[Recorded by Electronic Apparatus]

Friday, November 22, 1996

.1336

[English]

The Chair: Let's get back to work. We are starting on the second part, and again, I've kept my list of names so I'll be giving you, the people who didn't get to speak this morning, an opportunity to speak.

We're on our second theme, which is approaches to deal with children and young people once they're in the youth justice system. So we're talking about post-charge. I think it's fair to say that this can run the gamut from discussions of upper and lower end age to transfer, to how the police approach kids when they have to deal with them, to a lot of other issues. I'm going to ask Ms Torsney to take five minutes to comment from her perspective.

Ms Torsney (Burlington): Thank you, Madam Chair. I hope we will stay focused, but I wanted to drop back for a second as well and maybe bridge into the next section.

It was building on something that Mrs. de Villiers had said and something I've been saying across the country. Although I don't have children, which I forgot to declare earlier, it has always concerned me that parenting is one of the most important jobs we have and yet there's very little preparation and there seems to be no programming. The only qualification is that you can actually produce.

So I wonder why - and I've been saying it in schools and in institutions that deal with kids who have already got into trouble - we don't have in this controlled group of school children some different models of parenting. Why don't we have a discussion about it in the school system? Why don't we have more conflict-resolution programs in the school system, and peer mediation? Why does the Earlscourt Project have to have such a struggle with teachers saying ``No, we have a zero tolerance policy. I don't want to hear about your other programs. We know how to run our classrooms.'' Why don't we integrate more of these things?

There are different models. The Community Child Abuse Council in Hamilton, supported by the Rotary Club, has a program to try to work with kids to make sure they are teaching them conflict resolution and how to break the cycle in many cases. I think we have to do more of that.

As a teacher in my riding, who has been working on behaviour management so they can get to the educating, said, we have to find better ways across all children, including the children who we perceive not to have got into conflict.

You're absolutely right, Mrs. de Villiers. All kids could use some conflict resolution skills and some parenting information. You either had a good parenting model or you didn't, and if you did, you may have picked up on it or you might not have.

How are we supposed to stop this cycle? It was very disconcerting to learn that in the facilities that were housing young offenders in Alberta, who arguably may not have had the best parenting model, they weren't even teaching parenting skills to most of those kids.

In eastern Ontario we're doing some of it. It was quite frightening... One of the young boys said he was quite prepared to have children; all you had to do was love them - which is a good start, for sure. Another guy said ``It's about lickings. My dad didn't give me too many; it was my mother who dished out the lickings.'' That was parenting to him. It seemed very frightening to me that this little guy was going to be a parent soon.

Building on the zero tolerance stuff, I wonder why we are having cases such as the one I heard of from a school in my own region, where two young boys linked arms with one of their buddies and put him in the shower for 15 seconds after gym class. The child wasn't wet through. It was a prank. Many of you around this table probably did something similar when you were at the end of gym class. Everybody went home and the next day the two boys were charged with assault.

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That shows up as an increase in violent crime in our community. In regard to those two boys who committed this act, and I'm not condoning their behaviour, maybe we'd be better off saying, look, why don't we get the parents and the kids to sit down and talk about this, understand the terror of that guy who didn't think it was going to be a shower for 15 seconds, or whatever, and deal more appropriately with that behaviour.

To send them into the system scares the heck out of me, because, as we've all heard, they learn more about crime, or maybe they learn that they get a light tap on the wrist or something. Now we have them in a system, they have some kind of a record, they have a bad example of what the system is all about, and we've just distorted everything for the community and for those kids. It really does concern me that we have to find a better way, especially within the schools.

Mrs. de Villiers, when we were in Toronto we had a presentation from the Attorney General and the Solicitor General in Ontario. When I asked them why we didn't have the Minister of Education, the Minister of Community and Social Services, and the Minister of Health, they actually thought I was trying to score political points on them and turned quite angry toward me. I thought it was a real shame, because it was a real opportunity for all of us.

It concerns me that no matter what we do as a federal government, we don't implement this act. We can transfer all the money in the world, but we still have governments that would prefer to give a tax cut and cut back services rather than devote the services to kids.

Dr. Leschied, I'm not sure what the mechanisms are. They have to be coming from the community. The community must say they aren't satisfied that people in their community are being victimized, they're not satisfied that this is the answer, and they must demand that the provincial government implement this. It's not a fight between us; it's just that we don't have that mechanism to control it, and it's frustrating as all get-out to know that these things are happening across the country to our young people and we have little control.

I'd like to hear how we deal with the kids involved in the shower incident, how we make sure that people are looking for different ways to deal with young people, and how we can encourage those creative solutions and community-based solutions, whether it's the Alberta... The good thing we did hear from Alberta was about the community justice committees, which seemed to be finding new solutions and working together and increasing the understanding of the act. When there have been victims...there has been an increase in satisfactory solutions than a lot of the victims felt they had with the system. It seems to be serving few people, and there seems to be a lot of anger toward the act, because people are in fear of being victimized. That's not a good way for anybody to be living, so we have to find some better way to deal with it.

I'm sure my five minutes are over, so I had better stop. Let's hope we can break the cycle and teach them better examples so that when the kids do get into conflict we find a better solution.

The Chair: I'm not being the thought police. If you want to talk about something else, you're going to talk about something else and I won't gavel you, but it's important to the committee to have some focus on young people who are in the system and the kinds of issues that arise then, including talking a little bit about when they actually should be in the system. I think there's some consensus that there are kids in the system who shouldn't be there, kids in facilities who, as our friend from Nova Scotia, Mr. Lonar, said, should not be there. There was also Professor Bala's notion that there are younger kids who maybe should be in the system, which was very provocative for some of us.

Finally, I want to remind you that within this segment I think the committee would hope that you would address the transfer issue, which is a tough one for us, and that some of you might also want to address conditions in facilities and the issue of, when it's time to put someone in a facility, what should be there for that person, open custody or secure custody and what have you. Have I gone far enough?

Dr. Keeling, you were next on my list. Do you want to go first or do you want me to keep you in mind for later?

Dr. Ken Keeling (Chief Psychologist, Syl Apps Centre): I don't mind. I think I can focus from the morning to the afternoon.

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I had a couple of comments to make, some of which reflect what Dr. Doob was talking about this morning in terms of the act and how it reflects on the specific questions we're facing this afternoon.

One of the reasons the Young Offenders Act has such a negative press is there was an over-expectation of what any act can do with regard to youth. It was heralded as the answer to what was perceived to be the disaster of the Juvenile Delinquents Act, back when it was first being discussed. This led to an over-expectation that a revolution was in process.

It's not a revolution; it's an evolution. The act itself is evolving, and this committee exists because the act is evolving.

I have found some useful things to think about in terms of that. They don't come from our usual social system ways of thinking that were taught in psychology departments or law schools. They really have to do with the self-organizing properties of systems. One of the primary things is that systems tend to be stable over time.

I have seen enough articles from Tony to indicate the crime rates, and even the rate of murder is a relatively stable phenomena in young people over time. This means even the most advanced intervention programs - and this leads into this afternoon's discussion - are not necessarily miracle cures. They are not the antibiotics of treatment. They represent certain technological advances.

Even when Alan and Don Andrews go around talking, they don't claim it's going to cure every young offender to whom an anger management group or a parenting course is given.

The balancing act all of us face in this room is what are reasonable expectations versus expecting that sentencing circles, that what clinicians come up with... All of them who work in certain locations are going to have their failures too, which does not necessarily indicate the failure...it's incremental.

Even when I go on speaking engagements it's very hard talking to people in the community; it's either/or. Can you cure them, or can you do nothing for them? It's really the middle ground. In some of the conversations with members of the House and of this committee, which I enjoyed over the lunch hour, some of those issues came to the foreground.

There are now catalogues of approaches that work that Alan Leschied and Don Andrews have produced. The faith can't be on the list of a table of contents. That's what I worry about. The overarching piece of our society that really concerns me is the second principle of systems as they tend towards entropy. When social systems go towards entropy, which simply means they tend to dissolve into chaos, you increase the number of procedural rules, laws and regulations.

I suppose you could weigh the amount of regulations that have come out of our political process at all levels over the last decade. I don't know whether they do that at Queen's...just weigh the number.

I remember the Law Reform Commission identified I don't know how many offences that could end in time, even if they weren't officially in the Criminal Code. They came through the regulations, which become de facto laws.

If we view the rehabilitation of youth as simply adhering to a number of new procedures, we're bound to be egregiously crestfallen in a few decades. If we view it in the way that we as a society need to keep learning what works with us, with our communities, with the different approaches, it seems to me we can get about the task. We have to keep in mind that there's always going to be some degree of disagreement on whether or not they're useful and how useful they are.

It doesn't seem to me in the import to the question for this second session that the implication was that some magic new answer is going to arise in this room. They are fairly stable understandings.

If you help to make dysfunctional families functional, whether you do it in the school, via parenting programs, by communities coming together to address their own issues, as many of the native communities have done in this country, it is irrelevant. The question is how we begin to mobilize it and not hamstring it with a set of procedures that in the end will become more important than the programs. That's my fear.

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I've heard it said in some quarters, and I'm not going to say which quarters, that they should have an anger management program at location X. So they get told they need an anger management program. We'll put a group together. We'll call it anger management. We don't care what it really is.

Alan knows about this issue of program integrity.

As much as I'm really enthusiastic about the healing circle approach, I can imagine where it would be seen as a way to get a $25,000 grant from somebody to bring together a group of people. We'll call it a healing circle, but it will be a sham. Any of our approaches need to be honoured for what they can and can't do, and they need to be couched with integrity.

I agree with Priscilla de Villiers when she said that the integration is important. Where I disagree is that the experiments in the U.S. and in Canada have shown that just throwing money at a problem is not going to make it go away.

Even in times of scarce resources there are tremendous things that can be done if there's the will to do something about it.

I work in a tertiary institution so most of my clients are at the end of the line. I work at Syl Apps, which is a maximum security for phase I.

Ontario is one of those strange provinces with 16 years going into phase II, and under 16, it's the time of the commission. If it's serious enough they end up in places like Syl Apps.

It's a much more difficult process there. We know from our present jurisdiction and past jurisdictions that if you look long enough it's an awful problem. It's almost fatal if you're a male to end up incarcerated before the age of 16 in terms of recidivism.

Following up on 60 kids from 1976 to 1986, the research at our place showed 88.5% recidivism by year 10. At year five, it was about 80%, so you don't get much more in the extra five years. Most programs look really good for two years. Even Syl Apps looks reasonably good, about 40% at the two-year point.

There were similar findings - 95% - in the Connecticut Training School for Boys...carried out by a psychiatrist, Helen Otow Lewis, who was hoping to find something different. The lowest figure I had was from Lyman School in Massachusetts, which was followed through for 25 years. At the five-year point there was only 75% recidivism.

This refers both to questions 2 and 3, and it refers back to early intervention. We do have new technologies and we're trying them out. Alan has been to Syl Apps to do workshops. We're trying to get a lot of these programs going in my facility, and others in the process.

I hate to say this, but the more you can try to put me out of a job - I do believe enough in system stability that I'll make it to retirement - the more kids you can keep out of Syl Apps, the more society really wants to put in more creative ways than they are currently putting in, then the better off we are. With that I'll conclude, because I think I've taken up too much time.

The Chair: Thank you.

Mr. Bastien, did you want to comment in this segment?

[Translation]

Mr. Normand Bastien (Lawyer, Director, Youth Division, Montreal Community Legal Centre): I was ready for the first segment and am now writing the notes for the second.

We are now discussing the implementation of the Young Offenders Act. There are several aspects. One of the principles of this Act that has proved itself where it has been implemented is the use of alternative measures when it is not necessary to take other forms of action.

I believe that in Quebec, there has been an alternative measures program since 1984. This program has been used. From memory, the 1993 and 1994 statistics show that Quebec was the province in which prosecution has been used the least. The alternative measures program has been adjusted and adapted, has evolved over time and has even been overhauled. Some amendments were made. It has led to interesting results.

I assume that instances in which alternative measures have worked were used as a basis for the model that is currently being developed for adults. Efforts to use this alternative measures program must be continued.

.1355

On the other hand, when a situation cannot be dealt with using alternative measures, a transfer the courts must be considered. In particular, one must never lose sight of the fact that the people we represent or those who are being dealt with under the Young Offenders Act are adolescents, people who are growing up. As they are considered adolescents they have, by definition, not grown up yet.

That being the case, one must not lose sight of the fact that we are, whether judges, criminologists, lawyers, social workers or police officers, adults in their eyes and that they are watching us. We are condemned to be consistent. For example, a lawyer who downplays an offence that has been committed by saying that it is not serious is contributing to the young person's deviance.

We as adults are specialists in our fields and we take some things for granted, one being a plea of not guilty on first appearance. The adolescents who are truly on the point of becoming young offenders, or who are already young offenders, are generally people who have lost a great deal of self-esteem, as well as a great deal of confidence in everything that has to do with adults.

One ought not to imagine that because an adolescent appears in Court one morning and meets a person who becomes his lawyer, that he will suddenly trust this person whom he has never met before. It is to be expected that initially, the lawyer will at the first such appearance plead not guilty.

In our jargon, in the system we live within, this appears logical. The youth has frequently admitted his guilt by making statements to police and admitting it to his social worker or to his parents; and yet here he meets someone who represents him as a lawyer and who enters a plea of not guilty. It is a different level of discourse. From our standpoint, we know what a not-guilty plea means. For the youth, however, it often represents confirmation of the fact that with a good lawyer, he will be able to get away with it. I am not criticizing lawyers, but it is a reality. It is what the system wants.

For adults involved in indictable offences, a guilty or not- guilty plea is entered on the morning of the trial. A preliminary hearing is held first, and then the adult is committed to stand trial. It is on the morning of the trial that an adult is asked whether he wishes to plead guilty or not guilty, whereas for a summary hearing, one must enter one's plea immediately, on the first occasion.

In the name of consistency, it appears to me that a way could be found to postpone the guilty or not-guilty plea, particularly the not-guilty plea. I do not believe that it would be complicated. It could be done at an administrative level.

Still in connection with consistency, it is often said, and we heard it this morning, that lawyers ought to find new ways of doing things. I mentioned in my brief presentation this morning that I had the opportunity to co-chair a Quebec Bar committee that reported on the representation of children by lawyers.

In the report, we wanted a code of ethics to cover the representation of children, but not because, as lawyers, we thought that people charged or presumed guilty of something ought not to be represented, which would amount to denying their rights as citizens. On the contrary, we think that if rights have been granted, that we ought to ensure that they are protected; but there may be very different ways of doing things, if only because it must not be assumed that rights are understood. Each right needs to be explained, as well as the judicial process itself.

But it went further than this. It was also said that a Crown attorney working in an area like that ought to behave differently with children. Why is it necessary for a Crown attorney who decides to charge a young offender with an indictable offence to do so on 12 counts? Clearly this is a strategy aimed at getting guilty pleas.

.1400

We are thus condemned to use plea bargaining. You even hear: Withdraw this count, and I will plead guilty to another count. As adults, we demonstrate to our young people, with this attitude by the Crown, that justice can be bargained for. Do we need this model of justice in this area? It seems to me that all rights could be protected and all laws complied with, but differently, whether one is a Crown attorney or a judge.

