel Bellehumeur: I do not want to start a debate about this, but among the things that you mentioned, quite a few can be done within the framework of the Young Offenders Act.

I don't know whether applying the Parole Act to young people would be good in the long term, if it were not done in tandem with appropriate follow-up. Many witnesses have pointed out the importance of such follow up—and that means being in touch with the young person almost 24 hours a day. I find it difficult to follow you on this point. In any case, we are not debating the issue here.

Ms. Elizabeth White said something that startled me a bit. You completed your presentation by saying you were very happy because this bill would make it possible for all young people across Canada to receive equal treatment.

• 1720

I'm from Quebec, and I don't want to have Quebec's approach brought into line with what's being done in the West. I want to go on with what we in Quebec have been doing for 25 to 35 years. Do you think that with this bill, the procedures we apply to young offenders in Quebec would have to be brought into line with the procedures applied in other provinces?

[English]

Ms. Elizabeth White: Well, no. Of course, I assume it is Quebec with whom we are going to standardize our approach. However, to respond more directly to your question, the Young Offenders Act has been so vilified by so many authoritative sectors in this country and has been so misrepresented and misunderstood that it has frankly, in my view, lost the ability to achieve that kind of consistent application across the country of which it was capable when it was introduced. So I start from that premise, that having had these difficulties, it is now better to move to a more comprehensive detailing of an approach that maintains a separate system for youth.

With conditional release, as Graham noted, and with some of the other changes in terms of adult sentences rather than adult trial, I think we will see positive improvements to the way with which we deal with youth. I don't think we need to go back to the lowest common denominator when we go to a consistent framework, and the reason I don't think that is because in this legislation there is the provision for the federal government to take a leadership role in those provinces where perhaps the inclination may not be to look to the more progressive opportunities that are available. If that is done in the context of a national approach to youth justice, I think we will raise the bar rather than lowering it, and I would hope that Quebec would not opt out.

[Translation]

The Chair: Thank you.

[English]

Madame Bennett, for seven minutes.

Ms. Carolyn Bennett (St. Paul's, Lib.): Mr. Chair, I won't need close to that.

I just wanted to thank Matthew and Richard for coming, and I hope we'll be able to craft something that you would be proud to go out and help sell for us, because I think if every Canadian could hear your stories and see how articulate you were, all of the problems of the country in terms of the community's responsibility to know that it's possible to turn things around would move this country way ahead. I'm just thrilled that you came and that Judy saw fit to make sure you could be here. So thank you.

The Chair: We have some time left if anyone wants to use it.

Mr. Cadman.

Mr. Chuck Cadman: Ms. White, you made a comment during your presentation, if I remember correctly, that you didn't feel adult sentences were appropriate in any case, in any event. There is no possible reason why any youth should get an adult sentence for anything? Is that really what you meant?

Ms. Elizabeth White: Yes.

Mr. Chuck Cadman: Even in the case of the most heinous...? So you don't feel—

Ms. Elizabeth White: I am not suggesting, Mr. Cadman, that there should not be a strong reaction to bad actions committed by young people. I am saying it should not be the same reaction we give to an adult, because we are not dealing with an adult; we are dealing with a youth. So it may be a very intrusive response, if there is a particularly heinous act, as you refer to it, and it may have long-term consequences. I do not think it should be done within the context of adult sentencing.

Mr. Chuck Cadman: In other words, what you're saying is there should never be a life sentence given for a murder to somebody under 18 years old.

Ms. Elizabeth White: Yes.

Mr. Chuck Cadman: Fair enough.

To Matthew and Richard, I don't know what your offences were, and that's irrelevant here. Do you feel justice was done to your victims? As I said, your offences are irrelevant; that's up to you. Do you feel that your victims received justice for whatever the offence was that you committed against them?

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Mr. Matthew Geigen-Miller: Likely not to the extent that was possible. I think the move toward really enhanced extrajudicial measures is the part of the new Youth Criminal Justice Act that will really ensure justice for victims and a meaningful role for victims.

But in the case of my experience with the Young Offenders Act, probably not to the extent that was possible, no. It was a formal court proceeding. I was sentenced to custody. Certainly, I imagine there would have been the sense that justice was done and that there was closure in that sense. But as for the victim really being heard and having a meaningful role, my thinking is probably not, because within the context of a formal court proceeding there isn't really all that much of a role. You have the victim impact statement and that sort of thing, but it's really more of a side piece. It's the crown and the crown's agenda more than it is the victim and the victim's needs.

