JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 29, 2000

• 1536

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call this meeting of the Standing Committee on Justice and Human Rights to order.

Today we have the pleasure of hearing from the Minister of Justice, with regard to Bill C-3, an act in respect of criminal justice for young persons and to amend and repeal other acts.

As the committee knows, and as the minister is aware, we have heard many witnesses in the course of the last little while on this particular piece of legislation, which is very important certainly to the people of Canada and to the government.

So without further ado, Madam Minister, I would call on you to perhaps give us your thoughts, as we've been through this process, and your feelings on it at this time.

[Translation]

Hon. Anne McLellan (Minister of Justice and Attorney General of Canada, Lib.): Mr. Chairman and members of the committee, I would like to thank you for giving me the opportunity to speak of Bill C-3, an Act in respect of criminal justice for young persons.

I followed your work with interest, as well as the presentations made by the many groups for whom the youth criminal justice system is important.

[English]

As you have noted, Mr. Chairman, you have heard from many caring and thoughtful witnesses who have opposing ideas about youth justice. As I have learned in my discussions with provincial and territorial colleagues, among others, a consensus on youth justice legislation in this country is difficult to achieve. But I believe that a balanced, fair, and thoughtful approach will be supported by the vast majority of Canadians and will lead to significant improvements for young people, victims, communities, and society in general.

Canadians want a youth justice system that protects society and instils values such as accountability, responsibility, and respect. They want governments to help prevent youth crime in the first place and make sure there are meaningful consequences when it occurs. Bill C-3, the new youth criminal justice act, is designed to achieve these goals.

Policy and legislative development is a continually evolving process and improvements can always be made. Some of your witnesses made strong cases for adjustments to Bill C-3 that are consistent with the policy direction of the bill. I will specifically address some of these suggestions during my remarks.

Some witnesses, however, have argued that the Young Offenders Act is an adequate legislative framework for youth justice in Canada and should not be changed. I respectfully disagree. There are fundamental weaknesses with the existing legislative framework, and Bill C-3 seeks to correct them. These needed corrections can be achieved only through significant legislative change.

I want to focus my remarks this afternoon on the improvements brought forward in the new youth criminal justice act.

First of all, one of the major improvements in this legislation is the clear distinction we make in the way we deal with the small number of youth who commit the most serious violent crimes and the vast majority who commit less serious crimes.

• 1540

Canada's failure to target the most serious consequences to the most serious crimes has resulted in one of the highest youth incarceration rates in the world. Bill C-3 provides an improved statutory framework designed to provide more effective measures for dealing with both serious violent offences and the vast majority of offences that are less serious.

We are giving the police more tools for dealing with youth in their communities in order to try to turn youth around before they go on to commit more serious crimes. Greater police and crown discretion early in the process will lead to meaningful, effective, and faster resolutions of the majority of less serious cases. The formal court process and custody will be used to deal with the more serious crimes.

The overall effect of this targeted youth justice system should be that fewer young people will be put through the formal justice system and receive custodial sentences for less serious offences, while serious cases will be dealt with more quickly and effectively.

[Translation]

The bill which is before you seeks more constructive and permanent solutions which will have a long term positive effect on youth crime. The objective of the solutions is to reinforce important social values, including respect and responsibility, as well as taking into account the individual needs of young people.

[English]

The proposed youth criminal justice act sets out the purpose of the youth justice system through its principles. The new principles reinforce that the criminal justice system for youth is different from the one for adults. Bill C-3 emphasizes preventing crime, ensuring meaningful consequences for offending behaviour, and rehabilitating and reintegrating the young person as the most effective ways to contribute to the protection of society.

A number of witnesses put forward suggestions that seek to clarify further the principles in the bill, and these suggestions are being considered seriously. For example, I would support including in the principles a reference to the importance of timeliness in dealing with youth who break the law. I would also support the inclusion of a provision specifically requiring judges to take into account a young person's individual needs and level of development.

A number of witnesses also expressed concerns about youth ending up in the criminal justice system when their problems and needs could be more effectively dealt with through the child welfare system. Some suggest that the bill should include a provision recognizing that a judge can make a referral of a young person to child welfare authorities for an assessment. While there is nothing preventing a judge from doing this now, I think this suggestion merits careful consideration.

Currently, the Young Offenders Act provides that a youth can be transferred to an adult court and thus lose age-appropriate due process protections, including privacy protections, before being convicted of an offence. That's under the existing law. As you have heard, transfer proceedings can last as long as two years, which obviously impedes access to a speedy trial and benefits neither the young person, the victim, nor the community.

Also, under the existing YOA, those who are transferred to adult court can be required to serve their sentences in adult provincial or federal correctional facilities at the discretion of the judge. Bill C-3 addresses these shortcomings by providing that all proceedings against a youth take place in the youth court, where age-appropriate due process protections apply. The hearing on the appropriateness of an adult sentence will occur only after a finding of guilt has been made. Furthermore, the decision will be made by the trial judge, who will have had the benefit of hearing all of the evidence in the case before making a decision.

This procedure will be speedier, will retain age-appropriate due process protections, and will be more respectful of the presumption of innocence.

• 1545

Bill C-3 also includes a presumption that if under 18, a youth will serve an adult sentence in a youth facility. I think this is very important. This presumption does not exist in the existing young offenders legislation. We believe this presumption is more consistent with the United Nations Convention on the Rights of the Child, which is expressly referred to in the preamble of the new legislation.

Concerns have been raised about two other related issues. Some feel it would be counterproductive to allow publication of the names of those who receive youth sentences for the five categories of presumptive offences. It is important to note that when a young person receives a youth sentence for a presumptive offence, the young person or the crown can apply for a publication ban. In deciding whether to order a publication ban in these cases, a judge must take into account the importance of rehabilitation and the public interest. I am confident that judges will be able to assess the individual circumstances of each case and ensure that publication bans will only apply in appropriate cases.

A number of witnesses have raised concerns about the admissibility of statements made by youth. The legitimate concern of the police and others that the exclusion of youth statements for technical reasons brings the administration of justice into question does need to be addressed. Bill C-3 permits a judge to allow the introduction of a statement that has not been taken in accordance with the requirements set out in the bill if the admission of the statement would not bring the administration of justice into disrepute.

I know you have heard from a number of people in relation to this proposed section, and in order to clarify our intent in drafting this provision, I would support an amendment specifying that the principle I've just outlined applies only to technical breaches, which I think is something you heard from a number of different witnesses and it is something that was in fact the intent of the section as we drafted it. Therefore, I think the clarification will reassure many and further clarify our intent in relation to the issue surrounding statements.

The sentencing principles in Bill C-3 provide a comprehensive set of guidelines for youth sentences, and reflect a fundamentally fairer approach to sentencing. Unlike the Young Offenders Act, the new legislation states that the purpose of sentencing is to hold a young person accountable for the offence by imposing consequences that are meaningful to the young person and by promoting the rehabilitation and reintegration of that young person.

In determining a youth sentence, the judge must apply a number of important principles. For example, Bill C-3 provides that the punishment imposed on a young person must not be greater than what would be appropriate for an adult in similar circumstances. The sentence must also be proportionate to the seriousness of the offence and to the degree of responsibility of the young person for that offence.

Basic fairness suggests that a relatively minor offence should result in relatively minor consequences, and a more serious offence should result in more serious consequences. The sentence must also be the one that is most likely to rehabilitate the young person, reintegrate him or her into society, and promote in the young person a sense of responsibility and an acknowledgement of the harm done to victims and the community.

While youth may know that their behaviour is wrong, they may not fully understand the nature and consequences of their acts for themselves and others. Further, some young people lack the structure, guidance, and support needed in their communities to change behaviour patterns and overcome damaging influences.

Many of the new provisions in the proposed youth justice act allow for individualized interventions that help youth understand the consequences of their actions. Police, prosecutors, and judges are given statutory authority to warn and caution young people that their behaviour is not acceptable and that more serious consequences may follow if they repeat the behaviour. Conferencing is encouraged at many stages of the process, which could allow the young person to be a participant in a process with victims, family members, and others to learn about the consequences of his or her behaviour and to develop ways to make amends.

• 1550

The range of sentencing options has been expanded under Bill C-3. In addition to sentences that allow the young person to attempt to repair some of the harm caused, through restitution, compensation, and community service orders, there are also new sentences that provide for close supervision and support in the community. These sentences include orders to attend a designated program and intensive community support and supervision orders. Changing behaviour in the community is key to addressing youth crime.

Bill C-3 also provides a new custodial sentence for the most violent and troubled youth, stressing intensive rehabilitation and support. It is a serious commitment to the protection of society, aimed at making every effort to stop the reoccurrence of the most violent youth conduct. The presumption in favour of an adult sentence for the offences of murder, attempted murder, manslaughter, and aggravated sexual assault has been expanded to include repeat serious violent offences. Under the new legislation, these presumptions will apply to those between the ages of 14 and 17.

