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]

Tuesday, February 29, 2000

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'll call the meeting to order.

I'd like to welcome our witnesses from the Canadian Bar Association and le Barreau du Québec.

As you know, the process here allows the presenters to make ten-minute presentations, and then we have some discussion back and forth. Try, if you can, to keep to the time allowed, if only by virtue of the fact that it allows us to have a more fulsome discussion after. As you perhaps noticed last time, we ran out of steam at the end.

Representing the Canadian Bar Association, we have Isabel Schurman, the chair of the national criminal justice section. I'll leave it to Ms. Schurman to introduce her colleagues. From the Barreau du Québec, we have Carole Brosseau, avocate, Comité en droit criminel; Denis Jacques, bâtonnier du Québec; and Monsieur Normand Marquis.

Welcome. We'll begin with Ms. Schurman.

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Ms. Isabel Schurman (Chair, National Criminal Justice Section, Canadian Bar Association): Thank you.

[Translation]

Ms. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Mr. Chairman. My name is Tamra Thomson and I am the Director of Legislation and Law Reform at the Canadian Bar Association.

The CBA is a national organization representing over 36,000 lawyers throughout Canada. Enhancing the law and the administration of justice are priorities for the Association and it is with this in mind that we present our brief today.

[English]

You have received a copy of our submission on the Youth Criminal Justice Act. I am pleased to have with me today Maître Isabel Schurman, who is chair of the Canadian Bar Association's criminal justice section, as well as Leandre Rupert-Bailey, the past chair of the young offenders section of the B.C. branch of the Canadian Bar Association. Both Maître Schurman and Maître Rupert-Bailey have extensive experience in criminal law generally, and in youth justice matters. I will ask Maître Rupert-Bailey to start on the substantive comments of our presentation.

Ms. Leandre Rupert-Bailey (Past Chair, B.C. Branch Young Offenders Section, Canadian Bar Association): Thank you.

First of all, just very briefly, you've had an opportunity perhaps to review our submission in this matter. We support in a general, overall sense the initiative of the government in passing this bill today because the central focus of the bill is really on the reduction of youth involvement in the court processes and the reduction of youth in custody. That is what we see as the central focus of this bill, and it is stated through the principles and objectives—the goals of prevention, meaningful consequences, and intensified rehabilitation. We support and applaud the government in making these initiatives.

We are of the opinion that, based on much information and research, the best protection of society is through the rehabilitation of young persons who are involved with the criminal justice system. However, in order for these positive initiatives to be successful under this act, the resources for them to be successful must be in place, because without the resources all of these initiatives would be hollow proposals.

We also applaud the strength of the government and their leadership role in not succumbing to the pressure of the media and other factions in lowering the age below 12 years in this bill.

Most of the positive things we are supportive of are contained within clauses 4 to 12 of this bill. They concern the restorative justice provisions, the victim inclusion, the meaningful consequences, and the extrajudicial measures. We say all of those initiatives are very positive and are based on the fact that very few young people are involved in significant crime. In fact, a large portion of young people are involved in minor crimes and are temporarily in the justice system. We say that addresses this reality in a very positive way.

Unfortunately, the rest of the bill, about 150 clauses of it, contains other items for which we have more concerns. I will leave that to my colleague.

Ms. Isabel Schurman: Good morning.

[Translation]

First of all, I would like to thank you, on behalf of all of us at the Canadian Bar Association, for providing us with an opportunity to be heard here today. In order to simplify the interpreter's life, I will be making my preliminary comments in English, and not in the two languages, because it is difficult for the poor interpreters to switch from one language to the other.

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[English]

We are applauding an attempt at a balanced approach to youth justice and we see this bill as being an attempt at a balanced approach to youth justice. My colleague has explained to you why. We are, however, concerned about certain sections that we believe may well be not only inconsistent with this balanced approach, but may in fact constitute a potential for erosion of the principles that are fundamental in this law.

I'm sure you've taken cognizance of our submission, and I think it would be important to keep the preliminary comments short. Very briefly, as you are aware, we are against the idea of lowering the age at which a person may be presumptively transferred to adult court. We believe this would be unwise. Even if common sense dictates we must deal more severely with violent behaviour, it should not be forgotten that as the law stands, there is the possibility for a 14-year-old to be transferred to adult court in appropriate circumstances after a proper and full hearing. We maintain that is the way the situation should remain for this issue.

We are also opposed to the enlarging of the potential category of offences for which a young person might be presumptively transferred. The definition, as it seems to be put out in the law, could go so far as to include offences for which adults might receive sentences of two years or more, and these could, depending on the circumstances, be qualified as serious violent offences. It is, in our respectful opinion, too broad.

We are as well against the presumptive transfer of young people based strictly on the number of offences—the “three strikes, you're out” principle. We believe this is dangerous, in that it will encourage courts not to consider all of the circumstances. We cannot judge our young people without considering all the circumstances, just as we should not judge our adults without considering all the circumstances, including the circumstances of the victims in all cases—but all the circumstances.

We are not in favour of a change that would take away from the court the possibility of seeing the problem, the crime, the situation, as it is. At the Canadian Bar Association we believe, and have believed for a very long time—as those of you who have seen our past positions in the earlier 1990s will know—that there is no place for the application of dangerous offender proceedings to children and young people. We have been consistently contrary to this. We are, again, contrary to this.

We believe as well that taking away safeguards in situations where young persons are giving confessions or statements flies in the face of the judicial findings in this country. Children in fact are vulnerable in the hands of authority—police or other authority—and they should benefit from protection sufficient to allow them to fully understand their rights in any situation where we may be asking them to give what would constitute a waiver.

The way this bill is set up, there are five sections that maintain protections for young people in these situations, and two that would allow the court to completely circumvent these protections.

We find it difficult to read the part that says if the judge decides—and I paraphrase it—that the admission of the statement would not bring the administration of justice into disrepute, then the statement can be entered into evidence. Our Supreme Court of Canada has said repeatedly that the admission of conscriptive evidence will always bring the administration of justice into disrepute. We should not be passing a law that backtracks from that standard.

We believe very strongly that there are three components to an effective and fair youth justice system in Canada: there is the law; there is the system in place, which is often relying on the resources available; and there is human nature and the implication of people.

If we have the best possible law and the most possible resources, and choose the most qualified people, we have the best shot at a juvenile justice system that represents what we would like to see for our young people and for our society as a whole. Any flaw in any one of those, obviously, is going to result in cracks in the system that we're going to have to deal with, sometimes as a society, sometimes on a case-by-case basis.

We have said, through my colleague Ms. Rupert-Bailey, that we do support the presumption in favour of extrajudicial measures, but we believe the law is not quite clear enough as to whether these extrajudicial measures are going to be available to young people with a minor but distant record, or to young people with a charge that constitutes a minor violent offence.

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We believe, again in keeping with our general philosophy, there should be no limit in the law, but rather it should be a matter of judicial discretion to decide when extrajudicial measures might be available to those young people who may have had some trouble in the past or may be facing what we would consider a minor violent offence.

Finally, you will have read in our submission that we support the addition of the section into this law that would parallel the Criminal Code sentencing provisions and allow the courts to consider the special circumstances of aboriginal youth before the criminal justice system.

Thank you.

[Translation]

The Chair: Thank you very much.

Mr. Jacques, I understand that you are ready to make your presentation.

Mr. Denis Jacques (President of the Bar, Barreau du Québec): Thank you.

I would like to thank the committee for giving us this opportunity to be heard on this important bill.

The Barreau du Québec, which now has a roll of more than 18,000 lawyers in Quebec, has the good fortune of being able to rely on several specialized committees that work very hard to improve our justice system in both Quebec and Canada. I am pleased to table, today, the results of the work accomplished by two of our committees: the criminal law committee and the youth law committee. These two committees have worked very hard, given the complexity of the bill, to prepare this brief.

This brief is constructive. It does not simply state that we want nothing to do with this bill; it goes further, suggesting what we need to do in order to make it acceptable.

Because of the complexity of this bill, we had to call upon experts in the field, and I am fortunate to be accompanied, today, by such experts.