So no, I did not have any experiences with the more restorative approaches to justice, and because of that, I have not had an experience where there really was justice for the victim in the way there could have been.

Mr. Richard Rothenburger: Perhaps I could respond.

I don't know if justice was done for all of my victims. I don't know because I don't know where most of them are. I do know that I have had a little bit of experience with restorative justice.

With one of my victims, part of my order was to sit down across the room from them as that person described to me what I made them feel. I know what it made me feel when that person sat there for a couple of hours and I could not respond. I could not say I was sorry; I had to sit there and listen to them. That person told me how I hurt them. That person told me how I made them feel shameful, how I made them feel as though they were worthless. I don't know if in the end that person felt any justice, but I do know that for one of the first times in my life, at that point I knew the true feeling of remorse.

So I don't know if all my victims have got justice. I was sentenced, I did custody time, I did probation, I served my time, and as a result, I have come out a better person with all the extra help I received, with the rehabilitation that was given to me. So I hope the people out there who I hurt feel as though they got justice, because when I think back to the things I did, I do feel remorse, and I know the system in the end worked for me.

So I can't answer that because I don't know where they're at, but I do know from that one experience that I finally understood where that person was coming from and what I was really doing, because of the hatred that I felt for myself.

The Chair: Before we proceed, I'd like to build a little bit on what Mr. Cadman said when he introduced the question.

You've identified yourselves here, and I think it's presumed that you're here because you'd like to see us do the best job we can with this legislation. I think your courage in being here has been expressed also. But we want you to know that while you may be asked questions, you should feel very comfortable in not wishing to answer those questions, because you have no obligation to do so.

So we're assuming that your interest in this legislation brings you forward and brings these answers. But we also want you to know that anything that makes you uncomfortable you have every right to refuse to speak of, and that will be understood by everyone here. It won't take anything away from the courage we have already noted.

• 1730

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: Ms. White, you said very clearly that, with this bill, fewer young people would find themselves in custody. Mr. Stewart said something similar, I believe. You did say that?

[English]

Ms. Elizabeth White: I said I hoped that.

[Translation]

Mr. Michel Bellehumeur: I'm looking at provincial custody statistics. I see that in Quebec, there are far fewer young people in custody than in other provinces. How do you explain that?

[English]

Ms. Elizabeth White: I am not an expert on Quebec. I would say that Quebec has taken a more holistic approach to youth justice matters and has seen youth in the context of the child welfare system, as well as the justice system. The same young people we see in other parts of the country in the justice system are often, in Quebec, handled in the child welfare or other social service sectors. I think that with the new act and the ability to use more extrajudicial options under sentencing as well, not only the extrajudicial funding but options in sentencing, you will see more young people being handled outside of the justice system, outside of custody.

[Translation]

Mr. Michel Bellehumeur: As I have just said, I am from Quebec and I am a lawyer. I know this issue well because I have been working on it since 1993. I am familiar with all the amendments to the Young Offenders Act. One of the reasons we have a low custody rate in Quebec is because we tend to use alternative measures: this is something we can do under the current Young Offenders Act.

As you just said, Mr. Stewart, if provinces do not invest more in implementing supervision orders and alternative measures, will there be any point to having made those amendments?

[English]

Ms. Elizabeth White: I think the purpose is that we now have a new tool with which to educate the public and to work with the provinces to develop enhanced services. I agree that there has been huge resistance in pockets of this country to implementing what was capable under the Young Offenders Act. That is evident. This is a fresh start opportunity to build on a positive framework.

Mr. Graham Stewart: I'd like to respond to that as well.

I think it would be a tragedy if this legislation resulted in an increased incarceration rate in Quebec or if it resulted in less use of alternative measures or extrajudicial measures and so on. I don't see anything in this legislation that would do that. But I do see things in this legislation that would move other provinces in that direction.

I think in that respect what we are talking about is legislation that will enable and encourage certain kinds of activities in provinces that are not doing so, without, in my view at least, threatening the existing programs and activities that take place in Quebec that result in a criminal justice system that's at least as effective as the other provinces, and with less reliance on incarceration.