I am aware that the provision to lower the age for the presumption in favour of adult penalties has been criticized by some witnesses. Let us, first of all, be clear that under both the existing YOA and Bill C-3, youth 14 and older who commit serious offences can receive an adult sentence. The presumption reverses the onus of proof for the most serious offences—only for the most serious offences—such as the taking of a life of another individual or an attempt to do so. However, the young person has the opportunity to convince the judge that a youth sentence would be sufficient to hold him or her accountable.

Nevertheless, Bill C-3 does give provinces the flexibility to waive the application of the presumption if they so choose. The legislation specifically provides that if the crown prosecutor gives notice to the court that an adult sentence will not be sought on a presumptive offence, the judge must impose a youth sentence and order a publication ban if the young person is found guilty. In addition, nothing in Bill C-3 prevents a provincial government from issuing guidelines to its prosecutors regarding the application of the presumptions I have just described.

Witnesses have also expressed concerns about the fifth category of presumptive offences, namely repeat serious violent offences. In particular, witnesses have expressed the view that the definition of “serious violent offence” is vague and uncertain. To provide greater certainty, I would support replacing the phrase that you find in that definition—if you have the section in front of you. I believe it was Judge Heino Lilles who suggested this change, and it's one that we feel quite comfortable with.

If you look at that definition of “serious violent offence”, we will replace the phrase that begins “or creates a substantial risk of causing serious bodily harm” with a reference to “attempts to cause serious bodily harm”. That will in fact, based on the advice of Judge Lilles, clarify some of the potential confusion in relation to that definition.

There are some other amendments we're going to make in terms of removal of certain definitions, but we can get into that later if you want.

A major flaw of the Young Offenders Act is that it does not include sufficient provisions for safe, supervised reintegration into the community. Bill C-3 aims to better support the young person's reintegration into the community, which protects the public by guarding against further crime. The bill provides that periods of incarceration will be followed by periods of supervision in the community.

• 1555

To ensure truth in sentencing, if you like, and clarity for the young person at the time of imposing the sentence, the judge will state in open court the portion of time that is to be served in custody and the portion to be served in the community. Breaching conditions of community supervision could result in the youth being returned to custody.

The reintegration provisions in Bill C-3 encourage continuity between the custody and community portions of the sentence. While a youth is in custody, youth corrections officials must work with the young person in developing a plan that would address all aspects of the young person's reintegration into the community. The plan would involve working with families, schools, appropriate agencies, and others to ensure that the young person's return to the community is successful.

Let me underscore—and I believe you've heard from many witnesses who strongly support this aspect—the reintegration component of the legislation. It's absolutely key if we are going to prevent recidivism, which has to be our goal with young people. If a young person has committed a crime, even a serious crime, maybe a particularly serious crime, what we want to do is work with that person while in custody, but also work with that person in the community to ensure they are able to turn their lives around, they are able to reintegrate into the local community, and they are not tempted to pursue further criminal activity. I think perhaps to some extent one of the failings of the existing law has been that we haven't focused enough on the importance of helping the young person make the transition from custody to reintegration into the community.

Some witnesses have expressed concerns about requiring that the period of supervision in the community be half as long as the period of custody in all cases. Where a young person rebuts the presumption for an adult sentence on a presumptive offence, a judge will impose a youth sentence. So in a situation where the youth rebuts a presumption for the adult sentence, obviously the judge under this legislation must impose a youth sentence. In these cases, I would support giving judges the discretion to determine the relative periods in custody and in the community without requiring that the period in the community be equal to half the period in custody. This will allow more flexibility in dealing with those who receive youth sentences for the most serious violent crimes.

The youth justice system under the Young Offenders Act has been criticized for not appropriately involving victims, parents, families, communities, and representatives from other disciplines. Youth crime is a complex phenomenon. Involving others can improve understanding and provide support for victims, youth, families, and communities in responding constructively and meaningfully to the offending behaviour.

As I noted earlier, Bill C-3 specifically encourages conferences at many states of the proceedings. Some conferences may involve bringing together professionals such as child care workers, school psychologists, or others who are already involved with the youth to seek advice and ensure continuity of services. Others may be in the nature of sentencing circles or family group conferences involving victims, offenders, and their families.

While conferencing has been strongly endorsed, provinces are concerned about the lack of definition in the bill. I would support amendments clarifying who may hold a conference and giving provinces and territories scope to regulate non-judicial conferences.

Bill C-3 also expands the possible mandates of youth justice committees. These are committees of citizens who can assist in any aspect of the administration of the act or in any programs or services for young people. They can encourage community members and agencies to take an active role in supporting constructive resolutions for the victims, families, youth, and others affected by youth crime.

I know that one of the subjects you have heard a fair bit about is the whole question of resources. The proposed youth justice act does correct fundamental weaknesses in the existing Young Offenders Act. It will result, I believe, in a more effective youth justice system. But legislation is just one component of a broader initiative to renew our youth justice system. This system is about more than this piece of legislation.

• 1600

I know many witnesses have raised concerns about the availability of programs and the resources to support them. Let me assure you that the money will be available. In addition to our annual contribution of more than $150 million to federal-provincial-territorial cost-shared youth justice programs, we are contributing an additional $125 million in bridge funding over the next five years to support the objectives of the youth justice strategy and high-priority programs. Negotiations with the jurisdictions are underway to determine the most appropriate types of long-term financial arrangements.

Resources additional to those that I've identified in the new $125 million are also available for the provinces and territories for training, contingency costs, and information system changes. Funding for pilot projects to test out innovative elements of the new bill are also being provided. Enhanced research is underway, not only at our level but with the provinces and with others who work with young people. Moreover, we will be working hard to provide information, public legal education, and training material to support the renewal of the youth justice system.

The new Youth Criminal Justice Act is built upon the values that Canadians wish to see reflected in their youth justice system. Canadians want a system that prevents crime by addressing the circumstances underlying a young person's offending behaviour. They also want a system that seeks to rehabilitate young persons who commit offences and reintegrate them into society. The system must also ensure that a young person is subject to meaningful consequences for his or her offence. Canadians know that this is the most effective way to achieve the long-term protection of society.

Our new approach also responds to Canadians' concerns that the youth justice system has to do a better job of instilling values such as accountability, taking responsibility for what you do, and developing a respect for others. The system must also be more responsive to victims' needs and must encourage young people to acknowledge the harm done and to provide restitution where it is appropriate.

[Translation]

What are the fundamental principles which support the youth justice renewal strategy for young offenders in Canada? I am convinced that the new bill and related programs will meet the needs and respond to the concerns of all Canadians.

[English]

I do believe Bill C-3 will provide Canadians with the kind of youth justice system in which they can have confidence. I look forward to working with you and other partners on the renewal of youth justice in Canada, and I do again want to thank all members of the committee, because I know you have heard many witnesses and have taken what they have said very seriously.

This is a complex piece of legislation, and I don't apologize for that. I think it's important to ensure that the legislation is as plain as possible and that achieving clarity achieves effectiveness. Having said that, I think you've heard form the witnesses that youth justice issues are complex issues. I think one of the reasons the Young Offenders Act did not live up to the expectations of Canadians and perhaps those of some others more directly involved in the youth justice system was that we didn't acknowledge the complexity of youth justice. We didn't acknowledge the complexity of understanding why young people commit crime and the complexity of developing strategies to ensure that they are able to be rehabilitated and that they are able to reintegrate successfully back into their community.

I know you've heard from the Barreau and others that education is an important part of the success of any new youth justice system. I think that's right. Education is obviously needed for those most directly involved in the system, but I think education is also needed for all Canadians so we can all play a part in understanding the complexity of youth justice and play a more constructive and more informed role in helping young people who break the law, young people who in some cases do very serious things, achieve rehabilitation and reintegration into the community, take responsibility for the harm they have caused, and move on—themselves, their victims, and the community in which they're found.

• 1605

I thank you for listening so patiently, not only to me today but to so many other witnesses who care very deeply about the future of youth justice in this country. The one thing I can assure you of is that when you talk of justice issues there is no issue in the justice arena that evokes stronger and more passionate feelings than a discussion about youth justice.

All that is simply to say that the task we are participating in here is a profoundly important one, and the confidence of Canadians in our justice system depends on getting this right.

Thank you.

The Chair: Thank you very much, Madam Minister. I think the indications you've given in terms of amendments you are proposing and areas you are prepared to consider suggest that the work of the committee was in fact real and that the people who invested their time to appear before us will feel some satisfaction in knowing what they had to say was heard. In some cases it was accepted, in other cases not, but at least the system has worked the way most members of Parliament would like it to, to a lesser or greater extent I'm sure as we turn to colleagues to speak to this.

I do think also, and I hope it's not lost to your colleagues who appear before other committees, that the opportunity to appear at the end of the process rather than at the beginning of the process does allow for the kind of “wiggle room”—which is the expression I've heard and which I'm not sure I like. I think we all understand that it does allow for the kind of opportunity that I believe the process demands, and for that we're all grateful.