Ms. Carole Brosseau practised youth law for several years before joining our research section in the Barreau du Québec. She is our resource person in criminal and youth law and she is the secretary for these two committees.

Mr. Normand Marquis is an experienced lawyer in the field of youth justice and he is in private practice. It is, no doubt, important that you hear from people who work in the field. We can obviously take a very theoretical approach to this legislation, but it is also important to understand the effect, in practical terms, of these provisions once they are implemented.

Before I turn the floor over to them, I would like to point out that the bill does have some positive aspects. There is, for instance, the scope of extrajudicial measures and enhanced participation of parents and victims in the process. However, there are also some serious shortcomings in the bill which make it unacceptable as it now stand. The Barreau du Québec certainly shares the objectives of the Minister to increase public confidence in the youth criminal justice system; however, the means used in the bill worry us.

You will note that our brief contains general and specific comments. The Barreau du Québec has always preferred an approach that strikes a fair balance between, on the one hand, the needs of a youth in order to facilitate rehabilitation and reintegration and, on the other hand, protection of society. Bill C-3 has upset this balance by intentionally giving greater weight to the protection of society.

In addition, the bill focuses on the offence and its objective seriousness. However, the youth criminal justice system, if it is to be any different from the adult system, must continue taking a more subjective approach, based on the needs of the youth.

In addition to these general comments, which are also important because they indicate what type of approach we should take in reading the Bill and how it should be implemented, we will also make some more specific comments on various aspects, focusing in particular on the transfer mechanism and its application to youth who are 14 of 15 years old; sentencing and its complexity; confidentiality with respect to the identification of youth; the right to a lawyer and cost recovery of fees from parents; and the admissibility of out-of-court statements.

I will now turn the floor over to Mr. Normand Marquis.

Mr. Normand Marquis (Lawyer, Barreau du Québec): Good morning, Members of the Committee.

I would like to focus more specifically on four main concerns that the Barreau du Québec has with respect to this new Bill. These four concerns are as follows: the underlying principles of the Bill; the concept of transfer and adult sentencing; problems associated with the whole issue of sentences; and the admissibility of out-of-court statements.

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I will deal very briefly with each of these issues. You will have the opportunity to read our brief, which deals with each of these points in a much more comprehensive manner. Moreover, many of my colleagues have already discussed certain of these issues before me.

First of all, there is the issue of the principles, which are found in clauses 3, 4, 37 and 82. These principles can be found in several places in the legislation. What is surprising, moreover, is that although these principles are found in several places, the principles outlined in the preamble to the Bill, particularly those that deal with the needs of young people, are not found anywhere.

Consequently, we are jeopardizing this whole concept of balance which has been established in jurisprudence over the years with the Young Offenders Act. If this Bill is to be passed, it would be important, if not essential, that this notion of balance between the protection of society and the needs of young people be given back its rightful place.

Furthermore, it is incumbent upon us to point out that this Bill pushes Canada's offences further and further away from the international commitments it made in various international conventions. Under the circumstances, I think that it would be fundamental and desirable that Canadian society ensure that its international commitments are echoed in Canadian legislation.

As for the transfer mechanism, I would like to remind you that, since 1992, the Young Offenders Act has been significantly tightened at a very fast pace. Let's remember that, in 1992, maximum sentences were increased from three to five years; in 1995, they went from five years to seven and 10 years, depending on the degree of murder involved, and a presumptive transfer was added for young offenders who are 16 and 17 years old, and who now have the burden of showing that they should not be treated as adults.

Five years down the road, the system is being tightened even further and, of course, we are wondering where it is all going to end. This is why we are concerned. In 2000, not only are we maintaining the seven and 10-year sentences—fortunately—, but we are also now talking about presumptive transfers for 14 and 15 year-old youths.

Since we have to add what was referred to as the fifth category to the four categories of previous legislation that must be taken into account, the Barreau du Québec has determined that in the Criminal Code alone, there are 248 offences punishable by sentence of over two years, and this does not include all other criminal legislation.

Accordingly, we feel that tightening the legislation in this manner is absolutely unjustified given the state of Canadian youth crime and that this Bill should be amended so that it accurately reflects what is really going on in Canadian youth crime.

One final detail with respect to this issue. At the very beginning, Ms. McLellan expressed a wish, in her comments on this bill, that each province would be able to continue dealing with young offenders as it had in the past, to the extent possible. Accordingly, we feel that Quebec should be able to opt out of certain provisions of this legislation. This option to opt out should be stipulated in much greater detail than what was mentioned.

I would like to discuss a third point with respect to sentencing. The new mechanism provided for in this bill skews all of the rehabilitation principles that have been applied in Quebec since the Young Offenders Act was passed in 1985.

First of all, the two-thirds/one-third rule, namely, eligibility once two-thirds of the sentence has been served, plus time spent in preventive detention, will result in a considerable reduction in the amount of time available for readaptation, therapeutic purposes. Quebec will no longer be able to implement its approach to rehabilitation. Under these circumstances, I think that this would be counterproductive in the long run.

One option would be to maintain in full this whole issue of sentences, as proposed. This may appear to contradict what I've just said. However, our primary concern is to ensure that the measures that are taken, regardless of what they may be, are fair to young offenders. If they remain as they are presented in the bill, they must do so in their entirety. Since the sentences have become much heavier than what they used to be, we must preserve those mechanisms that mitigate them.

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At this point we should mention that it would be clearly more beneficial to Canadian society if we were to maintain the provisions on the types of sanctions contained in the current Young Offenders Act.

I will now cover one final detail with respect to the admissibility of out-of-court statements. As my colleague, Ms. Shurman, who appeared before me, indicated, this is a fundamental principle in criminal law. We question the constitutionality of this provision under the current circumstances. Let us remember that this is a rule which is over and above those applicable to adults. This rule, found in section 56 of the current Young Offenders Act, enables us to consider a young offender's lack of judgment, as well as his or her fragility with respect to the influence of authority.

It seems to me that when you juxtapose the importance of this constitutional principle of non-incrimination and that of a few technical details which may, to some very small extent, require us to at times exclude certain statements, the scales clearly tilt on the side of constitutional rights for young people on this matter, which outweighs the drawbacks.

Thank you. These are my only comments for the moment.

Ms. Carole Brosseau (Lawyer, Criminal Law Committee, Barreau du Québec): I will conclude the Barreau du Québec's presentation by focusing specifically on the protection of young peoples' privacy and the right to counsel.

I could tell you, at the outset, that although clause 109 of the bill is designed to protect the privacy of young persons and to prohibit the publication of a young person's identity or any information pertaining to him or her, we must caution you about its provisions, particularly clause 109(2) which provides for an exception in the case of a young person who is subject to a sentence for a presumptive offence.

The Barreau du Québec has always opposed any form of publication whatsoever. On the one hand, we do not think that society is afforded better protection when a young person's name is published and, on the other hand, publishing the young person's name has an anti-educational effect, and may stimulate some young people, particularly those who are members of street gangs, who are looking for some type of publicity.

The Quebec Bar Association maintains that the right to legal counsel should be possible as soon as an extrajudicial measure is undertaken, therefore at the outset of the process, especially since as my colleague explained, the possibility of extrajudicial statements could be prejudicial to youngsters. The right to counsel should be recognized at the outset of the process.

The other point we wanted to discuss was the possible recovery of costs of counsel provided for under clause 25(10) of the bill. A few years ago, the Quebec Bar conducted an in-depth examination of the representation of children by lawyers and, after very considerable thought, came to the conclusion that services should continue to be provided free of charge by the State representative. The Bar felt that it was necessary to presume that there was a conflict of interest between the young person and his or her parents, particularly when it came to applying the Young Offenders Act and the Youth Protection Act. We therefore oppose this possibility that the Lieutenant-Governor in Council could request reimbursement of the costs paid to the lawyer representing the young person.

I would like to take this opportunity to point out two or three other issues that also merit the attention of the committee. Amongst other things, I'd like to discuss access to records. As you know, clause 118 of the bill provides for numerous persons having access to a young person's record. We believe that the definition of record appearing in clause 2 should be far more limited; it should make a distinction between purely judicial information and those dealing with psycho-social data on the child. We do not believe that all the persons mentioned in clause 118 should be entitled to consult all the information on record. If the rehabilitation process is to be facilitated, that distinction must be made.