[Translation]

Mr. Michel Bellehumeur: I don't want to start a debate. I don't know whether you have any legal training. Not having any is certainly not a problem; it may even be an advantage. I myself do have legal training, and have come across many Quebec lawyers who have compared the wording in the Young Offenders Act with the wording in the bill we are considering here. They note that there is a significant difference in the terminology used: the new bill imposes penalties, harmonizes sentencing, and sanctions. It uses the same language as the Criminal Code and the adult justice system. The Young Offenders Act contained specific definitions applicable to young people. Children had to be dealt with separately, and have their needs taken into consideration. They had a genuinely separate justice system.

• 1735

My question is a very simple one. Given the fact that the pressure of public opinion on youth crime will not disappear overnight because a new bill is in force, and given the fact that provinces who do not wish to apply the current legislation will continue to be difficult about young people, don't you feel that courts will increasingly treat young people as criminals, as adult criminals, even when they do not fall into that category, simply because of the way this bill is drafted?

[English]

Ms. Elizabeth White: You force me to confess that I am also a lawyer—something I try to hide—but of the Ontario bar, not of the Quebec bar, and in reading this legislation, I agree with you completely that the language has changed. That is a cause for concern. However, I think in order for this act to be comprehensible and communicated in this country at this time, the language had to become consistent among the various justice acts.

In the past I supported the type of language that was used in the Young Offenders Act. I know there were some concerns in prior legislation about tone and attitude. I don't think we can work with that language at this time, and that may be a sadness, but it does not stop us from using the very clear language in this act to implement the positive aspects.

I think our judges in fact are better than they are given credit for, much of the time. I think they are quite capable of applying the language within this act in a positive manner for youth in a separate youth justice system. I think that when we leave it perhaps to administrative decisions, there might be some people in bureaucracies across the province who fall into the pitfall that you have indicated, Mr. Bellehumeur, but I do not think our judges will.

Mr. Graham Stewart: If I could speak to that as well, I think language is important. It shapes our attitudes and values. But if there's been a major shift in language, I would argue that that shift in language took place between the Juvenile Delinquents Act and the Young Offenders Act. The Young Offenders Act introduced very clearly a Criminal Code perspective on young offenders, and we've had that for many years, but it also introduced a lot of confusion. It introduced notions that were mutually inconsistent—so the principles, for instance, which I think are crucially important, in terms of language had contradictions—without any guidance on how to get out of this.

In the end, all of the language might not be the language I would choose, but I think the language is not so different from that in the Young Offenders Act that one could say it's dramatically worse, and in some respects I think it's better. The movement away from the clear notions of deterrence and denunciation is an important change in the language. I think the movement towards accountability and responsibility as opposed to public protection is better. It's not great, but it's better.

So I guess what I would say is that I wouldn't dismiss the importance of language, and I cannot speak for how this language would be heard in French, which might be also a very crucial factor, but as I see it and as I read it, this act—for me—encourages me. When I read it, I think there's more opportunity to do the kinds of things that I hear people from Quebec saying are crucial to their justice system. I'm not discouraged by that.

The Chair: Thank you very much.

Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chair.

I would like some comments from the panel generally, whoever chooses to answer it, on the reduction from 16 years to 14 years of age at which the young offender would be presumptively subject to the adult sentences, and also the change in the application from a pre-adjudication to a post-adjudication application for those adult sentences.

Anyone? Just general comments on those provisions.

Mr. Graham Stewart: I think I've already mentioned my view of the post-adjudication, so I won't go through that. On the reduction of the age, I just think it's inconsistent with the other principles of the act, which talks about restraint in the use of imprisonment. Only to the extent necessary to achieve the purposes of the act do we then have a presumptive adult sentence.

• 1740

If there are circumstances that demand an adult sentence, I don't see why the whole adversarial nature of our criminal justice system couldn't achieve that. To decide in advance, through legislation, as if we know today what every young offender who commits this type of crime is like, and the circumstances that would presume an adult sentence, I don't see that as necessary. Reducing the age to even younger children, to me, takes a bad notion and just makes it worse.

The Chair: Matthew or Richard.

Mr. Matthew Geigen-Miller: I can't really offer a qualified opinion on the process of the transfer to adult court. I understand the transfer now occurs post-trial, and on the face of it, that does seem to have some benefits.