There is another important factor: one ought not to assume that a young person does not understand the system. As lawyers dealing with young offenders, our clients always know when they have broken a law and that there will be a sanction somewhere. There are very few who expect nothing to happen.

It is the delays that make things difficult. The judicial system ought not to attempt to make up for delays at other levels, whether in the police system, the Crown or alternative measures. If it takes eight months to go through all these stages, the judicial system won't be able to make up for it; it will just have to adapt. If he should attempt to somehow do so, it will probably be harmful and present itself in a bad light.

Another factor is severity, because that is what we are talking about. Probation must begin, not in one or two months, but immediately after it is ordered. In numerous cases, judges have ordered probation after a certain time, but it would take two or three months before the probation system was truly able to take the young offenders under supervision. They would reoffend the very next month.

Of course, there was no hesitation: a probation violation is inexcusable. The young offender is charged again, with an indictable offence if necessary, but the system that had the obligation of meeting his needs washes its hands because it lacked resources. The young person is not forgiven for his failures, but the adult system, which was to implement the probation system, took all the time that was needed to do so.

A lot could be said about this. And I would not want to remain silent about the transfer system. I feel that the transfer system, no matter what the law, must remain. Unfortunately, the system has been very poorly used for a long time. Unless I am totally mistaken, the transfer system exists for people whose problems are such that they cannot be rehabilitated in the youth system without endangering public safety. It has nothing to do with the offence committed.

Unfortunately, however, transfers are used in spectacular cases, cases in which the offence committed is very serious, or often where there are no criminal record. People are surprised when a serious crime is committed and the courts do not transfer the case. The system is then attacked, and people say the law is no good. On the other hand, there are young persons who have committed a dozen or perhaps twenty break and enter offences. They have done it all: probation, rehabilitation centres, etc, and they continue. I never see requests to have such offenders transferred, and yet there is evidence to show that the sorts of problems these people have makes it impossible for the system to rehabilitate them. It would be much simpler to transfer people like this. After an initial transfer, it would be very easy to obtain a transfer the next time if another offence were committed. But the system needs to be adapted. It must be used when necessary, and not only for spectacular cases.

The transfer system is not where it ought to be in the judicial process. The Young Offenders Act is tarnished by our having to demonstrate, before pleading or entering a guilty plea, that a person cannot be rehabilitated. He is presumed guilty.

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Things become even more inconsistent when the onus of proof is placed on the young person. It is thus up to the young person to demonstrate that his rehabilitation is consistent with public safety, and he is subject to compulsion; meaning that the Crown may, if the case is a relatively serious one such as attempted murder in which serious harm has been committed, require psychiatric reports that the young person will have to submit to. He may be required to submit to the recommendations of these reports pursuant to section 16. Here I find that there is a problem.

For adults, there is a process of determining whether an offender is dangerous, but only after a conviction. Perhaps the transfer should occur only after the conviction. I feel that this would make it possible to judge things in their true light. In the transfer process, the version of the facts is always as black as possible, and to avoid having the police officer who is giving evidence concerning the facts being in a fix with his evidence, those who cannot testify at the trial are heard, because hearsay is admitted in such matters.

To conclude, one ought not to expect that the Young Offenders Act will solve every problem. If, for a relatively minor offence, you give people the impression that all of a person's problems will be solved because of the offence, then you are wrong. It will be impossible to have someone placed in a rehabilitation centre for two or three years if he has only committed one shoplifting offence, even though his problems are enormous. Thus people ought not to be led to believe that all these problems will be dealt with. There are other laws that can function at the same time, and one ought not to be set aside simply because a decision to apply another has been made.

[English]

The Chair: Thank you, Mr. Bastien.

Mr. Cadman, I had your name down from this morning. Did you want to comment in this segment?

Mr. Chuck Cadman (Co-Founder, CRY (Crime Responsibility and Youth)): I have a couple of comments about this morning. I don't think I can emphasize the need for early intervention, especially in the primary grades. In our own case I think the signs were there, and if they had been acted upon, I don't think I'd be sitting here today.

We've been talking in terms of professionals, teachers and such persons identifying these things, but let's not forget that there are a lot of other people in the community - laypersons - who are quite capable of doing this too.

I speak from personal experience. I was involved in coaching my son in soccer for over 10 years, from the time he was four and a half until the day he died. I also coached him in baseball. Believe me, coaches can spot a lot of things. Unfortunately, there's not a lot we can do about it. The best we can do is talk to the parents and say ``Your son has some problems here; you'd better start looking at it.'' If the parent chooses not to do anything, to ignore it, there's nowhere to go with it, because we just didn't know and we had to hope for the best.

I know of one young fellow where we saw that as early as 7 and 8 years old there were going to be problems, and a few months ago I opened the newspaper to see him charged with a serious sexual offence. So we saw it.

There are other people - scout leaders, girl guide leaders and people like that who can see these things. We should maybe include them in the process, because I think they have a lot to say.

That's all I wanted to say about that.

As far as what we're talking about now, someone brought up the issue of parenting skills. I'm not sure what you people at the federal level can do about that, since it's normally a board of education in a municipality that determines that type of thing. In the municipality that I come from we just underwent municipal elections, and the school board there scares the hell out of me right now because they've withdrawn all the planned parenthood education from the high schools and they've completely slashed the funding for conflict resolution and peer mediation. It's based on some philosophies they have that I don't necessarily agree with. If there is a way to address that from this level, I would certainly hope there could be.

On diversion, in the last couple of weeks the B.C. Attorney General announced a major reallocation of the moneys that are available to put more into diversion and alternative measures, which is something I wholeheartedly agree with.

I'm involved in a community-based program with community volunteers in Ridge Meadows. They call me in whenever they have a young offender who's been diverted from the courts on a minor assault. I sit down and talk with that young person and the parents. I've been doing that for a couple of years now, and I think I've dealt with about a dozen kids. Some of the kids have left the session crying. I've had letters from the kids thanking me, and it's something that I wholeheartedly believe in.

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The more we do, the better. But I think we have to draw a line for diversion and alternative sentencing. It has to be for minor offences, first-time offences, and possibly second-time offences on minor stuff like shoplifting. I don't see diversion as an alternative for murder or rape. That's all I have to say.

The Chair: Thanks, Mr. Cadman.

Mr. Henteleff, I had you on from this morning and you had your hand up again for this afternoon.

Mr. Yude Henteleff (Honorary Solicitor, Learning Disabilities Association of Canada): I covered both this morning, but mostly this afternoon.

We have to remember that we're thinking about federal jurisdiction. It's the Young Offenders Act that you have to be concerned with. This morning's discussion was extremely valuable in terms of early diversion. We have to remember that none of it will come under federal jurisdiction - the vast majority of it won't. I hope the federal government allocates sufficient resources to help all of those innovative projects that are directed in that way.

Let me address the YOA. In our brief we identified a number of amendments that inappropriately impact on special needs children. I won't take the time to repeat those because you have them. We have to look at the YOA and remember that we're now locking up more children, longer, and for lesser offences than we ever have, but without any evidence that it works. In that context I think we have to re-examine the philosophy of the Young Offenders Act, and I suggest for your consideration the following philosophical approach.

First, in order for the YOA to achieve an appropriate balance between the needs and rights of young offenders and the right of society to be protected, the principle strategy of the YOA should now be stated as being based on sensitivity to young offenders as having special needs first, and as offenders second. Second, the right to equality under the Young Offenders Act means that every child with special needs, or otherwise, is entitled to such resources as would secure for them the most enabling, social, cultural, educational, physical and training environment so they can each achieve their maximum potential in every aspect of their lives.

I suggest the following five principles be incorporated for the purpose of extending that philosophical statement: one, a cohesive, integrated service system; two, appropriate accessibility of services; three, local community participation in the planning and implementation process; four, resources targeted to specific priority groups; and five, diversion.

Let me deal for a moment with specific priority groups. We heard this morning about the aboriginal community in Regina. The situation in Manitoba is basically identical in terms of the numbers in both the juvenile justice system and the adult system. Secondly, single parents. A report dated November 21, 1996, indicates that an estimated 457,000 children aged 4 to 11 live in families headed by single mothers. The average income for a two-parent family is $56,000 a year, as compared to $22,058 for families headed by a single mother.

The statistics I'm about to quote have nothing to do with the fact that a single mother is at fault for what ultimately happens to so many of her children. Whether it's in the area of hyperactivity, conduct disorder, emotional disorder, one or more behaviour problems, repeating a grade, current school problems or social impairment, twice as many children in single-parent families have all of these situations as compared to families where there are two parents. So it's absolutely critical that we target specific priority groups.

I suggest we consider the following as a proposal emerging from this committee: that the Department of Justice implement a community-based initiative selecting a variety of pilot projects across Canada. The community-based project will call upon a multi-partner approach whereby a meaningful program would be provided for high-risk youth offenders. This model would include partners such as police divisions, child and family services, municipal social services, crown attorneys, school divisions, youth correctional services, medical and psychological departments, and, as in the case of Brandon, representatives from the aboriginal community.

The steps involved in such a project would be to identify these for appropriate purposes, developing a draft approach that identifies young offenders at risk; assessment; designing programs based on available research to suit the needs; recruiting partners and agreeing upon a draft approach, roles, responsibility and time lines; and tracking and publishing results. Hopefully, this would occur within the next six months. The results of the pilot projects could be shared with each province and territory, and we hope these projects would be a joint partnership between the provinces and the federal government.

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What you saw in all of the reports this morning, whether it's in Sydney, Nova Scotia, Vancouver or Brandon, is that there's an enormous amount of practical experience in hand already, Madam Chair, in terms of what can and should be done. We can't afford to wait any longer, and that's why I'm suggesting this kind of concrete approach. It would be the kind of seed that would provide examples for the total country.

The Chair: Thanks, Mr. Henteleff.

Heather Kinnear, then Mr. Jeffers and then Ms Reid-MacNevan.

Ms Heather Kinnear (Director, Probation Officers Association of Ontario): Thank you.

I'd like to direct my comments to our first and second themes, because I think those two are connected. I heard someone mention earlier that prevention and intervention may be two different things, but I think our association sees a very strong link there. When we talk about early intervention with young people, which I'm completely supportive of, we shouldn't forget that the missing piece of the puzzle is their parents.

I deal with the adult system as well as the young offender system. My concern is that if we spend a lot of time targeting and providing resources to our young ones and they return to those homes that have violence and other unhealthy behaviours, which I think most of us would agree contribute to the potential for offending, we're defeating ourselves.

Part of what I would like to suggest is that when we speak about prevention approaches, we not exclude effective treatment programs for the people in those homes who are contributing to some of those young people being young offenders.

So in our view, good intervention with offenders can be very preventative. I think we're looking at things in a linear fashion. We're saying primary prevention, secondary prevention and maybe tertiary. I see it as a cycle. When you're working with young offenders in the system, often you are doing prevention. They may be the oldest of five children, so the work you're doing with that child and getting the parents involved, connecting them to the change process, may have a preventative impact on the younger ones.

If we're going to look at any amendments or changes to the act that look at increasing the accountability of parents, our association would recommend that we look at requiring parents to be part of the treatment and the change process, and hold them accountable in direct ways where they might also have to attend family counselling. I've heard some of my colleagues say they would love to have the parent on probation instead of the young person. So there may be ways of changing the legislation to help us provide the treatment we need.

As a probation and parole officer or as a probation officer, a youth worker - we have a lot of different hats, and they change depending on who's sitting in front of you - we believe that in order to say what works in the current system, once the young people are in the system, you must start with a sound assessment. You must assess both the risk and the needs, and you must create some individualized plans that target those factors that are going to contribute to that young person offending.

That doesn't mean that we do it all ourselves. I think some of the ideas I have heard here today can be incorporated into an already existing community corrections system. I think that has to be maintained and preserved, and we can't afford to see the resources being taken out of the community corrections side of things.

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I've heard it said that approximately 80% of the offenders in Ontario are in the community on about 20% of the budget and that 20% of the offenders in the institutions are on 80% of the budget. In the world of finite resources, if we're going to look at treating offenders, we need to redirect some resources into that. I think everybody would agree with that.

As probation and parole officers, we have the dual role that's being talked about here. We operate that struggle and challenge in protecting the public and meeting the needs of the offender. I've often seen the scale referred to in our logo or our symbol, because you're constantly balancing those two things; they don't have to be working as opposites. I would like to see an organized, systemic approach to crime prevention that debunks that myth. By providing for the needs of offenders and addressing their issues, we are going to protect the public.

As much as we need an organized crime prevention approach, I think it also has to promote a better understanding of youth. I think a lot of people just don't understand youth. I would like to use an example where we've talked about some of us here, and I probably should include myself in that. I look back on my own youth...and I think all of us would agree there's always going to be some challenging and some rebelling and some pushing of limits. I think those who are parenting teens would nod their heads to that.

What happens, in my view, is that when you're dealing with youth who are coming from an environment where there's a lot of support and healthy parenting, those youths are going to challenge maybe the curfew or hanging out with somebody mom and dad don't want them to hang out with, but they're going to challenge at a lesser level. When you have youth who are coming from dysfunctional families and chaotic backgrounds, they're going to challenge the system because there aren't parental guidelines there to challenge. So young people are inherently going to test us and challenge us.

If there were an orchestrated crime prevention approach in this country, one of the things we would need to do is to show examples of why it is that as a society we react with outcry and get very upset, and rightly so. If you have a young person who robs or victimizes somebody and steals a pair of Reebok pumps, for example, people are horrified that there's crime happening over something like that.

On the other hand, every day I see adults who have abused their wives, sometimes very violently, over the fact that their dinner wasn't on the table at the right time or that this person looked at somebody else. Yet as a system, it's a lot harder to hold the adults accountable. We're not getting the convictions in those types of cases. I think that was quite well illustrated here recently with a series of articles in The Toronto Star. Yet it is very easy to be very accusatory and get a hold of these young people and hold them accountable.

I would like to encourage the thought that prevention and intervention aren't necessarily things that should be looked at separately.

The Chair: Thank you.

Mr. Jeffers.

Mr. Ken Jeffers (Consultant, Harriet Tubman Community Organization): I think it's important that the Young Offenders Act acknowledge and support and encourage a cultural approach to intervention. If you look at the statistics I referred to this morning about the incarceration rate in Ontario and you see that in 10 years there was an increase of 204% of black youth who had been incarcerated, there obviously is a serious problem.

I think we have to recognize that there is a youth culture that's universal, and we have to have an understanding of this universal youth culture and how it views crime and punishment and so on. I think it's really important that all of the stakeholders in the justice system be given more of an opportunity to understand what all of this means, because of course we know justice must be equally meted out.

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By way of an example, we deal a lot with black youth on probation, and we do group sessions with them with a view to rehabilitating some of these young people. There is a lot of anger, feelings that the justice system has been less than fair.

For example, plea bargaining is seen as a conspiracy among lawyers and judges. This is how it's perceived by a lot of the young people, who feel they are not involved at all in this process. That anger and that feeling of alienation are certainly manifested in all kinds of ways that we face every day. I think it's really important that this perception has also been confirmed by Judge Cole's report from the committee on systemic racism, which recognizes that there are biases in the justice system that need to be addressed.

