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]

Thursday, February 24, 2000

• 1547

[English]

The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): Order. We'll get this meeting underway.

I'd like to welcome the witnesses: Mr. Vincent Westwick, general counsel, Ottawa-Carleton Regional Police Service; Chief Christine Silverberg, Calgary Police Service; and from the University of Montreal, Professor Jean Trépanier.

Ordinarily our practice is that each witness has approximately 10 minutes to give an introductory statement. I'm a little easy on the time, so don't worry too much about it. If you see me winding up like this, I'm not trying to get up in the air; I'm telling you you're just about finished.

Then we have questioning. We like to have as much time as possible for questioning, which is why we limit you to 10 minutes.

Any idea who would like to go first? Ladies first? I'm from the old school.

Chief Christine Silverberg (Member, Law Amendments Committee, Canadian Association of Chiefs of Police): Mr. Westwick will go first.

The Vice-Chair (Mr. Ivan Grose): Fine. At least I tried.

Chief Christine Silverberg: Thank you very much.

The Vice-Chair (Mr. Ivan Grose): Professor, are you comfortable with that?

Professor Jean Trépanier (Assistant Professor, École de criminologie and Centre international de criminologie comparée, Université de Montréal): That's all right with me.

The Vice-Chair (Mr. Ivan Grose): Any time you're ready, Mr. Westwick.

Mr. Vincent Westwick (Vice-Chair, Law Amendments Committee, Canadian Association of Chiefs of Police): Thank you, Mr. Chair.

As indicated, my name is Vincent Westwick. I am here in my capacity as vice-chair of the law amendments committee of the Canadian Association of Chiefs of Police. I'm very pleased to be joined today by Chief Christine Silverberg, chief of the Calgary City Police Service, a member of the CACP board of directors, and a long-standing member of the law amendments committee.

If I could, Mr. Chair, I'd like to recognize Gina Jelmini. She is an articling student from our office and was instrumental in preparing our brief. I might add she is also a serving member of the Royal Canadian Mounted Police.

I would like to begin by conveying to you the compliments of the chair of the law amendments committee, Gwen Boniface, the commissioner of the Ontario Provincial Police, who has appeared before this committee on several occasions, particularly on youth justice issues. She is not able to be here today but sends her compliments.

You should have our brief, which was sent. I'm hopeful that it is available now, in both languages, to the members of the committee.

• 1550

Before asking Chief Silverberg to comment on the bill itself, I'd like to emphasize, if I may, that the CACP has supported the process that has led us here today. In particular, we've supported the two-phase process introduced by the Honourable Allan Rock, then Minister of Justice.

The first phase, as I understand it, resulted in addressing the shortcomings of the Young Offenders Act, resulting in Bill C-37 some years ago, 1994 or 1995, if I'm correct.

The second phase involved a more comprehensive review of youth justice issues and was led by this committee and its former chair, the late Shaughnessy Cohen. We would like to acknowledge her work and the work of other committee members in that regard.

Chief Silverberg.

Chief Christine Silverberg: Good afternoon.

The Canadian Association of Chiefs of Police has been involved in the formulation of youth justice legislation in Canada for many years. From the time the very first youth criminal justice system was legislated, there have been many comments, criticisms, and praises of Canada's judicial treatment of young people who engage in criminal activity.

Some in Canadian society certainly have advocated for leniency, treatment, rehabilitation, and a caring, supportive approach to the offending behaviour of young people. Many others, however, demand punishment, retribution, and justice for the victim, irrespective of solutions to criminal offending and the need for more holistic approaches.

What is clear is that the question has long been asked as to what is the best juvenile justice system, one that best strikes the balance of what is fair and just for the offender, the victims, and the greater community. What is equally clear is that the answers have long been debated. Through it all, youth justice issues have been a significant source of frustration within the police community.

We know youth justice issues are complex, defying simple solutions, and we applaud the multidisciplinary efforts to redress youth crime and violence, but youth justice issues are extremely important for two primary reasons.

First of all, youth crime is a serious concern to communities and Canadians across the country. Secondly, police and community intervention in youth crime is, in our view, society's last clear chance to intervene and rehabilitate the young person and at the same time prevent or reduce adult crime.

We cannot, however, lose sight, in a forest of statistics and academic analyses, that there is a human face and cost to youth crime. Like all crime, youth criminal behaviour, especially violent criminal behaviour, contributes to our feelings of unease and brings forward lingering concerns by all members of the community for their personal safety, the safety of their families, and the safety of their property.

We in the police see the results at the ground level, and we are passionate in our commitment to contribute to the quality of life of the people we serve. In order to feel that they are living in the best communities in Canada, Canadians must believe they can commute to and return from work without facing personal risk. In order to be successful, our children must be allowed to learn and play in safe and secure environments, and young people who need nurturing, support, and assistance while growing up must be provided with these opportunities.

To allow otherwise, in our view, will lead to certain failure in the development and maintenance of our communities, and it will lead us ultimately to fail with our youth. It will lead us ultimately to fail with our own future.

We believe there has been much thoughtfulness in enshrining these kinds of principles within the new Youth Criminal Justice Act. Like the police, legislators feel deeply, I think, the need to redress the very complex problems that result in some 25% of all crime committed in Canada—that committed by our young people.

We acknowledge and we applaud the efforts in this legislation to uphold the Canadian values of accountability, respect, responsibility, and fairness, and to protect the public through crime prevention, meaningful consequences to the full range of youth crime, and rehabilitating youth so that they can turn their lives around.

Notwithstanding these laudable aims, however, and the framework of the legislation, the Canadian Association of Chiefs of Police believes some improvements can be made to enhance the act and to make it more workable for the police. We have long taken the position that the first objective of youth justice is that there must be a serious response to serious youth crime.

• 1555

The second and more complicated objective is to ensure there is a proportional and rehabilitative response, including community involvement where appropriate, that recognizes the complexities of youth crime, its causes, consequences, and impacts.

While both objectives are important, the second one is more difficult to understand and implement. The Canadian Association of Chiefs of Police also recognizes that these dual objectives are sometimes difficult to reconcile, which leads to very difficult legislative drafting challenges.

Let it be unequivocal that the CACP supports Bill C-3. This new legislation is an improvement over the Young Offenders Act. But despite our overall support, there are five areas in the proposed legislation that we believe deserve further consideration. Our concerns do not detract from our support of the fundamental principles and approaches of the bill, but rather go to the practical difficulties faced with the implementation and day-to-day work with the bill.

I will turn it back over to the vice-chair of the legislative committee, Vince Westwick, to tell you of some of these primary areas of concern and some of the technical concerns we have with the new act.

Mr. Vincent Westwick: I'll be brief, but I would like to highlight the concerns we have. They're in our brief, so you can review them, but we'd like to make some comments on them.

There are five principal areas we'd like to discuss. First, the bill is unduly complex. Second, the concept of speedy trial is not included. Third, there is a gap in the legislative framework with respect to offenders under the age of 12. Fourth is the scope and definition of presumptive offences. Fifth is the area of statements by young persons. I will just briefly comment on them.

The CACP has appeared before this committee on many occasions, and we almost always make the submission that the legislation before you is too complicated. This is not because we don't think our police officers are able to deal with complicated matters, but rather legislation of this nature, which is ironically 196 sections long, is replacing an act that is 70 sections long. Police officers are being asked to make subtle distinctions in interpretation that will lead to an inconsistent application of it. There are more specific examples in our brief of the complexity that we think is unnecessary.

The concept of a speedy trial is a most important one. We have made that submission before this committee on at least two other occasions, and we raised it with the Department of Justice in the consultation. I suppose the simplest way to describe why we think a speedy trial is so important is to give a situation out of my own life.