As for expanding the age for presumptive offences, I can't really offer a qualified clinical opinion, but I've met lots of young offenders, hundreds of them, lived with them and spent my days and nights with them, and I have never met a 14- or a 15-year-old for whom the root causes leading to their criminal behaviour could not be addressed within the scope of a youth court sentence. I have never met such a person who was in such a state that an adult sentence was needed. Quite frankly I have difficulty imagining what someone like that would look like or speak like. And I've certainly been in contact with a number of serious offenders, violent offenders, repeat violent offenders.

We're forgetting one of the key principles here in having a separate youth justice system, which is that young people, first of all, are deserving of special protection and different treatment, partly because they're a lot easier to rehabilitate than adults are a lot of the time. They're not as deep into the criminal lifestyle. They've been doing it for less time, and they haven't necessarily internalized all of the antisocial values. I certainly hadn't. I don't know of any 14- or 15-year-old, I've never met one, who is really a hardened criminal. So I can't imagine there's a 14- or 15-year-old out there whose issues or behaviours could not be addressed within the youth criminal justice system.

Mr. Richard Rothenburger: I definitely agree with Matthew. I also spent a good chunk of time in my teen years with other young offenders. I was 15 the first time I was sentenced, and I know where I was mentally, I know where I was physically. I know that if I had been sentenced to an adult sentence and put into an adult facility at the age of 15, mentally, I would never have been able.... I can't say “never”. I would have had a very hard time growing. And physically, I was never very strong within my own age group. I always liked to think I was, but I wasn't. If I had been put into an adult facility, once again, physically, I would have been at a disadvantage.

So I don't see the benefit of sentencing a young person of that age to a life where they don't have the ability to grow emotionally, mentally, and spiritually, and where physically they're at a disadvantage, because a lot of the guys sitting in the correctionals, in the penitentiaries, are considerably stronger than most 15-year-olds I know.

The Chair: Judy.

Ms. Judy Finlay (Chief Advocate and Manager, Office of Child and Family Service Advocacy, Canadian Council of Provincial Children's Advocates): I promised the young people I would allow them to do all the speaking, but this is one issue I feel very strongly about, and I would like to speak to it.

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At the child advocate's office in Ontario and across all of the provinces in Canada, we get the very difficult-to-serve young people. We get the young kids with the heinous crimes, you might call them, or the most serious offences. We're their advocate.

What we know about the majority of these young people is that they're systems kids. They're kids from the child welfare or the children's mental health system already; they're kids we've already failed and have a special responsibility to. I know too that if we place these kids, at 16, in the adult system.... We've done that in Ontario in error, and we've seen the consequences of that. These are not kids who then are rehabilitated. These are kids who come out more angry and very violent, and I would not want them moving in beside me in my community.

I know too that sometimes kids at 16 and 18 would prefer to be transferred to the adult system, because they'll do less time and they'll just do their time. They prefer to do their time, because if they get a ten-year or an eight-year sentence, they do a third of their time on good behaviour. And they do exactly that: they do their time.

We've had to convince young people to consider being transferred down to the young offender system. We have to convince them because they get longer time. But also they get programs—programs that, at face value, in the beginning, they might not feel comfortable with; programs that hold them accountable for their behaviour; programs that target their behaviour; programs that target their histories, that target their ability to have a sense of remorse, to be able to attend to and align with victims.

So it's not as simple as how we're defining it here. Reducing the age to 14 to move to the adult system is really putting young people in jeopardy, and by doing that, we're also putting our communities in jeopardy. I feel very strongly, as does the council, that by reducing the age, we're really doing a disservice to young people and to our society.

The Chair: Anyone else? If not, Mr. Cadman.

Mr. Chuck Cadman: I have just one quick question for anybody who cares to answer it.

Misinformation through the press and the media was mentioned a couple of times, and I agree, the media does tend to grab onto the most sensational cases and run with them. And we can play with the stats as much as we want. Anybody can play with numbers.

I spend as much time as I can going into schools and talking to kids about violence—not the law, not the YOA, just talking about violence. The message I get from the kids is that the stats are not right, because their own experiences are telling them that around the schools and on the streets, it's on the increase. Can anybody square that up? Because it's not reported. What they're telling me is that what they're experiencing never gets reported.

[Translation]

The Chair: Mr. Charbonneau.