I feel very strongly too that the whole question of rehabilitation for young people should involve the local communities, again recognizing cultural differences that exist among young people, and should also involve elders and peers. In some cases we've had tremendous success with involving peers in what we call a self-improvement contract towards rehabilitation. I thought it would be important to mention this. With the increasing population and the increasing number of young people who are from different ethnic backgrounds - south Asian, southeast Asian, black youth - who have been incarcerated, we need to address that very seriously and consider it in any measures we adopt.

The Chair: Thank you, Mr. Jeffers.

Dr. Reid-MacNevan, and then Professor Doob and Staff Sergeant Bouwman.

Ms Susan Reid-MacNevan (Vice-President, Issues, John Howard Society of Canada): Thank you. I wanted to spend a few minutes talking about all three areas, focusing on the middle one, of course, Shaughnessy.

One of the things I spoke earlier about -

The Chair: This is getting very smooth.

Ms Reid-MacNevan: - was this whole issue about the public fear of young people, seeing them as being both troubled and troubling. I've been really encouraged by the kinds of responses around this table in terms of a convergence of opinion that this is in fact the case. It's not that it's just a real fear or even an imagined fear; the public is afraid of young people and we need to do something to allay those fears. I agree with that.

How we go about doing that, however, is where I have a lot of concern. It stems in part from what Tony said this morning about the federal-provincial-territorial task force, saying once again that they're not sure what the principles are. I thought we had worked that out.

I was convinced the last time when I came to the standing committee that I had something positive to say to you folks - which is news - in that I was encouraging the idea that the long-term protection of society was best served through rehabilitation. In my estimation that's a very good guiding principle, but if we're going to start back on first principles again, I would be really hesitant about where we might go in the future. I would strongly recommend that the standing committee focus its attention on that as being part and parcel of what Bill C-37 was about.

One other thing that I think is very important in terms of where we go from here is that comments made by Mrs. de Villiers are not at all different from things the John Howard Society would say. It's not often that CAVEAT and John Howard would go hand in hand. But we're talking about the importance of looking at victims and offenders being from the same pool of individuals who have perhaps been treated poorly at a number of stages through the system. Whether it be a lack of early intervention, inappropriate education, child poverty, a lack of services to families, etc., we are talking about the same kinds of incidents. I wanted to draw attention to this because that's in fact what we try to do.

Inter-agency cooperation has been mentioned by a lot of people and I think that's an important area to focus on as well.

But I want to spend some time answering some of the questions you asked us to look at, Shaughnessy, in the context of this.

You wanted to know what kinds of conditions need to be in place for young people who come into the system. I know very clearly that the kinds of conditions we have at present are not appropriate. We've learned the hard way in Ontario that secure custody facilities can be extremely dangerous places. We have had two riots in one of our phase II facilities. We've had the death of a young offender in a phase II detention facility. I've talked to numerous young offenders who have said how frightened they were when they spent time in secure custody.

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I would propose that we not have very many youths at all in secure custody, that it be reserved for the relatively few serious, dangerous offenders, that it be kept in the youth justice system, and that we reserve the transfer provision for only those few people who would be declared dangerous offenders if they were adults.

That goes back to what the youth justice system is about in the first place. I strongly believe we need to have a separate system of youth justice and should keep young people in the youth justice system.

So in the ultimate plan, only the serious offenders would be in secure custody. Following that, there would be a very clear, gradual, release mechanism so that we had a structured program. From the secure custody environment, these dangerous or serious repeat offenders would then go to open custody, and from open custody they would go back to their home communities where they would be involved in a series of day treatment plans.

Fine and dandy. That sounds very good, but I also really strongly believe we have far too many kids in open custody facilities, that kids don't need to be in those structured residential environments if the community would take responsibility for creating day treatment facilities and keep the kids at home.

What do you do with the kids who don't have parents? Well, that's where the inter-agency cooperation comes into play, where we have to work very closely in developing strong linkages between education, health, the mental health system, community and social services, and so on, so that what is really a mental health matter or a child welfare matter, or any other medical or health issue, is not a criminal justice matter and that we encourage the community to be actively involved, not only in terms of prevention at the front end but in terms of working with the kids when they're in these day-treatment-type facilities so that they get to know what the reality is of the problems facing some of these kids.

The majority of kids don't need to be in custody. Some of them may need some structure, but they certainly don't need open custody. I strongly recommend that we really work towards that. If we did that, we wouldn't be subjecting young people to the violence they've been experiencing within our youth system.

One of the reasons that we argue against transfers and housing kids in adult facilities is because of the violence they're going to experience in an adult penitentiary. Putting them in a young offender facility that's violent isn't much better, in my estimation. I really think we had better have a hard and long look at what we're doing for some of our kids.

The last point about all of this is, in terms of the overriding issue on that, if we really strongly believe as a society that young people are important, then I have to think about why we spend so little time talking about what we do with the kids at the very end of the road who we transfer up to adult court. Part of me thinks we've decided we've failed, and I'm not really happy with saying we've failed with some kids. I don't like the idea of tossing anybody into an environment where we know they're going to get much worse treatment than they've had, many times over. If we're failing and we believe that's the best place to put our failures, in cages, and treat them under these desperate conditions, then I think that's more a reflection on who we are as opposed to what we would like to be as a society.

The Chair: Thank you.

Professor Doob, Staff Sergeant Bouwman, and then Professor Bala.

Professor Anthony N. Doob (Department of Psychology, Centre of Criminology, University of Toronto): I'm going to try to respond to two questions that have come up. One is Paddy Torsney's question about what to do with minor offenders, and the second question was the chair's question on transfers.

As to minor offenders, one of the issues that I think is most interesting in terms of trying to understand the question and trying to figure out what the answer is, is that there's enormous variation across the provinces on how kids are dealt with within the system, in particular on minor offences. So in terms of the choices, when we look for best practices and how various provinces are dealing with minor offences in ways that go outside of the system, one of the difficulties we have certainly in some places - and Ontario is one of them - is that we tend to see problems and crime problems in terms of doing nothing or doing something, which means going to court. Doing something means something more than just going to court, and zero tolerance doesn't necessarily mean that one should be, it seems to me, intolerant of all forms of violence. It doesn't necessarily mean that what follows from that is taking the kid to court. We have our language sort of screwed up in the way that zero tolerance means charging and that doing something means the youth justice system.

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I would tend to look at those things, and when we do look at it what we see is enormous variation in the provinces.

I will give an illustration. When you look at these sorts of figures about who goes to court for minor offences and look at it for a thousand kids, really going on what Bill Trudell was saying, we all do these things, even though we don't typically admit it, as openly as he has anyway. When you assume that minor offences, in fact minor assaults in particular, are really endemic - kids fight; they do things like throw snowballs, put kids in showers, and a bunch of things that could get them into court - what you find for minor assaults is that Ontario, for example, brings 70% more kids per capita to court than British Columbia does. It brings five times as many per capita to court than Quebec does.

What that suggests to me is not that the kids in Ontario are that rotten but rather that B.C. and Quebec - just to use the two largest other provinces as examples - are doing things in a different way. They seem to be able to handle these kinds of problems in other ways.

When one is concerned, then, about what happens later on in the system, what you find, of course, is that once brought into court, the cases grind their way through in some peculiar way so that when they get out at the end, a certain proportion of them, which is quite similar across provinces, tend to go into custody. When we're concerned at the far end about who's going into custody, it seems to me that we have to look at the front end.

For example, I would expect logically that if Quebec is doing a good job of sorting these cases out, even the minor assaults that need to be brought into court, you'd expect, then, a higher proportion of those to be going into custody because presumably they have the really bad examples. It just turns out not to be the case; there's much more similarity at that end.

So we should be dealing with these problems clearly before the youth justice system and outside of the system, and we have examples. We don't have to go very far in Ontario; we just have to go a little bit to the east.

The second question had to do with transfers. I'm pleased that the chair asked us to address the questions of transfers now rather than in the third section or topic or theme, which deals with responses to the small number of dangerous and repeat offenders. I hope that wasn't a mistake on her part, that she wants us to deal with it in terms of the general issues of the youth justice system, because it seems to me that the issue of transfers is a really interesting one and does tell us a lot about how we see kids and the youth justice system generally.

The issue of transfers, for all criminal justice purposes, is in effect making a kid into an adult. It's a bizarre thing when you think about it, because it says when a kid does something serious, all of a sudden that kid can now be thought of as an adult. Presumably, we should think of that same young person, who's now being charged with a very serious offence, as an adult for the purposes of voting, drinking, and all sorts of things. It seems a completely peculiar thing, and I think it may well be that what we're talking about is our enormous failure in the youth justice system to deal with these things.

I want to say a few words about the federal-provincial-territorial task force's report on that, because they take the position, as I understand from reading that section of the report, that too few kids are being transferred. I have some difficulty figuring out what ``too few'' means. Is over 100 too few? Is it too many? Is it about right? I don't know what the answer is. The federal-provincial-territorial task force seemed to have the view that the - whatever it is - 123 kids who were transferred to adult court in 1994-95 are too few. I don't know whether it's too many or about right. I don't how they came up with this notion.

When I try to figure out what ``too few'' means, I suppose one of the things I would look at would be: is there room within the youth justice system for these kids to have been sentenced? Presumably they've been charged or they are there for relatively serious things. I look at the fact that there were 74,000 cases sentenced last year in the youth courts. About 11,000-plus of them were put into custody, and 46 of these kids were sentenced to more than 24 months in secure custody. Presumably if these are the kids who really need to be transferred, 46 kids sentenced to somewhere between two and three years, or perhaps more under the murder provisions, it doesn't seem to me that there's enormous pressure from the bottom to be transferring these kids to the top. There may be other arguments. I don't know what they are.

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I think when you do look at the federal-provincial-territorial task force, which I've already criticized for having a sort of unprincipled approach to the issues they deal with, their answer as to why they want more transfers is quite clear. It says to better respond to serious, violent offenders. When they say to better respond to serious, violent offenders, what they seem to mean is to access longer sentences. I've already addressed that question to some extent.

In other places they talk about another principle, which is that they want to invoke the principle of denunciation at sentences, and they point out that really the transfer provision can be thought of as a disposition or sentencing provision. They suggest that denunciation through transfers would bolster public confidence.

I have enormous difficulty with that, in part for reasons I've suggested earlier. I remember back only as far as 1992 when we were told that this was going to bolster public confidence; we were going to change the transfer provisions in order to do that. I remember distinctly much more recently within this mandate the Minister of Justice telling us that the changes in the transfer provisions would, among other things, accomplish exactly this same goal. So here we are, less than two years later, after the changes to the provisions have come through, where we've had in effect almost no experience with the act, being told that we should be changing them again.

I think it is absolutely irresponsible of anybody to suggest. Whatever the provisions are, we have them now and we should be living with them to see what it is. But more to the point, it seems to me that to do otherwise is to suggest that more transfers will make us safe, that this is the best way to deal with the problems of youth crime, and the changes in the act will in a broad way deal with the problems of crime. I think if this committee comes out in favour of such things, that's the message that is going to be heard.

The Chair: Thank you, Professor Doob.

Staff Sergeant Bouwman, Professor Bala, and then Ms Church.

Some of you have asked if your name is on the list. In fact it is. I'm afraid there's a time lag between when you give me the sign and when you get to talk - unlike with me; I can talk any time I want.

Staff Sergeant Jake Bouwman (Co-Founder, Sparwood Youth Assistance Program): I should qualify my remarks that this is not the opinion of the mounted police but my opinion as a detachment commander and also as a citizen of the community.

Having said that, though, my program started two years ago in Sparwood. Ken said that in two years everything collapses. I hope that's not the case with mine.

We have diverted 95% of all youth crime to family conferencing. Of that, we've had in excess of 95% victim satisfaction. Everybody says maybe that's just minor crime, maybe a little shoplifting. We've had assault causing bodily injury with death threats. We had a sexual assault we said we would not take. The Crown came back to us and said, please do it because you'll have a better chance of getting some results, and so we did it.

That's not to say that our program is perfect. By far, it's not. It's a tool in a tool case of alternatives that I believe should be made available. I think what this committee could maybe recommend is that the changes to the Young Offenders Act should in fact make diversion not only something that should be investigated, but it should clearly state that pre-charge diversion is supported and that it allows the community to use any innovative method that can be used - of course, as long as it's within the law.

But I hesitate to see more rules. Tomorrow's football game will be won with wide goalposts, not narrow ones. I think if we try to make more laws, more rules, we're going to make it less effective for society to act.

As to the three themes, my involvement is really with all three of them, because when anything goes wrong with the judicial system it's always the policeman's fault. He's the first person the victims react to because he's the first one who speaks to them.

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About fourteen months ago, a judge - and I won't mention his name - spoke to us about whether or not we would do second- and third-time offenders. We decided not to do them at that point because we thought there should be one kick at the can and that was it. He then asked me if I believe the system isn't working very well the way it is. I said that it isn't. He asked me why, after having admitted that and after a person has reoffended after going through our program, we would throw him back to a system that we know doesn't work. We discussed it, and we have now in fact done youths who have done second and third times, and they haven't reoffended even after the third time. In fact, the second- and third-time offenders have been seen in my house recently drinking coffee.

All kids aren't bad. They can be rehabilitated amongst themselves, but I believe it has to be community-involved. It's not something that we can legislate down to them. We have to be prepared to work - probation officers, Crown, judges.

I'm not being critical of judges or crown counsels. All I'm saying is that sometimes the letter of the law might not specifically allow us to do something, but the spirit of the law might. Be prepared to allow policemen, probation officers, crown counsels and, yes, even defence counsels to fill that void.

The Chair: Thank you.

Professor Bala, Ms Church and then Madame Toutant.

Dr. Nicholas Bala (Professor and Associate Dean, Faculty of Law, Queen's University): I'd like to make a few points.

First, you raised the question of why the public is so angry about the Young Offenders Act. I think that is a really interesting but complex question of social psychology. At least in part, I think it reflects an ambivalence towards adolescence. I did note that when talking about your parental roles and about your children's adolescence, a number of you were sort of saying that maybe it's a very difficult time of life. I think we should recognize this as part of what's going on.

It's also a reflection of the fact that we're in very uncertain social times, and one of the things we're doing is arguably handing our children a not particularly bright future. For example, if one looks at questions like youth unemployment or at how hard it is for young people to start their careers, whether they're high school dropouts or university graduates, we're handing them a very uncertain future. So maybe part of this is sort of a guilt response.

I would suggest, or would submit to you, that, at least in part, politicians are now starting to feed into this in the sense of saying that if you elect them, they will change the Young Offenders Act and solve the country's youth crime problems. I'm not sure that's a reality, and I'd be very cautious about the kinds of claims they would make. Rather than inciting this kind of public feeling, say that this is a very complex social problem that has a lot of dimensions and that you may only be able to do a little bit. Don't be overly grandiose about what you can do.

Certainly, the evidence in the United States suggests that the level of public demand about punitiveness and about getting harsher and harsher can just cycle along, and at one level it can never be satisfied. We'll never eliminate crime, and we'll never eliminate youth crime. Whether there is hanging or flogging or whatever, it's still going to go on, so be very cautious about that and show some leadership.