I have three teenagers at home, and if one of them were to arrive home after curfew on a Saturday night, I'd find it odd to say to my teenager, “You are to meet me in the living room on Sunday afternoon, at which time we will set a date for when we will discuss what the result will be of your being late.” While this may draw some smiles, it is in fact what the act says to people. We support the concept that consequences for young offenders must be meaningful, and in order for them to be meaningful, they must be timely.

We would call for a clause that would require the mandatory commencement of a trial within 60 days, unless the youth court judge were to order otherwise.

The gap in the legislative framework is that we accept and understand that child welfare is a provincial responsibility. We also understand that statistically there is not a large number of serious crimes being committed by persons under the age of 12. Currently, however, there are situations where it arises, and we believe it should be dealt with. An opportunity exists for the federal Minister of Justice to demonstrate leadership to address the legislative gap, and I understand from discussions I've had with the Department of Justice that to some extent those efforts are underway.

We have a strong view on the presumptive offences. We believe the concept of the presumptive offences is better than the existing transfer provisions in the Young Offenders Act. However, we do not think there is a justifiable argument to limit the scope of presumptive offences to only those who are over 14 years of age.

• 1600

We are also unable to support the concept of serious violent offences, which is included in the definition, because in our view it is impossible to distinguish between a serious violent offence and a violent offence, which is necessarily part of the definition of presumptive offences.

The last thing, and perhaps one of the most significant practical concerns to police officers, deals with young offenders' statements. These are the statements, confessions if you will, that are taken by police officers from young offenders. Currently, under section 56 of the Young Offenders Act, there are significant complications and technicalities associated with this. I have taken the liberty of attaching to the brief you have before you a copy of the Ottawa-Carlton Regional Police young offender statement form, which runs some eight pages long. That is what is required of the police officer to put before a young offender before they can, in essence, accept responsibility. We feel it is too complicated.

Our argument is to simply take out the sections in the act—and we've quoted them—and rely on the common law. But perhaps more important—and this is something the committee may want to give some thought to—is the creation of a statutory form for the purpose of taking a statement. This form would be part of the act, and would therefore be a guideline for police officers to use, leading to the admissibility of a statement in court.

In conclusion, we believe youth justice issues are very important. We have taken every opportunity to come before this committee and consult with the government on this important legislation. We believe Canadian communities need to be protected from youth crime, and the system needs to take advantage of the opportunity to prevent young persons from moving toward lives of adult crime.

In conclusion, we are very thankful for the opportunity to again appear before this committee, and we would be pleased to answer any questions you may have.

Chief Christine Silverberg: Just to add a further note, there are some other related technical concerns we have about the bill, which are before you in the brief. We won't take time to go over them, but they relate to issues such as the police being allowed to keep a record of any cautions or warnings. This is an issue the police have raised for a number of years—pre-charge screening and so on—so if you have questions in relation to those issues, we'd be pleased to answer them.

The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Silverberg.

Professor Trépanier.

Professor Jean Trépanier: Merci, monsieur le président.

To the English-speaking members of the committee, I completed my brief only last night, so it was not possible to have it translated into English. I had to get some sleep during the night, I must say, so I'm sorry. I thought it would be preferable, nonetheless, to e-mail it to Mr. Préfontaine in French, so at least the French version would be available.

[Translation]

As you can see on reading my brief, my position is essentially this: I do not believe that new legislation is needed in the current circumstances. I Therefore am in disagreement with my two colleagues here, who have just expressed their opinions. Let me explain why.

First, when we look at Statistics Canada data, we note that youth crime rates in Canada have been dropping since 1992, and that the number of violent offences—that is, violence against an individual—has been dropping since 1995. Therefore, it seems that people are no less safe than before.

As we said this morning, the obvious problem—and one I understand perfectly—is one of public perception. People wrongly believe that youth crime is increasing. They are very poorly informed about the youth justice system, as we see very clearly in all the polls. I will not come back to this point, because we did spend some time on it this morning.

I simply want to add that, because of the increasing presence of U.S. media in Canadian homes—perceptions of youth crime are becoming americanized. Canadians watch so much U.S. television that they believe crime rates in Canada correspond to those they see on U.S. TV shows. Moreover, people views on how to respond or deal with youth crime is also becoming americanized.

• 1605

I consider this a problem, specifically because the thrust of Bill C-3 faithfully reflects some of the reforms implemented in the US in the 1990s. It appears that the americanization of their perceptions is leading Canadians to americanize even the youth justice system. But the direction the United States is taking is quite different from that of most other countries in the world. The United States is one of only two countries that did not sign the International Convention on the Rights of the Child. Remember that.

In my view, the Young Offenders Act can achieve the main objectives established. The main objectives established by the Minister of Justice include increased use of alternative measures outside the justice system, and less custody.

I don't want to cite Quebec as a special example, but if we look at Quebec's current practices, we can see that they apply more alternative measures outside the justice system than other Canadian provinces and also have much lower custody rates than other provinces. They do that under the current Young Offenders Act, and the alternative measures do not prevent Quebec from having one of the lowest crime rates in Canada.

So we can achieve these ends with the current legislation. In my view, the real problems in the youth justice system are caused by the way the legislation is applied, rather than by the legislation itself. Everything takes a very long time, for example. We did some research in three Quebec cities—Valleyfield, Montreal and Joliette. We observed that the average period which elapsed between the day on which the offence was committed by a young person and the day on which the judge handed down a decision was five months in Joliette, six months in Montreal and nine months in Valleyfield. Those are of course averages. Sometimes the process took less time, but sometimes it took longer.

When a young person who committed an offence nine months ago is told that will now have a penalty imposed, he has had too much time to rationalize and reconstruct the entire event in his mind. The penalty becomes senseless. There is indeed a problem here, but it lies rather in the way the legislation is applied. It is not a problem we can solve by amending the legislation.

Let me give you another example. In the same study, we noted that parents were absent during court hearings. In 50% of cases, neither the father or the mother were present during the process that led to a declaration of guilt. And in 50% of cases, they were also absent during the very important hearing where the judge imposes a sentence. We asked ourselves why they were not there.

During hearings held by the Jasmin committee, we met with parents. We asked them why they had not gone to court. As they explained, one reason was that it was obviously a traumatic experience for them. Of course, they see it as a confirmation of their failure as educators. But another reason they gave was very interesting: frequently, they felt they were being treated as accused, rather than as parents. They specifically mentioned crown prosecutors, who apparently did not treat them with sufficient respect. They were not treated as people who were responsible for educating their children, but rather as people who were responsible for their children's problems.

In discussions with the parents, we noted that they had to be treated as a part of the team. They had to give them the support they often needed. We saw that it was not by attempting to punish parents or by rebuking them that these problems could be solved.

• 1610

So there are problems with how the legislation is applied. The attitudes of people who interact with the parents must be changed, but we cannot legislate people's attitudes.

Nonetheless, although we may say that the current legislation can achieve the objectives established, we can of course ask ourselves whether new legislation could not achieve them more effectively. Obviously, if new legislation can achieve them more effectively, we must support that new and better legislation.

But the problem here is that, in my view, Bill C-3 is no improvement on the current Young Offenders Act. On the contrary. First of all, the measures it would impose appear to be focused on the offence far less than on the young person. This is clearly illustrated by the list of factors that the judge is required to consider. These are set out in sections 37 and 38 of the bill, provisions which set forth the principles, objectives and factors that the judge must take into account.

The first thing that strikes us as we run down the list is that the judge is required to take into account first and foremost all the different aspects of the circumstances surrounding the offence committed by the young person. How will judges respond when they see the list on those two pages? They will tell themselves that they have been sent a very strong message. Even if there are a couple of lines on rehabilitation and reintegration, the primary focus is on the offence. The judges are being told that they must consider the offence first and foremost, while under the current legislation they can give far more weight to the young person. I think the new legislation is a step back.

