:
I call the meeting to order.
This is the sixteenth meeting of the Standing Committee on Justice and Human Rights. For the record, today is Tuesday, May 11, 2010, and I will just note that today's meeting is being televised.
You have before you the agenda for today. We're beginning our review of Bill an act to amend the Youth Criminal Justice Act and to make consequential and related amendments thereto. It's also known as Sébastien’s law.
To help us with our review, we have with us the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada.
Welcome here, Minister.
Accompanying him are officials from the Department of Justice's youth justice, strategic initiatives, and law reform branch. We have with us Catherine Latimer, who is the general counsel and director general, and Paula Kingston, senior counsel.
At the end of our meeting, we will leave a couple of minutes for committee business to work on the selection of some of the witnesses we're calling forward on this bill.
Minister, you have 10 minutes to present, and then we'll open the floor to questions.
:
Thank you very much, Mr. Chairman.
As you know, since coming into government, we have taken action to tackle crime and protect Canadians, but much more needs to be done.
Over the spring and summer of 2008, I conducted a series of cross-country round tables, many co-chaired by my provincial and territorial counterparts, in order to hear from youth justice professionals and front-line youth justice stakeholders about areas of concern and possible improvements regarding the provisions and principles of the Youth Criminal Justice Act. The review and other consultations permitted a variety of differing views, including those of aboriginal Canadians, youth involved in the justice system, police, the legal community, and other youth justice experts, to be brought forward and discussed. While most expressed that the fundamentals of the Youth Criminal Justice Act were sound, there was a sense that it could be improved in a number of areas, such as judicial interim release, reducing the complexity of the act, reinforcing proportionate accountability, and targeting serious, violent, and repeat young offenders.
[Translation]
It was with this perspective in mind that I introduced Bill C-4, Sébastien's Law (Protecting the Public from Violent Young Offenders) in the House of Commons.
[English]
The proposed changes to that bill that were introduced on March 16 of this year first of all deal with general principles. Currently, the protection of society is not stated strongly enough as an objective in either the preamble to the YCJA or its declaration of principles.
The Honourable Justice Nunn undertook a comprehensive review of the youth criminal justice system in Nova Scotia, from which he produced his 2006 report, “Spiralling Out of Control: Lessons From a Boy in Trouble”. Although the focus was on Nova Scotia and the services available to youth in that province, Justice Nunn did propose a limited number of changes to the YCJA, changes that targeted that small group of violent and repeat offenders. Justice Nunn concluded that highlighting public safety as one of the primary goals or principles of the act was necessary. Stating this objective expressly within the fundamental principles of the YCJA will ensure that courts keep the protection of the public in mind when sentencing violent and repeat young offenders.
The current law on pretrial detention has been viewed by some as confusing and has on occasion been applied inconsistently. As a result, the system is often powerless to keep violent and repeat young offenders in custody while awaiting trial, even when they pose a danger to society. Bill proposes to replace the pretrial detention test with a stand-alone test that targets youth charged with serious crimes. The amended act will simplify pretrial detention rules to ensure that, when necessary to protect society, violent and repeat young offenders can be detained while awaiting trial if they are charged with a serious offence and there is a substantial likelihood that the youth will commit a serious offence if released.
A serious offence will be defined as any indictable offence for which the maximum punishment is five years or more. This would include violent offences; property offences, such as theft over $5,000, which currently includes car theft; and offences that could endanger the public, such as possession of a firearm, sexual exploitation, robbery, and murder.
Excluded offences would be primarily administration of justice offences and some minor property or mischief offences.
[Translation]
Canadians lose confidence in the youth criminal justice system when sentences are insufficient to hold violent and repeat offenders accountable for their crimes.
[English]
The Youth Criminal Justice Act will be amended to broaden the sentencing principles and remove barriers to custody to ensure that violent or repeat young offenders will receive sentences that reflect the seriousness of their crimes. As it stands now, deterrence and denunciation cannot be considered by a judge as part of the sentencing. What we are doing is adding specific deterrence and denunciation as youth justice sentencing principles, to allow the courts to impose sanctions, when necessary, designed to discourage a particular offender from committing further offences. These changes to the sentencing principles will ensure that youth sentences are proportionate to the seriousness of the offence and the degree of responsibility of the offender.
Currently, under the YCJA the general rule is that young persons cannot be sentenced to custody unless certain conditions are met. For instance, young offenders cannot be sentenced to custody unless they have committed a violent offence. In 2006 the Supreme Court of Canada interpreted “violent offence” under the YCJA as an offence in which the young person causes, or attempts to cause, or threatens to cause, bodily harm.