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We also had some reservations regarding the provisions of clauses 30 and 138 of the bill, which deal with temporary detention. Under clause 138, any person who fails to respect his or her undertakings, whether the father, the mother, the youth protection branch or a rehabilitation centre can be found guilty either of an offence punishable on summary conviction or of an indictable offence. We would prefer the status quo, that is, that we continue to apply the provisions of the Young Offenders Act that provide solely for offences punishable by summary conviction. The new provisions would be prejudicial to young persons in terms of detention or undertaking for temporary detention.

The Chair: Thank you very much.

[English]

For the first question we'll go to Mr. Cadman for seven minutes.

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

I'd like to thank all the witnesses for coming today. Let's hope we're not interrupted by votes all day, as we have been. Let's keep our fingers crossed.

We've heard from a number of witnesses, including four judges, about the complexity of this bill and the problems they're having even interpreting it. I've heard from a number of your colleagues who see a lot of work ahead for them in dealing with this. I just wonder—and I'll address this to the whole panel—if you can give us some indication or some examples of where you see undue complexity in this bill. I'm sure there are a lot of them; I don't know if you can fit it into seven minutes. I address that to the whole panel, whoever wants to respond.

Ms. Isabel Schurman: May I ask, are you interested only in undue complexity, or lack of clarity as well?

Mr. Chuck Cadman: Take your pick.

An hon. member: Clarity!

Voices: Oh, oh!

[Translation]

Mr. Denis Jacques: With your indulgence, I would say that one only needs to read the chapter on sentencing to understand the difficulties involved for someone who does not practice this type of law on an on-going basis, like myself, as I am in private practice in other fields. I've read this chapter and I must admit that although I've been a lawyer for 22 years, I find it difficult to understand. And that's not saying much. I don't know whether my colleagues have other comments on the complexity of the bill, but I think that says it all.

Mr. Normand Marquis: The example given by Mr. Jacques may be the most obvious. I've read some of the comments made by witnesses who appeared before us in the past few days, and I remember that one witness compared this bill to the Income Tax Act. I totally agree with that comparison. I still remember with great trepidation what the Income Tax Act meant for us when we were in law school. I must admit that this bill gave me the same feeling when I first read it. My colleague said that I was a highly-experienced lawyer; I would say that I'm at least experienced in this field and I can say without exaggeration that I had to re-read this at least 20 times before I understood the whole sentencing mechanism. I must humbly admit that I'm far from certain that I really understand it despite all that.

It is said that ignorance of the law is no excuse. Well, I can tell you that no young person anywhere in Canada would be able to understand the sentencing mechanism. This will place a heavy burden on the lawyers, who will have to explain to these young people what they're getting themselves into. I think that this is an enormous teaching job for a defence attorney and that it is unfair to adopt such a complex piece of legislation to deal with things that are not that complicated.

[English]

The Chair: Does anyone else wish to respond?

Ms. Leandre Rupert-Bailey: Yes. I would draw your attention to all of the clauses—and there are many—that have to do with the presumptive offences, which are defined in the definition clause, and all of the measures in place to make application to have adult sentences apply.

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There's the serious violent offences application under subclause 41(8), and then there is a series of applications that can be made by different parties in clauses 62, 63, 64, and 67. That part of the bill deals with the mechanism by which adult sentences can be applied.

It's extremely confusing reading through that. I read through that a number of times. I also find it contradictory. It seems to be contradictory in that the consequences of a serious violent offence application are very serious, and yet notice requirements for that appear to be lacking.

For instance, in subclause 41(8) there are no notice requirements. However, later in the bill, at subclause 63(4), I believe, if my notes are right, a notice to the defendant is to be given by the AG, and before making a decision about a serious violent offence and before endorsing that information, the court must satisfy itself that notice has been given. But if one hasn't read carefully through the whole bill, it's very difficult to see that these notice requirements are in place. There is large room for litigation about whether or not one has to give notice.

The other thing I find quite startling is that there are places where the bill.... For instance, the application by the AG at subclause 63(2), which is a notice of intention by the AG to seek an adult sentence, reads that notice can be given before plea or at trial. Well, there's a significant difference between giving a notice before plea and giving a notice at trial, because before plea, one must make a decision and one must give advice to one's client about what to do if the crown is seeking an adult sentence. So this leaves open the possibility that the AG can then side-whack the young person at trial with a notice that he's seeking an adult sentence, once you've already...[Technical Difficulty—Editor].

All of those things are extremely confusing and work against allowing full answer and defence for the...[Technical Difficulty—Editor].

[Translation]

The Chair: Thank you very much.

[English]

Unfortunately we only have seven minutes, and we want to try to get to everybody. Perhaps you can keep in mind what thoughts you might have and fit them in someplace else.

Madame Venne.

[Translation]

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): I'll put my two questions immediately in order not to be interrupted.

Ms. Rupert-Bailey, you say that you support the bill although you find it extremely confused and confusing, difficult to interpret and to understand. It would certainly be difficult to explain it to parents and young people. I therefore don't understand how you can say you support it. I'm surprised and I find that somewhat contradictory. That's my first question.

I would now put a second question immediately to the representatives of the Quebec Bar Association and to you. I can see clearly that you don't have the same approach or vision of Bill C- 3. However, some of your members undoubtedly belong to both organizations. I know there is a difference between the Quebec Bar Association, which is a professional association, and the Canadian Bar Association, which is a voluntary association of lawyers.

The Chair: Excuse me, there is a sound transmission problem.

[English]

There's a problem, I'm advised by translation. Is there a technician?

[Technical Difficulty—Editor]

[Translation]

Ms. Pierrette Venne: Is that better?

The Chair: Yes, I think so.

Ms. Pierrette Venne: Can you hear the translation?

[English]

The Chair: Can the people in translation hear? No.

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The Chair: I'd like to call the meeting back to order, please.

I welcome everybody back to the table, and I hope we can proceed. I would assume this is all the result of Mr. Cadman's comments about the fact that we weren't being interrupted by votes.

We will start over with Madame Venne.

[Translation]

Ms. Pierrette Venne: Did you hear my first question or should I repeat it?

The Chair: Please repeat it.

Ms. Pierrette Venne: Yes, but I'm asking you if you heard my first question or if you missed everything I said from the beginning. Since you have understood the first one, I will go on to the second one, which is certainly the more difficult.

Since I get the impression that the Quebec Bar Association and the Canadian Bar Association do not have the same approach to Bill C-3, that they don't have the same vision, and knowing full well that the Quebec Bar is a professional association that lawyers must be members of in order to practise their profession, whereas the Canadian Bar Association is a voluntary association of jurists, there is a major difference here. But since you have members who belong to both organizations, I think it raises a problem to say that one represents both. I'd like to know what kind of mandate each of you has to say that he represents the lawyers of Quebec or those of Canada. Thank you.

[English]

Ms. Leandre Rupert-Bailey: I'll respond to your first question.

As I understand, your question was about the fact that we say we're supporting this act, and yet as a result of my response to the other question, it seemed there was a lot of confusion and conflict in this act. Yes, that's true. We do support the initiatives, the basis, and the objectives of this act, which are wide-reaching. The emphasis upon rehabilitation, prevention, and extrajudicial measures is all extremely positive and ought to be in place, in response to the societal pressures, as well.

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The way it has come about, though, in this act, which is lengthy, makes it difficult to understand how the system is going to work. Some of the technical aspects of how the act is going to operate are confusing. Those are aspects that can be discussed and refined in places like this, where we can discuss it. This is a consultation in which we can bring these things up—we the practitioners who know how it's going to work—and they can be remedied. The overall goals and objectives of the act, which are very positive, we support.

[Translation]

Ms. Pierrette Venne: I understand that you support the objective of the bill, but when you support something, you should be able to explain why. Up until now, lawyers and jurists who appeared before us have said that they do not fully understand the bill, even after several readings. How will you explain the bill to people and tell them that you support it? You support the objectives, and that's fine, but with regard to explaining and understanding the whole thing, we're lost.