And that step back contradicts certain international commitments which Canada has made. We just have to look at the significance given to the principle of proportionality in the International Convention on the Rights of the Child and in the Beijing rules. In both of these international instruments, the principle of proportionality is designed to take the young person's individual situation into account. They have adapted the principle of proportionality to youth justice, while this bill uses the principle of proportionality in the traditional sense, as it is understood in criminal law: the punishment must fit the crime. The more serious the offence, the more serious the punishment. The less serious the offence, the less serious the punishment. Here, we have a problem that affects Canada's international commitments.

There are a number of signs that this is a significantly more punitive approach. In the French version of the bill, the expression "infliger des peines" is used for taking action. We are told that this was a translation problem. But regardless of how the expression originated, it is there in the bill now. This is the best possible way to give judges a clear message that they are to punish young people, rather than focus on their rehabilitation. They are told that they must impose punishment—infliger des peines—on young people. That is the expression used in the bill.

The point of this is to make young people assume responsibility for their actions. I do not disagree with that at all, but assuming responsibility could take the form of reparation. You see, the main problem with this bill is that its entire rationale and spirit are focused first and foremost on punishment. Young people will be made to take responsibility for their actions by being punished, rather than being led to some form of restorative action, or reparation. If you know anything about restorative justice, you will see that this bill goes entirely in another direction.

An attempt is also being made to bring the youth justice system into closer line with the adult justice system, by imposing automatic measures. For example, it provides for custody and supervision orders. After the first two-thirds of the order are served, the young person automatically ceases to be under custody and is placed under supervision in the community.

• 1615

If there had been a genuine desire to foster the reintegration of young people by means of a transition phase between custody and the expiry of the order, there would have no provision to the effect that supervision had to automatically begin when exactly two-thirds of the order are served. The judge would have had the discretion to assess how the young person was developing, and make a case-by-case decision on when the young person would be ready to return to the community. Returning the young person automatically after one-third or two-thirds of the order is served cannot achieve the objective of helping his reintegration. Decisions must be made on a case-by-case basis. It seems to me a simple application of the system that already applies in the adult justice system: after serving two-thirds of their sentence, adults can return to the community. Here, the adult model is being applied quite blindly.

Obviously, we could also say that the bill seeks to increase the number of adult sentences imposed. We can see that extending presumptive sentencing for adults to young people aged 14 and 15 reflects two things. First, it reflects a desire to increase the number of sentences for adults; second—and this is very important—it sends a message. It sends the message but, in the opinion of Canada's Parliament, the sentence that should normally be imposed on a 14-year old youth charged with a very serious offence is an adult sentence. In my view, that is unacceptable in a civilized country.

These hard-line policies are not effective, as we can see in the United States. Studies have been carried out in both the States—New York and Idaho—where such hard-line policies have been implemented. Primarily, they take the form of referring more young people to the adult justice system. But these hard-line policies have not led to a drop in violent crime among young people either in New York or in Idaho. On the contrary, Idaho's youth crime rates increased after these policies were implemented; they did not drop. Such an approach therefore does not help protect society.

I will stop there, Mr. Chairman, since I am out of time. Perhaps we may share other remarks further on during the meeting. Thank you.

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Professor.

We'll start the questioning. Mr. Cadman, you have 11 minutes.

I might mention at this time that, as you can see, the lights are flashing and the bells are ringing. We play this game of flashing lights and ringing bells regularly. This is the fourth time today. We will have to leave you for a while and perform a very valuable service for our country, in voting on some very important subject. We will return as soon as we can. I apologize.

We were late beginning because we answered a bell before we started. We're like Pavlov's dog; we salivate as soon as the bell goes off.

We will go until about 20 minutes to the hour, then you'll have to give us about 20 to 25 minutes to vote. I'm sorry.

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

Thank you all for coming today. Hopefully it won't be too disruptive, although it's been like that for the whole day so far.

This is a question to all the panel. I'd like your comments on the fact that there's an absence of terms of denunciation and deterrence in the principles.

Mr. Vincent Westwick: I don't have strong views on it, Mr. Cadman. It's not something that strikes us, although I take notice of the fact that courts more and more are referring in their judgments to declarations of principles and all that, so they're not a part of the act that can be ignored. Our sense is that courts make those kinds of comments and statements every day, without having that kind of direction or guidance in the Criminal Code. But I don't have strong views on it, sir.

• 1620

The Vice-Chair (Mr. Ivan Grose): Chief Silverberg.

Chief Christine Silverberg: I would agree with Vince. I don't have strong views on it.

One of the issues around deterrence is the issue of a speedy trial and visible consequences. This is one of the most significant concerns of the association. That becomes primary in terms of deterrence. Kids today, at least the kids I see in the schools today, if they don't see they have a court date coming up, believe they can get away with anything. There's absolutely no deterrent if they are not speedily brought to trial. I think that's fairly significant.

In terms of the principles of the legislation, it might include it or it might not include it. It's not something we have felt strongly about, one way or another. It's not something we've taken note of, except in the context of this issue of a speedy trial, which we parlay, if you will, into the deterrence issue.

Prof. Jean Trépanier: I would agree that deterrence and denunciation are not issues that ought to be in the bill, for the following reasons.

First of all, I agree with Mrs. Silverberg. I would say that unfortunately the deterrence doesn't work with the sentencing of young offenders. That's what research tells us. Actually, it can be understood. How can sentences imposed by youth courts deter various people if those sentences are not known? In the same way, how can they efficiently denounce the seriousness of the crime if they're not known by the population?

It's not that reporters cannot be in youth courts. Under the present legislation, they're absolutely allowed to be in youth courts. All that's required is that they not identify the names of the young offenders. But reporters are just not interested in being in youth courts. With the kinds of offences that are being dealt with in youth courts, newspapers would not pay reporters full-time to be there because there would not be enough news to make out of what's going on there.

The actual practice of youth courts is just not present in the media. Only very exceptional cases find their way through the media, so the population is not well informed of the decisions that are made by youth court judges. Therefore, deterrence cannot work because people cannot be deterred by what they don't know. I think there's a problem there. That's why I agree that it's better not to have deterrence and denunciation in the bill; they can't work. We can say it's unfortunate, but they can't work.

Mr. Chuck Cadman: The CACP commented on the issue of the under-12s. You suggested there should be some kind of cooperation. Can you suggest a mechanism we might be able to apply to bring that age group into the system? First of all, should they be there? Is there a mechanism you could suggest?

Mr. Vincent Westwick: One of the mechanisms, which we have in fact suggested before this committee before, is what we would call a transfer up provision. In exceptional circumstances, it would allow a younger person, under 12, to be brought into the young offender system if it were appropriate. Part of the difficulty with it is that there are very few of those circumstances occurring across the country, and we're fortunate in that regard. I think it could leave a community in an awkward situation if you had a very serious crime committed and no mechanism to deal with it except the child welfare provisions.

We would not be opposed to that kind of mechanism to do it, much like the transfer provisions that are in the current YOA.

• 1625

Chief Christine Silverberg: One of the reasons you don't see that in particular in our brief is that we have mentioned this previously. Vince has been involved in this process since previous to the young offenders legislation. We didn't raise it again. It's a long-standing view of the CACP.

On the other hand, another thought we had was what ultimately is going to happen to this 10-year-old who has committed murder under the new Youth Criminal Justice Act or under a Young Offenders Act or if he or she is under provincial welfare legislation. What is the practical outcome? It's probably a treatment centre.

We've raised this in the past. We didn't choose to raise it again, but it is a view we have held and are on record as holding. We were looking at the practical application of the legislation. We believe the federal government should exercise some significant leadership in attempting to work with provincial child welfare ministries and to integrate the systems.

Mr. Chuck Cadman: Professor Trépanier, did you have something to add to that?

Prof. Jean Trépanier: I would agree with that. I think those cases ought to be dealt with using appropriate child welfare legislation. I don't assume that child welfare legislation is adequate throughout Canada at the moment. I cannot comment on that, but I can tell you that in Quebec that can be done and it gives satisfaction.