On the question of alternative measures and family conferencing, I think they are really good ideas and a number of people here have very eloquently spoken about them. I know Judge Lilles, for example, has written about the experiences in New Zealand. I think they are a very important set of experiences, and I would suggest that there are two things that the federal government can do.

The first is financial. When you're structuring your payments to provinces, try to structure your payments in a way that encourages alternative measures, family conferencing, community-based dispositions, and not the building of custody facilities.

Secondly, think about a role for the judge. I noticed that in the federal-provincial task force there were a lot of very encouraging things said about having family conferences, but to let the provinces decide whether they want to do this or not. I think the federal government has a role. One way is to give judges some authority to say they don't think a particular case should be in youth court and to allow them to at least recommend that it go to a family conference, to make it possible for them to push that system along.

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Another question I want to briefly address is transfer. I certainly would echo everything that Professor Doob said. In particular, there is a lot of evidence from both Canada and other jurisdictions that we do not get any increased social protection from transfers. Young people are not sitting there saying they are only going to get three years or five years, ten years or whatever, and that they will therefore do this because the sentence is going to be much shorter. That's not what young people are thinking about. Sometimes they say that after the event, but I think neither the macro- nor the micro-evidence is there that we're going to get increased social protection. Indeed, there is significant evidence that if you send a lot of young people into adult prisons, the risk of reoffending and causing greater social destructiveness is very high. The experience in the United States, in some states where they are transferring literally hundreds and indeed thousands of young people - and are even using capital punishment - is that you don't get greater social protection.

I very much echo what Professor Doob said about wanting to see how the amendment that you, as a committee of the government, brought in recently is actually operating. We certainly don't want to expand or increase the number of transfers unless it is demonstrated to be necessary. I guess the one comment that I would make, though, is that if you are going to change the transfer provisions, or even look at them, the idea of post-adjudication transfer probably makes more sense than the present model of pre-trial transfer, which does not allow judges to get a very good picture of what's going on. In fact, it's almost designed to not provide a good picture of what's going on, and it's a needless expense and burden on the system. I would therefore move to a system of post-adjudication transfer.

Finally, there is the question of the role of parents, and it is a complex one. I think there was a suggestion that parents could be ordered into treatment or some kind of counselling along with their young persons. Some American states are doing that. I think that's something to seriously consider, while not being naive about believing that it is always going to be effective. But it might well be something that could be considered.

Fortunately, I haven't heard anyone here raise the question of civil liability issues, although I noticed that it was alluded to in the federal-provincial task force comment. I'm not only opposed to that on policy and philosophical grounds - one of the concerns that I have is that it suggests to young people that they are not accountable, their parents are accountable - but I would just caution you that it's probably a violation of sections 91 and 92 of the Constitution Act. You have your own counsel on this, but I think if anyone should do it, it's our provincial politicians. Unfortunately, I think some of them are moving in that direction, but it's not within the jurisdiction of the federal government to do that.

The Chair: Thank you.

I'm going to exercise my prerogative as chair and breach the rules of chairing to indicate that the concept of post-adjudication transfer has at least caught my eye. I hope we can perhaps talk about it in the third section as well - or maybe others want to address it.

When you mentioned it, Professor Bala, I noticed a lot of judicial and legal heads started nodding around the room. I suspect that's because after you work in the system for ten or fifteen years, or however long it takes before you become a judge or before you handle a big murder case or something like that, everything in your being strains to protect the rights of someone. To my mind, it's problematic when you're deciding, before they're even found guilty, what you are going to do with them when you sentence.

That may not be my only editorial comment, but I would like to see us talk a little bit about that today.

Ms Church, Madame Toutant, and then Judge King - I really do know you're here.

Ms Leslie Church (Member, City of Edmonton Youth Council): Thank you. I'm going to address a few of the points brought up by you, Madam Chair, and then I'll delve into one of my own.

First of all, in regard to the age limits of the Young Offenders Act, which I don't think have been touched on to that great an extent in this past conversation, I think having the age of 18 as the upper limit of the Young Offenders Act is entirely reasonable, not only because it's representative of a number of other privileges in Canada - as was alluded to by a previous speaker - but because I also think it is an age that is representative of a number of youth still experiencing the phenomenon of secondary school. At this age they are still getting into some of the problems of high school. The high school atmosphere, which is often very new, often brings the youth into a situation in which he or she is more liable to come into contact with other young offenders. Oftentimes, they'll get more drawn into becoming a young offender at this time in their life.

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As for the lower limit of age 12, I would like to think the Young Offenders Act could be flexible enough or could be made to be flexible enough to include provisions to include children who are younger than this in the youth justice system for serious and violent crimes. I think kids would then know there is a consequence to their actions even at this early age.

Right now, and not only for the sake of children who are under the age of 12, there are two reasons why we should do this. First, just for the sake of these children, I think they need to know there is a consequence if they choose to engage in any criminal activity, that they're just not going to get off freely. The other reason is to deter a number of older people who are tending to abuse young children for the sake that they are untouchable in the justice system at the moment.

That's my view on the age limits of the Young Offenders Act.

When it comes to the idea of transfers to adult court, I disagreed with the amendments that were proposed or introduced in 1995. I think the responsibility of the youth court having to oppose an automatic transfer of 16- and 17-year-olds to the adult system is backwards when we look at the basic principle of the Young Offenders Act, which is basically that youths have special needs and require this guidance up to the age of 18. I think these amendments were adopted because of the publicity and the public outcry resulting from media publications, rather than as a result of looking at the specific needs of individual young offenders. They satisfied a societal demand for recognition in the misguided lack of faith in the Young Offenders Act.

This brings me to the idea of whether or not we are treating youths harder than we are treating adults. If we look at the probation opportunities that we're giving to adults, they have a considerable number more opportunities during the course of their sentence, while young offenders tend to do all of their sentences when they're committed to them. As well, if we take a look at Bill C-41, it carries the community-based sentence, the idea of having an adult allowed to serve a sentence in his or her own home with a curfew. When you compare this to the youth system, I think there should be something a little bit more directly parallel to that in the youth system.

That brings me to the idea of custody. If 25% of young offenders are incarcerated... We know that short of execution, one in three criminals are going to return to crime. At the same time, I think this idea of confinement is really becoming a trade school in the sense that in what I've found in the course of my research, if you have a young offender who is incarcerated for something like stealing cars, he comes out and has learned breaking and entering. He then goes back in and is becoming more violent each time, on each successive trip through the system, if you will.

I think this lack of treatment also causes a reliance on the judicial system in terms of repayment, custody and service. To an extent these are useful, but I think treatment still has to be the main focus of the young offender system. Any custody that is used must include a high degree of focus on job training, because this will reduce the backsliding into crime. I think this will break the offender out of the cycle of desperation and hopelessness, which we've talked about ad nauseam today and which is affecting the youth community. It's this desperation and hopelessness that draws young people into crime.

The final thing I'd like to talk about is the idea of confidentiality, which I think plays a role in this theme as well as the next. I support the idea of confidentiality because I think that to undermine this confidentiality in the youth system is to undermine the basic principles of rehabilitation and the reintegration of youths into society. It's hard enough to reform an offender because he is part of a group and lacks self-esteem and self-respect. Young offenders tend to almost engage in a self-fulfilling prophecy whereby they don't think of themselves very highly, so they tend to engage in a life of crime. I think what you need to do is break this bond to the specific group they're being identified with, or reform the entire group - which would be much more difficult. When this confidentiality is broken, it condemns them to being a part of a group whether they want to be or not.

Lately, there's been a lot of public outcry, to the extent that people feel we should publicize the names of young offenders. I think this is completely wrong. The only guarantee we have of trying to reintegrate young offenders is to make sure we're giving them the opportunities to go out there and become contributing members of society without this stigma attached to them.

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In summary, the Young Offenders Act has the mechanisms to be an excellent piece of legislation to deal with young offenders, but I don't necessarily think it is being implemented properly. That might be due to a lack of funds. My expertise is not in that area. But there definitely has to be a return to the focus on treatment and concern for the offender.

The Vice-Chair (Ms Torsney): Thank you, Ms Church.

[Translation]

Ms Toutant.

[English]

Ms Cécile Toutant (Coordinator, Adolescent Unit, Institut Philippe Pinel de Montréal): I don't know when you want to take the coffee break. I can wait until after.

[Translation]

The Vice-Chair (Ms Torsney): You may continue for a few minutes.

Ms Toutant: First of all, I believe that if the parents in a family change their mind each time the children complain about how they are bringing them up, the children will stop believing that their parents know what they are doing. By continually changing the Young Offenders Act, I feel that we have undermined confidence in the Act. I believe that it is a political problem. I do not think that the community feels that this Act is not useful. There have been some criticisms, and we have had very little political will to deal with them other than by introducing amendments.

Secondly, when we speak of treatment for violent adolescents or dangerous adolescents, we are speaking of a relatively long period of time. Behaviour cannot be changed in three months. Over80 percent of custody orders are for a period of less than three months, and 90 percent for less than six months. We are therefore entitled to ask why there are so many custody orders.

This is exceedingly dangerous at another level, because it gives the impression that the young people in question have been given the benefit of resources at the youth level, because they have been placed in custody. If a person is placed for a very short period, one ought not to expect changes. Change requires more time.

My third comment has to do with transfers. I believe that anything that is automatic is bad, and I beg the Committee members not to support any such measures. They prevent each situation and each person from being evaluated independently of the offence. I will give you an example of research conducted in Quebec on recidivism for three groups. The first group consisted of adolescents who were murderers, the second, violent adolescents who had not committed murder and the third, adolescents who had only committed offences against property.

An assessment of violent recidivism for the three groups showed that murderers who did not have a criminal lifestyle prior to their offence had a violent recidivism rate of zero. Of those who had previously adopted a criminal lifestyle, there was some recidivism, but very little of it was violent. There was more violent recidivism among adolescents who had committed offences against property than in the other two groups.

Therefore when transfer is automatic, it is because people assume that an adolescent who has killed someone should automatically be transferred to the adult system, meaning that the wrong cases are being targeted. The youth system is capable of treating them most of the time, and when it cannot, after several attempts, a case is transferred. Changes are therefore needed to be able to use these measures.

The Vice-Chair (Ms Torsney): Thank you very much. Ms King.

[English]

Hon. Justice Lynn King (Ontario Court, Provincial Division): I'm going to be very pedestrian in my comments. They're regarding some changes to the Young Offenders Act.

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If you look at the statistics, you'll see that 40% to 50% of the youths are placed on probation. When I sit in court, I always wonder, ``Why am I placing this youth on probation? What is that going to achieve?'' Of course I also wonder why I'm placing them in custody and what that is going to achieve.

We now require a predisposition report for custody. I hate to add more rules, but I do think there ought to be predisposition reports for probation so people will think about why they are doing this.

Now I'm stealing something from Jim Robb and Martin. Certain things are required for predisposition reports, but what is really important and what isn't in predisposition reports is a plan of care. We have that in child welfare systems; the agencies have to present a plan of care. All the predisposition report does is tell you about the history, the education and the past record. Very rarely do they have a plan of care. That's the hardest part.

So the judge sits there and sees that this child has done this and this and this, and then at the end of it all they say, ``Probation, nine months''. It's a waste of time and money. If we're serious about resolving or rehabilitating young people, then we have to put the effort into it. Each child is different and each one deserves a plan of care. If there is no plan of care, then they ought not to be put on probation and they ought not to be put in custody.

Then I get to custody. I like the amendments that came in January 1996 that say you can't put somebody in custody until all the other alternatives have been tried. I use them all the time. But I would like it amended even further to say you can only put someone in custody for the purpose of rehabilitation.

We have to grapple with this, because obviously we're putting people in custody to punish them. If we really thought we were rehabilitating them, we wouldn't be giving them ten days or thirty days or two months. The real reason most people are put into custody is just that somebody is angry at them, and they think if they give them a short, sharp sentence and show they're angry at them, it will somehow change the youth. That has been shown not to work. It doesn't work. I don't know about adults, but I know you don't punish young people by sticking them in custody and think that's going to change them.

There ought to be a principle in the act of why we are putting them in custody. That's a very hard thing to grapple with. It's something that's been grappled with since time immemorial. Is it punitive? Is it denunciation? Is it rehabilitation?

With young people it would be fair to say it's for rehabilitation only, and you ought not to put somebody in custody unless you think it's going to serve rehabilitation purposes. That would keep a lot of these silly ten-day, twenty-day or thirty-day sentences out. It's wasting a lot of money and it's cruel and unusual.

The final thing I'd like to say is there ought to be a principle - and this could be in the Young Offenders Act - that any disposition has to consider any disability the youth might have, including any learning disability, and how this disposition is going to be amenable to that.

I know Mr. Henteleff has left, but I can tell you anecdotally, statistically and every other way that well over 50% of the youths are learning disabled or attention deficit disordered. It's like people with fetal alcohol syndrome. They don't catch on to the same social signals other people do. So they're there and we treat them as if they aren't learning disabled. We pretend they're not. Unless we have a plan of why we're doing this and how our sentence is going to help them, we ought not to be.

The disposition has to fit the person. I would like that amendment in the Young Offenders Act.

The Vice-Chair (Ms Torsney): Thank you, Your Honour.

The next person on the list is Mr. Lonar.

Mr. William Lonar (Acting Director, Young Offenders Institution; Former Superintendent, Nova Scotia Youth Centre): I'd like to make a comment with regard to incarceration.

In Nova Scotia we have a 120-bed facility that maintains full capacity at all times. When I take a look at that, I find 10% to 15% of that population don't want to leave when their time is up, because there's no place to go. Another 10% to 15% of the population will create problems to get in trouble while they're within in order to stay.

For another 10% or 15% we spend half of the sentence trying to find accommodations other than the home setting. That in itself concerns me, when possibly 70% of that population could do slightly shorter sentences and 30% of that population don't even have to be in the facility. They could be in other community programs.

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We can't use probation for some of these kids because probation is overburdened now. If you give probation officers 100 to 120 caseloads, forget it. It's not effective. But if you give a youth worker 10 or 12 young people in the community, where they're working with the parents, the home, the school or whatever, that is effective, and it is much more cost-effective.

We're attempting to develop that process in Nova Scotia right now. We've just taken two or three of our staff from the institution and have set them in various communities across the province. So we're initiating such a program.

We're finding a lot of our youth in the youth facilities are contacting the facilities after their release. A year, six months, two years later, they're calling back the same youth worker who worked with them in the institution, because the resources and the support aren't out there. They're concerned because they're now back on the drugs, or this happened to them, that happened to them. What concerns me is that those kids have to call back an institution in which they were incarcerated rather than have the resources and support in the community.

With regard to length of sentence, our average stay at the Nova Scotia Youth Centre is about nine months. About 60% of our population right now is in for violent crimes. Taking young people for 30, 60 or 90 days, or even a 3- or 4-month sentence, is not going to rehabilitate them. We have substance abuse treatment programs, we have a sexual offender treatment program, and we have a victims of abuse treatment program, but that's for kids in-house. When I look in the community, the kids who aren't making it to the institution may have one program to deal with substance abuse, but there's no sex offender program in the community. So the only way a young person of 13 or 14 who commits a sex offence is going to be treated in a program is to be institutionalized.