Ms. Isabel Schurman: We haven't said that we did not manage to understand even after several readings. On the contrary, it is our opinion that the bill is comprehensible—

Ms. Pierrette Venne: Oh, now you're saying that.

Ms. Isabel Schurman: —although some improvements could be made to several of the provisions which may be unclear or may even contain some contradictions.

Ms. Pierrette Venne: You're the first person I hear saying that.

Ms. Isabel Schurman: Our position is that the bill in itself presents a position that seems clear, but as we said in our introduction today, it contains a number of clauses that may not be consistent with the main goals. We believe that by changing the parts that are not clear, by improving them and perhaps by adding clarification where necessary, the bill can be made not only comprehensible, but perfectly useable by all stakeholders.

Ms. Pierrette Venne: As I said, you are really the first person I hear say anything like that, because even the judges who have appeared here last week told us that they found the bill more than complex. They found it very, very difficult to understand. I think you're going to have to give them courses.

Can you answer my other question?

Mr. Denis Jacques: Certainly. For my part, I must tell you that I have been a member of the Canadian Bar Association for 22 years, since I began my practice, and I'm very proud of it. I don't think that there are any major differences in the positions of these two groups, despite the fact that the Canadian Bar Association is saying that the bill is acceptable, whereas, given the current state of affairs, the Quebec Bar is saying that it is not.

What I read—and I very briefly glanced at the Canadian Bar Association brief this morning—and what I have understood is that the Canadian Bar Association is saying yes to the bill, but with certain reservations that are expressed starting on page 4 and until the end of the brief. On many points, the Canadian Bar Association has made comments that are similar to those we made in our brief. Our brief is very complete and we state that given the current state of affairs, the bill is not acceptable. We also say what should be done to make it viable and acceptable. It's a bit like the glass of water I have here: is it half empty or half full? The Canadian Bar Association says yes to the bill, and it adds, "but". We are saying that it is not currently acceptable, but if such and such a thing were done, it could become so.

The Chair: Thank you, Ms. Venne.

Ms. Pierrette Venne: We see here all the subtle nuances of lawyers. Thank you.

The Chair: Thank you. Mr. Mancini.

[English]

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you, Mr. Chairman.

Thank you for the presentation. It was refreshing. Mr. McKay's going to laugh, but as a former criminal defence lawyer and member of the Canadian Bar, there isn't much I disagreed with.

There are some questions I would like you to elaborate on. They're concerns I have. I guess since everybody's admitted it's a complex bill, I'm not so embarrassed now to say this section doesn't make sense to me.

Let's start with subclause 63(2), which has been commented on. There are two aspects of this. One is that we can now, under this legislation, try a young person in youth court and sentence them as an adult, which is the reverse of the Young Offenders Act, as it currently exists.

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Would I be correct in assuming there are procedural protections provided to a young person under the current legislation? I'm thinking that the move to adult court avails the young person of the right to a jury, perhaps to a selection of judge and jury. That's not afforded in this legislation because you could be tried as a young person and then be subject to sentencing as an adult. Am I right there?

Secondly, I'll go to clause 41, which makes provision for intensive rehabilitative custody. One of the considerations is where a young person is suffering from mental illness or disorder, psychological disorder or emotional disturbance. I appreciate that paragraph 41(7)(a) says where they've been found guilty and there's a mental illness, but it would seem to me that if there were that serious a mental illness, there would be some question as to whether the young person should have been tried in the first place. There seems to be a contradiction there.

So perhaps you could comment on those two things. I appreciate they're perhaps complex. Then if I have any more time, I'll move on.

Ms. Leandre Rupert-Bailey: I would comment on paragraph 41(7)(b), when a person is suffering from mental illness.

It's a little difficult to imagine that a person suffering from a mental illness would be found guilty, because the NCR-MD provisions in the Criminal Code normally preclude that they be found guilty. I'm not exactly sure. Our position is that this kind of rehabilitative treatment order is probably not constitutional, at any rate.

On your other question, I'm not sure whether I quite understood you. I think you were saying that under the YOA there were protections, or if a child or youth were raised to adult court, they had an opportunity to make an election for different kinds of...to be tried before a jury, for an example. That is the case, but you don't have to be raised to adult court to have that possibility. It's the type of punishment you're subject to.

If you're a youth right now under the Young Offenders Act and you're charged with murder, but you're not raised because you're 15, you still have the option to elect judge and jury. As far as I can understand, that doesn't change.

You're right in saying you can be tried in youth court, but under this bill everybody will be tried in youth court, unless they elect up, and that will be a question of what they're charged with, and then subject to an adult penalty.

Mr. Peter Mancini: On that—I want this on the record, as it is a discussion we had during the break—if I were the defence counsel, I would look at subclause 63(2) and I would never agree to any kind of...I don't want to use the term “plea bargain”, because it wouldn't necessarily be bargaining on sentence, but it would be even the admission of evidence.

We had a policeman before us who talked about the voluntary confession statements. He complained how complex it was, under the existing legislation, to get those statements of a young person before the court. I look at this section and say that as a defence counsel I would never agree to admission of any statement; I would never agree to the admission of any evidence. I would put the crown to absolute proof on everything, because of the option of the crown to transfer, to seek an adult sentence, to give notice of seeking an adult sentence midway through the proceeding.

That to me will tie up the courts, because the lawyers are only doing their job when they say “I can't afford to agree to anything because I don't know where you're going with this”. Am I right in my assumption there?

Ms. Leandre Rupert-Bailey: You're looking at me?

Mr. Peter Mancini: I'm looking at anybody.

Ms. Leandre Rupert-Bailey: Go ahead.

Mr. Normand Marquis: I missed the last part of your sentence.

Ms. Leandre Rupert-Bailey: I would say that subclause 63(2) clearly allows the AG to give notice at a late date in the process, which is contrary to early disclosure and makes any kind of early resolution of the matter very difficult.

• 1205

It appears to contradict other clauses—for instance clause 67, in which there must be an election made once there's been a notice given. On the one hand, the bill seems to say if you get a notice you get to make an election, and all that should happen before plea. But on the other hand, there's this opportunity for giving a notice to seek adult sentencing after those decisions have been made.

Ms. Isabel Schurman: Given the circumstance where the notice would be early enough to be before plea, for example, I'm not sure there is, in every case, that connection that if you're going to seek the adult sentence we're going to fight every statement and every piece of evidence.

In some circumstances it might be quite advantageous to the young person, and their counsel may advise them to make sure the proceedings go as smoothly as possible, because in case they are found guilty afterwards, they will have at least fought the one or two main issues that were worth fighting in their case, and not have seemed to be fighting everything and grasping at straws.

I'm not really sure there's a connection there in every case. Even if there might be a danger in some, I wouldn't go as far as you do with your question.

Mr. Peter Mancini: Thank you very much.

[Translation]

The Chair: Mr. Marquis, another answer? No?

[English]

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair, and thank you to all the witnesses. I certainly appreciate your input on this matter.

On the philosophy of the act itself, I think there's a general feeling from all the witnesses that this is a move in the right direction. This idea of concentrating on violent versus non-violent offences and making greater use of restorative justice models is certainly admirable. However, one of the real difficulties I think you have recognized as well is there is not only a complexity problem here, but there is an inevitable delay problem that is going to emerge. Just hearing my learned friend say “I would use this to my advantage to delay court proceedings”, prosecutors can also be members of the Canadian Bar Association.

Mr. Peter Mancini: I didn't say to use it to delay proceedings.

The Chair: Watch it, you two, or I'll bring out old trusty.

Some hon. members: Oh, oh.

Mr. Peter MacKay: No, it stays on the wall.

My reading of this act is there are, all of a sudden, incredible tools and tactics of delay that can be called upon: new hearings, hearings to determine whether it's a serious violent offence or a violent offence, and new interjections of entirely new levels of jurisprudence that never existed before. We're now putting a parole system in place in our criminal justice system. We're now putting conditional sentences, delayed sentences, in the youth criminal justice system.