The question can be raised, of course, as to whether we could instead use the Young Offenders Act or its replacement. I would suggest no for two reasons.

The issue is one of whether a 10- or 11-year-old is mature enough to fall under criminal law. The issue of maturity is totally independent from that of the seriousness of the offence. It's not because you're charged with the most serious offence that you're necessarily more mature, you see. The criterion to decide which age we should start with is independent from that of the seriousness of the offence.

The second one is that when you're charged with a criminal offence, you must be able to appoint a lawyer and give instructions to a lawyer in order to defend yourself. A 10-year-old cannot do that.

These are two reasons that I think it's much preferable to use child welfare legislation. As Mrs. Silverberg was saying, in any case that kid will end up in some form of treatment centre. Is it not much more appropriate to do it through the child welfare legislation, providing it's appropriate and adequate?

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Cadman.

Mr. de Savoye, I might add at this time that it's been quite a while since I had the honour of serving with you on a committee. It's good to see you.

[Translation]

Mr. Pierre de Savoye (Portneuf, BQ): Mr. Chairman, thank you for that warm and delightful welcome.

Mr. Westwick and Ms. Silverberg, you both heard, as I did, what Professor Trépanier had to say. You will know that what he said reflects the wide-spread feeling in Quebec that the present Young Offenders Act is fully adequate, in conjunction with the provincial program to ensure public safety in the short, medium and long terms and to give children the best possible chance of becoming productive citizens in society.

That said, I find it surprising that in your submission you do not go into the issue that has been raised a number of times by our members from Quebec and by some witnesses, that is, that we should maintain the present legislation rather than replacing it. Mr. Trépanier was kind enough to indicate a few improvements that could be made to the bill, if worse came to worse and it was to be passed.

Alternatively, some people have suggested that Quebec should be allowed to implement the present legislation if Parliament decides to pass Bill C-3. That is what I would have liked to see in your submission.

• 1630

As representatives of the Canadian Association of Chiefs of Police, would you be opposed to Quebec continuing to apply the old legislation, while the rest of Canada implemented Bill C-3? What do you think about that?

[English]

Mr. Vincent Westwick: On the issue of whether or not Quebec ought to be able to continue to operate under the Young Offenders Act, we take no position. We feel that's a matter beyond our expertise and scope, and we would take no position on that.

Mr. Pierre de Savoye: May I just make sure I understand this perfectly? You have no concern with it.

Mr. Vincent Westwick: No. I said we take no position.

Mr. Pierre de Savoye: You take no position because you have no concern, or because you do have concerns but have not addressed them?

Mr. Vincent Westwick: In the past, Mr. de Savoye, you've always been so nice to us and now you're cross-examining us.

No. We take no position on it, period.

But I do want to say that the CACP in the past was not one of those groups that was calling for the repeal of the Young Offenders Act. We were not one of those that said it had to be repealed.

I do want to remind you of a point that Dr. Trépanier made—I think it's a very important point—and that is that there is a perception, never mind reality, in many quarters of this country and indeed in many of our member departments that there are significant problems with the Young Offenders Act. Whether there are or there aren't is something we can debate. But there is a perception of a problem, and there is a frustration that exists within policing dealing with the Young Offenders Act.

I'm not so sure we think it's a necessarily bad idea to take that act off the table and put a new and—without sounding flippant about it—fresh face on youth justice. That may have a number of intangible benefits that will work for the police and the communities.

So if that answers it, if that helps...

[Translation]

Mr. Pierre de Savoye: If I understand correctly, you are telling us that because the public has a perception that is not necessarily accurate regarding youth crime, because the public has a jaundiced view of a situation that is not really that bad, you are suggesting to us, and we are the ones who have to move this bill through the process, to go in a direction that may do more harm than good in order to cater to a false perception held by some people in society. Is that what you are telling me, Mr. Westwick?

[English]

Chief Christine Silverberg: I'm sure Mr. Westwick can speak for himself, but I don't think the Canadian Association of Chiefs of Police is saying that at all.

To begin with, regardless of how one sees the statistics in youth crime, whether they're up or down, I don't think we ought to get lost in these statistics. What we have to believe and understand is that somewhere in the neighbourhood of one-quarter of crime in this country is committed by young people. So it seems to me that it is worth while paying attention to this issue of youth crime. In regard to the degree to which there is violence in the context of youth crime, people become concerned if there is only one seriously violent incident. We have had them. We've had them next door to Calgary, in Taber, Alberta.

So we do not, as a Canadian association, want to get lost in the issues of the statistics. There is a face to youth crime. There is a reality to the public perception, in our view. We see this on the ground.

There were some issues for the police with the Young Offenders Act. In many respects this new legislation clears up those issues. It does create some others, for example, this whole business of cautions. You know, you talk to a kid because he's done something; you caution him, and then what? He goes to Edmonton or Ottawa, or wherever, and there's no record and no tracking of this. This is a serious problem for the police, even within the same city. So there are some problems created, but many others are resolved with this legislation.

The other thing that I think is important from the CACP perspective is that this legislation takes a far greater holistic approach to the issue of problems with young people, and I think there are so many benefits to it, including the emphasis on the youth justice committees, and so on.

• 1635

So we did not call for the repeal of the Young Offenders Act. We certainly had some problems with the Young Offenders Act, but given that there is new legislation on the table and given that we are 100% in support of approaches that go from intervention right through to enforcement, that we want to deal with serious crime in a serious way, we believe this is an improvement over the Young Offenders Act.

Now, having spoken for Vince, I think he may wish to speak for himself.

Mr. Vincent Westwick: I'm sure I couldn't add anything positive to that answer.

Mr. Pierre de Savoye: It's that beautiful.

Mr. Vincent Westwick: I think so too.

The Chair: Mr. MacKay, we've got five minutes.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

Thank you all for being here. We appreciate your input. It's been a very interesting week for us. We've seen a wide range of witnesses, including a number of judges who were here with us, who, in my estimation of their evidence, said that this new act is going to be unworkable from an administrative standpoint because of its complexity, its cross-references. We've heard a number of defence lawyers who are very happy with the new act, because it's going to be a make-work program for them and they're going to be able to dance circles around the prosecution because of the delay that's going to result.

This idea of public confidence and credibility of the system, I think, is one that certainly front-line police officers are struggling with. We've heard a lot of frustration, particularly when it came to the taking of statements in the past, that essentially the system is set up to dissuade a young person from ever giving inculpatory evidence or even evidence that might exonerate them.

We've been hearing a lot of statistics pertaining to this. The statistics are all over the map. Some say youth crime is up; some say it's down. Juristic statistics seem to indicate that violent youth crime, particularly among young women, is on the increase across the country.

With respect to this issue of delay and the complexity of the system that's set up for warnings and cautions, where police officers are going to be called upon to essentially walk a kid home and sit in the living room with the parents and discuss what's taken place—that's one level—these types of warnings and extrajudicial measures, there are specific clauses of the bill that cause me concern, because you can't use these extrajudicial measures and cautions. Also, there's no record, there's no tracking system. They're not even admissible at a bail hearing, where we know the rules of evidence are relaxed.

In the bill itself, my reading of it, the clauses that refer to breaches of probation, which are serious and are rampant under the Young Offenders Act, are written in such a way that they don't conform with the Criminal Code. So the evidence on a breach in the Criminal Code says “without reasonable excuse” and under the Youth Criminal Justice Act, clause 136, it says “wilfully”. So there's a much higher standard that has to be applied by the crown to show that the young person wilfully breached their probation.

With all this said, are the police officers going to be able to effectively enforce this legislation, in your opinion? And I guess as a further throwaway question, if you're not getting enough resources now under the current YOA from the federal government, how are you going to be able to do more with less, as outlined under this new system?

Chief Christine Silverberg: First of all, generally speaking, the more complex the legislation, the more costly it is to try to train and implement and so on, and we do have a significant concern around implementation and training issues. Many of the points you raise are very valid points, and they are matters that we've addressed in our brief in terms of the complexity of the bill.