Right now we're attempting to work with different government departments. Four government departments in Nova Scotia are sitting down on a regular basis and starting to share these resources. We're even looking at whether it is necessary for someone to have a warrant of committal to go to this institution. Can we negotiate to have people come in for program purposes? We're going to take our staff from the institution and put them in the community. We're going to offer those courses to the kids in the community before they have to come to the institution.

Ultimately, we'd like to see our institution size drop by 30% to 40%, utilizing the institution staff to work with these kids in the community.

Our final comment is on aftercare, which I find is lacking, at least in Nova Scotia. Someone who comes into the justice system may get sentenced for six months followed by six months of probation. When that's over, the justice system's finished. The young person may end up back home or whatever the case may be, but that young person's problems are still there. They may have dealt with some, but there's nothing in place to continue with them. Once the child reaches 16 or over, there's a lack of support out there for them.

We have to send them to either the same home environment or a municipal welfare system. There are a few group homes, which are overcrowded. So it's just not there. We're sending young people who do five, six, seven months, and who have disclosed some serious things about their past life, who have opened up some doors, who have made some positive gains, back into the community. Then in four, five, six months, everything falls back.

It doesn't have to. If we refocus our money into the community in some of these areas and our staff, that won't have to happen. But the transition may take a year or two, because for ten years it has been focused on institutions. Ultimately, I think, there are a lot of good programs both being thought of and taking place to take the place of actual incarceration - for example, intensive supervision programs where you're working with the youth, or family involvement, these types of things.

This morning's theme to me is extremely important. If things aren't being done from infancy up until the age we get them, don't expect miracles in six months, a year, a year and a half in our institutions or in our community programs. It's not going to work. We're getting kids when they're 14, 15, 16 or 17.

That's all I have to say. Thank you.

The Chair: Thanks.

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Judge Lilles.

Hon. Justice Heino Lilles (Yukon Territorial Court Judge): Thank you, Madam Chairman. I have a number of comments.

Let me just say first of all that I have about 100 points written down here. That's the bad news. The good news is a combination of two things. Most of the people here have already made the points I wanted to make much more eloquently, and most of the rest of the points are covered by the fact that I can't read my own handwriting, it's so scribbly, so you'll be mercifully spared.

I want to make a number of small points, as I think a number of people have done already. I do want to say how impressed I am with the comments I've heard here today. They're nothing short of spectacular, insightful, and wonderful. I'm so encouraged that the committee has undertaken to translate all of what you hear here today into recommendations to the minister. That's really very good.

The Chair: I just have to say how pleasant it is for me as a former criminal lawyer to have all these judges here and to be in charge. Now go ahead.

Justice Lilles: This is a good point for me to make this particular comment, Madam Chairman.

With regard to this morning's session, I think all of us found it very reassuring because we were hearing things we all knew. In fact, I suspect that Parliament has, at least since the Horner report, known all about the things we talked about this morning.

The Horner report was a report to Parliament four years ago. I thought it was a wonderful report, very insightful. It was written by a former police officer who identified very clearly what the causes and major risk factors with regard to crime were. He made some very good recommendations; one of the most important ones was that 1% per year of the Justice budget should go into prevention to meet the point of 5% over five years.

I don't think that's happened, Madam Chairman, and that's the kind of initiative that should happen. I think you have a great responsibility to ensure that it does happen because everything you heard today indicates that if there is going to be any change, it's not going to be as a result of what we do in the Young Offenders Act. It's going to be outside the Young Offenders Act.

If you accept that statement, you will also appreciate that there are other challenges for government. Those involve breaking down the insurmountable barriers among government departments that currently prevent the kind of concerted approach that is necessary.

I heard a brief comment by Duncan Sinclair on the radio. Duncan Sinclair is the Ontario tear-the-hospitals-down mandarin, a former boss of mine at Queen's. He made the point that we're spending too much time in the health care system reacting and we're not putting enough dollars into prevention. Well, that's exactly the same situation we find ourselves in here in the justice system.

There's a synergism that the departmental barriers have prevented us from taking advantage of. By synergism I mean exponential cost benefit. This synergism arises from the fact that those interventions that would substantially increase health in the community and reduce health costs are almost identical to those initiatives that also would reduce justice costs. You know what? They would substantially decrease social services costs and lessen the load on education as well.

We can't afford not to break down those barriers. I recognize, perhaps not as fully as I should, that this is a very tough task, but it's a tough task that has to be done and it has to be done sooner rather than later.

I wanted to say to Dr. Keeling, rest assured, you'll go well beyond retirement with regard to your work. If we look at our past history, youth court judges will guarantee employment for you and your children and your children's children, based on past practice.

I've made this comment before. We incarcerate youth in Canada at a rate that's over twice the rate in the States. It's ten to fifteen times the rate per 100,000 youth population compared to many European countries and Australia and New Zealand. What's happening here? What's wrong with this picture?

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Tony Doob referred to the point of interprovincial variation in the use of the youth court. He and a colleague have just published a paper with regard to that. The insightful observation in that paper from my point of view is that it doesn't matter what the size of the court intake is or who they are, youth court judges will continue to place in custody 33% to 36% of whoever comes before them.

This is not a national phenomenon. It's an international phenomenon. Five or six years ago England started a very intensive police cautioning system where they removed 20% or 30% of the kids they were sending to court. The concern was that incarceration rates would jump. They actually went down modestly. They effectively stayed the same.

I'm satisfied the only effective way of reducing youth incarceration rates is to substantially reduce the intake. If you want to make a substantial difference, that's really the only thing that will work. There are other minor things you can do that will move the ups and downs a little. But if you really want to address the matter substantially, that's the only way you can do it.

Someone mentioned conditional sentences for adults, the recent amendments to the Criminal Code. I think it's an important issue. I've had more than one conversation with colleagues who have suggested to me that they're expecting constitutional challenges with regard to the equality provisions of the charter because of the absence of this provision in the Young Offenders Act.

So I'd encourage the committee to take a look at that particular provision or the absence of that provision. There may be something that's coming down the pipe. You may be able to anticipate it. If used properly, it may have a positive impact and provide another focus for the courts, another checkpoint, to ask whether we really need to send this person to jail, conditional sentence, or whether we can keep him in the community.

We had some discussion about under-12s. With great respect I want to have a minor disagreement with my former colleague and co-author, Professor Bala. I'm concerned about reducing the age to below 12, incorporating 10s and 11s in the young offender system. The superficial reason - the simplistic question to ask is, if the Young Offenders Act does so poorly for 12s to 18s, why you would ever want to expand it to 10s and 11s?

Now, the more practical problem, however, and the more expensive concern would be that you'd probably find yourself in the position of having to generate another level of institutions for 10- and 11-year-olds. You would not want, and I don't think society would accept, placing 10-year-olds in with 16- and 17-year-olds. You'd also have to develop a separate level of programming for those kids. So it's nice to talk about 10- and 11-year-olds. Recognize that it probably comes with a fairly substantial price tag attached to it. Are you prepared to pay it?

I have a substantial concern as well. I'm not satisfied the provinces and territories have exhausted their jurisdiction under civil rights, mental health and social services in dealing with the under-12s. I fully appreciate that the provinces are very anxious to transfer responsibility for 10- and 11-year-olds to the feds. I think it's largely an attempt to transfer costs to the federal government away from the provincial government.

I see it happening now where strapped child welfare agencies are dumping their wards into the young offender system for relatively minor offences that a normal parent in a normal home would look after within the home without involving the police. So I'm suspicious of that initiative, and I would ask the committee to look at that very carefully before they succumb to that recommendation.

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In the Yukon we spent a number of years putting together a program of family conferencing for under-12s. I believe this program is about ready to start. I would recommend other jurisdictions to consider that possibility, because this kind of approach of bringing the family together has the potential to expand into school issues, educational issues, nutrition issues, and public health issues at a very early stage. I think it's potentially a very powerful vehicle that can be expanded.

Someone mentioned probation. Probation is a big problem. Judges place youth on probation, and we have certain expectations as to what happens in probation. It rarely happens. Sometimes we place someone on probation who, for a period of months, will be required to see someone rather intensively. Sometimes we place someone on probation largely for the purpose of ensuring some minimum compliance with some minor concern. It would be helpful for me as a judge to have built into the federal act, whatever you might call it, certain levels of probation, so if the judge says level one probation or level four probation, I have a reasonable expectation that for the first three months this young person will be seeing a youth worker at least once a week in person and not over the telephone, just as an example. This could be a very strong support that could be provided for judges.

For those of you who work in the system, let me just quickly tell you that one of the many peculiar things we do in the Yukon is we review all of our youth probation orders. So if I put someone on probation for 12 months, that statutory term, and order them to keep the peace, have good behaviour, and report to the court as and when directed - report to the court as and when directed means that I can direct this person to report back in three months and tell me how they've been doing on probation - it's a very good tool for accountability. If the act made it clear to other judges that this was something they could reasonably utilize, I think it might be of help.

When you were in Whitehorse you heard some people suggest that the Young Offenders Act is pretty tough to follow and understand. I don't know if you've heard that elsewhere; certainly there was a news report after you left town to that effect. It made me stop and think, they're absolutely right. We have a piece of legislation here that deals with fundamental family-parental-youth issues. There are very few lawyers who can, in its current condition, read it and understand it and make intelligent representations to me about it. It's no wonder so many parents and community members are confused. I am positive that you have had representations made to you during committee hearings that were based on assumptions about legislation in the Young Offenders Act that doesn't exist or existed there five years ago. People just don't know.

I think one of the major contributions you can make to youth justice families is to translate the Young Offenders Act into plain language. The act is supposed to have some deterrent effect on young people. Young people are supposed to understand the legislation and what it means. They don't. Parents don't and community members don't. Thank you.

The Chair: As it's a matter of public record, I will confide in all of you that we had one provincial cabinet minister complain to us about the parole provisions of the Young Offenders Act.

Mr. Trudell, I want to give people a chance to take a little stretch before we head into the home stretch here.

Mr. Bill Trudell (Chair, Canadian Council of Defence Lawyers): I'll try to comment very quickly on a number of points. We're now in the system, and I represent today defence counsel from across the country. It's clear there's disparity right across the country in terms of alternative measures, diversion, and custody. Some kids want to stay in and other kids come to court with black eyes.

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I think in some provinces what they consider to be open custody might be closed custody in the province of Ontario. So there is disparity in that the children are not represented the same way and they're not equal. They don't have equal opportunities in terms of that. It's a very significant issue that the federal government has to look at.

With regard to section 56, there's nothing magic about this section. A young person who goes into a police station, whether he's a little, mouthy kid or not, is in an environment he's afraid of. We don't have to go very far. If we leave here and get in our car and a police officer pulls us over, you already start to sweat, whether you have a parking ticket or whatever. It happens with adults, so let's not pretend that young persons who go into police custody are able to deal with it.

There are great police officers just like there are great lawyers, and there are bad police officers just like there are bad lawyers. But if the police officers play by the rules and exercise a little bit of discipline, section 56 is no problem. Section 56 is not magic; it's the common law in effect. This stuff about section 56 and young people getting away with it on technicalities is anecdotal; it's great publicity, but it's not accurate.

If we're going to protect young people, if we're going to treat them and keep them separate so that they don't mix with adults and they're not treated like adults until they reach that magic age where we hope they vote for the right party, we have to have protections. Section 56 should not, in my respectful position, be touched.

With regard to transfer, it's very interesting what happens in the transfer situation. The transfer, I would suggest to you, means that we cannot deal with this young person and that we've failed. Transfer is punishment for the public. The young offenders' system is too lenient. We want them transferred.

I would speak on behalf of all defence counsel and recognize the hard work the task force has done, but they're talking about more transfers and I think that is absolutely wrong. If you're talking about transfers and we're talking about what a transfer hearing is, a young person, just like an adult, is presumed innocent. However, if you have a transfer hearing before a finding of guilt, you may be presumed innocent by jurists, but it's assumed you're guilty, really.

What I do, and what every defence counsel does, when a doctor interviews my client is I tell the doctor and my client that they're not going to talk about the offence. I tell them they have no obligation to talk about what happened. How can the doctor come to court and help Judge King on the very issue? I can't allow him or her to do it. I have to protect them, because this kid is living in his or her head. It's very early on in the system and there are two aspects of criminal conduct and responsibility: one is the act the other is the intent.

I - and any defence counsel - will not allow my clients to talk about the events. What I do then is tie the psychiatrist's hands; I tie the psychologist's hands, the judge's hands. Then the judge is left with this horrendous murder or crime, the public is crying for accountability and the kid is transferred. It doesn't work.

I think you would probably find great support around the country, and it would save so much money, to get on with the decision about guilt or innocence and then decide whether or not - we're talking about punishment; that's what it's all about - a person is going to be transferred.

In terms of the talk about lowering the age, I just don't understand where this comes from. We're talking about responsibility for a 10-year-old. I would not allow a 10-year-old to babysit a 12-year-old, or a 5-year-old or a 2-year-old, would I? I would be criticized as a parent. What we're talking about is accountability.

I'm not there to tell the client, I know you told everybody you're guilty, but now I'm really telling you you're not guilty. That's not what my job is. My job is to explain the system and protect this kid from what's going to happen down the line, one year, two years, five years.

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Let's go down the line and look back. Professor Bala talked about accountability. With the greatest respect, what does accountability mean to a 12-year-old? If he doesn't understand the word, it makes no sense, in my respectful submission. It's an abdication of our responsibility if we are going to bring these kids into the criminal justice system, which is really punishment for people who have offended and can't live within our society, and then forget the young offenders legislation. If you're not going to give them protection in a police station, forget the young offenders legislation. The young offenders legislation is there because we in this great country recognize that kids are kids, and it's my respectful submission that chipping away at it is immediate gratification for public pressure that is not enlightened.

I would like to say two things and then that's it. I would ask the Department of Justice to engage in a massive educational program throughout this country to explain not only the young offenders system but to explain criminal justice. It's the only thing that's not taught in the schools. If we spent some energy in trying to explain to people, who are reacting about a case in Toronto yesterday where somebody seemed to get three years or three and a half years and people are complaining... There's a whole story there. This kid got the maximum, but there's a story as to why it happened. If people were told about it and made to understand why a judge decided not to transfer, why the judge gave him this sentence, what the Crown's position was, and what the role was, we wouldn't have the difficulties we have now.

The last thing - and I do appreciate being here - is that nobody has talked about day care. I would think that money spent by the federal government on a national day care program will give... Somebody has to look after kids. Where there are single parents and split families...if you leave a kid in an environment where there is no structure, as defence counsels we're going to get them.

Thank you.

The Chair: Thanks, Bill.

I know in particular that the first mention of age set off about ten people wanting to talk. I think it's relevant to the third section. I have to tell you that this committee really needs help with the issue of those few kids who are dangerous. That's one reason why you're here, so you're not getting off the hook on this, even though you want to keep talking about this other thing.

Let's take a little break. I'm going to let Neil Jessop speak because first, he's from Windsor, and second, he has to leave at four p.m. He doesn't say a lot and when he does it's usually pretty good.

Let's take ten minutes.

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The Chair: We're back. I love this gavel.