There are inevitably going to be outrageous numbers of challenges under this legislation. As lawyers, this is fantastic news. Absolutely the best possible thing the Canadian government could do is give you this cash cow.

Mr. John McKay (Scarborough East, Lib.): Are you resigning, Peter?

Mr. Peter MacKay: I'm thinking about it. We'll see what happens.

Some hon. members: Oh, oh.

Mr. Peter MacKay: I may have no say in that at the end of the day.

[Translation]

The Chair: Did you want to answer, Mr. Marquis?

Mr. Normand Marquis: I'd be tempted to say that you're both right and wrong. First of all, it is not true that we lawyers rejoice in these delays, because after all, we do have ethical principles and that is to defend the best interests of our clients.

Secondly, it must be recognized that in particular, the investigation that will take place under clause 41(8) of the bill to determine whether or not this is a serious violent offence will be the critical point, of course, in deciding whether or not the young person may be sentenced as an adult. However, we must also recognize that by placing it after the former referral mechanism, which used to precede conviction, an enormous amount of time will be saved. Everything we used to do to determine whether or not this referral mechanism should be used will be done once we know that the person is indeed guilty and what he or she is guilty of. Therefore, we will save time at that point.

Yes, there are various provisions in the bill that will cause delays and problems. These issues are important and will of course lead to many debates over case law which will probably go up to the Supreme Court. However, other provisions of the bill are better and in our opinion represent an improvement. We're always faced with the same problem: the bill contains some good points and some not so good; should we choose the old system under which time was wasted on other subjects, notably referral before conviction, or should we prefer this one? I imagine that there are positive and negative factors in both situations. I agree with you.

• 1210

[English]

Mr. Peter MacKay: I know some of you may be anxious to answer that. This is where we're on the horns of the dilemma. Are the benefits that can flow to young people available under the old system, particularly in these areas of alternative measures, diversionary practices? We in the rest of Canada know Quebec has probably been the province that made most advantage of those types of provisions under the Young Offenders Act. In your opinion, can we accomplish what we seek to accomplish by enhancing that old legislation or should we be doing this complete redrafting, which is doubling the thickness and potentially creating more problems than it's going to eradicate?

[Translation]

Mr. Normand Marquis: Basically, I believe that there are no perfect laws. As you can see in our brief, we clearly feel that some provisions should be rewritten, although that does not mean that the whole bill should be rewritten. It is true that, in Quebec, we had invested a little more energy in the area of extrajudicial measures. It should be acknowledged, however, that the new bill opens wide doors for the use of extrajudicial measures for young people, which I feel is a positive aspect of this bill in comparison with the Young Offenders Act. Once again, I would say that there are pros and cons on that issue.

[English]

Ms. Isabel Schurman: As far as the Canadian Bar Association's position goes, we're not calling for the repeal of the Young Offenders Act. It appears that after several piecemeal changes over the last few years, there's a truly perceived need in many parts of the country to look at this again. We believe a healthy and vigorous debate like the one going on in the past few weeks in front of you is certainly an important one on such an important subject. It may result in a good product being made better or it may in fact result in a better product being created. We believe that in both of those contexts, everybody will benefit.

The last thing I wanted to mention was that I do hope that as lawyers we're not quite as self-serving as your question might have suggested we are. I would suggest to you that what we've done is come here and mentioned to you those very areas of the law that would be the source of litigation and that would be the source of conflict. Why don't you look at these and perhaps suggest changing them? That will make the project more coherent and that will make it perhaps a better product.

Mr. Peter MacKay: I'm a member of your profession, as are many of my friends.

Ms. Isabel Schurman: I know.

Mr. Peter MacKay: We've had numerous witnesses suggest that this is.... I'm not suggesting that's done in an irresponsible way, but just like politics, the practice of law is very competitive. Lawyers in a courtroom are going to use everything they can to their advantage. This legislation puts into the hands of the legal profession a tremendously complex and difficult piece of legislation in terms of its interpretation and application.

Mr. Denis Jacques: But it's not to their advantage; it's to the advantage of their client.

Mr. Peter MacKay: Absolutely.

Mr. Denis Jacques: That's how they should do it.

The answer my colleague just gave you is a very fine example that the positions of the CBA and the Barreau du Québec are often the same. She gave a very good answer to the question you asked.

What I can tell you is that every time you introduce a new piece of legislation, it will give lawyers the chance to experiment with those dispositions and make jurisprudence. Is that a reason for Parliament to stop legislating? I don't think so.

The Chair: Thank you very much. I don't think we're going to resolve this question today.

Mr. McKay.

Mr. John McKay: Thank you, Mr. Chairman, and thank you, witnesses. This is therapy for us. Once a week parliamentarians get to beat up on lawyers.

Voices: Oh, oh!

Mr. John McKay: I appreciate it.

• 1215

Mr. Jacques Saada (Brossard—La Prairie, Lib.): These are masochists.

Mr. John McKay: That's right. There are too many masochists around this table. We are also members of the Canadian Bar Association.

In recommendation 10, you say consideration should be given to recognizing the special circumstances of particular populations, most notably aboriginals. It's clear that the evidence shows that aboriginals are overrepresented in the youth justice system, particularly with respect to custodial sentences.

Is that in fact a good idea? Are aboriginals, particularly in Manitoba, Saskatchewan, the Northwest Territories, and the Yukon, overrepresented because there are really no alternatives? Is the judge in fact putting a youth in jail because he or she can't think of any other alternative, because there is no realistic alternative? I'd be interested in your comments on that issue.

Ms. Isabel Schurman: On your question as framed, it would be our position that it's quite the contrary. Aboriginal youth, like aboriginal adults, were not being put into incarceration because there was no alternative but because no one was creatively thinking of what the alternatives might be. It became a solution that was just an easy one in many communities and many circumstances.

We support heartily the changes that were made to the Criminal Code sentencing provisions to ask that the courts be allowed to consider the special situation of aboriginals. We obviously have a problem in this country with the extent of the overrepresentation of aboriginal adults and youth in incarceration facilities.

What we're saying here is that we've done it for the adults; why not do it for the youth as well? At the very least it's going to result in some creative thinking going on to see where we can go from here in order to help these young people get out of what has become in many communities a vicious circle.

We also believe such a section is perfectly in line with the Supreme Court of Canada decision in Gladue and the kinds of debates that have been going on since then about what other parts of the Canadian judicial system have to learn from some native traditions, like restorative justice initiatives and what have you.

Our feeling is that it was certainly not because there was no other alternative. It's because not enough attention was being given to this most disadvantaged group, who are so overrepresented in incarceration.

Mr. John McKay: You still have that view even though this bill in effect codifies a number of diversionary alternatives and encourages people getting out of the system? It also arguably encourages restorative justice alternatives where presently they possibly they don't exist. Do you therefore think you still should have an amendment parallel to section 718?

Ms. Isabel Schurman: What can it hurt? The initiatives are there in the law. Some of them were there in the old law and some are new, but we're dealing with a tremendous problem that's gone on for so long in Canada's aboriginal communities. This is almost the first solution. So what can it really hurt? If we put it in for adults, why shouldn't we allow youth to at least have the same chance to benefit from some of the jurisprudence being created in adult court?

Ms. Leandre Rupert-Bailey: It will give a direction to the judges. I think that's a very big value.

Mr. John McKay: My second question is with respect to recommendation 2, which is that there is no presumptive transfer after a designated number of offences. Instead, it would be a persistent pattern of behaviour demonstrated by guilty verdicts for at least three serious violent offences. Could you expand on what you consider to be the difference between your approach and the bill's approach?

Ms. Isabel Schurman: We feel there may be situations where someone may be found guilty of three offences that could be found by the judge to be the type of offence that falls into this “three strikes and you're out” category. That person may not deserve or should perhaps not be transferred to adult court for all kinds of reasons to do with the actual harm done to the victim, to do with the degree of remorse, to do with the circumstances of the particular youth.

In other situations there may be very serious violent offences where after a series of guilty verdicts, a judge looking at all the circumstances would say this person should be transferred because the youth system can do nothing further. Our feeling was that by saying there's a number attached to it, that might result in tremendous unfairness to the accused youth in some circumstances and in tremendous frustration to victims in certain other areas.