One of the concerns I have, and why we emphasize this business of the cautions and being able to track them, is that with the long-term repeat offender, the person who is continually doing the break-and-enters, the thefts, and so on, if there has not been any system of tracking the manner in which there has been contact with the police, then how is it that the police officer, who is new to this person, can understand what kind of mechanism to invoke? We have a concern about that.

• 1640

We also understand that it would be potentially costly to implement or to direct a system where records must be kept on this. But we think it is critical to the implementation of this legislation; otherwise, this whole system of cautions doesn't really work, because you get the same person cautioned over and over again, hence you get people falling through the system who should have had intervention a long time earlier.

So there are issues like these that concern us. We list them as numerous technical concerns that we feel sure can be resolved in some way.

We don't want to lose sight of the broader picture of this legislation. There are some broad principles that I think and the CACP believes are important in this legislation, that are important to keep, but there is a complexity that is going to create issues that we've tried to identify.

Mr. Peter MacKay: This philosophy—

The Vice-Chair (Mr. Ivan Grose): Mr. MacKay, we're down to the last moments on the bell.

Mr. Peter MacKay: Thank you, Mr. Chair.

The Vice-Chair (Mr. Ivan Grose): Could you do this in one minute?

Mr. Peter MacKay: You've just taken 20 seconds of it, but I'll try.

The question I have with respect to the complexity as well when it comes to the sentencing provisions is that in my reading of this legislation—and I would be interested in hearing from Dr. Trépanier as well, maybe after the break—in essence, this new bill gives some ability to administer tougher sentences but now also imparts into the system presumptive release and a parole-type system. Whereas under the YOA, if a kid got three years, it meant three years and he'd do every stick of time, now he's eligible for release.

Judges, in my experience, were tacking probation on, but it was very specific: “You're going to do this amount of time, and you will receive probation at the end of it.” So it wasn't the problem of warrant expiry or cold release. But this undermines public confidence again, because as we see in the adult system, people hear that an individual gets this amount of time when they really get that amount of time. They hear two years, and it means six months.

Mr. Vincent Westwick: I'd like to take the opportunity to say that when you're talking about delay, we certainly share that feeling. That's why we have repeatedly raised the issue of speedy trial, which we think is a mechanism that is workable, that will address that squarely and will be important for all of the participants, not just the younger offender, although it certainly will be in his or her best interest to have the matter addressed. But it will be in the victim's best interest, the community's best interest, and I suppose of least concern in this range, it will also be in best interest of the police.

Tying that to the disposition, whatever disposition is being made and however it's calculated and for whatever reason, it is going to be more valuable for all those people—the young offender, the community, the police, and the victim—if it is done in a timely fashion. That is a great frustration, and we would certainly ask the committee to give serious thought to that.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Westwick.

We shall return.

• 1643

• 1710

The Vice-Chair (Mr. Ivan Grose): Mr. McKay, seven minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman.

Prof. Jean Trépanier: Sorry, Mr. Chairman. It's just that the other Mr. MacKay had put a question to me. But perhaps we should wait until he comes back before I—

Mr. John McKay: We'll give you another run at Mr. MacKay.

The Vice-Chair (Mr. Ivan Grose): Yes.

Prof. Jean Trépanier: I wouldn't put it that way.

The Vice-Chair (Mr. Ivan Grose): He may have found a television camera or something.

Go ahead, John.

Mr. John McKay: Thank you, Mr. Chairman.

Thank you, witnesses, for your testimony.

I wanted to first deal with the issue of perception and ask you to address your minds to that issue. We had before us last night Mr. Womback. Mr. Womback gave us very powerful testimony about what happened in his family. He told us he was going to be presenting, or he was about to present, something in the order of 700,000 or 800,000 signatures on a petition that basically said the YOA is broken, fix it, do something. Of that 800,000 or so signatures, something in the order of 200,000 were from Quebec.

The point I think he was making to us was that there is a different perception among people in Quebec as to the problems with the youth justice system as opposed to that of those who actually work in the youth justice system. The testimony is much like yours, Professor Trépanier, which is that this ain't broke, don't fix it. His point was that it is broke, fix it.

So I'd be interested in your comment on whether there is in fact a parallel public perception in Quebec that is either similar to or different from the public perception that is in other provinces in Canada.

Prof. Jean Trépanier: First of all, obviously unanimity does not exist in any society or in any province. So let's make that straight first. Second, I would say that as far as we can judge from some opinion polls that were carried out, not specifically on the Young Offenders Act but on some aspects of the penal system, we got the feeling that the population in Quebec is perhaps somehow less repressive than that in some other provinces. So there seems to be some difference.

Of course, the issue is what about those who know how the system works? As for the Jasmin inquiry, which was a task force that was set up by the Quebec government to inquire into the administration of the Young Offenders Act in Quebec, I took part in that inquiry. We met with police officers, with judges, with defence lawyers, with crown prosecutors, with people who work in the social services and so forth, with kids and parents and so forth. But there was a very clear consensus among those who work in the field actually of young offenders and who apply the Young Offenders Act that the Young Offenders Act was basically a good piece of legislation. You might imagine an amendment or another, but basically it was a very good piece of legislation that ought to be kept.

Of course we heard from our colleagues here that the Canadian association of chiefs of police is not satisfied with the Young Offenders Act in the sense that the move to change it is being endorsed. However, it is not endorsed by the Quebec association of chiefs of police. That was made clear in the resolution that was passed by their board of administration in September. So that is just to tell you—

Mr. John McKay: So there does appear to be dissent between a certain segment of the public and those who work in the system?

• 1715

Prof. Jean Trépanier: Yes, I would say so. Of course, when we look at the media, without having done any systematic research, what I've seen personally in the media is there seems to be a difference between the media in Quebec and the media elsewhere in Canada. There hasn't been any YOA bashing in Quebec as there was in the media elsewhere in Canada. We did not see that in Quebec.

Mr. John McKay: The second question is that you made a comment with respect to adult sentences not being acceptable in a civilized society, something to that effect. Again, evidence was presented last night that there were something in the order of 1,100 applications under the YOA to be transferred up to adult courts, and only 74 were successful in meeting the test for the address up. Is it your view that it is never acceptable to impose an adult sentence on a youth?

Prof. Jean Trépanier: No, it is not my view. I think there may be exceptional cases where it may be appropriate. What I think is that what is not acceptable in, as I mentioned, a civilized society is to have the presumption that a 14-year-old ought to receive an adult sentence. I think the onus ought to be on the crown, as it was from 1908 under the Juvenile Delinquents Act until 1995, where in all cases of transfers to adult courts the evidence had to be brought before the juvenile court judge that the transfer ought to be made. The onus still, in my view, ought to remain with the crown.

Mr. John McKay: Isn't the onus still with the crown? In fact, the crown is going to have to give notice at the beginning of the trial that it's seeking an adult sentence for the five significant offences plus this “three strikes and you're out” offence, for want of a better term. Then at the end of the trial the crown is going to have to show to the court that in fact an adult sentence should be imposed. Isn't the onus still on the crown?

Prof. Jean Trépanier: No, in some cases, actually, there's a presumption that there should be an adult sentence, in which case the crown will not have the onus to prove that. Perhaps it may be worth mentioning in this respect that a lot has been said at some point in the debate about the flexibility that was included in the bill as to whether or not a given province that would not wish to use that presumption could not just say it won't use it.

I have spoken especially with some crown prosecutors, and it does not appear to me that this is the case in the following sense. If there was an opting-out clause, the opting-out clause should be very clear, and it is not the case at the moment. What the bill provides for is the possibility for the crown prosecutor to decide not to use the benefit of the presumption. At the very moment in the procedures where the crown prosecutor will have to exert his or her discretion, at that point the crown prosecutor will not have sufficient information about the kid, the situation of the kid and so forth, to efficiently exert that discretion. So they will just play it safe. They will say, we won't use that discretion, and we are going to use the benefit of the presumption.