I just wanted to point out one thing, Judge Lilles, arising out of your comment. It may give you some comfort to know we have the same research staff and the same clerical staff who were with the committee when the Horner report was written. I can assure you this is sometimes influential.

There is one other thing. I will tell you this because there is no opposition here, so I can't get whacked for this unless they're watching it on TV. At the Liberal Party's national biennial policy convention, which will lead us to the platform in terms of the campaign, the grassroots of our party passed a priority motion to support 1% of Justice's budget going directly to crime prevention. This motion came out of the Liberal caucus. It came from the elected representatives, the parliamentarians.

I think there are some signs on the horizon. I just want to flag this for you. I probably should have called you aside to do it, but it doesn't hurt if everybody else knows it too.

Justice Lilles: This is wonderful news, Madam Chair. I should say Patricia made the point of telling me about the support staff. I think she said the politicians come and go, but we're here to make sure it happens.

Some hon. members: Oh, oh!

The Chair: I hope the camera is on her right now, and I hope it's in colour.

Ms Torsney, please.

Ms Torsney: For the benefit of those out there watching, there is no parole in the youth system. Everybody here understood why this was funny, but the general public does not necessarily know this.

The Chair: Thank you. That's a good point.

Professor Doob, I'll put your name down.

I'm going to recognize Staff Sergeant Jessop, and I'm just going to remind you we're now trying to stay roughly within the context of dangerous and long-term offenders, but in deference to a person from Windsor who has to leave, we'll hear you.

Staff Sergeant Neil Jessop (President, Canadian Police Association): Thank you, Madam Chair, and my appreciation to all of those who are giving me consideration and letting me speak.

Madam Chair, it has been my experience over 28 years that for the most part the people I work with in the justice system, including the victims, young offenders, police officers, crown attorneys, defence attorneys and judges are well intended. I've heard a lot of criticism of all or various of those today and for the most part I reject it.

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The Young Offenders Act and the legislation that preceded this act were written by people who were just as conscientious and considerate as we are of the situations that existed for them when they did these things. I can tell you this experience has dictated to me that for the most part the young offenders system fails because resources are not directed to it, diversion fails because resources are not directed to it, and probation fails because resources are not directed to it. You can't have 150 kids under the supervision of one person and you can't have one police officer dealing with 12 or 18 cases at a time. It's a fact the system would work better if the resources that should have been directed to it were directed to it. Unfortunately, the justice system comes behind national defence, health, and a number of other issues.

I'll speak to the three issues, because I have to go. On section 56, I guess I have a kind of unusual position in relation to statements. We spend our entire lives as parents raising our children to be honest, forthright and truthful. We bring them into the justice system and the first thing we say to them is to say nothing, withhold the truth, or lie. Those kinds of things are inconsistent with most Canadians' beliefs.

Having said this, it is my view that if people who come into the system who don't know the value of those things were shown the benefits of the truth and being honest and forthright and got the resources they needed after they gave those explanations - which they don't, by the way - then perhaps the system of statements might change. Defence counsel, judges, prosecutors and police officers would have a great deal more consideration for it. I don't know whether Bill agrees with this or not, but a number of people I've spoken to do.

In relation to post-adjudication transfer, I agree with this and I think it's a worthwhile concept.

I just had words with a judge who is now working with the Department of Justice and he asked me what I thought of bringing the age to under 12. I'll say to you, Madam Chair, and to the rest of the people here the same thing I said at the committee. It's unlikely we will influence the system to the point where it won't be necessary to bring the age to 10 or 8. Unfortunately, from everything I see in my work - I still work as a police officer - there will be a demand for it. In my view there is no doubt it will happen, probably sometime after the turn of the century.

Unfortunately, I missed the earlier conversations before 10 a.m.

We at the National Crime Prevention Council have paid a lot of attention to children. I guess we call it prenatal, don't we Joan, up until 12? In the resolution of those problems, the proper treatment of our children between zero and 12 or pre-zero and 12 will assist us in the resolution of the problems under the Young Offenders Act. I must have agreed with 18 of you who spoke on it, and all of you, in my view, think similarly to 45,000 Canadian police officers. Our children are not getting the attention they deserve.

I was telling someone that I act for the Crown on Saturday and Sunday mornings because most lawyers don't like to work on weekends. We take young offenders before the court on those days. This is my personal experience. I don't deal with them the rest of the week. Invariably they come from single-parent homes, they have no family home, or their parents have washed their hands of them. In some cases we can't even contact a parent to come to court on those mornings to deal with those children and take custody of them.

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Therefore, judges and justices do what they have to do, as I said to you before. They remand them in custody. There's no alternative. For the most part, they're better protected inside than out, because many people prey on them when they're outside.

That's all I have to say. Thank you.

The Chair: Thank you.

I'm going to ask Mr. Maloney to introduce the third theme. I have a lot of names on my list and I'm going to try to get to all of them.

Mr. Maloney, go ahead, please.

Mr. Maloney (Erie): Thank you, Madam Chair.

The third theme is responses to that small number of dangerous and repeat young offenders we're faced with. Mr. Ramsay has left, but there's a theme out there that we need protection of the public against these individuals. The question is, how do we balance the necessity of the protection of the public with what we've heard today, more rehabilitation of the offender?

So that's the question, very short and simple. How do we do the balancing act of both satisfying the public for their protection and rehabilitating that young child?

The Chair: Thank you.

Ms Liza Martz.

Ms Liza Martz (Counsel, Vancouver Family Court Youth Justice Committee): Madam Chair, it's either an advantage or a disadvantage to speak late in the day. Everyone has gotten to your point before you, depending on what your view is. I think it's an advantage, because maybe I can make some friends by being really brief.

My comments are really focused to the previous topic, but I think it's applicable to howMr. Maloney phrased the question. I'd like to focus just on the role played by custodial institutions. I have three areas I'd like to comment briefly on.

The first is what goes on there. The second is what people working in the community know about what goes on there. My point there is the concern about lack of information exchange and coordination amongst service providers, between the institutions and the community. The last point is what happens after a young person leaves a custodial institution.

With regard to what goes on at institutions, I want to take a minute to emphasize what Ms Reid-MacNevan was saying earlier, that many institutions in this country are actually very dangerous places for young people. We're talking about what to do with dangerous young offenders. Well, we have to be conscious that in many circumstances we're sending them to very dangerous places.

I come from Vancouver. The main facility we have for young people in the lower mainland-greater Vancouver area is called Willingdon Youth Detention facility. There has been abuse amongst people there. Both peer abuse and self-abuse has been an ongoing issue. I was interested to discover recently that of the ombudsman's reports that have been written over the past few years, both peer abuse and self-abuse, or slashings and suicide, have been a primary concern whenever anybody from the outside has come to look at that facility. So we're talking about pretty basic things when we're focusing on those institutions. We need to look at those very basic things.

I think there's a consensus around this table that we need good programs at those institutions. It really goes without saying there's no point, by anyone's estimation, whether we see protection of society as our primary issue or rehabilitation, in just warehousing young people. I'm relatively new at this game, when I look around the table -

Some hon. members: Oh, oh!.

Ms Martz: That came out wrong. I meant that to be deferential.

The Chair: Well, with all due respect, it wasn't taken that way.

Ms Martz: My apologies all around. What I meant was, many of you may think I don't really know what I'm talking about.

At any rate, I understand it's a breakthrough at our local institution even to have school programs there at all. That's something recent, which boggles my mind. We have school there now, but it's a new thing.

As I mentioned to you earlier, I represented kids who were in care of the ministry who already had very disrupted and unstable lives. It's such a crucial opportunity when they've misbehaved badly enough that someone sends them to jail. Hooking them up with programs is the only hope we have, in many cases, and there have to be good programs there.

My second point had to do with what people working in the community know about custodial institutions. My point here is that I have a real sense that these institutions operate in isolation to an inappropriate extent.

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By definition, a custodial institution isolates a use in the community, but I have a sense that professionals there are also isolated in the community.

My role of defence counsel so often has been just to make professionals aware of their involvement with youth. It's not something I learned at law school, but it became self-evident when I took on this work. I did it because I wanted to make sentencing submissions to judges to know about all the good things that were happening in a kid's life.

It amazed me that I was the one making sure that the one-to-one worker who seemed to have made some kind of connection with a young person before he or she went to jail knew about the sentencing date. I'd let them know the kid was going to be coming out so they had a sense of when they were going to be back in their communities. I'd take them to court. I'd make the phone calls to make sure the social workers in the community knew when the young person was coming out. I'd make sure that people knew that this young person had connected with a drug and alcohol counsellor in the facility who was actually acknowledging their problem for the first time.

Oftentimes, the people on the outside didn't know that had happened. A young person often met with psychological counselling for the first time in the facility, and people on the outside didn't know that.

The need to integrate and coordinate services is a theme that was touched on today by many other people. It seems to me it's a real failure if we're putting resources into the institutions and good things are happening to the kids, but people on the outside don't know about it. Case conferencing is how this often comes up. It needs to happen a lot more than it certainly did in my experience.

My last point is what happens after. I have a lot less to say about this since Mr. Lonar spoke so eloquently after lunch. He used the term ``aftercare'', which I like the sound of.

Ms Torsney asked us to consider community-based solutions. My frustration with custodial programs is that the progress a young person makes there is meaningless if it can't be duplicated in the community.

In answer to Mr. Maloney's question on what we are going to do with the few serious dangerous offenders, our answer still always has to be to try to work towards getting them ready to face the community again. I don't thing we can ever dispense with that.

They are young people, and I think it's important to remember that as young people they're just learning how to live their lives on the outside. They can make progress on the inside, but they've barely had a chance in many cases to start figuring out how they want to live their lives on the outside.

The young people I was representing had grown up in homes where nothing normal went on at all. These were young people who'd never had regular meal times, who'd never had normal conversations, who'd never had normal support. We can't expect them to make the transition from a structured environment where they might be learning those basic life skills to the community without many more transition programs in place than we have now. In my experience they're pretty much absent. Probation following custody consists of regular meetings with overworked and overextended probation officers.

I'd simply like to close by making a specific plea, along the lines of what Mr. Lonar was talking about. There is a need for transitional facilities and perhaps more specific definitions of what open custody is. Someone mentioned a mandated progress from closed custody to open custody to something else yet again. That's the only way to go. We can't expect young people to make the jump on their own.

The Chair: Thank you.

We'll have Dr. Pennell, then Mr. Garber-Conrad.

I didn't forget you, Mr. Cadman.

Dr. Joan Pennell (Chair, Youth Crime and Justice Committee, National Crime Prevention Council): Thank you, Madam Chair.

In terms of dangerous offenders, one thing we need to keep in mind is that the definition of what is a dangerous offender is something that moves around rather quickly.

I say this because I'm thinking in terms of the proliferation of prisons that they have in the United States. A lot of this can be tied to privatization and the fact that prisons become a for-profit industry.

In Canada we have so far avoided that, but if we're looking at dangerous young offenders we have to be careful about how that can be defined when we have economic pressures going in a different direction. I just want to affirm that I do not not think that prisons or secure custody or whatever should become a for-profit industry.

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I also want to say that some of the approaches we were talking about before, as being for maybe the more lightweight or moderate offences, are not things that suddenly disappear because you're dealing with a dangerous young offender.

Again, I will use the example of family group conferencing. One of the ways we found it very useful in Newfoundland and Labrador was to use it as a process parallel to the legal process. You have courts going along on one hand and people going into incarceration, but you also have the family group conference. It makes it possible to deal with safety issues for those who have been victimized in very serious situations.

Another occasion where we find it very worthwhile is at the time of release. It's a way of having planning that can involve the community and the families to which the young people are going to be returning. The feedback we've had is that this is the best way to ensure a community policing approach to what happens when they come out of incarceration for very dangerous kinds of offences.

I also want to say that it's important to think about not only dangerous offenders but also dangerous approaches. We've already talked about the dangers of incarceration. I want to say that in terms of family group conferencing - again, because I know that area fairly well - it can be a very good and sound approach in certain communities because they have developed the consciousness to carry it out, the kind of resources to carry it out. They've had the training.

When I say this, I mean not just training of some of the professionals, but a training of a community to deal with these issues. If you then try to plonk it into another community and think it's going to work, it's not necessarily going to work, and it becomes a dangerous approach as opposed to a helpful approach.

I also want to say that in terms of thinking about dangerous offenders, we should think also about differences along the lines of gender. I know I have missed some of the discussions; maybe this came up earlier. But if you look at the paths of male or female young people, there are different kinds of paths they go through in terms of ending up involved in the criminal justice system. I think we need to take that into account when we look at the definition of what is a young offender.

Thank you.

The Chair: Thank you, Dr. Pennell.

Martin Garber-Conrad.

Mr. Martin Garber-Conrad (Executive Director, Edmonton City Centre Church Corporation): Thank you.

The remarks I would like to make were designed around the second question, but I think you'll see that at least some of them apply to the third one.

I believe we need to separate very carefully two major issues. First, what will work for young people in terms of decreasing crime? Second, what will work for the community in terms of increasing feelings of safety? I think these are two completely different issues that have radically different solutions.

We know incarceration or custody by itself is not the magic thing that works. If it did, we could have a different kind of discussion. We might not like it, but we would have to reluctantly agree that it works, and gee, I guess we have to do it.

Unfortunately - or fortunately, depending on your perspective - that's not the case. What does work as well as anything is long-term, consistent, personal work built around relationships and trust with the youth. What works is understanding the cyclical nature of young people breaking out of the patterns of crime and dysfunction in which they are in, requiring many attempts to leave the lifestyle, the street, whatever, and many attempts to get back into the mainstream.

It therefore requires second and third chances not in order to be easy or loose but simply because that is the reality of it. It requires follow-up or there is very little point in doing the first intervention. It requires treating underlying problems and situations such as housing. A lack of secure housing drives a great deal of youth crime. It requires programs that are able to respond immediately. With young people, there is no such concept as a waiting list. It requires a multifaceted, multidisciplinary, multidepartmental approach to have the desired effect.

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Therefore, to the extent that the other half of the multi is governmental, these departments and disciplines must work with Justice, and Justice and the young offenders system must also work with the community, including aboriginal and multicultural communities. There is no doubt that some young people benefit greatly from structure, from consequences, from consistency, even from discipline, but that's not synonymous with incarceration.

If we take this and extend it just a little further to the third issue in terms of the serious habitual or repeat offenders, I would suggest that the list I just gave is not that off base. The difference is that it may very well be police officers instead of youth workers or community folks who are doing the intervening, but that development of a relationship and that consistency and the length and intensity of the work are equally necessary.

On the other hand, the matter of increasing feelings of safety for the community is quite different. The law can do many things. Making the public feel safe is not one of them. See the U.S.A. Transfers, long sentences, hard sentences, punitive sentences, etc., do not increase feelings of public safety. See the U.S.A. You cannot build enough jails to increase public safety if the social conditions keep creating and supporting and rewarding and sometimes demanding crime. See the U.S.A.

This is a matter of principle. It's a difference between apples and oranges. Feelings of public safety are not driven by the law and they cannot be improved by that. Public safety is a matter of feelings of community control. It has some relationship to the actual level of crime, but it's much more driven by the perception of crime. Therefore, the things that must be addressed are perceptions, which are largely controlled by the media.