To hear of this gratitude, I'm sure, I will turn to Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair, and thank you, Madam Minister, for appearing today.

It's our understanding that you certainly have a number of amendments to propose to this bill. I'm wondering if you could give us some indication of how many. Are they are basically technical amendments? I ask that because it would be suggested by some that the committees are just a rubber stamp for the government, and I would hope that's not the case.

Would the minister be prepared to entertain substantive amendments rather than just amendments of a technical nature?

Ms. Anne McLellan: First of all, let me say, Mr. Cadman, that if there is one committee that cannot be described as a rubber stamp, I think it's this one, and I mean that with all sincerity. This committee does some of the most important work in government. Speaking from my department, but I'm sure I can also speak for the Solicitor General, I think both he and I and our officials take very seriously what goes on at this committee, and we listen very intently.

So, no, you are in no way, as far as I'm concerned, a rubber stamp, because the issues involved here are way too important. In fact, some of the amendments I have mentioned today are substantive in nature. Some of them might be described, I suppose, as more technical, but I think some of them are substantive. In fact, we have a lengthy list of amendments that I understand my parliamentary secretary will be proposing to this legislation at the time of clause-by-clause, and I'm sure they will be debated as well as amendments coming from others around the table.

I am open, as always, to listening. We have listened intently to the witnesses and we have picked up in our list of amendments many of the suggestions for clarity, for reducing complexity, that groups like the Barreau and the Canadian Bar Association provided. We've picked up some of the suggestions from victims' groups such as Mr. Sullivan's. I think we have a series of amendments that respond in large part to what you have heard and what my officials and staff have heard in this room over the past number of months.

• 1610

But I'd be very interested, as I know my parliamentary secretary and others would be, to hear of other possible amendments that come forward during the clause-by-clause stage. We will treat those seriously, as we do all proposals for amendment.

Mr. Chuck Cadman: On the issue of complexity, we certainly heard from a number of witnesses concerns about the complexity of the proposed legislation. I've certainly spoken with defence counsel back home—with a number of them—and they basically see it as a retirement project in some cases. That's been the way they've referred to it with me.

I go back to one comment that was made by Justice Lilles in his response to a question dealing with the post-adjudication transfer. The question was, is this going to be able to reduce the length of the process? I believe that was one comment you made earlier when you first proposed the legislation, that it would shorten the process. He made a comment, and I quote:

I mentioned to you that I got to clause 103, and I discovered 13 new hearings that will take place. Nearly all of them will be triggered for the kid who's going the transfer route or could risk transfer. You have to hold a hearing to determine this and hold a hearing to determine that. Those are the things that slow it up.

This was the comment of the justice. We've heard similar concerns, that this is not going to shorten anything, it's just going to make things an awful lot longer and increase the amount of litigation. I'm wondering, again, if you would care to comment on those.

Ms. Anne McLellan: In fact, with all due respect to Judge Lilles, we believe we have worked with the provinces and with others—and you will see some of that work in the proposed amendments next week—to clarify some of the issues Judge Lilles and others identified as being of concern. We believe that many of those changes will streamline the process. I do think, however, that in my own respectful opinion, Judge Lilles' statement overestimates the degree of complexity that's found in this legislation, and he and I have agreed to disagree on that point.

Mr. Chuck Cadman: Thank you, Mr. Chairman

The Chair: Thank you very much.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Madam Minister, I am convinced that as you said a little earlier, that you have followed with interest what was said by everyone who appeared before the committee. I am also convinced that you read many of the briefs, if not all of them, which were presented by people who had something to say.

You surely realize that Quebec—I will not talk about the other provinces—objects to this bill. We have heard from the Coalition pour la justice des mineurs, which opposed your bill, from the Centrale de l'enseignement du Québec, from defence attorneys and Crown prosecutors, from the Association des chefs de police et de pompiers du Québec, from every youth centre in Quebec, from university professors, criminologists, psychologists, psychoeducators, and even from social science students from the université Laval who will have to implement this act once they have graduated and who have said that this bill should never be passed; we heard from the Pinel Institute, which was represented by Ms. Toutant who is well known in Liberal circles, from the Commission des services juridiques du Québec, and even from the Chief Justice of Quebec, Michel Jasmin, who said that we should not make the mistake of passing this bill. Justice Jasmin has a solid reputation in the area of youth criminal justice. We even heard from Quebec Liberals, not from bad separatists, but from Quebec Liberals, federalists, who told us to withdraw this bill. On November 30th, at the National Assembly, Mr. Ouimet, the opposition justice critic, said that he was pleased to present a joint motion with the minister to indicate that you had lost your way. He said that he was of the same mind as the minister and that he would join the coalition which had been created to fight the federal government's Bill C-3. He said that there was a huge consensus in Quebec: we have been telling you and repeating for over two years that you should not change the Young Offenders Act, because the problem does not lie with the act, but with the way it is applied.

• 1615

Madam Minister, I will ask you a question which you can easily answer with a yes or a no. I am asking you this question on behalf of all the people who work with the Young Offenders Act in Quebec and who have unanimously said that it works very well, and I also ask you the question on behalf of the young people who have turned their lives around and who have become anonymous citizens today because they were well served by the existing law, which is the Young Offenders Act. My question is very simple, Madam Minister. Do you intend to withdraw your bill, or, would you allow a province who would rather not implement it to continue to work with the Young Offenders Act?

Ms. Anne McLellan: Thank you, Mr. Bellehumeur.

[English]

I certainly am very well aware of your position and the position of some others in Quebec, and to some extent I would answer your question with another question. I would ask you to give us concrete examples of programs or policies, approaches to youth justice in the province of Quebec, that would not be capable of being continued, carried out, or indeed even enhanced under this proposed legislation. I think we have attempted to achieve a large degree of flexibility here, because we're very sensitive to the fact, as I said at the beginning and as you know from your hearings, that there are very strongly held and different views among the provinces in terms of how we move forward with reform of the youth justice system.

All provinces but Quebec call for major reform of the youth justice system, and in fact one of the things we have tried to do, and I think successfully, Mr. Bellehumeur—after you see all of our proposed amendments, if you can show me areas in this legislation where a program or an approach presently carried out in Quebec would not be allowed to be carried out in the future, I will seriously look at that. We have worked very hard to provide the requisite degree of flexibility that permits provinces to adopt different approaches and different programs or emphasis within programs to fit their local circumstances.

What I would say in conclusion, Mr. Bellehumeur, is that we believe we have achieved that degree of flexibility. Does that mean that at the end of the day everybody will agree, and the Province of Quebec, or British Columbia, or Alberta, or Ontario will agree with the approach we're taking in every aspect? No, but as a federal government we are presenting for Canadians, for their consideration and yours, a youth justice system based on the fundamental values of all Canadians, regardless of where they live. And, Mr. Bellehumeur, for what it's worth—

[Translation]

Mr. Michel Bellehumeur: It is a waste of time.

[English]

Ms. Anne McLellan: —we do polls with the people of Quebec, with those who live in the province of Quebec, and in fact there is very little objection to repeal of the Young Offenders Act in your province and providing new legislation to deal with young people, and indeed deal with young people in ways that have proven successful in your province.

[Translation]

Mr. Michel Bellehumeur: Madam Minister, I think you are more serious than that. You have just said that polls have revealed that no one has any major objections to Bill C-3.

[English]

Ms. Anne McLellan: No, I didn't say that.

[Translation]

Mr. Michel Bellehumeur: I am a lawyer and you are a lawyer. I have read this bill at least 25 times. This bill is a gold mine for lawyers who will try to interpret this extremely complicated piece of legislation. The Young Offenders Act contains 70 sections. You have presented a bill which has 167 sections. So don't tell me that you have simplified the law, Madam Minister. Don't tell me to my face that the legislation is flexible enough to allow a province not to apply it, because you know that is not true, Madam Minister.

• 1620

I have made a list of the more flexible sections of the bill. One, two, tree, four, five, six, seven: there are exactly seven of them, Madam Minister. Of the seven provisions, which give provinces a little more flexibility, six are already applied in Quebec because the current act already allows it. The new bill even contains sections which are derived from the Young Offenders Act. So don't tell me that you're going to destroy the piece of legislation which we have been working with for years and which has been absolutely fantastic for young people.

I have visited centres. I also visited the Montreal Court House with Judge Jasmin, who would also like you to visit so that you can see for yourself what is happening in Quebec in order to better understand what is going on there, because you don't understand, Madam Minister. What you have said, Madam Minister, proves that you do not know what is going on in Quebec. You are only pretending to listen, but you don't understand how things work in Quebec.

I also know that officials from your department and from the Privy Council met with and tried to convince members from the Quebec Coalition and many other people as well. I also know that Liberal members have contacted them. Congratulations! You were not able to convince them to propose any type of amendment to the bill, because that's just impossible. The bill is badly structured, you may laugh, Ms. Latimer. I don't find this funny at all since this bill will affect young people for years to come. This bill is badly drafted. It's like a miniature criminal code. You've created a single-justice system. No more will there be a system for youth and one for adults. The same language is used and there is talk of extrajudicial measures. There's a whole new vocabulary. Madam Minister, even if the bill is amended, it would not change the spirit of the bill.