The question was raised, could not the attorney general of a province decide to give directives to the crown prosecutors in the province to say they won't use the presumption for the 14- and 15-year-olds. The conclusion we reached was that this would not be possible. The attorney general of a province would not have that kind of flexibility, because it would amount to refusing to use a discretion that is placed upon the crown prosecutor by a federal law in a field of federal jurisdiction. A provincial attorney general would not have the possibility to counter that. As a matter of fact, a victim could just go before the superior court and ask for a brief mandamus to force the attorney general to exercise the discretion. The kind of flexibility that was evoked as being possible in practice does not work.

• 1720

The Vice-Chair (Mr. Ivan Grose): Mr. McKay, if I might correct something you said about the testimony last night, that only 1,100 young offenders were eligible for adult court but only 70-some were moved up. It wasn't that 1,100 and something applications have been made.

Mr. John McKay: If 1,100 were eligible, then I don't understand the difference between—

The Vice-Chair (Mr. Ivan Grose): There were no applications. No one pushed it is the point you're making.

Mr. John McKay: So there were 1,100 people who would have been eligible to be moved up in the whole system of whom 74 were moved up. But we don't know how many applications were made.

The Vice-Chair (Mr. Ivan Grose): Yes.

Prof. Jean Trépanier: But the crown did not make any motion to move them all, probably. You see?

The Vice-Chair (Mr. Ivan Grose): That was the increase.

Prof. Jean Trépanier: Furthermore, there are cases where, in the case of transfers to adult courts, the crown uses the motion as a kind of a threat to the young offender to deter him, to show him, “Listen, we threaten you this time, next time we're going to go further into the process.”

Mr. John McKay: I'm sure it's used as a plea bargaining tool.

Prof. Jean Trépanier: Also.

The Vice-Chair (Mr. Ivan Grose): Thank you, Professor.

Mr. Cadman, three minutes.

Mr. Chuck Cadman: Thank you.

Professor Trépanier, you express a major concern with the two-thirds situation, and I wasn't sure what you were suggesting. Are you suggesting that it should be indeterminate, because right now it's a fixed sentence of three years with the final third being served under supervision? You said that should be discretionary. Are you suggesting that it should be open-ended?

Prof. Jean Trépanier: No.

Mr. Chuck Cadman: That's what I wanted you to clear up.

Prof. Jean Trépanier: No. I'm certainly not suggesting that. What I'm suggesting is that we should have, as we have at the moment under the Young Offenders Act, the judge fixing a length for the sentence and then, as the sentence progresses, deciding when would be the time to switch from custody to the community in order to ensure that the kid be reinserted gradually into the community.

Mr. Chuck Cadman: So what you're saying is that the three years would still apply, but that it should be discretionary as to maybe putting him into the community at 18 months or possibly—

Prof. Jean Trépanier: Yes. The moment at which the young offender would switch from custody to the community should not be set ahead of time but should be decided... Let's give a practical example, if you wish.

Let's say the judge says, “You have a sentence of eight months in custody”, so the kid goes into custody. Then after four, five, or six months, he is being assessed to decide if it is the right time now. Should we let him go into the community after six months, or should it be after five months or seven months? The important point in my view is to make those decisions on a case-by-case basis instead of having an automatic decision that it will be after two-thirds. The important point is really to decide when this particular kid is ready to go back into the community to ensure an appropriate transition. Automatic decisions are bad decisions, in my view.

Mr. Chuck Cadman: But the three-year maximum would still apply.

Prof. Jean Trépanier: Yes. Definitely.

Mr. Chuck Cadman: Do I have time for another question?

The Vice-Chair (Mr. Ivan Grose): Yes.

Mr. Chuck Cadman: I have a quick one for the CACP. In regard to the complexity issue, we've heard a lot of testimony about the complexity of this thing. Could you give us your impression of what the effect that complexity is going to have on the cop on the beat who is trying to deal with it? Or maybe you can't do that.

Chief Christine Silverberg: Yes. We can.

Mr. Vincent Westwick: I think we can. I think to some extent it depends upon the level of training that goes along with the act. If there is a training package that will address some of these things, if it will give the officers working tools to use and criteria to make some of these calls and allow them to work their judgment within the context of this new regime, then I think it can work.

• 1725

What's troubling, and it's not just with this bill, although it certainly is specific to this bill... We remain concerned about the legislation that is coming out. I usually pick a favourite paragraph—and I have one here I can read for you, if you want—that in my view becomes virtually unreadable. Certainly in the Feeney bill, the Feeney legislation that came out, we made those submissions to this committee as well. I think that if there's sufficient training for the police officers, they will do the job, but it makes it more difficult, more complicated.

Chief Christine Silverberg: It has that effect, but it has another effect, which is that probably with this legislation it will take longer for the police officer to deal with the young offender, for a variety of reasons—because of procedure or otherwise.

In Calgary, for example, some five years ago about 23% or 24% of a police officer's time was spent in responding to calls for service. Today about 43% of their time is spent in responding to calls for service. The longer the police officer spends on the call, on the arrest and whatever, the less time there is for other things, which translates directly into a resource issue for policing. It's not just because of this legislation. There are other reasons for it. But every piece that adds to the complexity of what the police officers have to deal with—even though they're very laudable objectives—translates into a resource issue.

When police officers are faced with not enough time to do the job properly, corners get cut, and this is a concern. There is the issue of the complexity and the training. We think probably there would be—and I think we've talked about this—at least a year's worth of training in this. There are costs associated with that training. These officers have to come off the street. It's not just the package training; it's the bringing them off the street in order to do that training. On top of all of that, when you have resource-intensive work, as laudable as it is, it does translate into resource problems.

So there are those two essential areas that do concern us, and we have talked about this before. It's not isolated, by the way, to this legislation; it's in other legislation as well.

The Vice-Chair (Mr. Ivan Grose): Mr. Westwick, do you have that paragraph close at hand?

Mr. Vincent Westwick: I do indeed.

The Vice-Chair (Mr. Ivan Grose): It might leave a lasting impression on us.

Mr. Vincent Westwick: The one that struck me first is in the definition of presumptive offence. In my copy of the bill, it's found at page 4. It's paragraph 2(1)(b) of the definition of presumptive offence. This is the second part of it. I think it was referred to earlier as the three-strikes section. It reads as follows:

(b) a serious violent offence for which an adult could be sentenced to imprisonment for more than two years committed by a young person after the coming into force of section 61, if at the time the young person committed the offence at least two judicial determinations have been made under subsection 41(8), at different proceedings, that the young person has a committed a serious violent offence.

I'm not sure what that means.

The Vice-Chair (Mr. Ivan Grose): Thank you.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I do not know if this is a question or a comment that I would like to hear your views on. I have compared your two submissions. I apologize for not being here when they were presented, but I was detained on other parliamentary business.

[English]

In your own text, in the French version... I'll read the French translation. You say:

[Translation]

...un argument qui vise plutôt, en partie, à envoyer un message de dissuasion ferme aux adolescents qui pourraient envisager de perpétuer une infraction avec violence...

[English]

You're talking about the sentence itself and so on. The essence here is that you are emphasizing

[Translation]

the deterrence role played by sentencing, by carrying out a sentence.

For your part, Mr. Trépanier, in talking about roughly the same thing, you say that the policies would be unrealistic if they were based on deterrence because:

young people, who often tend to underestimate the chances of getting caught if they commit an offence, just have to look at police statistics to know that, even in cases where a victim complains to police (which often does not even happen), they have a 7 in 10 chance of not getting caught.

• 1730

On one side and the other, I see two problems here. First of all, there is the impression that before committing a criminal act, young people decide on the pros and cons; on the one hand, there is the young person's pleasure, need or desire; on the other, there is the price to be paid. And they wonder if it is worth it. Although I am oversimplifying, that is basically what deterrence is about.