The only other way to go is the issue of building community. Feelings of safety increase when communities develop and when the bonds strengthen between people who are different. When we have opportunities to see youth and for youth to be a part of strong communities, then and only then do people feel safer.

I have a final comment on the age thing, whichever your analysis is of what's wrong and why the young offenders system doesn't work. In other words, if it's too easy, too loose, and too light, so that it doesn't work for 12- to 17-year-olds, why would we think it would work for 10-year-olds? If, on the other hand, we think it is too hard and punitive and irrational for 12-year-olds, why would we want to inflict that on 10-year-olds? If it includes 10-year-olds, why not go the whole way and bring in pre-schoolers and infants? Why not go prenatal and start sending the fetuses to the young offenders centre?

Thank you.

The Chair: Dr. Bala is looking just a little isolated over there.

Mr. Cadman.

Mr. Cadman: I have a few words on the transfer. Maybe I'm coming from a perspective that not too many of you have considered.

The reason I feel about transfers the way I do - and incidentally, I feel they should be automatic for all serious crimes of violence, especially murder - has nothing to do with the length of the period of incarceration. The amount of time that my son's killer serves behind bars is not going to bring Jesse back. That's what I deal with and I have no problem with that. It's really of very little consequence to me. What matters to me is the life aspect, the mandatory life sentence. The reason I say that is that it has to be a consequence of his actions, of his crime.

To put it into perspective... I'll get emotional and I realize that's not supposed to have any place here, but it does. Every morning at 5:30 I get up to go to work. Contrary to what some might believe, this isn't what I do for a living. I have to get up and I have to walk past my son's bedroom knowing that he's not there and every night I have to go to sleep knowing that he's not there. Every Mother's Day I have to deal with my wife's depression, because that is the consequence we pay for the actions of another 17-year-old.

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I don't think it's too much to ask that society put some kind of consequence in his face for the rest of his life. If that consequence happens to be that in 10 or 15 years, when he has a family of his own and wants to cross the border with his kids to go to Disneyland, the U.S. customs people say no, you murdered somebody when you were young... That's something my son is never going to get to do. That's something Tom Greenman is never going to get to do with his kids. I don't think it's too much to ask that their killers be faced with the same type of consequence.

It's not a question of how much time they serve behind bars; it's an issue of consequence.

The Chair: Thank you.

Judge Gove, Dr. Peterson-Badali and Dr. Leschied after that.

Hon. Justice Thomas Gove (Provincial Court of British Columbia): I'll be fairly brief because I think most of what I might have commented on has already been commented on.

It's important to consider as a principle under the act that at each step along the way - throughout the day we've gone from early assistance, which is the term I like, to diversion and so forth - the young person and the young person's family be given an opportunity to take responsibility for what's occurred. By responsibility to the family, I mean that families should be encouraged to take on their correct responsibility of raising and disciplining their own children. I think that's something we ought to keep in mind.

I also think it's important that young people who do take on that responsibility should have some reward. That's one of the considerations that I think is very important in diversion.

Further to that, whether it's sentencing a young person to probation or to open or closed custody, I think the family has to be involved and has to be consulted. I often find that doesn't happen. It doesn't happen because our youth courts, at least the ones I'm in, are very busy and the volume is very high. Sometimes I have to see if the parents are somewhere in the back of the crowd, and often they don't come forward unless I call for them. Even if a young person is sentenced to custody, I think it's important that their family and their extended family and their community be part of the planning for when they're released. As Ms Martz commented, that's often not the case.

There has been some discussion here today about changing some of the rules, and I use that term advisedly, for how we conduct proceedings in court. I would caution you about making it more difficult to do the right thing. I mentioned a moment ago about the volume we deal with. If it becomes more complicated, time consuming and we have more rules, we may not be able to do what we want to do, which is the right thing for the young people and their community.

Having said that, if you do intend to tinker with the rules, you might want to make the provisions for reviewing custodial sentences under section 28 easier to facilitate. I had an opportunity to read the report that was written by the task force, and I know they go on at some length about the difficulties in bringing cases before the court for review. In order to get around that they recommend a bunch of other ways of doing it. Perhaps the easiest way to do it is to bring the cases back, as opposed to setting up parallel systems.

I want to comment on the length of custodial sentences. One of the earlier speakers commented that there was little point in short custodial sentences, that there had to be length to the sentence in order for it to have rehabilitative value. I don't work in an institution so I don't have that authority, but I disagree with that approach for most custodial sentences. In sentencing most people to custody, I don't think judges expect them to be rehabilitated. I don't think they expect them to come out as model citizens. But unless you feel custody is a more effective vehicle for rehabilitation, which I don't, then I think we should look at custody as having a purpose other than rehabilitation, and we should leave the lengthy sentences for those young people who might need to be out of the community because the community needs to be protected from them.

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I get concerned when I see young people sentenced to 18 or 24 months in custody so that they can be rehabilitated. I question whether that ever happens.

Short sentences, in my view, have a very desirable effect. For many young people that I see, a short sentence slows them down. It gets them off the drugs and dries them out. As Ms Martz said, it gets them into programs, starts them in school and introduces them to a drug and alcohol counsellor. Once those have been accomplished, getting most young people out of custody has a more rehabilitative effect than keeping them in and having many of them become institutionalized.

Ms Martz was making reference to the closed custody institution that serves Vancouver and the lower mainland of British Columbia, and she was talking about the violence there. I think we also have to recognize that our institutions are not able to do what they were designed to do. The institution she's talking about - it wasn't built for this purpose to start with; it was originally a girls' reformatory - has a capacity of 60 young people, but it is seldom under 100. Double-bunking is normal. In the last several months I have had a number of charges of sexual assaults that have taken place in the double-bunking. It is not a good place to go to be rehabilitated.

As a final anecdotal comment, the issue of age has been raised a number of times, as to whether it should be lower than 12. If you're going to enter into that discussion in any detail, perhaps the age of 12 should be questioned. I can remember back in the 1970s when I was at a forum similar to this - in those days it was run by the Solicitor General - and the big debate was whether it should be 14. I'm wondering why, 20 years later, we're talking about making it even younger than 12. Thank you.

The Chair: Thanks, Your Honour.

Dr. Peterson-Badali.

Professor Michele Peterson-Badali (Institute of Child Study, University of Toronto): I'm also at the point where a lot of the things that I was going to say have been said, and I think the comments from Liza and Judge Gove are very applicable. Whether it's within the custodial realm or outside of it, nothing's going to work unless there are appropriate plans for care and appropriate programs for kids and so on. We've said this over and over today.

One of my concerns sitting here - and somebody mentioned this earlier - is that what we're talking about is implementation. We keep talking about implementation. I'm wondering what can be done in terms of telling the provinces what they need to do to make things work better. One thing suggested to me that seems to make a lot of sense is putting some conditions on transfer payments as a way of giving teeth to some of the things people have said over and over again today.

The other thing that was suggested to me by the executive director of Justice for Children and Youth in regard to programming for kids, whether within the custodial system or not, is having some guidelines that programs and custodial facilities have to meet. Those guidelines might be consistent from province to province if we're looking at a lot of interprovincial variation in terms of what's available for kids - not that there have to be certain types or that the content of programs would be constrained, but that plans of care be put in place for young people immediately after their dispositions have been made, that they have adequate access to treatment, and that they're not moved from place to place.

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One of the things they've experienced at Justice for Children and Youth, and this was partly in relation to the Bluewater incident, was that young offenders are being moved around and bounced around. Never mind the short custodial dispositions, the kids who are in longer have no continuity of care because their programming is interrupted every time they're moved from one facility to another.

If it's possible to somehow influence the provinces in that sense, perhaps we'd have a chance of making the programming work so that young offenders, whether serious repeat violent offenders or not, where there's some chance... To reiterate, the other thing is the incredible importance of transition back into the community, because you can't expect this stuff to stick if there's no support in the community to which the young person is returning. That's all I have to say.

The Chair: Thanks, Dr. Peterson-Badali.

Dr. Leschied.

Dr. Alan Leschied (Assistant Director, London Family Court Clinic): I have three short points, Madam Chair.

First, I understand the committee will be considering extending the basis of charges on which young persons can be transferred to adult court at a younger age. The question I would like you to consider when you review that provision is this: why would we want to sacrifice more individuals to an adult system, a system that has seldom shown itself to be effective in any way other than to expose violent individuals to a brutal environment in the hope that somehow they will return to society less violent and more pro-social?

Second, in response to the third question about dangerous and repeat young offenders, it's too easy to seize on that issue and do the wrong thing, the wrong thing being things such as boot camps, shock incarceration, call it what you will. Our province has gone through the exercise to try to look at that. Even our province has rejected the notion of boot camps, because the data doesn't support that kind of intervention, but I think society would expect this committee to seriously consider advancing the cause of such interventions. They simply don't work, and I needed to remind the committee of that.

Third, I have a brief comment about transfer. Bill Trudell made it, but I want you to hear it from an assessor's point of view. I've been involved in high-profile cases in this area - in Whitefish, Oshawa and Pointe-Claire, Quebec - and as an assessor it makes no sense to assist the court in making such an important decision if I can't ask the young person what circumstances allowed them to choose to get involved in a situation where they committed such a violent crime. In my view it makes no sense to maintain that transfer provision at the pre-finding stage. I don't think I can play a useful role to the court if it's maintained at that point. It makes much more sense for me as an assessor to make submissions to the court on the circumstances of the offence at the point where the disposition is being heard.

Thank you.

The Chair: Thank you, Dr. Leschied.

Shannon Cumming.

Mr. Shannon Cumming (Counsel, Special Projects Coordinator, Metis Nation): Thank you, Madam Chair.

I want to speak about community-based initiatives as a means of not just keeping young people out of the youth justice system, but of dealing with them once they're in. In my home community of Fort Smith, we've instituted a program called Challenge to Change. It was formerly called Fresh Start, but we understand that has since been co-opted by a certain party and we didn't want people to make a false connection. It's going to involve as many as 300 aboriginal youth. It's basically a job development and skills acquisition program. It was developed by the Congress of Aboriginal Peoples in conjunction with the Metis Nation, the Native Council of Nova Scotia, Human Resources Development Canada and the provincial and territorial governments.

There are four major aspects to it. The first is the re-orientation to aboriginal culture for young people. The second is building initiative. Third is developing personal action plans for the young people. And fourth is for the young people themselves to implement those action plans.

In my view those components serve two distinct purposes. The first is that it restores pride in the person's culture. Speaking as someone whose parents and grandparents were in residential schools, I think we understand better than a lot of communities the generational nature of problems and how it may take a lot longer than any of us are comfortable with to solve these issues.

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So the program in Fort Smith, should it be successful, is going to last for three to four years. For some reason this headline popped into my mind: ``Challenge to Change Smashing Success - Government Cancels It''. I was thinking of Dr. Keeling's comments earlier on how government gets behind projects for a short period of time and at the first sign of failure changes direction.

I guess I had to speak up about any initiative that would bring hope to our communities. I think it needs to be stated - and it was in more of a statistical way - that this Young Offenders Act and the Criminal Code fall disproportionately on aboriginal peoples. Nobody goes to jail more than those in our communities.

When I go back to my community, I think the young people might rightly ask what's new with this act and what it means for them. I'd have to say it's tougher.

From our perspective it's really important for us to start talking about solutions, because we've peaked out in terms of incarcerating native people. You just can't get any more successful than you have, and it's time for it to end.

Thank you, Madam Chair.

The Chair: Thank you.

Sandi Gleason, Heather Kinnear and Janis Page.

Ms Sandi Gleason (Member, National Crime Prevention Council): I don't know where to start. I see the whole system as integrated. It's all together. It starts from the beginning and goes through to the end. With this system you're talking about, a dangerous offender goes through that integrated system, maybe once, twice, or a third time. By the time he's gone through jail, community-based resources and treatment, it might hit him, and then maybe you won't have the dangerous offender.

What I really want to speak about is community-based resources. At home in the aboriginal communities, where we do circle sentencing and where we do some alternatives in the communities, our communities are crying for resources. The resources aren't there to deal with the problems that are coming out of circle sentencing and the alternative sentencing. We have a lot of issues of sexual abuse and family violence.

The community is saying, yes, it wants to participate and to be an equal partner. Yet when governments say let's do alternative measures, let's do diversion, here you do it, they don't give you the tools, the skills or the resources to do it adequately. It's another bandaid approach. Most of them are very successful, but they're not dealing with the root problems that got the person mixed up in the system in the first place.

Are the federal and territorial governments really interested in reducing the number of aboriginal people? We're a multimillion dollar industry to people who are working and making money from incarcerating aboriginal people. I think when we're looking at those sorts of things and people working in those areas...

As Darren said earlier, at home when we started doing a lot of these initiatives, people were scared for their jobs. When people started getting into circle sentencing - at one point when I worked in the jail, the population started dropping - people were praying that people would come back to jail.

So we're working with two different systems here. We're working with an industry that makes money from people. When we look at alternative measures, a lot of people hope these measures will fail, especially in the aboriginal communities, because they're reducing the numbers, yet they're not meeting the needs of the people. I'm speaking basically of the Yukon and what we're seeing.

The training and the skills that need to go into the communities, when you're using alternative measures, are people mediation skills, basic counselling skills - give the family the tools - and parenting skills. These have been spoken of over and over again. At home we don't even have a treatment centre for youth. The only one we have at home is for sex offenders, and that has just started. We have another program that's just getting off the ground, and that is keeping kids safe.

Where are the programs to deal with these behaviours? The majority of our kids and the majority of our people have to go outside of the territory to find the resources they need to get the problems dealt with. Then they come back and the follow-up and the aftercare are not there. The majority of the time you see a lot of people who have been sober for a long time drinking again because the aftercare is just not in the communities.

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A lot of what happens here and what people here speak about - and it's the same in the National Crime Prevention Council - is that a lot of this doesn't get to the rural aboriginal communities. The majority of people who live outside of urban cities are aboriginal people. The majority of the resources are centred in large cities. A lot of the communities we deal with don't have basic resources or basic skills to deal with a lot of the problems they are facing.

When we're talking about all of these things, have we identified the needs of each individual community? A cookie-cutter program for every community across Canada is not going to work. I think we need to look at the areas where there is a high incidence of crime. We know in the territory that not every community has a high incidence of youth crime. Maybe one or two come out of communities, but a whole bunch comes out of a couple of communities. Let's look at what's going on in those areas and try to meet their needs.

We've done a number of studies in the territory. We've just finished one on family violence. We spoke to victims of spousal assault and looked at their issues. The majority of those we spoke to were aboriginal women. Some of them have never charged. Some of them did charge. Some of them will never go back into the system again because they did charge.

The majority of the women were looking for healing for themselves and their families, not punishment. Some of those who won't go back into the system are those who were told by everybody to leave their husbands and they wouldn't do it. Basically, everybody said they and their families were failures, so they don't want anything to do with it. Yet they never taught them the skills to deal with family violence in the home. They knew that the second time the wife came back, or the third time, the husband would go to jail.

We do a lot of programs in the jail. We do all kinds of programs in the jail. But when the inmates step out of jail and get back into the community, families haven't been taught the same skills they have been taught in jail. When you're looking at a lot of the issues we're talking about, they're family oriented, and we're not getting the grasp of everything.