Mr. Serge Charbonneau: In my view, young people are not in any position to compare levels of violence. If I'm in grade nine, there is no way I can compare what happens now to what was happening at school five years before. So I completely agree that statistics can be made to say almost anything. They can be massaged. They are super raw material for political speeches. I always handle them very carefully.

However, we can still study the whole picture. I took part the other day in the convention of the Société de philosophie du Québec, where international experts were discussing the issue of violence. We must recognize that violence comes in different forms nowadays. We must recognize that there are more edged weapons and so on. These experts who studied the issue were all of the opinion that everywhere in western societies violence was decreasing. More and more, everything is depicted as violence. I do not want to deny the phenomenon of violence. I am not saying that people are not affected by acts of violence. That is not the question, not at all. The question is to recognize that there is more and more of it, but I do not believe that it is necessary to make a lot of harsh interventions.

In any event, the campaigns that are going on in the schools reflect the fact that we are under the impression that violence is on the increase. These young people are told more and more about violence. I'm not against that, but since we are telling them more and more about it, the phenomenon is becoming more and more apparent for them. If we were not talking about it at all and if we were to ask young people what they think about violence, I'm not at all certain that they would talk the same way. We must really be careful when we want to make decisions in this regard.

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In any case, in its study, the committee based its findings on statistics indicating that there is a decrease of violent crime. All the witnesses who appeared before you told you so.

I don't think that this is necessarily the point. Whether or not violence is on the increase, what is the best way of dealing with it? The question remains. Even though there is no increase in violence, that does not mean that we must not try to improve the way in which we deal with it. I have already said that publicly.

The Chair: Thank you.

[English]

Mr. Stewart.

Mr. Graham Stewart: I think the whole purpose of looking at statistics is to try to check our subjective impressions. Certainly crime and violence can vary; it can go up and down in one location, in one town, or in one period of time. We tend to record very carefully in our minds incidents where the violence seems to go up, and we forget and we ignore when it goes down. In fact, very often, if you look at the way things are presented in public discourse, one or two events becomes a trend almost immediately, as in, “It didn't happen like this here before, but now it does”. You hear this constantly.

I think we have to look at the statistics seriously. They're not just the crime statistics. It's conceivable that if people were reporting crime less, crime statistics could be going down while the incidence of crime is going up. But one of the ways we have of checking that is victimization surveys, which are a different approach to crime. This goes to people directly and questions them as to whether they've been involved in crime. They are very substantial, very professional studies that are done every five years in Canada. They reflect exactly the same trend.

The fact is that I think what children tell us is what they're told. I think one of the real tragedies around the Young Offenders Act is that the adults of this country have been telling the young people of this country that the YOA is a joke. While we have one of the highest incarceration rights in the world, we have a whole generation of young people who adamantly believe that if you go to court it's a joke. I can tell you that I think that's a terrible disservice to our young people.

But we shouldn't be surprised that they think the crime rate's up. They get a steady diet of that information from all kinds of sources, some of which should be very credible sources.

The Chair: Thank you very much.

I've been nailed here. We had denounced lawyers a little while ago here. I'm a sociologist, although I have been accused of being a lawyer, and they were going after social policy research and I thought I was in trouble. But I'm a qualitative researcher, so I was okay again. But I am an adult, so....

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): I'm glad we confirmed that, Mr. Chairman.

Since we're are all confessing, I'm a lawyer, as is he, as is the guy who just beat it out of the room. At one point, I was going to be a sociologist, so....

I'm not sure whether this is directed to Mr. Charbonneau or Mr. Stewart. You mentioned the point that the restorative justice recommendation in the committee's report had been ignored in the bill. I'm not sure who mentioned that. I want you to expand on that. I thought that was a pretty important section in the report, and I frankly didn't realize that it didn't make it back into the bill. Could you expand on that?

[Translation]

Mr. Serge Charbonneau: Perhaps we could agree on one thing. Major authors, including Howard Zehr, who is a Canadian, and Walgrave have examined the distinction between a perspective of restorative justice and the other perspectives in the field of justice. The major distinction that has to be drawn is that a system based on restorative justice is concerned with what people have gone through at the time of the offence and not with a breach of a social standard. It is concerned with all the consequences for all the persons involved, in a much more holistic and systemic way.