• 1220

As I gather you have seen, we're very strong proponents of the fact that in most circumstances there's nothing wrong with leaving decisions to the discretion of a judge who has had the opportunity to hold a hearing, to hear everybody who has something important to say, and to then make a decision based on the law, based on the objective and subjective characteristics of the case, and based on some sound principles of fundamental justice.

Ms. Leandre Rupert-Bailey: The other thing that we ought to consider is the definition of a serious violence offence. Although there are two prior judicial determinations that are discrete, there's no idea of time involved. Because of different jurisdictions in a city, you could have a person who is charged with a violent offence and is taken on a warrant out of another jurisdiction, and that is a violent offence because it's an assault and was all part of a spree that took place within two or three days or whatever. So you could have these two violent offences, one on top of the other, but is that what we really want? Is that a persistent kind of behaviour?

Mr. John McKay: And the third a year and half later.

A voice: That's right.

Ms. Leandre Rupert-Bailey: It gives a false kind of frame to work within.

Mr. Peter MacKay: I will yield my time to Ms. Carroll, because she is married to somebody from the CBA.

The Chair: We're going to go back to Madame Brosseau afterward, but Madame Carroll has to leave, so I'd like to invite her to speak.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you.

Referring to your recommendation 5, with regard to subclauses 145(5) and (6), I'm assuming that you've explained the historical position of the Canadian Bar Association as being one that stays away from absolutes, leaving that judicial discretion in place. Obviously it plays into that, but I agree with your recommendation. I'd like to hear on the record why you do that, if you could.

Ms. Isabel Schurman: Recommendation 5? We believe it would be constitutionally invalid to create a paragraph that would say that all of these protections in subclauses (1) to (4) are necessary when dealing with statements taken from children, and to then allow the judge to refuse to in fact admit the statement into evidence if the judge decides it doesn't bring the administration of justice into disrepute. The Supreme Court of Canada has consistently said that conscriptive evidence obtained in a manner that violates the charter would bring the administration of justice into disrepute.

We believe there's a serious chance that these sections would not pass scrutiny under the Constitution, and we also believe they're fundamentally unfair. If you begin from the premise that you need a special system of protections for children because of their particular vulnerability and because of their very particular situation when faced with people in authority, as our Supreme Court has said in different decisions, then to turn around and say the protections are there but it won't really matter if they're not respected is fundamentally contradictory and unfair, and may not pass constitutional muster.

Ms. Aileen Carroll: Thank you, Ms. Schurman.

Ms. Leandre Rupert-Bailey: The only other thing I would add is that it leaves it wide open for the police not to do what they must do.

Ms. Aileen Carroll: Thank you, Mr. Chairman.

The Chair: Thank you.

Before we go to Mr. Cadman, we'll hear from Madame Brosseau.

[Translation]

Ms. Carole Brosseau: There are two things that I would like to talk about and that might provide a partial answer to the questions asked by Mr. Cadman and Ms. Carroll. The bill poses two problems.

It concentrates on the offence itself and on its seriousness, with no emphasis being placed on the needs of the young person. The only place where that is mentioned is in the preamble. The bill focuses on the seriousness of the offence and does not at all take into account the many difficulties involved in determining what constitutes a serious offence. If we want to maintain a youth justice system—and I think that that will exists, since we are here to comment on a bill of that nature—we also need to take into account the development of the young person and therefore, his or her needs. The Beijing Declaration as well as the International Convention on the Rights of the Child focus attention on the objective seriousness of the offence, but also on the needs of the young person. So, first, we need to get back to that aspect.

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Second, you were talking about the bill's complexity. Some points are complex, but more than that, the objectives are kind of scattered through the bill, which does not make it easy to understand. I will explain. Clause 3 defines and sets out the general objectives for the bill as a whole. Further on, in the part about extrajudicial measures, specific principles are laid out. Specific principles are also given in the provisions on sentencing. The same approach is used for custody and supervision. And these specific principles do not give any particular mention to the young person's needs.

That adds to the difficulty of interpreting the bill and is really a fundamental aspect of this legislation. It makes it more complex. I hope that answers your question to some extent.

The Chair: Thank you very much.

Mr. Cadman.

[English]

Mr. Chuck Cadman: Thank you, Mr. Chair.

Last week we had a witness appear here who was the mother of a young offender. She complained bitterly that parents are not involved in the formal process to the extent that they feel they should be. Specifically, she was talking about knowing that her daughter was lying to the lawyer, who in turn was putting the lies before the court because the parents had no involvement. I just wonder if you have any views on what parental involvement in the formal process should be.

Ms. Leandre Rupert-Bailey: Since the YOA was introduced, it has been a criminal justice law based on the principle that the young person has to have all the legal rights associated with an adult, because they're going to receive the same kinds of consequences. There's a fine balance to strike in order to give advice, to act for and take instructions from the young person who is in fact going to be the person convicted, and to have the involvement of the parents. I think it's something we work on on a case-by-case basis.

Mr. Chuck Cadman: I just say that her complaint was that she felt the best interests of her daughter were not being dealt with here because her daughter was allowed to basically lie in court, and the parent had no—

Ms. Isabel Schurman: On that issue, and on the example you give, I would have the same reaction to that as I would have to any situation in which a person is aware that a lawyer brings false evidence to court. That parent should go directly to the bar association or the law society, because it's unacceptable.

Mr. Chuck Cadman: I'm not saying the lawyer did it intentionally. I'm just saying that it was because he was only listening to the client.

Ms. Isabel Schurman: I hear the way your question is coming, and that's unacceptable, number one.

Number two—and I don't know that this addresses your whole question, but it touches a little part—I know we did have a word to mention about one section of the law that seems to perhaps rely too heavily on parental involvement, and that is the section dealing with extrajudicial measures. To us, it seems that the way it's drafted it suggests that if a parent can't be contacted or can't be found, the youth who may have been eligible for extrajudicial measures now won't be because the parental authority can't be given. That's our reading of the section. That's what we believe.

When I spoke about clarity in answer to your initial question, that was one I was going to mention. We believe it could be clarified so that a youth is not penalized because of a parent who refuses to be involved or can't be found.

Other than that, in situations like the one you described, I think there's a very large problem, but not necessarily one that is just in the scope of this law in terms of watching a lawyer represent your child while seeing that what the lawyer is doing is unethical or wrong. I think that's a very big problem, but bigger than this piece of legislation, if you will. A parent has to deal with it elsewhere.

[Translation]

Mr. Normand Marquis: As a comment, I would say that it is risky to use specific examples. In your example, if the mother felt that her daughter was really not lying and that, as a result, her daughter's problems should not be before the Court, she certainly had the opportunity to go see the investigator or the police officer mentioned in the file and say that, according to what her daughter had told her, the events did not take place as reported. If she knew that the evidence that was going to be brought before the Court was not true, she had every right to do that.

Once again, however, each case is different, as Ms. Schurman said. I think that we need to realize that, in this bill, the legislator's intent is clearly to allow greater parental involvement in the judicial process.

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No process of this type can ever adequately solve the problem that you were talking about. I think that the law simply does not make it possible. But there are other ways for parents to intervene, at the time of sentencing, for example.

Mr. Denis Jacques: Regarding the role of parents and victims in the process, a few pages of our submission talk about that. As I said in my introduction, this bill makes improvements in that area. Even more steps could be taken, as suggested in pages 29 to 33 of our brief.

[English]

The Chair: Thank you very much, Mr. Cadman.

Mr. McKay.

Mr. John McKay: Going to the fifth of your recommendations, that subclauses 145(5) and (6) be eliminated, we've heard a number of people making that point. On the face of it, it seems like a valid point. I've never done youth law before, so I don't really understand the rationale for putting this discretion into the hands of a judge to admit otherwise inadmissible evidence. Can you argue the other side for a few minutes, just so that I can get some balance as to why this is here?