I wonder to what extent we can really talk about deterrence, whether we are talking about sanctions that are more severe or less severe. The question is whether this bill should be based on the philosophy that enforcement of the legislation acts as a deterrent.

"Correction", in the original sense of the term, means making straight. Deterrence is based on fear. Making straight implies a moral value. Fear implies a desire to protect oneself, but I do not see any moral value in that. Could you give us your views on this?

[English]

Chief Christine Silverberg: Arising there are a couple of issues I want to go back to.

One is the speediness with which the trial takes place. The clause you're quoting from relates to the presumptive offences. We have a very strong view that the trial must be speedy. That is one of the key ingredients as it relates to some deterrents.

I'm sure you've read—it's been quite popularly reported—the recent research around how it's cool for boys to act out these kinds of things. This has been very much written up recently. Well, if it's cool for boys to act out, then this is just going to be reinforced if the acting-out boy doesn't get to court for six or eight months; in fact, it will be that the school year is now over and nobody knows that this child has ever been to court, so there is no deterrence. So we have a very strong focus on that speedy trial.

Secondly, on this business of the presumptive offences and the distinctions that are being made, how do we know, how does the child know, the difference between a violent offence and a serious violent offence? The language has to be understood also by the kids who are involved in this. If we don't clarify this, it's not only hard for the practitioner to understand the difference between “violent” and “serious violent”, it's hard for the kids.

Thirdly on this point, I do not understand, nor do my colleagues, what the difference is between a 14-year-old who has committed a presumptive offence and a 13-year-old or a 12-year-old who has committed a presumptive offence. How exactly has this 14-year-old age group been determined?

If the offence is presumptive, it's a serious offence, a violent offence. Does it really matter whether the child is 12 or whether the child is 14 in those cases? We've made that point as well. We think this is important, in part because of the issue of understanding that there are consequences to committing certain kinds of crimes. So if you're 13 and in junior high, maybe you're not going to have so much trouble as you would if you're 14 and you're now in high school.

These are issues with subtleties that we feel are important in making the legislation consistent and understandable by kids as well as practitioners.

The Vice-Chair (Mr. Ivan Grose): Mr. Westwick.

Mr. Vincent Westwick: What I was going to say in terms of the reference you made is that I've never believed—and perhaps the doctor is a better person to comment on it—that criminals, whether they be young offenders or adults, say to themselves ahead of the crime, here's the crime I wish to commit and here are the possible consequences of it, and then make a rational decision as to whether or not to go ahead and commit that crime.

When we talk about the perception, the message, and all of that, we think of such things as the effect of a crime by a young person among his or her peers in a classroom, for example, and the perception of the educators and the parents and all the other people who are in association with that young person's life, and what impact it has on them and on the victims as well. If there is a general feeling that the act isn't responding, that causes a lack of respect for the system, and on and on and on.

• 1735

So it's deterrence in that... Perhaps deterrence isn't the right word, because deterrence is used in that specific context in the adult system. We're talking about generally the perception and the respect for the system, if you wish, that occurs among the milieu of young people when they're involved if there isn't a sense that there is a serious response for serious crime.

I don't know whether that helps.

Chief Christine Silverberg: I think that reinforces what I'm trying to say. If a kid broke into a house last night, the kids in the schoolyard have to know that something happened as a result of that. He got arrested. Then what happened? Well, nothing, and now we're into the next school year.

This issue of perception is important. Any of the research I've read related to serious, violent young offenders. When asked the question, “Did you think about the consequences in terms of sentencing?”, that's not what's in their mind. No, they didn't think about that. They do think in more immediate terms, which is why we're emphasizing the speedy trial.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Saada.

We've now reached the magic hour of 5.30, when we were supposed to be finished. With the permission of the witnesses, whom we have treated rather badly, I'd be willing to extend the time to 6 o'clock or until we run out of questions, whichever comes first.

Are you catching a plane, train, steamship, or anything?

Mr. Vincent Westwick: Chief Silverberg is catching a plane at 7 o'clock, so 6 o'clock I think would be fine.

Chief Christine Silverberg: I understand the traffic situation in Ottawa, unlike in Calgary, is just fine, and it will not take that long to get to the airport.

The Vice-Chair (Mr. Ivan Grose): Who told you that?

You should be all right at 6 o'clock. No problem.

Prof. Jean Trépanier: Can I add something?

The Vice-Chair (Mr. Ivan Grose): Certainly. Go ahead.

Prof. Jean Trépanier: Mr. Saada had asked me to react as well.

[Translation]

I agree completely, Mr. Saada, with the concern expressed by Ms. Silverberg regarding the need for a speedy trial. In my view, however, it is not a question of deterrence. Rather, it seems to me that in order for the sentence to have some meaning for the young person, it must be applied as soon as possible after the offence is committed. Speedy intervention is, to my mind, an essential ingredient if we want to achieve any degree of success.

That said, I quite agree that deterrence seems desirable from a common-sense point of view, but that idea does not hold if one looks at the average sentence handed down by the courts. Why? You quoted an exert from my submission. To begin with, young people are known to have a tendency to underestimate the chances of getting caught, so that when they weigh the risks of being caught, they will decide that they will get out of it in any case and so they can do what they want.

Moreover, even if they looked at the official statistics, they would see that many victims do not lodge a complaint, which means that the perpetrators are not caught, and even where a complaint is made to police, seven cases out of ten in Canada are not solved by the police. Even if a complaint is lodged, 70% of the cases are not followed up in any way and the young person is not caught. When the police do manage to solve a case, the sentences imposed on the young person vary a great deal. It is not realistic to count on harsh sentences for young people for the purpose of deterrence, since young people will be convinced that they are not going to get caught and that they have nothing to fear. That is one of the reasons that I feel deterrence does not seem to work.

Regarding deterrence in general, as I mentioned earlier in response to Mr. Cadman, there is the fact that court rulings in cases involving young people are not made public. How can court decisions deter people if no one knows about them?

Mr. Jacques Saada: The people around the offender know.

• 1740

Mr. Jean Trépanier: Yes, it is reasonable to think that there may be a deterrence effect among the young person's friends, in his immediate entourage. We have not done any research to lead us to that conclusion, but it would seem to be a reasonable hypothesis.

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Professor.

Mr. de Savoye, please.

[Translation]

Mr. Pierre de Savoye: Mr. Trépanier, I would like to continue along the same lines. I will let our friends, Mr. Westwick and Ms. Silverberg, take a little rest. I was a bit tough earlier and I apologize.

Mr. Trépanier, we are talking about deterrence. So we are really dealing with young people's risk assessment ability. Even among adults, risk assessment is an extremely complex thing. As a result, I feel it is a total non starter to think that young people are capable of risk assessment at a time of their lives when they are quite unstable.

And you are right, Mr. Trépanier, in saying that if we impose harsher sentences, the deterrence effect on young people will not be any greater, because they are often not aware of the sentences. But there would be consequences for those young people on whom the harsher sentences are imposed.

Earlier in your testimony, you mentioned the American experience, which people seem to want to transpose to Canada using Bill C-3. What has been the result of harsher sentencing in the United States? As the public been better protected? Is there a lower rate of recidivism among young people? In short, is it working or has it made the problem worse?

Mr. Jean Trépanier: As I said before, the two States that have carried out such assessments are New York and Idaho. They had adopted legislation fostering the transfer of more young people into the adult justice system and into adult courts. In the State of New York, the rate of violent crimes committed by young people remained fairly stable after the legislation was passed, according to studies conducted before and after its implementation. In the State of Idaho, the rate of violent crimes committed by young people increased rather than decreased after the legislation. We must conclude that such hard-line policies unfortunately do not have a positive impact on youth violent crime.