This is what I will remember from your presentation, Madam Minister. The Young Offenders Act, and its many versions, since it has been amended over the years, has been applied in Quebec for 30 years. You're trying to make us believe that Judge Jasmin, who has dedicated his life to young people, does not know what he is talking about, and that the witnesses we have heard are all wrong and that you have a monopoly on truth, Madam Minister, when it comes to this bill. We've been told that, no matter what we say, the government bulldozer will pass this bill to please western Canada and your constituents in particular.

At no point does this bill acknowledge the interests of Quebec. Had you taken Quebec's interests at heart, you at least would have had the decency to visit the place yourself to see how things are done there. It's one thing to read the Young Offenders Act, but you have to see for yourself the work that is being done, beginning with how the police handle an offence, and you would have to look at the whole issue of youth and youth policy. Had you done so, Madam Minister, you would have realized that youth crime is extremely complex. However, it's not by saying that it's a complex problem or by drafting a bill...

[English]

The Chair: Monsieur Bellehumeur, Ms. McLellan has the floor.

Ms. Anne McLellan: Mr. Chair, I would be very interested in receiving Monsieur Bellehumeur's list of areas where he has identified lack of flexibility. I undertake to review those and have my officials review them. As I say, we have worked very hard to ensure a high degree of flexibility in this legislation. If in fact there are ways we can ensure greater flexibility within the basic principles and framework, then I'm happy to consider those.

The Chair: Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair. I want to thank the minister and her officials for being here as well.

• 1625

I want to try to add something positive to this tone, although I find myself in the unenviable position of agreeing with much of what my colleague has just said about the act itself.

We have heard from an extensive number of victims. In fact I would challenge any committee to put forward a piece of legislation that has had the level of scrutiny this act has undergone at this committee in the past number of months. We've heard from victims, offenders, advocacy groups, judges, police officers, and individuals working within the justice system from every region of the country. The overriding theme—and I don't want to be repetitive here—is that this particular legislation is so complex, so convoluted, with so many cross-references, that in the opinion of judges and lawyers it is going to be unworkable. Sadly, this seems to be the conclusion they've come to.

With that in mind, we're faced with the inevitability that this is a disaster in waiting. The youth criminal justice system, as we all know, is an animal of a different sort in our criminal justice system. It's a platypus. It's very unique in our justice system. This is a hybrid, genetically modified platypus. This goes beyond anybody's understanding of how we're going to be able to work with it. And I'm not making light of it.

Your commentary that you're searching for a balanced approach I agree with, and I commend the drafters of this. This is a monumental undertaking. However, my fear is there was an attempt to do something for everybody in this act, and in doing so the inevitable has happened: nobody is going to be pleased.

I want to focus on a couple of specific things about it, because I qualified my remarks by saying I wanted to contribute something positive. We've come across numerous drafting errors, for lack of a better word—things we'd like to see improved.

I'll start at the beginning. You spoke about the principles and the purpose set out in the definition and wanting to include timeliness. Would there be an acceptance of including such things as special consideration for aboriginal people and impact on victims, and an inclination to somehow include or envelop the concepts of deterrence and denunciation somewhere in the act? There is absolutely no mention of them anywhere, and we know the R. v. M. case has stated clearly there is room for deterrence and denunciation in youth criminal justice.

Ms. Anne McLellan: In terms of issues such as acknowledgement of the fact that we have an unacceptably high incarceration rate of aboriginal young people in our youth justice system, absolutely. One of the amendments you'll see being proposed is an acknowledgement of the fact that aboriginal youth are disproportionately represented in our youth courts and unfortunately in our youth detention facilities.

Catherine, I think, spoke about the specific reference in the principles to victims, and there will also be reference to the role of victims in the youth justice system in the preamble. The importance of victims in the youth justice system is already acknowledged in the principles, but we're adding it to the preamble.

You rightly identified that the courts imply the principle of deterrence in relation to youth justice. It's not in the act. I personally don't see any reason to include it specifically. I think the best way you deter young people from becoming involved in youth crime in the first place is to prevent it, to identify the root causes of youth crime in society and do a better job as a society and spend more resources as a society dealing with those root causes. This involves holistic approaches that don't necessarily lend themselves to jurisdictional wars between levels of government or even departments within governments, but speaks to a holistic, seamless approach in terms of identifying the root causes of crime.

Then, if in fact young people do commit crimes, in terms of deterring them from repeating criminal activity, we must ensure that we have a better youth justice system where in fact we have principles such as rehabilitation and reintegration; where young people are expected to take responsibility for the harm they've caused and, where it's appropriate, work with the victims, their family, and their community; and where in the long run we have a successful rehabilitation program that permits them to return to that community and get on with their lives. That's how you deter youth crime.

• 1630

Mr. Peter MacKay: Madam Minister, I appreciate that answer, but I still have a real difficulty when it comes back to the actual impact and the practical application of this legislation. For example, within this legislation there are over eighty provisions that refer to transfers. There's been reference to the convoluted and difficult nature, which defence lawyers are going to have a field day with. This is a make-work program for lawyers.

The preliminary inquiry system is being foisted now on the youth criminal justice system. It's been injected into this system, where it's never existed before. A system of preliminary inquiry is now being incorporated into the youth criminal justice act, Madam Minister.

There is a principle of parole and early release, statutory release, which we've just gone through the machinations of in the adult system. We're now going to be injecting that into the youth system.

You spoke of truth in sentencing. At least under the old act, if a judge says a kid is going to be incarcerated for six months, he's going to do every day of it. In this new system, there will be provisions that will lead to his early release, which is going to further undermine, I suggest, confidence in our court system.

With respect to funding—and this will be my final point; I know there are others who want to ask questions—you've acknowledged and we all acknowledge that there's a greater emphasis on determining violent versus non-violent offences and greater emphasis on early intervention, the principles of extrajudicial measures, alternative measures, restorative justice, and sentencing circles. For all of this, you have to acknowledge, there is going to be an incredible increase in cost for those in the system who are going to be tasked with administering this, particularly the police, who are going to be asked to use greater discretion, the Matt Dillon style of justice, to march a kid home and sit in his living room with the parents and talk about it.

You've told us there's increased funding, bridge funding spread over five years, the $150 million, yet you have to realize and acknowledge that the federal government is not living up to its current 50% funding criteria that it was originally intended to. This bill gives them more responsibility, and they're still not getting the money they need to do all of these increased tasks.

Ms. Anne McLellan: Mr. MacKay, on the fifty-fifty funding, you're right; we're not at fifty-fifty. I'm going to invoke a refrain you hear an awful lot in the House during Question Period. It was in 1989—

Mr. Peter MacKay: We're awfully tired of that.

Ms. Anne McLellan: Yes, well, you know what? I guess there are an awful lot of people out there who weren't very happy when you cut the funding.

Mr. Peter MacKay: You've been there seven years—seven years, Madam Minister.

Ms. Anne McLellan: Yes, and we had a challenge that we dealt with, and now that the deficit is gone, what we're doing is reinvesting in youth justice. We're reinvesting, over the next three years, $206 million new dollars in youth justice, and then that money will be continued beyond that point. In fact we are putting our money where our mouth is, and we want to work with the provinces, understanding the pressures they're under.

And don't anybody around this table for one minute think you have a cost-effective system of youth justice right now. We have the highest incarceration rate of young people in the western world. Incarceration costs more than any other kind of intervention with young people, and it doesn't seem to be all that effective at the end of the day.

Part of what we're trying to do here is reorient this system away from incarceration, which is the most costly form of intervention with young people, and save that for those who commit the most serious crimes and where custody would serve some purpose.

What we're trying to do is reorient those resources, so many of them spent on custody and in some cases warehousing, and put them into the front end of the system so that young people are dealt with in their communities, are dealt with early on by the police interacting with their family and their school or the psychologists or whoever it may be, and developing that seamless system of services. While that form of intervention may sound complex, in fact we know it works, and we know it's a heck of a lot cheaper than keeping people in custody.

• 1635

If we get this system right, Mr. MacKay, it is going to cost the Canadian taxpayer less in dollars, and we will actually, more importantly for most of us, I think, have a youth justice system that achieves the goals of prevention, accountability, rehabilitation, and reintegration. Right now, unfortunately, we have a system that in most cases does not deliver on those basic objectives or values.

So, Mr. MacKay, I think with our new system, and with the additional dollars, we can reorient this and we can have a better youth justice system.

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

Mr. McKay 2.

Mr. John McKay (Scarborough East, Lib.): No, 1.

I have been practising law for many more years than I care to remember. I've never gone to a Canadian Bar Association or a Law Society of Upper Canada continuing education series without the lecturer telling us, for the first 15 minutes, how complex this particular piece of legislation is, that it's going to make our lives terribly miserable, that's it's a gold mine for lawyers, etc. It's usually some law professor, by the way.