We now propose to include in the YCJA a definition of violent offence that expands the Supreme Court's interpretation to include offences in which the young person “endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm”.
The YCJA currently allows for custodial sentences when the young offender has committed an indictable offence for which an adult offender would be liable to imprisonment for a term of more than two years, and the young offender has a history indicating a pattern of findings of guilt.
The requirement for establishing a pattern of criminal activity based on findings of guilt has been criticized by some as being too restrictive in cases where a young person may have been accused of several offences for which there are no findings of guilt, but which have been dealt with through extrajudicial sanctions. The act will be amended to allow a pattern of criminal behaviour to be established through findings of guilt, by showing that extrajudicial sanctions have been used to deal with the young offender, or through a combination of both. Taking a young offender's full history into account will help the courts determine an appropriate sentence.
While adult sentences are available for those 14 years of age and over and can be used where appropriate, they are not always applied, even in the most serious cases. The proposed amendments will require the crown to consider seeking an adult sentence for youth who commit serious violent offences, such as murder, attempted murder, manslaughter, and aggravated sexual assault. The crown will also be required to inform the court if they choose not to apply for an adult sentence, and provinces and territories will continue to have the discretion to set the age at which these obligations apply, either at 14, 15, or 16 years of age.
In May, 2008, the Supreme Court ruled in Regina v. D.B. that certain provisions of the Youth Criminal Justice Act violated the charter. These provisions place an onus on young offenders found guilty of presumptive offences to justify receiving a youth sentence rather than an adult sentence, and to justify the continued protection of their privacy.
The amendments that we are proposing will remove the presumptive offence provisions from the YCJA, as well as other provisions rendered inoperative as a result of the decision of the Supreme Court. The act will be changed to clarify the test for the imposition of an adult sentence and ensure the onus is on the crown to satisfy the court as to the appropriateness of the adult sentence.
Currently, under the YCJA the publication ban is automatically lifted where an adult sentence is imposed on a youth. Also, if the crown applies, the court can consider lifting the ban in appropriate cases when a youth sentence has been imposed in respect of an offence for which the crown was seeking an adult sentence. In practice, violent offenders who are given youth sentences are normally released back into the community anonymously.
The implication for public safety can be significant. For example, parents may have no way of knowing that a convicted sex offender is in the area. The proposed publication amendment to the YCJA would give judges discretion to lift the publication ban for youth who are convicted of violent offences for which a youth sentence was imposed. Judges would be required, when necessary, to determine whether the young person poses a significant risk of committing another violent offence and whether the lifting of the ban is necessary to protect the public against such a risk.
To make it easier to identify patterns of reoffending, the amendments will also require police to keep records when extrajudicial measures are imposed. Typically such measures would include taking no further action or using warnings, cautions, or referrals to respond to an alleged offence by a young person. By requiring that records be kept of these measures, police will be better informed of past allegations of offending so that they can take appropriate action in respect of subsequent offence allegations against a particular young person.
The act will be amended to make it clear that no young person under 18 will serve their sentence in an adult institution, regardless of whether they were given an adult or youth sentence. They can, however, of course be transferred to an adult institution at age 18, as is currently the practice.
In conclusion, Mr. Chairman, Canadians have told us they want action on crime and our government is delivering. With the introduction of Sébastien's law, this government is taking action to strengthen the way the young offenders system deals with violent and repeat offenders. I urge you, my honourable colleagues, to support this bill, which proposes amendments to and addresses key deficiencies in the Youth Criminal Justice Act.
Thank you.
Thank you, Minister.
I am glad that in some ways you're implementing Justice Nunn's provisions with respect to what arose out of the McEvoy incident in Nova Scotia, particularly in terms of interim release provisions. I don't think that's a controversial matter, and it's good on the housekeeping end. It's a pity we hadn't sat through these things, but there were some bumps along the road, and prorogation.
The other thing on which I think I could join with you is the idea of making the act less complex for judges and prosecutors to amble through. That seems reasonable.
I also think I could go halfway with you on some of the publication concerns, particularly when you said in your remarks that the discretion of judges, after taking into consideration concerns of public safety, would be uppermost in the amendments. I think it's an encouraging sign, after the four years and some months that this government's been in office, that homage to judicial discretion is now coming from a minister of justice. I notice you defend judges now in the House of Commons with respect to some persistent questions on the naming of judges, so I think we could all rejoice that this government has finally come around to realizing what we have realized for a long time: that judicial discretion is incredibly important.