This may be explained by many reasons. Perhaps dissuasion fails to work for the reasons we mentioned earlier, but it may also fail to work because as soon as more young people are incarcerated with adults, we promote their inclusion in adult crime networks. Penitentiaries are often called crime universities. It's a popular expression and a fair reflection of how things are. The more young people come into contact with adult criminals, the greater the likelihood they will re-offend.

This is why I recommend that you do everything you can to promote rehabilitation centres for young people. Let us ensure that young people have centres that are well adapted to their needs, and offer sound programs. That is what we need; we do not need measures that will put them into the adult justice system.

Under this bill, however, even when an adult sentence is imposed, young people can remain in a centre for young people until they reach the age of 20. The transfer to an adult penitentiary institution can be requested when they reach 18, however.

I have discussed this issue with people who work in rehabilitation centres, a milieu I know well since I'm a member of the board of directors of youth rehabilitation centres in Montreal. There is one thing I fear, however. Good rehabilitation centres have waiting lists and cannot take in as many young people as they would like to. For example, take a centre that receives a youth aged 16 or 17, who has an adult sentence expiring when he reaches 24. We know full well that, even if the centre does a lot of good work with him over the first few years of that sentence, that good work is completely destroyed when the young person completes a sentence at the penitentiary. And how do centre administrators respond? They point out that, with the waiting lists they have they cannot meet all the demand, therefore they will give priority to young people who will complete their sentences at the centre. So as soon as a young person who must be transferred to an adult penitentiary by the age 20 reaches the age of 18, his transfer to the penitentiary is requested immediately. The rationale is that even if the centre continues to do well with him, all the good they do will be wiped out when he goes to the penitentiary later.

• 1745

Thus, though it may be preferable that a young person begins to serve his adult sentence at a youth rehabilitation centre, this does not really solve the problem.

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Professor.

Mr. Maloney, I think we had better make this the wind-up.

I'm a little worried about you and your airplane connection.

Chief Christine Silverberg: It's only an airplane, and I can get another one.

The Vice-Chair (Mr. Ivan Grose): Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): On the 60-day trial period, what would be the ramifications or sanctions if that wasn't met? What are the roadblocks for not meeting this now, and how would that change if we did have a 60-day period?

Mr. Vincent Westwick: I don't know what the roadblocks are to the implementation of it. Under the Askoff case and most of the provincial programs to deal with speeding up the court process, many of the court systems are moving much more efficiently than they did five, six, or ten years ago, perhaps. They're still not moving within 60 days, but I think it's an adjustment the court system would make.

I don't mean to be cavalier about it and say that there wouldn't be consequences and that there wouldn't be court administrators in jurisdictions across the country rolling their eyes at my comments, but I think it's something that with some planning could be put in place. It will put pressure on police as well, I might add. It's not something that will be without consequences for police.

However, we feel it's so important that there not be this delay, and it's a function of just knowing about young people.

Mr. John Maloney: I don't take issue with the 60 days, but how do we implement it? It's a good idea, but in practical terms, how do you do it?

Mr. Vincent Westwick: I think you simply do it, and the court systems will have to accommodate it. I think there will be consequences immediately. There will be a difficult period, much as there was with Askoff, but if we look down the road a few years, five or ten years, it will become the standard and will work well. It means that police officers will have to do their briefs earlier and that court dates will have to be set earlier, but once the system catches up, I don't see it as being that difficult a thing. I have trouble with the resistance, quite frankly.

Chief Christine Silverberg: There are some consequences again in terms of resources to speed the system up, whether it's the courts or the police. There are resource issues, as there always are.

Mr. John Maloney: Professor Trépanier, with the difference in attitude we have in Quebec from the media, the police, judges, all the way down the system that works under the Young Offenders Act, why wouldn't that philosophy or feeling work the same under the Youth Criminal Justice Act? The day after passage of this bill, why would things be any different?

Prof. Jean Trépanier: I would say that the philosophy of the Young Offenders Act gives much more room to an educative perspective, a rehabilitation perspective, and a perspective that takes into account the needs of the young offenders than is the case under Bill C-3.

Mr. John Maloney: But this bill even elaborates on extrajudicial alternative measures, does it not? Would that not be amplified?

Prof. Jean Trépanier: Yes. What I'm saying, though, is that when you look, for example, at the goals and principles that must guide the judge in the choice of the measure he or she is going to impose on a young offender, the criteria that are being used, the factors that the judge must take into account lead to a much more punitive approach than is the case under the Young Offenders Act.

Mr. John Maloney: They can, but they don't have to, do they?

Prof. Jean Trépanier: I would say that if you look at the lists in clauses 37 and 38, which are three pages long, and look at all the various factors, the vast majority of them have to do with the offence. The judge looking at that is going to say, what kind of strong message is Parliament sending me? It's that the offence must be at the very basis of my decision, even more than is the case under the Young Offenders Act, where the offence does not carry that weight in the factors the judge must take into account.

• 1750

I'm certainly not suggesting that we should transform the federal legislation into a child welfare act. I'm not suggesting that at all, let's be clear. What I'm saying is that this goes much too far in the direction of punitiveness, and that is precisely the kind of concern you are going to meet in Quebec.

Perhaps we should see that one of the differences between Quebec and some other provinces is that the age of penal majority has been set at 18 for nearly 60 years now. Under the old Juvenile Delinquents Act, the age of penal majority—that is, the age from which someone appears before an adult criminal court rather than a juvenile court—was set at 16, with the possibility of raising it to 17 or 18 in a province that asked for it.

When the Young Offenders Act came into force, the age was 18 in Quebec and Manitoba, 17 in Newfoundland and B.C., and 16 everywhere else in Canada. When the young offenders bill was introduced in Parliament, the change that was proposed at that time was a symbolic one. The age would become 18, with the possibility of lowering it to 17 or 16 in a province that asked for it. So it was very clear that what would happen would be the status quo. But between 1980 and 1982, which is the time during which the bill was before Parliament, the charter came in, and then the issue was that a variable age of penal majority throughout Canada would not meet the test of the charter. So the decision was made to set it at 18.

The consequence of this is that by 1985, which is the time the age was made uniform throughout Canada, Quebec had had the time since 1942 to establish a network of resources for the 16- and 17-year-olds. At that time it was really a network of resources that was based very much on the philosophy of bringing help to kids and rehabilitating them. When you look at the centres for youth in Quebec, a vast majority of the staff are university trained. You certainly could not say that for all provinces in Canada. When you put in university-trained people to administer those programs, you can be sure they are not going to want merely to detain kids so that they will just serve their time. You have the staff, you have the mentality, and you have the idea, then, that something must be done to help those kids to change their behaviour insofar as it is possible and so forth.

So I would say that what has been developed in Quebec has been developed throughout several decades, and those traditions of intervention don't build up in just 10 years. It has been only 15 years now since the age was set to 18 throughout Canada, and one cannot expect that such similar resources can have been built throughout Canada in just a few years. Ontario is a good example, where for the 16- and 17-year-olds a modified status quo has been maintained whereby it is the Ministry of Correctional Services that is still responsible for those 16- and 17-year-olds, in the same way as they were when they were considered as adults.

My feeling is that not enough effort has been made throughout Canada to really take advantage of what the Young Offenders Act allowed in terms of building up programs of rehabilitation for young offenders, be it inside custodial centres or in the community. My fear is that because that has not been done, people will say the Young Offenders Act is rotten and therefore we should get rid of it. What we should really look at is whether or not we have built the right programs.

• 1755

The Vice-Chair (Mr. Ivan Grose): Thank you, Professor.

I think we had better call it a day at this point. I would like to thank the witnesses. I apologize again for our running in and out, but that's the way the game is played here. You gave us some new ideas, not all of them positive, but that's why we have witnesses, so that we get the positive and the negative. You have made some points about the complexity of the bill, which we've only been hearing recently from the witnesses we've had before us. So it's another thought we're going to have to consider when we get down to the nitty-gritty on this one.

Thank you very much.

The meeting is adjourned.