Ms. Anne McLellan: I've given up that career.

Mr. John McKay: We know.

They then go on to explain it, and, frankly, at the end of the lecture they say, well, it's not really all that complex for us on the ground.

I'm somewhat skeptical, shall we say, of those who claim that this is overwhelmingly complex and will add endless amounts of procedural manoeuvrings.

Having said that, one of the points of testimony that I still find to be quite problematic is with respect to the privacy issues and the disclosure. I'd be interested in knowing your thoughts on the balancing of the need to know with the other issues of protection of the young offender and to understand in your mind where there is some flexibility or whatever. As I look at this summary of testimony, there is kind of a universal sense in which the proposals being put forward in clauses 104 through 111 are receiving some high level of skepticism.

Ms. Anne McLellan: You raise a very important question, because what one has to do here is try to balance fundamental rights. Our entire justice system is premised upon the right of the individual to know, the right of open courts, which of course there are—no one should think for a minute that any of these proceedings are in camera. They could be, in exceptional circumstances, or I suppose some part of them could be in camera. The reality is they are open trials where people come and listen and observe and see justice being administered.

Now, obviously under the existing Young Offenders Act and in the new Young Offenders Act there are restrictions on what is allowed to be published by the media, for example. That is done because you have to balance that commitment to openness and right to know against the rights of the young person and the reality of the young person's life. We are dealing here with young people. We have a youth justice system because we believe that young people are qualitatively different from adults in relation to important aspects of their maturity, their ability to understand the consequences of what they do, the harm they may cause to others, etc.

We also believe, fundamentally, that young people have a better opportunity to turn their lives around and get on with their lives if we do a lot of the things that are outlined in this legislation. This legislation builds on but goes much further in terms of what is in the existing Young Offenders Act. You've got to balance our acceptance of the fact that one has a youth justice system because young people are different...and we must believe there is an ability for them to turn their lives around in a way that may not exist for all adults. To stigmatize them, especially for the commission of non-violent crimes, is probably not helpful, and I think that's what you heard from the vast majority of witnesses who appeared before you.

• 1640

Those most intimately involved with the young person of course do know, don't they? The victims know, the local community knows, the street on which the young person lives in most cases, especially in smaller and rural communities—it's not a case of people not knowing; it's a case of the media not being able to publish the name in certain circumstances, and we believe there are principled reasons for maintaining a publication ban in certain circumstances.

If you receive an adult sentence, your name will be published, no question about that, and that is part and parcel of a court making the determination that this person, assessing the individual young person before them, should in fact, after hearing the entire evidence—and this is different from under the old legislation, where you were transferred to adult court and all the trial judge had was that transfer hearing. In our legislation, in fact the trial judge will make a decision as to whether the young person should receive an adult sentence, after having the totality of the evidence before him or her and after having been able to assess the young person and those who have testified in the trial.

The decision will be a much more informed one in terms of whether an adult sentence is required to hold that young person accountable for that which they have done. If a judge so determines, then there will be publication of that young person's name.

Mr. John McKay: Having said that, are there amendments that you are bringing forward in clauses 104 to 111 that may ameliorate some of the concern we heard?

Ms. Anne McLellan: There are some areas. I think perhaps these were raised by Mr. Sullivan when he was here. There may be a couple of areas.

Rick, I'm going to let you talk about where we are going to propose amendments to provide greater flexibility. I'll be very interested in hearing from the committee in terms of their reaction to these. I'll let Rick do that.

Mr. Richard G. Mosley (Assistant Deputy Minister, Criminal Law Policy and Community Justice, Department of Justice): The witnesses have pointed out, Mr. Chairman, that the bill is too restrictive in some respects, in particular, for example, if a victim or young witness wishes to consent to having their identity publicized for very good reason, or their parents, as in the case of the young Wamback boy. That's an example where the public interest in the case overcame or overwhelmed the existing strictures in the Young Offenders Act. Clearly, it's not in the interests...to take action in that situation.

So there have been some suggestions made about relaxing those restrictions so that a youth who is involved in the case, as a victim or as a witness, would be able to, either directly or with the consent of their parents, agree to identification.

There's also a somewhat absurd situation that arises when there has been the death of a young person. It's been pointed out that on a literal reading of either the Young Offenders Act today or the provisions in the bill, the media would not be able to publish the name of that victim in those circumstances. Of course, the privacy interests, which the bill attempts to protect, no longer apply in those circumstances. So we would suggest that that be clarified by amendment.

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

Mr. Cadman, three minutes.

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

We heard from a number of provinces, and I think to varying degrees most of them were supportive of the direction of the legislation, but a number of them—in fact just about all of them—expressed some serious concerns and reservations. You said at the time of the introduction of the legislation that there had been extensive consultations. I'd like to know just how much consultation was done given the amount of opposition or concern that some of the provinces have expressed to us.

• 1645

Ms. Anne McLellan: I'll let Mr. Mosley respond since he and Catherine were involved with most of those consultations, but I think it is fair to say that it is hard to think of another piece of legislation in recent memory—and here I'm going back years, long before I was in government—that has received the degree of consultation that this legislation has. We consulted widely and over a significant period of time with the provinces, both in multi-party venues where they were all present, and bilaterally. Offers were made to work with provinces bilaterally. Some accepted, some didn't, but in fact most did, and we had very good exchanges in terms of where people had concerns.

But, Mr. Cadman, I'm going to be quite honest. At the end of the day, in certain key areas such as—I will use this as an example and I know you've heard some evidence on this—for example, the inclusion of under-twelves.... There were some provinces that wanted under-twelves included. Well, we simply indicated that we respected their view but didn't agree with it. Therefore, that is a fundamental issue on which we were not willing to accept the views of a couple of the provinces that represented that they wanted under-twelves included.

I think we have to be careful. A great deal of consultation went on—and Rick will explain that in more detail—but consultation does not mean you always get agreement, either on our side or their side, with everything they put on the table. I use under-twelves as an example. We simply did not believe that it's appropriate to bring under-twelves into the formal criminal justice system. There are better ways to deal with them.

So those provinces with whom we consulted who wanted us to move in that direction were obviously disappointed. They continue to be disappointed. But that's simply, I suppose, the way it is. We made a decision that we would not be going in that direction.

Rick, you may be able to say a bit more about the exact details of the consultations.

Mr. Richard Mosley: There have been discussions with the provinces ongoing for many years on the subject of youth justice, going back, of course, to the origins of the Young Offenders Act and the efforts to bring that into effect. More recently, there has been an ongoing body called the Coordinating Committee of Senior Officials (Youth Justice), which meets on a regular basis. There have been meetings at the level of the deputy minister. There have been meetings of federal, provincial, and territorial ministers on this subject. There has been a constant engagement with the provinces on this question of this legislation.

Prior to the report from the standing committee on the subject of reform of youth justice, there was a federal, provincial, and territorial task force on reforming the Young Offenders Act. Those discussions have never ended; they have been continuous and repetitive—repeated.

Some hon. members: Oh, oh!

Ms. Anne McLellan: They're repetitive too.

Mr. Richard Mosley: We do get into a debate as to the meaning of consultation. As the minister has pointed out, provinces will tell us that unless we respond by changing the proposals in accordance with the position they have advanced, that's not a consultation. But we beg to differ, of course, because we are in fact consulting both on the principles that went into the bill and on the expressed terms of the bill itself—and those have been very extensive.

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

Mr. DeVillers.

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

Thank you, Madam Minister.

You touched on this in answering Mr. MacKay's questions, I think, but a lot of the witnesses who came before the committee were either from victims' groups or were victims' advocates, etc. I wonder if you could provide us with just a brief summary of some of the measures we introduced in this legislation that affect victims and victims' groups and were not in the YOA.

Ms. Anne McLellan: That's a very good question, Paul, because what we have tried to do with this legislation is to put it through that victims' lens that you as a committee identified as important in an earlier report in relation to—

Mr. Paul DeVillers: A Voice, Not A Veto—

Ms. Anne McLellan: A Voice, Not A Veto. That was a very important report done by this justice committee, one that we took very seriously, and it was based on broadly based consultations with victims' organizations and others.

• 1650

So this youth justice legislation has been put through that victims' lens. Therefore I think you see some things that clearly don't exist in the Young Offenders Act. I think if you look at a number of the clauses of this legislation, you see specific acknowledgement of the fact that the victim has a role to play, whether it's enunciated in the preamble, whether it's in the principles of this legislation, or whether it's in terms of their involvement in the extrajudicial measures that are enhanced and clearly articulated as being important in this legislation.

I hope that what one sees is an acknowledgement of the fact that victims deserve respect and that they have a role to play in the youth justice system. In fact, they may have a very important role, which has been underestimated, in the long-term rehabilitation of young people and their return to their local communities.

Catherine, you may want to specify—even some of the clauses, if you want—for Mr. DeVillers. Do you want to just do that briefly?

