JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 16, 2000

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[English]

The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): I'll call this meeting to order.

As the attendees know, I'm not the regular chairman of this committee. I might tell you right off the bat what my philosophy is. I believe in fairness to all, and I don't believe that the chairman should ask questions or interject into the questioning unless there's something that's being glaringly omitted. With the group I have here, I don't think we're going to have that happen.

I'd like to introduce Mr. Nicholas Bala, who is our witness today. I hope I pronounced that name correctly.

Professor Nicholas Bala (Faculty of Law, Queen's University): It's “Bala”, like the town in Ontario.

The Vice-Chair (Mr. Ivan Grose): Oh, like the summer resort on Georgian Bay.

Mr. Bala is assistant dean in the Faculty of Law at Queen's University.

Do you have a presentation?

Prof. Nicholas Bala: Yes. I think you have a brief.

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

Prof. Nicholas Bala: The word “brief” is optimal in that it's a very short document that I'll speak to.

Just very briefly, by way of introduction, I should say that I was the associate dean and am now back in the trenches, as they say, as a professor. I've been a professor at Queen's since 1980. My main area of teaching and research interest is family and children's law: issues relating to divorce, to child abuse, and also to youth justice.

I've written quite extensively on youth justice issues. I've been a speaker at continuing education programs for judges, lawyers, and police about youth justice issues. I've done some work with aboriginal groups around these issues. I've had the privilege of appearing here in Parliament before committees related to youth justice.

While most of my knowledge is, if you like, based on academic and research experience, I have done some work with young offenders. I continue to do a little work with youth in Kingston, and I am a father of four children, including one who is a teenager.

Just by way of background—and I'm sure your committee has already heard a great deal about what's wrong with Canada's youth justice system—I think it's important to appreciate that we have both some issues and some problems with the legislation. We have issues and problems with provincial and territorial implementation. We have a set of issues around a crisis of confidence in regard to the youth justice system.

I think there are many areas in which there is actually a set of misperceptions in the public about youth justice, which is driving some of the momentum for reform, and I think it is, in some ways, unfortunate. There is a perception that we have a worsening youth crime problem in this country. I think we have a serious youth crime problem, but I'm not persuaded that it is necessarily getting worse. Particularly if one looks at the most serious crime of youth homicide, the rate is relative stable in this country.

What we certainly have, however, is a changing attitude towards youth. In some ways, I think we have a level of anti-youth or anti-teenager rhetoric in the public and from some of our political leaders. I think we also have different attitudes from children and youth towards adults than we have had in the past, but I don't believe we necessarily have more crime than we may have had 20 years ago.

In fact, young people have less respect for authority than they had 20 years ago. They're more likely to speak and dress in a way that seems less respectful of adults. In part, I think, that reflects the way adults relate to one another. People complain that they don't like the way young people today dress, but I think if one looks at how even adults dress, one sees that they dress less formally than they used to. If one says, well, I don't like the way they don't seem to respect adults the way they did when I was a child, that's true—and adults don't seem to have the respect for one another than they used to. Young people are reflecting adult values in some ways.

Also, we certainly have a media and a popular culture that in many ways are glorifying violence. As well, we have many young people, particularly those who are having school difficulties, facing a very uncertain future and employment difficulties.

I think it's important to appreciate that much of the rhetoric about “let's get tough with youth crime and let's have longer sentences” is not going to improve the level of public safety. There is a lot of research that indicates that a more punitive approach to youth crime does not create a safer society.

Fortunately, I think, in the statement from the Minister of Justice and in the federal youth justice strategy, there is at least a rhetorical recognition of the limitations of an approach based on a punitive or purely punitive approach to youth crime. There is also, I think, a recognition that for most young offenders, community-based responses are going to be most effective in dealing with their offences and also in giving a sense of accountability to the community and the victims.

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This is not to say that there's not an important place for custody, but it should be reserved for the most serious offenders. I suspect that your committee has heard that Canada is a world leader in the use of youth custody and that one of the motives behind this legislation is to reserve custody for the most serious offenders.

In my presentation in the next few minutes, I'm going to focus on some of the details of the legislation. I think your committee has heard a lot about the philosophical issues. I assume you all have copies of the bill in front of you; I'm actually going to refer to it in regard to some of the problems I see with the bill.

First, turning to the declaration of principles, I think there are a lot of good things in the new clause 3; like the present legislation, there is a balancing of concerns about accountability and rehabilitation. I do have two specific concerns. One is just a picky little point, and the other is quite substantial.

The substantial point that I would make is that there is no specific reference in clause 3—or elsewhere in the bill—to the special status of aboriginal youth. Aboriginal youth are disproportionately represented in the youth justice system and in the correctional system. The federal Criminal Code specifically acknowledges concerns about the sentencing of aboriginal adult offenders in paragraph 718.2(e), and it is my submission to you that the Youth Criminal Justice Act should specifically address the need for special consideration of aboriginal offenders and should give special consideration to the involvement of aboriginal communities, as well as the courts, in responding to the offences of aboriginal offenders.

The more picky point is that I'd say it's a very desirable feature of the bill that it recognizes and gives greater prominence to the position of victims than the present act does, however, I'd note that in paragraph 3(1)(d) it says that “special considerations apply in respect of proceedings against young persons and, in particular...”. They then list subparagraphs 3(1)(d)(ii) and (iii) on that list, referring to victims and the need to treat them with courtesy, respect, and compassion. I think that's all true, only that would apply to victims in adult proceedings as well those in as youth proceedings. I'm not sure why it was put there.