I want to dig down into some broader issues. As I say, some of the amendments are good--they're housekeeping, and they're long overdue--but the core of what the changes are about here, the pith, is philosophical.
I don't want to quibble about a lot of the other aspects. I do have some questions about this kaleidoscope of standards at 14, 15, 16 years of age that are related to the onus on the crown to insist on a more onerous sentence. I wonder why.
My first question might be a very simple one. Why are you leaving it to the provinces to decide that? What happened to the Canadian Minister of Justice ideal that laws should be the same everywhere in Canada? That's maybe a short snapper.
The bigger question is whether you need, Minister, to put denunciation and deterrence, which are in section 718 of the adult Criminal Code, into the Youth Criminal Justice Act.
As you know, Minister, the act already has words to the effect that the youth shall be made to know the consequences of his or her actions. There's a preamble to the bill that is right in line with why you have a YCGA in the first place. I speak of the United Nations conventions and so on.
The philosophical question, I think, is this: if you import denunciation and deterrence, just as in section 718, is there really a need for a Youth Criminal Justice Act? Aren't you just matching it to the Criminal Code in total?
There's a larger question, then, and a short one on provincial standards.
:
You covered a bit of ground there, Mr. Murphy.
I will say with respect to the age at which the provision you referred to kicks in that we're very respectful of the provincial role in the administration of justice. The facilities are operated by the provinces. These matters are conducted, as for the most part all criminal prosecutions are, with provincial resources. We work with the provinces and we're respectful of their role.
With respect to your comments on why we would require the crown to consider applying for an adult sentence, we're talking about the most serious crimes in the Criminal Code. We're talking about murder, aggravated sexual assault, attempted murder, and we think it's appropriate to give that guidance to those who administer justice and prosecute these cases that we do want these matters before them.
With respect to your comments on deterrence and denunciation, sometimes in my reading of some of the comments about this, it has not been made clear. We're talking about specific deterrence. We want this individual--this specific individual--not to get involved with this kind of the activity. What we are doing is tailoring the penalty for that individual and making sure that the courts have before them all the tools necessary to deal with that individual. Ultimately, we do want that individual to be deterred from doing this type of crime.
It's in his or her best interests, of course, and it's in the best interests of society. I think it works in everybody's interest for the courts to have all that discretion at their hands.
You covered about three different areas, I think, and I hope I've covered all of them for you. In response to your question, that's the gist of where we're going.
:
First of all, Mr. Norlock, thank you very much for putting that crime round table together. Let me publicly thank you for your commitment to reforming the criminal justice system in this country. I very much appreciate it. Those of us here in Ottawa, and I'm sure people back home, are appreciative of your concern and your interest in this area.
I heard a number of things, and you're quite correct that across this country people are worried about a relatively small group of out-of-control, violent, many-times-repeat young offenders who are a danger not only to the public but to themselves. This bill, Sébastien's law, is a reflection of that, and many of the recommendations that I have received target those particular individuals.
I was asked about the Nunn report by Ms. Leslie. The Nunn report was concerning an individual who was being arrested, released, arrested and released on the same charge. It was auto theft, or theft of over $5,000 as it's currently known. He posed a danger to the public and to himself. The interpretation of the law wasn't responding to that very particular concern, so we have to look at that and say that for the individual who was involved in mischief or a minor offence, we understand there are many routes to take to try to help that individual get intervention, including extrajudicial measures. Yes, we're all onside with that.
However, with respect to this other group of individuals, we have to clarify the law and we have to make sure that the public is protected. By protecting the public you're protecting the individual. That came through loud and clear in the Nunn report. The individual himself would have been better off if there had been clarification within the law. That's the kind of thing I've heard across this country.
I mentioned in my opening remarks that people say the bill's too complex and that it's very difficult to read and to administer. Law enforcement agencies mentioned that to me as well. On a number of occasions as you go through this on a clause-by-clause basis, you'll see that we're trying to clarify what we want. For the most part, we're all moving in the same direction, but we want clarification. We tried to put in that balance and put it in together, and this is what you have before you. You have Sébastien's law, and I'm hoping this matter will move expeditiously through the legislative process.