Mr. Paul DeVillers: Yes, please.

Ms. Catherine Latimer (Senior Counsel, Director, Youth Justice, Department of Justice): Certainly. I think one of the key clauses is actually clause 19, which deals with conferencing and which strives to encourage those decision-makers in the system to bring in people who are related to the offence—including the victim and the victim's supporters as well as the offender and the offender's supporters—at various stages of the youth criminal justice process so that the victim can be an active player in understanding the event and in dealing with the offending behaviour in constructive ways. We very much tried to carve out a very constructive rule for victims in the process.

There are certainly other clauses that relate: clause 49, the victim impact statements, as well as the elections to the provinces around victim fine surcharges. Certainly the victims are referred to in the principles quite expressly in regard to the need for the justice system to have respect and be courteous and to take their interests into respect.

We hope we've covered it off. I think there's always more you can do for victims, but I think the way in which the system is implemented will be very important in ensuring that the victims have the appropriate role.

Mr. Paul DeVillers: It's involving the victims in the rehabilitation of the offender as well—

Ms. Anne McLellan: Yes.

Mr. Paul DeVillers: —and that's something that the committee heard when we were doing our study on victims' interests. That's something that I think is a very constructive opportunity.

Ms. Catherine Latimer: Certainly people who have been through processes like a family group conference indicate that it has a very beneficial effect, both on the offender, because he or she understands the offence in the context in which it's occurred, and on the victim, who has an opportunity to learn a little more about the offender and the context and to let go of some of the grief and explain what the consequences were to them. I think there are many things in the new legislation that are helpful to victims.

Ms. Anne McLellan: Maybe, Mr. Chair, I could just add that we have the victims' policy centre, for which we received new funding in the budget of last month. With the Canadian Police Association, I made the announcement of the new funding a couple of weeks ago.

One of the things the policy centre does is to review pieces of legislation like this and look at them through that victim's lens to see if we are respectful, if we are providing victims, at key points, an opportunity to participate in the system if they so choose. They took the opportunity to review this legislation and feel that it's in fact really the first piece of major legislation from the Government of Canada where the policy centre has had the opportunity to look at it from the perspective of the victim. We believe that is reflected in this legislation.

Mr. Paul DeVillers: Thank you.

The Chair: Thank you very much.

Mr. Bellehumeur, three minutes.

[Translation]

Mr. Michel Bellehumeur: Madam Minister, I'll try to be clear. The reason why things are working well in Quebec today is because of the way the province applies the Young Offenders Act. The Young Offenders Act is based on the needs of youth. Proof of this lies in sections 3 and 24 of the Young Offenders Act, which specifically mention the needs of young people.

However, the premise of Bill C-3 is the protection of the public. At no point does it mention the needs, whatever they may be, of young people. You said that you would table amendments. I can't wait to see them.

• 1655

As it now stands, the Young Offenders Act has a global approach. It takes into account the nature, the seriousness and the circumstances surrounding an offence. It also considers the degree of maturity, the development and the needs of a young offender to help him get on the right track. Sentences are tailored to the offender. His needs are taken into account in order to reintegrate him as soon as possible into society.

The federal approach of Bill C-3, Madam Minister, is based on the degree of seriousness of the offence: light offence, violent offence, presumptive offence. Sentencing is proportional to the seriousness of the offence and similar factors are taken into account.

However, Madam Minister, the problem is that the needs of the offender are never considered. When you ask judges to provide examples of things which cannot be done...

The bill also contains weaknesses which are not immediately apparent. But I foresee that judges will correctly apply the law. And if you change the spirit of the Act, if you go from the needs of youth to the protection of the public, and if judges must hand down sentences proportional to the seriousness of the crime, they won't be focussing on the young offender anymore, but on the offence itself which happens to have been committed by a young person.

Madam Minister, you have to admit that the judgments which will be handed down under this bill, once it is passed, will not mirror the Quebec approach anymore, and that it will sound the death knell of the Quebec model for dealing with young offenders.

[English]

Ms. Anne McLellan: Monsieur Bellehumeur, I hope you read or consider the amendments my parliamentary secretary will be proposing in relation to the issues you have raised. While I think it would be suggesting too much to say that you will be pleased or in wholehearted agreement with the amendments we are proposing, I think you will see that all the areas you have just identified are going to be dealt with in those amendments. I look forward to your comments after you've had the opportunity to review them. We have taken very seriously the concerns that you and others from the province of Quebec and elsewhere have made in relation to the very issues you've just outlined.

The Chair: Make it short.

[Translation]

Mr. Michel Bellehumeur: It is never short. Regarding the complexity of the bill... Again, Madam Minister, it seems you're having fun and I hope that it will be reflected in the bill which I will read once amended.

Mrs. Renée Joyal, a law professor at the Université du Québec à Montréal, stated that your bill would deny justice to young people because it was so convoluted. She is right. You are a legal expert and you have even taught law, so can you explain section 42 of the bill to me? I would like you to explain it to me, and not the officials who drafted it.

[English]

Ms. Anne McLellan: Mr. Bellehumeur, I'm not—

[Translation]

Mr. Michel Bellehumeur: I will read it first, Madam Minister, for those who are listening.

[English]

The Chair: You're well past your time now.

[Translation]

Mr. Michel Bellehumeur: That is because they don't have the section before them. It is as unintelligible in English as in French. Believe me, you would need a well-stocked law library to understand the section.

[English]

Ms. Anne McLellan: You know, Monsieur Bellehumeur, if your general point is that.... We have listened to the discussion surrounding the complexity of this legislation and—

[Translation]

Mr. Michel Bellehumeur: Your bill is so convoluted...

[English]

The Chair: She's answering.

Ms. Anne McLellan: No, no. Monsieur Bellehumeur—

[Translation]

Mr. Michel Bellehumeur: Your bill is so convoluted that you can't even find section 42.

[English]

Ms. Anne McLellan: Mr. Bellehumeur, look, this is complex legislation. If there are constructive suggestions to reduce the complexity while achieving our objectives, I will be happy to entertain them.

[Translation]

Mr. Michel Bellehumeur: The Young Offenders Act, period. It is already contained in the legislation.

[English]

The Chair: Thank you, Mr. Bellehumeur.

Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman. I understand your problem very well.

Most of the discussion up until now has been carried out on a very high theoretical and philosophical level, so of course I'll bring it back down to street level.

• 1700

The Young Offenders Act, in my province at least, is in complete disrepute, brought there by people in the media, and I suspect some in the justice system, who have never read the darn thing. In talking to people, that's what I find. They have no idea. They condemn it and say it has to be toughened. I ask them which part they want toughened and they can't tell me.

I suspect the same thing is going to happen to this bill unless we somehow get the message out to constituents using small words on one piece of paper, which is possibly within their attention span at any one time. We also have to get the justice officials in the provinces to use the thing. Sometimes I think they have absolutely no idea of what the provisions are in the bill.

Every time a prosecutor keeps someone out of adult court or reduces the charge, as in a case that's happened recently, where he's done both, who gets blamed? The Young Offenders Act. It was the prosecutor's decision but the act got blamed. Unless we do a better job than we did with the YOA, this whole thing is going to be a waste of time. Tell me what we're going to do.

Ms. Anne McLellan: I couldn't agree with you more. There were structural problems with the Young Offenders Act, and unfortunately—and no one intended it—all the incentives, including cost-sharing agreements, seemed to run toward putting kids in jail as opposed to doing other things with them. That has to be fixed, and that's part of what we're doing here.

You're right that what we need to do is educate people, first of all Canadians, about the nature of the youth justice system. The youth justice system isn't only this piece of legislation. It's crime prevention in all our communities. It is identifying the root causes of crime and dealing with those. It's doing a lot more in terms of helping young people get their lives turned around after they've committed a crime.

It's more than this piece of legislation, but unfortunately the Young Offenders Act became the flashpoint for everything that was wrong, not only with youth justice, but I think more generally. Dysfunctional families and other kinds of issues all got poured into the YOA and the Young Offenders Act became the whipping person for everything that was wrong with youth justice in our society and beyond youth justice.

Having said that, there were some significant things wrong with the YOA, and we're going to fix them. We're going to try to reorient the system and do better as a modern western democracy that is committed to civil society. Education is absolutely key. That's why we have resources, not only for the training and education of judges and prosecutors and social workers and psychologists and all of those who work with young people, but also for the general public.

To give you an idea of how difficult the challenge is, you all know that in this country people generally believe the crime rate is going up. The crime rate isn't going up. It's been going down for some period of time. I'm speaking of the general crime rate, not youth crime, in that context. There are some disturbing issues surrounding violent youth crime that we all need to address.

I think it's hard to get the message out to Canadians that the crime rate is going down. The police generally do an awfully good job of investigating crimes and keeping communities safe. Prosecutors and judges generally do a pretty good job of making the right call.