• 1755

In such a system, all parties that had been involved in the event are asked to contribute to the solution. The focus is completely different. It is not a matter of having a fair penalty for each offence, as Beccaria was calling for. People are asked what they have been through because of the act that was perpetrated and how we can try—because it is not possible to erase the wrongs—to restore some degree of well-being both for the victim and for the offenders.

Such is the spirit of family conferencing that is going on in New Zealand and Australia. Such is the spirit of adult offenders' programs that are being put in place in Nova Scotia. In such a system, we are stepping away from the lawyers' point of view. It is not a matter of seeing the event as a legal inspection and trying to determine the responsibilities of all the parties, but rather to ask oneself what the people involved have gone through. That is the starting point, what the people have gone through, we deal with that, we involve the people and we try to give satisfaction inasmuch as possible to all the persons involved.

There is no such thing here. In that regard, Howard Zehr makes a distinction between criminal justice and restorative justice. He says that criminal justice is centred on the offence and the perpetrator of the offence. The goal is to deter the offender, to scare him, to punish him, to harm him, to jeopardize his development. The other kind of justice, on the other hand, also deals with the victim and the offender, but it seeks solutions that are negotiated and understood by all parties including the victims. You are aware that restorative justice is not concerned solely with the treatment of offenders. It includes provisions for coming to the aid of victims of criminal acts. Mylène Jaccou draws on these distinctions and she talks about symmetrical restorative justice, that is a justice that deals with both parties, and asymmetrical justice, that deals more with the victim than with the offender. The offenders are not always known. So in a restorative justice perspective, the State should establish provisions for victims even when the perpetrator of the offence is not known.

You don't see any of these approaches here. In fact, the bill goes in the opposite direction. It favours a more criminalized justice system as these terms suggest: “access to adult sentences”, “impose a sentence” and “just sanctions”. These are normal considerations if you want to restrict somebody's freedom, but from the point of view of restorative justice, you must involve all parties whenever possible even in the case of serious violent offences. This method is used by Umbreith, who manages to bring together people in seemingly impossible situations. People who have suffered the loss of a family member meet the offender years later. We are considering all these approaches.

People are trying to find new avenues, but we don't feel that that it what is actually happening. You may be following the beaten path, including easier access to incarceration and so on and so forth. That's the impression we got.

The Chair: Thank you very much.

[English]

Mr. John McKay: Let me just follow up for a second. To address that concern, would you restate the principles of the bill or the preamble of the bill, or would you restate the sentencing principles?

[Translation]

Mr. Serge Charbonneau: Are you asking me how I would restate section 37? I'm not sure that...

[English]

Mr. John McKay: Not all of it, but where would you state it?

[Translation]

Mr. Serge Charbonneau: If you want to state sentencing in principles on the basis of restorative justice, you must withdraw all the provisions dealing with imposing just sanctions, harmonizing sentences and imposing sentences that are proportionate to the seriousness of the offence and to the degree of responsibility of the young person.

In restorative justice, proportionality is not necessarily established on this basis, but rather on the basis of what people went through. All this must also be provided for in law, but when it comes to sentencing, this is done in a totally different spirit. You consult the victims instead of imposing sentences that are proportionate to the offence and to the degree of responsibility of the young person. None of these things would be done in this spirit if we were to rely solely on restorative justice. I am not saying that western countries have adopted sentencing principles from a purely restorative perspective, however, they have introduced significant notions with respect to concerns over the sentencing principles and tried to minimize the principles underlying the imposition of sentences, which are sometimes necessary, though not always.

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The Chair: Thank you.

Mr. Bellehumeur.

Mr. Michel Bellehumeur: I just have a comment. Ms. White and Mr. Stewart have mentioned on a number of occasions the preamble of the Act in respect of criminal justice for young persons. We have to be careful here, as there's a major difference between this famous preamble that is found in Bill C-3 and in the Young Offenders Act, which contained in section 3 and the following sections elements that went even further than what was stated in the declaration of principle.

Once again, I do not want to start a lawyer's debate. There is jurisprudence in the application of the Young Offenders Act. The Supreme Court judges said that the Young Offenders Act must be applied to individuals because of the declaration of principle in subsection 3.1 as this is not a preamble.

As a lawyer and as somebody who's very interested in this issue, I'm afraid that this preamble is nothing but lip service and that the judges do not consider it to be the legislators' real intent. I am cautioning you because you have said on a number of occasions that because of this preamble, we can do this or that. Be careful! In some decisions, the Supreme Court has deemed the declaration to be a section of an Act and not a preamble.