With respect to transfers, we're labelling these kids as dangerous offenders and we're putting them into an adult system. Because we're labelling them at very young ages, do we make them worse off by labelling them? Once one gets into the system, people in the system are going to say he's a dangerous young offender, so be careful of him. He has a stigma attached to him that he carries into the adult system. After a while, if they are thought of in that way, they are going to have to live up to the reputation of being that dangerous person. They are still a child in an adult system, yet they are dangerous. They are put into an even more dangerous situation.

When we're looking at all of this stuff, we have four areas we're looking at. First of all, we're looking at the home. If their needs aren't being met in the home, they're being caught in schools or day cares. If they're not being caught in schools or day cares, communities are recognizing them. Finally, if the community is not doing anything about it, everybody just pushes everything into the courts.

There are three areas that are missing these kids even before they get to court. Society is saying it doesn't want to deal with this, so it puts them in the courthouse. The families are saying they don't want to deal with it, or they don't have the tools to deal with it, so we have to put the child somewhere where they think he will get the help.

I just met with a mother last week who is at her wit's end with her son because she has no tools to help with what's bothering him until he gets into the criminal justice system. She has to pay for things. She's a single parent. Everything has been downloaded on to her. Basically she's asking whether she should give the child up or quit her job to become a proper parent. We've stuck them in between these situations.

That's what I wanted to say. But I think one of the biggest things here is if you don't have the structure in the community to deal with the problems, no legislation or nothing anybody does will work.

The Chair: Thank you.

Heather Kinnear, Janis Page and Professor Doob.

Ms Kinnear: I'd like to direct some of my comments, if I could, to what we as probation officers see on occasions that may be working with some of our high-risk offenders. I'm going to use the word ``high-risk'' because that would also incorporate dangerous offenders. I have a lot of concern about the repeat, habitual offender who may not be committing dangerous crimes but who's doing consistent break and enters, doing a lot of inappropriate and criminal behaviour that the community gets upset about, and rightly so.

One of the things we see that can be effective is when there is a combination type of sentence where you use...if there is going to be a period of incarceration and this person has come through the system on a number of different levels, there is a period where you would move from the levels of security.

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Where that young person has a light at the end of the tunnel - and I want to stress that we would see secure custody also offering substantial treatment. As an association we certainly don't advocate custody without that component. We have had cases - and I'm a little bit disheartened to think that people are feeling the system doesn't work at all. What I'm hearing is maybe jail doesn't work, but I'm not quite convinced that the community corrections system is a complete failure. I think there's a lot of room for improvement, but I think there is a lot of success there.

When we have young offenders who have to do some treatment in the secure custody settings and who then have to earn their way out through a review process - and that does happen - they move into a different level, into an integration back into the community, into open custody with good programming. I would give an example of the section 27 schools under the Education Act that in our area have recently become part of the open custody homes, which has had a tremendous impact on the youth that are there. It gets them back into the educational system, it allows them to start accomplishing credits, and traditionally, by the time they get to my office - by the way, I primarily deal with 16- and 17-year-olds - so many of them have already had to leave the education system for their inappropriate behaviour or whatever. It gives them an opportunity for success. It allows them to participate in various social programs, the athletic side of things...

You're immersing them in very pro-social activities, if I can use that word. You're also holding them accountable, and you're requiring them to basically accept the reality that they must make change in order to move out of that system - early.

The role of the probation officer, in my view... If we could enhance that system, and not necessarily with more probation officers, although I would like to see that...but where we bring the community in as partners with us and look at how we plan for good aftercare. There are probation officers right now who do a lot of work at being the glue between the system. They will be setting up the discharge plans. They will be saying, okay, where is this high-risk youth going to go? How can we facilitate that? How can we act as an advocate to the children's mental health system?

When you're dealing with the high-risk, high-need clients, you have to address their issues in a number of different ways and use the system in its totality.

The Chair: Thank you very much.

Janis Page, Professor Doob, Jim Robb and then Professor Bala.

Ms Janis Page (Manager, John Howard House, Edmonton): I'm speaking generally from my own personal experiences with young people on a daily basis.

First, I'd like to say that whether we're talking about theme number one, two or three, treating each young person or young offender individually is very important. As individuals working with young people, we - myself and the other people I work with - have to be prepared with our own little bag of tricks for each young person.

I'd like to say that I agree with most of what you're saying, and that is that the majority of youth in custody could probably have been dealt with more effectively elsewhere. Most of us can't begin to imagine what the majority of these young people have been through. Through individuality and understanding their diverse backgrounds, where they are in their lives academically and socially, I think that is where we are going to start succeeding with these young people.

One of the things I really had to learn to do in working with young people is measure success, because what I see as success for my kids or for the run-of-the-mill kids is very different from what I expect to call success with most of these young people we're working with.

We have to assess the needs upon intake. We have to do a reality check with each individual we see. What are the possibilities for this young person in particular, and what does their outside support system look like when they leave us? We have to be prepared for discharge from the moment we get them.

In keeping with the discussion of community that we're all so sure is the answer in a lot of cases, I think it's really important that we keep the numbers in custodial placements, whether it be open or secure custody, very small. It's like any kind of classroom situation. The probation officers that we're talking about - when the numbers get too large, we're becoming very ineffective. It's like coming from a family of 4 or coming from a family of 12 kids - the smaller you keep the group, the more attention the individuals are going to get.

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One of the things we do in our group home is utilize volunteers from within our community, bringing them into our group home setting. We let them know what these kids are all about. The kids look at these people and say: why do you do this? They're not getting paid to do this. They're people who genuinely care about these kids.

My biggest concern with the kids that I work with on a daily basis is their release and lack of aftercare. Although they have experienced some success when they were with us, it's like many of you have already said. If they've lived a lifetime of crazy-making, how are we going to change that in three months?

With respect to number three, with repeat young offenders we have to ask ourselves the question, what is being done initially to address their needs and their situations, and are we dealing with these concerns early enough?

It comes full circle. Prevention and intervention would reduce repeat young offenders, to my mind. For those dangerous offenders, I have to agree with Ms Martz that whether we like it or not, reality dictates that all young offenders are going to be released back into the community at some time or another, and what we need to do is equip them with the tools and prepare the community for their release.

The Chair: Thank you, Janis.

Professor Doob, Jim Robb, Professor Bala.

Prof. Doob: Thank you very much.

The topic this afternoon is ``Responses to that small number of dangerous and repeat young offenders''. There's one implication that I would like to draw about that. It would be easy to think there's an identifiable small group of people who can be identified beforehand who commit serious violent offences. I think that's wrong, and what we have to do is remember that although there are many kids who need social and medical and educational and various forms of intervention, identifying beforehand which ones are going to be committing very serious violent offences is a very difficult task that we're not very good at.

In terms of addressing the question, there are really two issues we should be thinking about. The first one is the capacity of the Young Offenders Act - of the act as it's written - to deal with this group of kids. Really the question is, is there an identifiable problem within the system that really is not allowing us to do what is sensible? I haven't seen it; I haven't heard that there is such a thing, but I think we should be addressing that question.

A second one, which I would see as a very different question, is the question we dealt with this morning in terms of prevention, but also the question of what is it that we're going to be doing with that small number of young offenders who have committed serious offences within the community? I echo what a variety of people have just said, and that is to remind us all that these kids are coming back into the community.

To put the question in context, I think we have to remember that there are about 2.4 million young-offender-age kids in Canada right now. About 68,000 different kids come to court every year, and about 57 of them came to court last year for homicide offences. Put differently, in terms of identifying that small number, one could say that 57 kids in Canada are responsible for all the homicides committed by young offenders. What that means, though, is that we have a relatively small number.

Again, the small number doesn't mean that this group is readily identifiable in advance. There are certainly needs that are identifiable and that may disproportionately apply to this particular group, but it doesn't mean we can identify them in advance. It does mean that for those kids and their victims whom we've failed, where the very serious acts of violence have taken place, we really should be addressing the question of targeting resources after the fact. I think it's that issue that this committee may be able to address.

The problem really is, what is it that we can do? What is it that we can do with very overburdened treatment programs within the provinces to deal with this very real problem? It's dealing with the treatment within custodial facilities or outside of custodial facilities, and again, as a variety of people have pointed out already to this committee, the link between these two.

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I would see that the role for the committee is to review whether there are real needs of change within the Young Offenders Act; that there are problems within the Young Offenders Act that suggest that this group cannot be adequately dealt with. As I said, I have not yet seen those.

I think the other part of the responsibility of the committee is to recommend ways to reduce the overall burden on the treatment programs and on the youth justice system so that we can actually focus some resources on this in fact quite small group, in order to deal effectively with the very real problems they have.

The final thing I would urge this committee to do is to focus on long-term risk reduction, not long-term risk prevention. I say that advisedly, because when we are focusing on immediate prevention of subsequent offending by these kids, what we are really talking about, usually, is short-term prevention. We're talking about locking up kids for a short period of time to make us feel better. In the end, what we have to do is reduce the risk that these young people are going to create for the community in the long term. The focus on the long term - on making Canada a safer place - is really where the focus should be.

We clearly have to deal with the short-term needs, the short-term problems, the issues having to do with these young people. We do have to remember, though, that they are going to be released, and I think the focus of resources should be on that, rather than simply trying to extend for a few months the period of time they're incarcerated. Thank you.

The Chair: Thanks.

Mr. Robb, Professor Bala, and then there are still three others, so I'm just going to remind you that we don't have a lot of time. In fact, we have very little time, so please keep it brief.

Mr. Jim Robb (Senior Counsel, Legal Aid Youth Office, Edmonton): Thank you. It may help that I'm very different from the judge sitting beside me, because by now I can't read any of my notes. They're just total gibberish.

When my project started in Edmonton and Calgary just over three years ago, we had reality driven home to us and to me personally very quickly. One of the first cases I did, a sentence appeal, involved a 17-year-old native youth who was in the category we're talking about now - the serious repeat offender. He had over 20 prior convictions. He was 17.

We went into the Court of Appeal on a secure custody sentence. The remaining portion of it was changed to open custody, and it was directed that he should receive alcohol and drug treatment. Six months later we learned that he had hanged himself in the cells. That was followed immediately by two other kids attempting to hang themselves in other cells as well.

On checking, following that, we found that kid had not received one hour - much less one day, one month or two months - of alcohol or drug treatment. At no time, from the age of 12 on, although the problem was manifestly clear, had that kid received any treatment whatsoever. Nothing.

It drove home a couple of very stark lessons to us. First, there is a movement towards creating a fictional distinction between open and closed custody. In Alberta, it is largely a fiction. If you are a female offender in northern Alberta, there are six group home beds - that's it, six. If you're male, there are 37. At any given time, maybe one female sentenced to custody has a bed available outside of a correctional institution.

The correctional institutions in Alberta were redesignated to make them remand, secure custody, and open custody facilities. The result was that facilities built to house 175 were up to 330. You can manage that because you don't increase the food budget. In Alberta, the single biggest complaint of young inmates, of young offenders, is hunger, and they are hungry.

What goes for psychological treatment is medication to keep them numbed. That's the reality.

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When I see a task force report that talks in terms of taking younger kids and transferring them, putting in new tests for transfer to make it virtually guaranteed easier to transfer more and younger kids, this is about transferring cost to federal institutions. We're going to take 14-year-old kids and put them into Edmonton Max, into the midst of race wars, into the midst of a needle trade.

Somehow we have to accept a responsibility towards youth that's projected under the current statute. We want to make the convictions easier. Get rid of section 56. When you talk to police officers you'll find that if they make the effort to get a statement or a section 56 waiver, most kids are only too willing to talk. It's not a problem. But in those few cases we want to try to make sure there are more convictions.

The dilemma I see we're in is that we have built up over the last five years an expectation that the Young Offenders Act is a total and complete failure, and therefore we must deliver on promises to make it tougher. One of the problems with that is, what do you do for your next act when the next level of Draconian measures fail? We're starting to amend this act every two years.

I go back to the example I started off with, the young boy who received no treatment from age 12 to 17, although there were over 20 prior convictions.

What we start to debate are issues of length of time, as opposed to what I think is the critical issue, which is how do we most effectively use the time we have with these youths, whether it's a one-month sentence or a six-month sentence?

One amendment that is absolutely essential, completely contrary to the task force report, is making it clear that there is a distinction between open custody and secure custody. Do not go the route that has been proposed of the single level of custody, allowing people within the institutions and the provincial directorships then to determine what kid gets slotted into what level. It allows for the dissolution of the levels of custody, as has occurred quite rapidly in Alberta. It gets past the one slight restraining decision - out of Alberta there's a Court of Appeal decision saying that a jail can equal open custody, as long as there is some treatment. If you adopt a single form of custody, you allow the dissolution of programs, which was actually happening in Alberta, and at quite a rapid rate.

In Edmonton there is an anger management in-custody program available for youths who have exhibited no signs of anger. As long as you behaved extraordinarily well and never lost your temper you're allowed to go into the anger management counselling group. This is the kind of nonsense that is going on in the system. Whether the kid is in custody or out of custody, we have to start making better use of the time we have with them in courts.

When you move into court, if the kid is out of custody and they've done any kind of serious offence, we look at the probation option. We send the kid to probation. They don't see the probation officer for a period of a month. There is no probation predisposition report, so there's very little background. Typically, they're seen once a month for three or four months and then it's a telephone conversation. Most of them last 20 minutes. We do not focus. We do not direct at all.

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In my view, the offenders we are most concerned about - those who have shown no willingness or have shown no progress through programs that are made available to them - are the kids that frankly have to be in secure custody. That's where they should be. It's not a matter of opening up or transferring more kids into adult facilities, in my view. Rather, we have to get jail populations down so that you can start to properly focus resources on those kids.

I'll try to deal with a couple of other issues very quickly. The age 12 factor - please don't reduce it down to 10. I got my grey hair quite honestly, defending little munchkins under the old JDA when we did deal with the 10- and 11-year-olds. For God's sake, please don't go back to that. At least under the JDA there was much less of a barrier between child welfare systems and justice systems, so that you could move those 10s or 11s, which is where most of them ended up going.

Right now one of the critical problems, as we've heard over and over again around this table, and we run into these problems, is you've got a child welfare program that would be suitable for a kid in the justice system, but because he's in the justice system you can't access it under the child welfare system. The kids in the child welfare system - there's a sexual abuse counselling program, but the only way you can access it is by getting the kid convicted, in which case if they're in custody, they're cut off welfare. This kind of lunacy has to end at some point in time.

Don't do it. Please.

The Chair: Thank you, Mr. Robb. Actually, as an advocate of not lowering the age, you over-talked Professor Bala, who was going to get the last word on that issue, but he said to me on the way out he would have just repeated himself anyway.

I want to thank you all. If you'll just bear with me for a moment, I want to thank as well especially our House of Commons staff and our Library of Parliament staff, who are really, in part, the driving force behind this, and certainly made everything, I think, for a very productive day.

I want to thank all of you. I can't believe the amount of time you've given us over the last few months, and the level of discussion we've had today. We're at the end of the process and we should be bored to tears with this topic, and I, for one, could do it again. I want to thank you all very much. It's been very productive and we're very grateful to you for your time. Thank you.

We're adjourned.

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