You made another really important point. Provinces want flexibility in the administration of the youth justice system. Fair enough. With that flexibility comes responsibility. Under the existing legislation, it is the provincial Attorney General and/or his or her prosecutor who decides whether to seek transfer.

Mr. Ivan Grose: I know that and you know that, but my people don't know that.

Ms. Anne McLellan: That's right. I know that. You know what? If a prosecutor doesn't choose to seek transfer, then someone should be asking that prosecutor and the provincial Attorney General why they didn't seek transfer. If the answer comes back that they didn't have the evidence, that tells you a whole lot about a whole bunch of things. Those are the kinds of decisions prosecutors and Attorneys General make. So with flexibility comes responsibility.

• 1705

In our criminal justice system we pass the substantive law. The provinces are left to enforce it and administer it, for a very good reason in our constitutional system, which is to reflect local and regional concerns. That's why it's the provincial Attorneys General and local prosecutors who in fact prosecute laws such as the youth justice statute.

As I say, I'm all for flexibility and giving provinces the ability to provide that local and regional input, which is so important and which provinces such as Quebec put to good use, but with that flexibility comes responsibility for the decisions you make.

Mr. Ivan Grose: Thank you, Mr. Chairman.

The Chair: Thank you very much.

Pete MacKay for three minutes.

Mr. Peter MacKay: I agree with much of what you've said. I think one of the biggest problems for this bill, if I can say so, is going to be marketing it. We've talked about those with experience in the system, and it goes from police right up to the judge. But what about parents and young people? One of the biggest problems with the YOA was the perception, rightly or wrongly, that legislation protected youth as opposed to holding them accountable. I'm fearful that this is going to be a powerful tool in the hands of a defence lawyer who is going to perpetrate that same impression.

I have some specific questions about the bill. Clause 9 deals with the evidence, from warnings, cautions, referrals, conferences, and that evidence, when gathered by police officers, is not admissible in any proceeding, not even a bail hearing. Police officers who partake in this process, which is a very useful process—they're doing it anyway, and this tries to formalize it—can't use the evidence. If we're talking about preventive measures, why wouldn't we want to chronicle this somehow? Further, why wouldn't we want to chronicle it in a cross-jurisdictional way? Obviously, young people, like everybody else, are very mobile, and they're going to be going into different areas.

The second question is with regard to the input of victims—I'm looking at clauses 41 and 71—at transfer hearings. Those clauses refer to the input of parents of the offender but not to parents or victims themselves having any input whatsoever in transfers or review hearings after the fact.

Another question is with regard to the definition of “serious violent offence”. Is your department amenable to adding to the existing paragraphs of presumptive offences, 267(a) and (b), assault with a weapon and assault, bodily harm, and section 272, sexual assault with a weapon? If those are not serious offences that should be included in that section, I don't know what the definition should be.

Lastly, you raised the issue of young people under the age of 12 who fall outside of those who are captured by the bill. I'm not an advocate of taking a 10-year-old and throwing them in Renous or Kingston Pen, but with the philosophy and all the good things that are in this bill, and there are many, about prevention, early intervention, and getting a young person who's headed down that road into the system early, why would your department not want to include a system of transfer similar to transfer from adult court? If you can take a 14-year-old in the worst possible circumstances and put them in an adult court system, why can't we take a 10-year-old in the worst possible circumstances—we're talking 1% of 1% and, unfortunately, it does happen—and have a system that triggers a transfer into the youth system, not to hammer them but to get them in the system at the earliest point, a transfer, where there's a lot of jurisdiction to have discretion exercised by everybody?

The Chair: Thank you, Mr. MacKay.

Ms. Anne McLellan: You have raised some very important questions. In relation to the last point, I'm going to let Cathy talk a little bit about under-twelves. But let me say that it is, I think, a very strongly held belief on the part of us in the government—I realize not by everyone else—that the formal criminal justice system, be it a youth justice system or the adult system, is not the place to deal with children under the age of 12.

• 1710

We acknowledge the fact that children under the age of 12, a very, very small number, can do very violent things. Experience tells us that in almost all those cases—and I can think of one right now in the province of Ontario—the child is deeply disturbed and can be held and can be dealt with more effectively under the province's mental health legislation than by bringing the young person into the formal criminal justice system. If a child comes from a horrific set of family circumstances that may have led to violent conduct of some sort, it is also possible to deal with that young person through the child welfare system and to look at the root causes of why that child has acted out in the way they have. It may be a combination of the mental health system and the child welfare system that provides the best answer and the ongoing supervision and treatment that child needs to deal with the problems that young person is having.

Mr. Peter MacKay: Minister, if I could just interrupt, I agree, those may be the places that the system would determine are best suited for the young person. What about the protection of society? They can walk right out the back door of that mental health clinic or child welfare clinic. It's not closed custody. There's not the same degree of protection for the public.

Ms. Anne McLellan: There are secure facilities that are in fact used, at least in relation to mental health issues, here in the province of Ontario and I believe elsewhere across the country. So do not think for a minute that if one has a deeply disturbed child who is in need of ongoing supervision and treatment, they can simply walk out the front door of one of these facilities and be back on the street.

Cathy, you may want to add something to what I've said about under-twelves, and then I'm going to have Rick talk a little bit about clause 9 and the fact that evidence of the offence is inadmissible for the purpose of proving prior offending behaviour.

Ms. Catherine Latimer: Thank you very much. We're taking the issue of the under-twelves very seriously, because we feel there may be some sort of lacuna. We do acknowledge that out-of-control children under the age of 12 can pose a risk to society, but it doesn't necessarily make them criminal in their intent or capacity. We think there are many more effective ways of actually dealing with that behaviour than by using the criminal justice system. So we are working concertedly on an under-twelve strategy with the directors of child welfare and the provinces, and we're involving the child mental health system, to see if we can't come up with better and more effective solutions, particularly in dealing with that high-end offender who does pose a risk. There needs to be something done there. But we're not in any way persuaded that the criminal system is appropriate for the under-twelves. So we'll keep you posted on our progress with the jurisdictions and see what we're able to develop.

Ms. Anne McLellan: Rick.

Mr. Richard Mosley: I think you have to read clause 9 very carefully, because the purpose is related to the warning, caution, or referral mentioned in sections 6, 7, or 8. In those circumstances there has been no determination of guilt. There have been no proceedings or trial. The key distinction is that it is simply an action taken by a police officer that the young person has not had the opportunity to contest. There have been no proceedings in which the evidence, which the officer may well have, is tested. So it's unfair in those circumstances to introduce in a later proceeding what the officer has done in the earlier situation that has not advanced to the point where there has been an opportunity actually to test the evidence. It's purely a question of basic fairness to the individual in those circumstances.

Of course, that doesn't prevent the police from keeping track of the fact that they've dealt with a young person. If you speak with any police department around the country, they do know their young offenders. They know the youth they're dealing with, and they do keep track of their contacts and interventions with them. This is not a revolving and endless succession of cautions and warnings the young person is entitled to. They may get a caution or a warning at the outset and then they will be dealt with. The fact that they've been given a caution or a warning previously will influence the exercise of discretion by the officer on a subsequent occasion. But it's unfair—

• 1715

Mr. Peter MacKay: How will you know?

Mr. Richard Mosley: Because they keep track of these things.

The Chair: Mr. MacKay, you are now in the ninth minute of a three-minute question. Mr. Mosley is going to finish and then we're going to Mr. Cadman, who has one short question.

Mr. Richard Mosley: They can't introduce the fact in any proceedings against the young person, but that doesn't stop them from keeping track of the fact that a caution or a warning has been given. If you're an officer in the Ottawa-Carleton police force and you have contact with a young person, you'll check with the youth division and they'll know whether a previous officer of that force has had contact with that young person. They'll be able to tell the officer on the scene “It's not a case for a warning or a caution in this situation. We've had contact with him before. It's time for other steps to be taken.”

They do this on a regular basis today when they exercise their discretion not to arrest and charge. If they weren't able to keep track of those situations, it would be an endless succession of situations in which they might choose not to arrest and charge.

The Chair: Thank you very much.

Apparently Mr. Cadman has a very short question and that will be it.

Mr. Chuck Cadman: They're always short. Thank you, Mr. Chair.

On the issue of victims and a victim fine surcharge, you told us before that you did not have an appetite to bring the mandatory victim fine surcharge into line with the recommendation from the committee on C-79 as it applies in the Criminal Code. Can we assume that you still don't have an appetite to bring it into line with that recommendation?

Ms. Anne McLellan: As you quite rightly point out, the decision was made here that the victim fine surcharge can be imposed, but it is not mandatory, as required now since amendments to the Criminal Code in relation to Criminal Code proceedings. You're right, it's not mandatory, but it can be imposed.

Mr. Chuck Cadman: But you still have no appetite to bring it into line with what the committee recommended in C-79.