[English]

Mr. Graham Stewart: That wasn't a question, and I accept that, but I also am not indifferent or insensitive to the concern you raise. Whenever one sees major change in legislation, one never knows exactly how that is going to be interpreted in fact and what the implications are. So I think the caution you raise is valid for me, because I share the values and the interests you would have and you would want to see.

But with respect to restorative justice, I would like to make the point that I don't think you can actually legislate restorative justice. Restorative justice is an alternative to retributive justice. Retributive justice is the nature of the act. It always is, in criminal legislation. What you want is an act that doesn't prohibit restorative justice and in fact encourages it. So you're going to see those opportunities arise out of the extrajudicial measures, perhaps, or the conferencing sections. You're not likely to see it coming out of the sentencing. By the time you're at the sentencing stage, you're past restorative justice.

I would be very happy if the act in fact made more reference to restorative justice and encouraged its use and used the concept. At the same time, I think the conferencing provisions in the act and the extrajudicial measures certainly allow it, and I think it would be very difficult for me to understand an argument coming from a provincial jurisdiction that said restorative justice was prohibited by virtue of this act.

Ms. Elizabeth White: I think if you want to reinforce the approach to restorative justice measures, you could take another look at clause 5, which talks about the design of extrajudicial measures in order to promote what is essentially a restorative justice approach, and you might consider enhancing those provisions.

The Chair: Thank you very much.

Mr. Maloney.

Mr. John Maloney: Ms. White, in your presentation you said that the problem of the Young Offenders Act was not in the act itself but in its implementation. Then you went on to say it was so misunderstood, so vilified, and so on, that it just got beyond the point of professional return in being respected as an act.

Mr. Stewart sort of confirmed that in his comments, saying adults considered it a joke, and the youths then picked up on it and it was a joke. Do you have any comments or suggestions for us in the implementation of the new act so that we don't fall into similar pitfalls?

• 1805

Mr. Graham Stewart: I guess I would turn to the broader strategy of the Department of Justice. I think the Department of Justice has been trying to say—and from what I understand, they've been making some important initiatives—that the problems of youth and the problem of crime cannot be dealt with through criminal justice legislation alone. Equally important are the crime prevention initiatives, the support for schools, the support for communities, the fact that troubled children who end up in the criminal justice system have problems that are unrelated or at least will never be addressed through the criminal justice legislation. That has to be accompanied by substantial public education that helps people understand that.

So if we think the act will turn people, I think we'll make a terrible mistake. They will simply see it as a window dressing or just changes of wording without any substance. I think we really have to work to have people understand that a justice system is only a good justice system when in fact it helps those who have offended become non-offenders, that anything less than that cheats the public. It cheats us all as a society because it robs us of an opportunity to make it a better world.

If we rely on the act alone, it will fail, but if we see this as one part of a much broader commitment—and I'm at least pleased to see that this is being acknowledged and there is some effort to address this at the Department of Justice, although I know resources are always the issue—I think that context is crucial, and I understand it to be part of the overall approach that's being taken.

The Chair: Ms. White, do you have a comment?

Ms. Elizabeth White: To that I would add that if there were one key implementation point in my mind, it would be to bring along the related service providers in the training process, as well as those who are in the criminal justice system, so that there is an understanding that because a youth is in conflict, it does not mean they are no longer entitled to the benefit of our other social services, and in fact the duty is even greater at that time to provide the appropriate interventions in concert with those who are providing the justice interventions.

The Chair: Thank you very much.

Mr. John Maloney: Are there perhaps any comments from the boys on that?

The Chair: You have to understand that this is an old man.

A voice: I'm glad you said that.

Mr. John Maloney: Did you or young offenders you knew consider the Young Offenders Act? Did you ever change in that opinion, and at what point was that?

Mr. Richard Rothenburger: I don't know if I ever thought it was a joke. I know one of my friends did. A lot of my friends, some of whom did some young offender time and others who didn't, thought it was a joke.

What I know is that a lot of opportunities weren't given to me at the stages that maybe they should have been. That's not saying I would have taken them. Had I been offered proper counselling and rehabilitation earlier on, and if I had taken that, then I think I would have been better off, but again, that's not saying I would have taken any, because it took me a long time to realize that I had to take responsibility.