Ms. Isabel Schurman: As you know, we represent 36,000 members across Canada, including crowns and defence. I don't know if there are any crowns here, but I will say that among the people who work with us at the Canadian Bar Association, the position is a unanimous one for both crowns and defence: these two sections should be quite simply eliminated.

I'm certainly not the one who's going to be able to argue the other side of that one. I'm not sure there—

Mr. John McKay: Does it have to do with the necessary inconsistency of philosophy, shall we say, that you are not only treating the behaviour, you're treating the person? You're dealing with the person and dealing with the behaviour. I'm really stretching here, but is there some basis there for admitting evidence that in some respects would be otherwise inadmissible, and that is in some respects perceived to be of benefit for the person before the court?

Ms. Leandre Rupert-Bailey: The only benefit that I could see would be that the case would be made on the basis of inadmissible evidence. The very cornerstone of our justice system is that it be fair and just. Making a decision of culpability based on proper evidence before the court is at the base of that. In youth matters, if we allow for statements to be entered—statements that were taken without the young person understanding that they didn't have to give them, or without understanding that they could have someone there with whom they could discuss and consult, or even without understanding what they're being charged with—again and again, we would have young people giving statements while not really knowing what they're being charged with. That would be a travesty of our justice system.

Mr. John McKay: Is that position adopted by the Barreau as well?

[Translation]

Mr. Denis Jacques: On page 77 of our brief, we look at subclause 145(6). Our position on that is that the status quo should be maintained and that extrajudicial statements not be admissible.

However, as we also indicated in our brief, this position is not unanimously supported. There were dissenting views expressed on this point, mainly by people closely involved in the process, that is, crown prosecutors and police representatives. It is easy to understand why; it makes it easier for them, to some extent, to provide incriminating evidence. The more they have, the more the work will go "easily" in court.

Nonetheless, having considered the situation objectively and thought about the debate that it would lead to and the consequences for vulnerable young people, our organization held to the position that we have presented to you, despite the small amount of dissension that I just mentioned.

[English]

Mr. John McKay: Thank you.

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Ref.)): Mr. Mancini.

Mr. Peter Mancini: Thanks. I just have a couple of questions.

I'd be interested in your thoughts on the “Detention separate from adults” section of the proposed legislation. I'm looking at paragraph 30(3)(b). Through this, a young person is to be held separate and apart from any adult—which makes sense to me—unless for their own safety and the safety of others they have to be detained in a place of detention, or “no place of detention for young persons is available within a reasonable distance.” I wonder if you have any thoughts on that. That causes me some concern for young people who are in remote communities where there is no youth holding facility.

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Another part of the act, subclause 30(7), which deals with the temporary restraint after arrest, seems vague to me. I know I'm picking here, and you may not have even looked at this; I'm just interested in your thoughts. It refers to the “...temporary restraint of a young person under the supervision and control of a peace officer after arrest...”. And it goes on: “...as soon as is practicable, and in no case later than the first reasonable opportunity after the appearance of the young person before a youth justice...”.

Have there been any concerns raised in your examination of the bill about either of those sections, the “reasonable distance” from a youth facility and what that might mean? If there haven't, that's—

Ms. Isabel Schurman: I think you're right on that. My colleague here was saying she thinks this codifies what happens, to some extent.

What I was going to say is, in regard to the consideration of no place of detention for young persons being available within a reasonable distance, there is a principle that I think is quite acknowledged across Canada that if people are going to be detained, if we have belief in rehabilitation, be it for adults or children, it's wise to try to keep them close to the people to whom they are closest, to families, to friends who can help, to support systems. Pulling someone out of a community and sending them halfway across the country will do zero towards making them feel that they have support in their rehabilitation.

Obviously there's a balance to be struck. We have a very large country with some very remote areas. But if the choice is to take a young person very far away from all support systems or put a young person in a small country prison atmosphere and perhaps not one of these maximum security institutions, I think there are times when it might be in the young person's best interest not to be pulled out of their community. That's all I can think of on that, and I know there's nothing in our submission about that particular subclause.

In terms of subclause 30(7), once again, there's nothing in our submission to do with that. I think the use of the term “as soon as is practicable” is something that has been used in the Criminal Code, as well as in other circumstances. So I would imagine the reason we didn't spend any great attention on this section is that it represents a terminology that's well known and used and a standard that has turned out to be acceptable in these types of circumstances. But we do not have a specific section in our submission on that subclause.

The Chair: Thank you very much.

Madame Brosseau.

[Translation]

Ms. Carole Brosseau: In answer to your question, I would tend to agree with what my colleague said. For us in Quebec, the situation is the same. In remote areas, there are special facilities for young people and they are preferably not held in centres or places where there are adults. That could happen occasionally, but in that case they are kept apart from the adults. In any case, that provision does not go against international conventions either. On the contrary.

The Chair: Thank you. Thank you very much.

Mr. Saada.

Mr. Jacques Saada: I am going to ask a general question, which each of the previous witnesses already answered in part. I would like to go into a little more depth on this much-talked-about harmonization provision. Several witnesses heard earlier, in some cases at previous meetings and in other cases here today, have referred to the fact that harmonization of sentencing would automatically lead to harsher sanctions in Quebec, where there is a general tendency to use custody much less, as the statistics clearly show.

First of all, is that your view?

Second, if there was a re-balancing of the bill's objectives, in order to increase the emphasis on needs and rehabilitation, and if the preamble could be translated more concretely in the text of the bill, would that change anything in that osmosis process that seems to go in one direction and not in the other? In other words, would it change in any way the fact that the hard line will take precedence as a basis for harmonization?

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Third, in that context, the judges who appeared before us—they were not all from Quebec; if I remember rightly, they were from Yukon, Alberta, Quebec and Ontario—were starting from the principle that they were a bit concerned about being forced to harmonize sentencing. What is your general comment on that, and why is there so much concern that harmonization will go in one direction only?

Mr. Normand Marquis: I would tend to say that what worries us at the Quebec Bar Association is that court rulings made after this bill will be harsher, partly because the whole emphasis and all the provisions and principles in the bill lead us to believe and, I think, indicate clearly to the judges that the intention is to punish the offence.

People always say that legislators do not speak for no reason. So when the legislator completely excludes a principle that was in the Young Offenders Act, the need to balance young offenders' needs and the protection of society, and replaces that with the new principle of protecting society exclusively, and when the bill contains only a brief mention in the preamble about this idea of balance and the needs of young offenders, we cannot but conclude that the legislator's message is that sentences should be harsher.

You are asking us—and I would like to say that I was here when you asked your question to the previous witness—whether it would be enough to integrate the preamble. In my opinion, if we simply put it into the text, into the body of the bill, it would be completely inadequate.

I feel that the guiding principles in clauses 3, 4, 37 and 82 the guiding principles of the various parts of the bill, must be rewritten to restore the principle that there must be a balance between protecting society and meeting the needs of young offenders, as is laid out by international principles as well.

Mr. Jacques Saada: Does that fully answer your question?

Ms. Isabel Schurman: One of our concerns in the area of sentencing relates to the scenario for release under mandatory supervision: the two-thirds, one-third rule. We find it somewhat troubling that the legislator felt it necessary to draft a clause that states that, once the bill has been passed, a judge must not increase the sentence to be handed down in the case of a young offender, since after two-thirds of the sentence, the young person will be under mandatory supervision, etc.. That worries us a bit because we already foresee the possibility that, under this two- thirds, one-third system for supervision, sentences will be increased across the board to enable judges to compensate for the fact that the young offenders will spend a little less time in custody. That worries us a bit. If that is the outcome, we find it troubling.

Mr. Normand Marquis: I would like to add something on that, since you have raised the issue of harmonization. Given the way the bill is written at present, you could have two offenders—I will give you a very brief example—about the same age with a similar background, but one of them, for various reasons, might be sentenced in an adult court, and the other in youth court. Both might be held in the same facility, both people in this example might be sentenced to three years—the math is easy here—but the young offender would have to serve at least two-third, while the young person with the adult sentence might be eligible for parole after one-third. So the impact on the young people would be different, even though the context and the type of intervention were the same.

Mr. Jacques Saada: So you would favour harmonization in that case?