Ms. Anne McLellan: Well, I think my short answer to that would have to be no. You have to keep in mind that you are dealing with young people, and the victim fine surcharge obviously, if it's going to be useful in any way—it's imposed, it has to be paid. That's why we made it an election on the part of the judge after he or she has had the opportunity to review all the circumstances of the case. In many cases, a victim fine surcharge would be completely hollow because the young person has no means whatsoever to in fact pay the victim fine surcharge.

The Chair: Thank you very much, Madam Minister.

[Translation]

Ms. Anne McLellan: Thank you.

Mr. Michel Bellehumeur: The vote is only at 6 p.m. We still have enough time to ask the Minister a few questions. I am sure she would be pleased to stay here.

[English]

Ms. Anne McLellan: Unfortunately, I'm already late for another appointment.

The Chair: Mr. Bellehumeur, I was advised that we had till 5:15 p.m.

Ms. Anne McLellan: Yes.

[Translation]

Mr. Michel Bellehumeur: Would it be possible for the minister to come back, especially since she has given me the challenge of providing her with very specific examples of things Quebec could not do anymore under this bill?

Perhaps the Minister can come back next week. I will be ready with the specific examples. I will surely have other questions for her, because this is the first time she has come before the committee since we started studying the legislation.

You understand that, given the importance of the subject, which everyone in Quebec clearly agrees on—they don't like the bill—it might be very interesting for her to come back. If she has nothing to hide and if she is willing to defend her point of view, could she come back before the Justice Committee for more questions, Mr. Chairman? She is fleeing now. It is twenty minutes past five and the vote is only at 6 p.m.

[English]

The Chair: If I may, I think the member is aware of the tradition in this place that we invite the minister to come. The minister comes, generally for a couple of hours. I've been around a while. I think everybody else has had their opportunity, and quite frankly I've been quite generous with time.

• 1720

[Translation]

Mr. Michel Bellehumeur: Mr. Chairman, I will even make it a formal motion. I don't know if Mr. MacKay wants to second it. The motion would invite the Minister of Justice to come back before the committee to explain Bill C-3 and to answer any questions we may have.

[English]

The Chair: I'm not aware that there's been notice of this motion, and there's no quorum.

[Translation]

Mr. Michel Bellehumeur: I understand. The Liberals do not want the Minister to explain her bill and there is no Liberal member from Quebec at the table. Am I to understand that you do not want to ask the Justice Minister any questions on such an important bill?

[English]

Ms. Anne McLellan: I have asked Monsieur Bellehumeur this afternoon to put in writing for me—

[Translation]

Mr. Michel Bellehumeur: Here.

[English]

Ms. Anne McLellan: —those issues or those sections where he has a problem, where he believes we are not providing sufficient flexibility to the provinces to be able to continue to work in relation to the programs and initiatives that they presently have in place. I will receive those. My officials and I will review those, and we will provide responses to the committee most willingly as you go through your clause-by-clause process.

The Chair: Thank you very much.

Mr. MacKay.

Mr. Peter MacKay: Mr. Chairman, I respect what the minister has just said, and I respect in her opening remarks the comment that this is probably the most important piece of legislation that we in this committee will be tasked with in this Parliament. With that in mind, we have one chance to get this right. I don't want to see this committee wrap up its deliberations by the end of next week just to expedite this. Obviously, the degree and the complexity of the questions—and this is not about Quebec, with all respect to my friend; this is about the entire country and our approach to youth criminal justice. It's not targeted at one province at all. Not a chance.

So whether it's through a motion or through discussions that we may have when the minister goes, because I understand she has a deadline—

The Chair: She has to leave.

Mr. Peter MacKay: —I would like to suggest that we continue this discussion as to the wrap-up of this committee and our deliberations.

The Chair: I'll ask the panel to leave, and we'll entertain a couple of moments of discussion.

Mr. MacKay and Monsieur Bellehumeur have both expressed themselves on this. It's my intention at this moment that we will have our next meeting of this committee next Tuesday morning, which is our traditional time, 9:30 a.m., that we will discuss future business at 9:30, and that we will begin clause-by-clause at 10:30 Tuesday morning.

Mr. MacKay.

Mr. Peter MacKay: Mr. Chair, with the greatest of respect, that flies in the face of everything we're talking about here. This is the most complicated piece of legislation. We're told we have to have our amendments in this week. We have to meet with the two legislative counsel who are to assist us in drafting amendments to this bill by this Friday. We have to have our amendments submitted. That is impossible, particularly based on the fact that we've just heard that the department itself has amendments that we're supposed to digest and respond to by next Tuesday and then start clause-by-clause. With the greatest of respect, that is asinine. We cannot do that, and we're not going to get it right if that's the timeframe we're working under.

[Translation]

Mr. Michel Bellehumeur: Exactly.

[English]

The Chair: Comments?

[Translation]

Mr. Michel Bellehumeur: I would like to say something.

The Chair: Mr. Bellehumeur.

Mr. Michel Bellehumeur: I know what the Minister is up to. If I was Justice Minister, I might do the same thing if I had something to hide. So she gives a long answer to a short question which she could easily answer by yes or no. In the meantime, time is running out. It's her right to do so, but it's also my right to ask her more questions if I have any. You are saying that the committee does not need to study the bill any further and that we don't need the Minister anymore.

However, the Minister herself said that there is a political aspect to all this and that the bill is extremely important, and that it will probably be the most important piece of legislation we will have to deal with. She has even told us that we should wait for the series of amendments she will present on the needs of children and on all that. But we only have 48 hours left. When will we get those amendments? We start again on Tuesday.

• 1725

Mr. Chairman, let's be serious. I do not know why you don't want to give us enough time to look at the Minister's amendments and to consult with other people.

Many people have come before the committee, Mr. Chairman, people who are experts in the application of the Young Offenders Act. The Minister will table a series of amendments and you are not even giving us the opportunity to consult the people who have testified, in order to find out whether the amendments meet their expectations and answer their questions.

Are we supposed to do this in a closet at midnight, or do you want us to do this in secret, Mr. Chairman?

[English]

The Chair: Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair. I would just like to concur with my colleagues on this side. It's not necessarily on the issue of having the minister back, but trying to digest the government amendments by next Tuesday morning I don't think.... I have a real problem with that.

The Chair: We're discussing future business on Tuesday morning. I'll ask all members of the committee to bring their colleagues and get the kinds of numbers that will be necessary for us to proceed.

As it stands, it's my intention to have the minister or officials here Tuesday at 10:30 so that they're working on some timetable. However, on Tuesday at 9:30, when we discuss future business, we could at that time decide something otherwise.

I don't want to open up the possibility that we would be calling in witnesses, to have witnesses respond to the amendments of the government, as Mr. Bellehumeur has just suggested, and I hope that when Mr. Cadman and Mr. MacKay said they agreed with Mr. Bellehumeur, they weren't suggesting that, because then this process becomes endless. That's what Mr. Bellehumeur has said. Consequently, I understand the need for the members of the opposition and the government to....

Mr. Bellehumeur has said he'd like to run the amendments of the—

Mr. Paul DeVillers: He said consult with the people. I don't think he was talking about recalling them.

The Chair: My apologies then for misunderstanding.

In any case, the point I'm making is that at 9:30 we're going to be discussing future business. At 10:30 I'm asking the minister's officials to be here to be prepared to do clause-by-clause. If something happens between 9:30 and 10:30, if that changes, so be it.

Mr. Peter MacKay: Mr. Chair, with the greatest of respect, that doesn't help us as to whether we are to break our backs to try to get our amendments in by this Friday or not. If there are amendments coming from the government that we haven't even seen yet, we may want to propose amendments to those amendments. This is voluminous.

There is no way we're going to be able to get any semblance of reasonable, hopefully constructive, amendments prepared by this Friday, given the fact that this is the final witness and these are the final deliberations today. To suggest that by next Tuesday we're going to go to clause-by-clause I'm saying is unreasonable and unfair.

The Chair: Bring your arguments at 9:30 Tuesday morning.

[Translation]

Mr. Michel Bellehumeur: When will we receive the government amendments? Tuesday morning, five minutes before the meeting?

[English]

The Chair: We could. That happens. You could bring your amendments at the same time. That could happen. I'm not saying it will happen, but there's nothing to prohibit that from happening and there's nothing I can do to cause that not to happen.

Having said that, we are going to meet at 9:30 Tuesday. The arguments you put I think are important arguments, and they will be heard on Tuesday morning. In the meantime, we simply cannot assume what we will decide Tuesday morning; therefore I'm asking the officials to be prepared to be here Tuesday at 10:30.

[Translation]

Mr. Michel Bellehumeur: If the officials get here at 10:30 with the amendments, will we have to pass them all one by one as of 10:30?

[English]

The Chair: What I'm saying, Mr. Bellehumeur, is that we are going to have a discussion on this issue on Tuesday morning between 9:30 and 10:30. In the event that this committee decides to extend the time available at that time, when we have a quorum, then we'll do that. If we do not decide at that time to extend the time, we'll have the officials here prepared to present their amendments and prepared to begin clause-by-clause.

See you Tuesday morning at 9:30. This meeting is adjourned.