I don't think the act itself has ever been a joke. I think Ms. White is right in saying that the implementation of the act hasn't always been handled correctly, like where it took the system five years, and me a number of years, to realize where some of my main issues lie. Had that been acknowledged and found out earlier instead of my just sitting in these institutions, if they had been giving me these opportunities, I think maybe I would have seen the light a little sooner.

So I don't think the act is a joke; I just think the implementation wasn't done properly.

Mr. Matthew Geigen-Miller: There seems to be this perception of youth in conflict with the law as these very sophisticated, worldly con artists who are very knowledgeable of the Young Offenders Act and know all the loopholes. I don't know who started that rumour. My theory is that it was a cab driver, because I've traced a lot of these myths back to cab drivers. You know how they like to talk.

• 1810

But there is this myth out there. I'm not quite aligned with some of the other witnesses. I don't isolate youths and say youths say what they're told. I think everybody says what they're told. I think we're all influenced by the mass media and so on; I think we're all affected by that.

If you take a look at one little part of the proposed Youth Criminal Justice Act and the provisions around admissibility of statements as an example, it seems to be based on this idea that young people have this sophisticated understanding. I remember when I had just left a treatment facility where I was finishing up my sentence. I was on probation and going to a high school. Word got around, whatever, that Matt did time, so I became this sort of schoolyard quasi-lawyer, I guess.

This guy came up to me one day. He had been caught smoking a joint with a bunch of other guys. He wasn't into any trouble, but we was experimenting with drugs. He was 17, and a lot of people do it. A police officer had caught them, had taken all their names, and said “We're going to tell all of your parents.” He had a friend's wallet with him. He was scared because he had strict parents, so he gave this friend's bank card as identification so that his parents wouldn't find out about it.

A few days later, he was feeling really guilty, and he actually believed he could possibly be caught for using the fake ID. That's not really realistic, but he had this vision of this great, all-powerful criminal justice system and he was scared. He called the police, he went in with his mom, I guess he made a statement, and he was charged with whatever the charge is for giving a false identity or name and for misleading police—I don't know what the charge was.

But I was asking about it, and I said to him, “Well, did you give a statement?” “No.” “Did you give a confession?” “No.” “You're sure about that?” “Yes.” “Did they take you through a bunch of forms and have you sign them?” “Yes.” “Did you tell the police officer what happened?” “Yes.” “Did he write it down?” “Yes.” “You signed some papers?” “Yes.” “But you didn't make a statement?” “No.”

This is what I'm getting at. This is a 17-year-old, so imagine the 12-year-olds. There's going to be a significant difference between a 17-year-old's and a 12-year-old's understanding. And this was a guy who had taken law classes in high school. He should have had some understanding of the significance of giving a statement. The significance of that question, “Do you understand that you are going to be or may be charged with a criminal offence?” That is with really significant safeguards in place. That's with clear language in the waiver form. That's with a guy who is at the oldest possible age, the highest level of thinking skills and that sort of thing, for someone who can fall under the youth criminal justice system. He had no idea what he was doing. He just wanted to make things right.

Do people think it's a joke? I guess if we want to think young people think the young offender system is a joke, then we can think that. How will we ever know what they think? I mean, really? Who's to say that if we ask them, they're going to be honest with us? Maybe they don't believe we care when we're asking. I don't know. But I certainly never thought it was a joke, and I certainly didn't think it was a joke when I was doing hard time. And none of my peers did.

Mr. John Maloney: Thank you very much. I appreciate the panel's input today.

The Chair: Thank you very much.

Those who are involved in this all the time are aware of the research and have seen it from a different perspective. It certainly is going to help us in our deliberations, and I think we're all going to do what we think is the best thing for the country.

I have a question to Matthew and Richard: Have you ever been here before?

Mr. Richard Rothenburger: No.

Mr. Matthew Geigen-Miller: Here...?

The Chair: To appear before a parliamentary committee. I've been here for six years, and for a first-time appearance, yours was really good.

Mr. Matthew Geigen-Miller: Thank you.

The Chair: I'm sure there have been times perhaps when you didn't want to hear this, but we hope you come back.

In any case, thank you very much. You have helped us, and I think your extra 50 minutes has been worth it.

We're adjourned.