Mr. Normand Marquis: It depends on what you mean by harmonization.

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Mr. Jacques Saada: Fine. That is exactly the question I'm raising. You are calling for one thing and its opposite at the same time. In the case you have just given, there is a sort of basic injustice, where two young people in fairly similar situations end up being treated so differently. I am not talking about sanctions, but about treatment. It is unfair. I would take it for granted that you would like the system to be made fairer.

Mr. Normand Marquis: Yes.

Mr. Jacques Saada: So, we should harmonize.

Mr. Normand Marquis: Yes. In a way, I think it would be possible to rewrite certain parts of the bill, as it relates to that specific issue, in order to make it more effective and certainly fairer for young people. That is the position of the Quebec Bar Association.

Mr. Jacques Saada: Thank you very much.

The Chair: Thank you, Mr. Saada and Mr. Marquis.

Mr. MacKay, Pictou—Antigonish—Guysborough.

[English]

Mr. Peter MacKay: Mr. Scott, Fredericton, thank you.

I would just like to ask two quick questions. One deals with clause 9 of the new proposed legislation. From my reading, it would exclude the introduction of the evidence of this new Matt Dillon type of approach to justice, where the police officer can march a kid home, sit down in the living room, and discuss it with the parents—these extrajudicial types of warnings. There's difficulty in the tracking of them, but there's difficulty, I would suggest, in the introduction of them. You can't even introduce them at a bail hearing. If a kid has been given this kinder, gentler approach twelve times, you can't introduce that, even at a bail hearing, where it might even be in the kid's best interest to be taken into custody.

I would like to, as the second part of my question, revisit once again your recommendation 5. I do see a bit of a contradiction in suggesting on the one hand that judges should be given greater discretion in some instances—greater discretion, for example, in the determination of what's a presumptive offence or when a youth should be transferred—but at the same time eliminating the discretion they have with respect to the introduction of statements, which in my opinion is perhaps the most crucial bit of evidence that can be introduced at a trial. My reading of what is intended by subclause 145(5) is to avoid a technical breach resulting in the whole centrepiece of the crown's case being excluded.

A statement was made here that if the police don't do it right, it might still be introduced. That isn't the case at all. If the police haven't done it right, the chances are the judge is still going to throw it out. It's still going to be determined inadmissible evidence. However, this constitutional wording that was taken right out of the charter and superimposed in this bill won't bring the administration of justice into disrepute. That is about the broadest characterization a judge is given in terms of determining the admissibility of that evidence.

So the vetting is still going to occur, particularly in a voir dire, I would suggest, and if it's found to be the fruit of the poisoned tree, it's not going in. But it gives the judge the ability to look at it objectively and ask: Did the police act in good faith? Did they make every effort to advise the kid of his rights and give him all the warnings?

We've heard from very experienced police officers. One gentleman last week told us a lot of police he works with don't even try to take statements from young offenders—they don't even try—which might in fact, as you know, wind up to be exculpatory evidence.

This clause should be left broad, and it should be left to the judge to determine whether it brings the administration of justice into disrepute. They do that on a voir dire routinely.

Ms. Leandre Rupert-Bailey: I'm sure everybody wants to speak, but let me see if I can just run it down.

First of all, in reference to your Matt Dillon kind of evidence, that's exactly what happened under the Juvenile Delinquents Act with the police. What this bill is proposing is really a throwback to what existed at that time in that respect. So it's not something new. It's something that worked really well at that time by keeping young people out of the system.

Mr. Peter MacKay: But my point was not that that's bad, but that the evidence from that approach, which I agree with.... Giving the police greater discretion not to charge I agree with, but you can't then use that evidence in a formal proceeding such as a bail hearing. That's my problem.

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Ms. Leandre Rupert-Bailey: That's right, because it's not a criminal conviction, and we're talking about a criminal justice act here.

Mr. Peter MacKay: But all kinds of evidence is introduced at bail hearings that isn't a result of a criminal conviction—all kinds.

Ms. Leandre Rupert-Bailey: That's true of hearsay evidence and—

Ms. Isabel Schurman: This kind of section exists presently with the social workers who will meet young people at the time of deciding alternative measures. You will undermine confidence in the entire functioning of that system if you say, “Well, you'll make a statement, but it may come back on you before the end of these proceedings, and you can't be guaranteed that there will be any kind of confidentiality.”

I don't know how many times, just from a purely personal perspective as a practising attorney, I have had families sitting with me with their young people asking, “What happens if we go tell the whole story to the social worker?” What happens is I haven't seen any of the children back again, because they've managed to get into a system with somebody who actually listens to the story, finds out the degree of responsibility, helps them, and moves them through with some kind of rehabilitation that makes sense.

So it's not so different from what's there right now, and it extends it to police officers, because police officers will have that ability to make the decisions about alternative measures.

I'm sorry to interrupt.

Ms. Leandre Rupert-Bailey: That's okay.

I think the crux of your question though is about subclauses 145(5) and 145(6), which we're suggesting ought to be eliminated, and strongly so. This is not a technical breach. If Parliament wanted statements to be introduced because of a mere technical breach, they would say that. But they haven't said that. What they have said is if these legal rights belonging to these children have not been enforced and have not been respected, even though they ought to be, we can still consider this statement, and the measure, the test, of that is whether there was good faith on the part of the police.

Mr. Peter MacKay: But that's discretion on the part of a judge.

Ms. Leandre Rupert-Bailey: The discretion the judge will exercise is in the inquiry about the admissibility of the statement, in which all the circumstances will come before the judge. That is within the judge's discretion. Once that judge has come to the conclusion that there has not been compliance with the law, there can be no other result than to exclude the statement. That ought not to be within the discretion of the judge.

Ms. Isabel Schurman: If you'll refer to page 11 of our submission, you'll see a rather interesting and we think quite appropriate quote from Justice Cory in 1990, in a case involving young people. The Supreme Court of Canada tried to say to us that we must be aware of the problems and difficulties that beset young people when confronted with authority. More specifically, in the middle of that paragraph Justice Cory writes:

It is unlikely that they will appreciate their legal rights in a general sense or the consequences of oral statements made to persons in authority.

And further on, Justice Cory says it's even likely that a young person will lie to please authority and make a statement that isn't true.

The Supreme Court of Canada in 1990, ten years ago, recognized that young people in this country might need a special kind of protection when faced with persons in authority and asked to make statements. So we put in the law a section of protections. It would be fair to assume that those protections are in fact what would be required to be respectful of section 10 of the Charter of Rights and Freedoms. And the charter is, I need not remind anyone here, the fundamental law of the land.

So what do we do then? We add two paragraphs that take the various things under the charter, which has consistently said conscriptive evidence admitted at a trial will always bring the administration of justice into disrepute.... We put two paragraphs into the law that say we are repealing all the jurisprudence under the charter since 1983.

Mr. Peter MacKay: My point is they take that exact language and say if it brings the administration of justice into disrepute, it's out.

Ms. Isabel Schurman: When in fact what they're saying is, here's the minimum protection for youth, here's the constitutionally required protection, and we're going to repeal that jurisprudence that allows you to refuse to admit it because it brings the administration of justice into disrepute.

Don't forget this jurisprudence has been 100%, crystal clear. If the evidence is conscriptive, taken from the person to be used against him or her, it will necessarily bring the administration of justice into disrepute.

So our trouble with that is these two paragraphs are undoing fifteen or more years of judicial wisdom in the interpretation of the fundamental law of the land. I don't think anybody would convince any of us at the Canadian Bar Association that such a breach could be considered technical.

Ms. Leandre Rupert-Bailey: What the judges are doing there is they're taking the inquiry into admissibility and making it a charter inquiry. That's not the purpose of this.

The Chair: Thank you very much, Mr. MacKay. Once again you've given new meaning to “two brief questions”.

Voices: Oh, oh!

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The Chair: Mr. Cadman or Mr. Mancini? No?

That being the case, I want to thank all of you for coming and not only enlightening us with your views on young offenders but also coming to a very eloquent defence of your profession.

[Translation]

Thank you very much.

[English]

A witness: Thank you very much.

The Chair: The meeting is adjourned.