:
I am concerned. I know you, and I know you clearly care about victims' rights. I might ask you what happened to our non-renewed Mr. Sullivan. Other than the fact that he wasn't fluently bilingual and may have been a few issues with that, he handled himself quite well. Why is he not being renewed, when do you think there will be a replacement, and will you ask opposition members—and government members, for that matter—for some input on that? That's a short snapper.
The other question I have is about the 14-, 15-, and 16-year-old limits of onus that I went on at you about in the first round. I can clearly understand Monsieur Ménard's point. In Quebec they have a highly developed system of treating youth justice issues, and I understand their AG might have asked for this. Point-blank, Minister, did any other attorney general in any other province ask for this varying standard? If it is giving some leeway to Quebec, I think we're all grown up around this table and we understand, but I would like to know if there are others.
On the issue of consultations, my BlackBerry must not have been working that day, but I don't remember getting an invitation to one in Moncton. I understand those were very well attended and I understand that much of the input, including that from prosecutors, was laudatory towards how the YCJA is working. I think when you bring amendments like this and you have the statements made around the table that have been made, sometimes it results in a loss of confidence in the system. I'm looking for you, Minister, to say, “Well, the YCJA does work in great measure, but we're fine-tuning it”.
My question goes to the consultations and the results of those consultations, the without-prejudice aspects of them. Can they be shared at least in an in camera way with members of the justice committee, or on a larger scale? Perhaps the public would like to know about the public consultation. It seems ironic that you'd have public stakeholder consultation and not publish the results thereof for everyone to see verbatim. It might shorten our journey here to find out what people are saying.
:
You've covered a number of different areas.
One of the things I'm most proud of, and I know my colleagues are too, is the creation of the Office of the Federal Ombudsman for Victims of Crime. One individual, of course, has had a term, for which we thank that individual. We posted to the public the job requirements and indicated that people were allowed to apply for that job, and a decision will be made shortly on that.
I'm very pleased to be part of a government that created that office. I think it is an idea whose time had certainly come three years ago when we moved forward on this. Having an individual whose job it is to stand up for victims in this country and to deal with victims' issues was an idea that was overdue in this country, so I'm very proud that we've done that, and we will be naming a federal ombudsman in due course.
With respect to your comments about provincial discretion with respect to 14-, 15-, and 16-year-olds, it currently existed under the presumptive provisions that were in the Youth Criminal Justice Act. The presumptive provisions, as you know, were struck down by the Supreme Court of Canada in its decision on Regina v. D.B. That said, we've continued them in the provisions with respect to adult sentences. It's perfectly consistent with the laws as they already exist in this country.
With respect to the public consultations, I believe they were quite extensive. I would challenge anyone to say on other areas that there wasn't greater consultation, because I went to every single province and every single territory. We encouraged input from people like you on the Department of Justice website. I was looking forward to any input, any provisions on these.
For me and my colleagues, this has been a priority, as is all our criminal law legislation. At the Liberal conference, did you hear anything about fighting crime? Were there any papers, any discussions, any inputs? I didn't hear any, but believe me, if the Liberal Party or anybody else wants to have input with respect to cracking down on crime in this country and standing up for victims, I would welcome it. I would very much appreciate anybody who wants to come forward with that. As you know, I'm waiting for a little more priority from my colleagues outside the government on this matter, but if there's a conversion or a reawakening of people's interest in fighting crime in this country, I would certainly welcome it.
In any case, we had very extensive consultations, and the result of those extensive consultations is Sébastien's law, the law that you have before you here today, Mr. Chairman. This just shows you that consultation does work when we talk to all the stakeholders and we come up with a bill such as the one you have today.
:
I adore you, Mr. Minister, but you know I have only a little time left, and so you will be able to use as much time as possible for your answer.
I don't agree with you. I don't share your opinion. In Quebec, statistics clearly show a decline in crime. You have those figures. You know there has been a constant decline in crime.
At present, not only does the proposed reform run counter to the fundamental values of Quebec when it comes to rehabilitation, but the theme chosen for of the bill exhibits enormous cynicism. It is called Sébastien's Law. Let me tell you that the young criminal was given an adult sentence under the current Young Offenders Act. That has been established; that is the reality.
You say that the current act does not stand up for victims. The priority in Quebec is awareness. A rehabilitation program is based on the accused's awareness of the harm they have caused to the victims.
I agree with you, there are criminals, and young people get lost, perhaps, but that might be one in 100,000, in Quebec. I can't speak for the other provinces, but I speak for Quebec.
Can Quebec assert its difference and continue to apply the act that it has been successfully applying?
[Editor’s Note: Bells ringing]