Turning to the issue of what are called “extrajudicial sanctions” and “extrajudicial measures”, again, on the small points, I'd note that those terms don't roll off the tongue very well. “Extrajudicial sanctions” sounds like something one might do in some countries where they would say let's not have judges at all; I think there are other words that are more appropriate. For example, the present words, “alternative measures”, for diversionary programs, are probably useful, but I think an even better term might be “community sanctions” or “community sanction programs” or “community-based measures”. I would submit that you should consider the language that is used there.

More generally, though, and turning to the fundamental issue, those provisions are intended to move many young people being dealt with in the courts—and Canada has a very high rate for use of courts compared to other countries—into community-based dispositions at a pre-adjudication stage. I think those are laudable provisions, and you've probably heard about them.

My concern is that as the bill is now written, all the provisions there are really statements from the federal government saying that it hopes that a province will do this or that the police will do this, but if they don't, there's no consequence, there's not going to be any change.

If we want to see a change—and I certainly do—if we want to see more use of these cost-effective ways of holding young people accountable, I think there have to be some teeth to these provisions. The way to do that is for the legislation to specify that a youth court judge has the authority to refer an appropriate case to either the police or the prosecutor for screening or caution or to refer a young person to extrajudicial sanctions or to family group conferences or other measures—in other words, to say that there is some control, some accountability.

In an appropriate case, the judge could refer it back rather than saying to the police, we hope you'll screen, but if you don't, it's up to you. There has to be a level of judicial control to make these provisions meaningful, to make this set of changes meaningful. Otherwise, this may well look like empty rhetoric. I wouldn't see judges using these provisions very much, but if police and prosecutors know that there is some level of accountability, that there is someone out there who is going to look at what they're doing, they may be more inclined to use these important new provisions.

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I want to turn briefly now to the set of issues about sentencing and custody. There are many good things in clause 37 and in clause 3 that guide sentencing. In many ways, these provisions are similar to present law, but I think they more clearly focus on the issue that for serious violent offenders there has to be a level of accountability. On the other hand, they say that for most young offenders, particularly first offenders but non-violent offenders, we should make less use of custody.

I am, however, concerned about two things when looking at clause 37, and particularly at clause 38. Clause 38 is the provision that is intended to reduce the use of custody in this country. As I say, on a per capita basis, we have probably the highest rate in the world of use of custody for young people. Clause 38 is intended to reduce that level, but I worry about paragraph 38(1)(d). There's a list there that says, “A youth justice court shall not commit a young person to custody...unless...”, and there are certain criteria set out. I think paragraphs (a),(b), and (c) are fine, but paragraph (d) looks extremely broad. It says that “the circumstances of the offence make the imposition of a non-custodial sentence inconsistent” with the purposes set out here. It looks like it's just opening it all up again. I would submit to you that provision (d) should be eliminated or should at least be rewritten to be much narrower, to just focus on some kind of exceptional circumstances.

As with my concerns about community-based sentences or dispositions at the pretrial stage, I worry that most of the provisions about use of community-based dispositions are optional in the sense that the provinces can choose to implement them, or their provincial directors, who are bureaucrats, may say they're not doing this.

So I would submit to you that the innovative things, the good things in this bill, in particular, the provisions for use of attendance orders for sending young people to facilities in the community for what they're calling intensive community support and intensive rehabilitative custody.... All three of those things—attendance orders, intensive community support, and intensive rehabilitative custody—are used at present only if a provincial director allows it. I think judges should have control of that and I think it would ensure that these provisions are used in the interests of young people.

I also think the judges should have ultimate control over the issue of levels of custody: the open and the secure. I worry that provincial directors may make decisions in this regard based on budgetary concerns rather than the needs of youth.

I want to turn now briefly to the issue of the adult sentencing provisions. I am concerned, particularly when looking at clause 72. I should say that I think there's a lot to be said for the basic model of moving to a post-adjudication model, and I can address that in your questions, but I'm concerned that in clause 72—which sets out the critical test for adult sentences—the focus, in the words of the bill in paragraph 72(1)(a), is solely on the issue of accountability. The present legislation requires some balancing of the needs of young persons and the interests of society with notions of accountability.

Now, as I read paragraph 72(1)(a), I realized that I was perhaps misreading it. In fact, the reference in paragraph 72(1)(a) is that the test for imposing an adult sentence would be “in accordance with the purpose and principles set out in section 37”, and then there's the reference to accountability. Perhaps the intent in clause 72 is to link back to the accountability notions that actually appear in clause 37. In clause 37, there is actually a balancing of the interests of accountability with an imposition of “just sanctions”, with “rehabilitation and reintegration into society”.

I think those are important ideas. They should be restated. In other words, I suspect that the problem is more one of drafting than of intent, and I would urge you to amend clause 72 to have that appropriate balancing in place.

I would also say that in regard to young people who have been or should be subject to adult sentences, it should be clear that although they are subject to adult sanctions, the ideas in clause 37, the sentencing principles for young people, continue to apply. That would be consistent with the present regime and the idea that even young people who commit murder have earlier parole. It should be clear that all young people who are subject to adult sanctions should also have their youth taken into account.

I want to briefly address the issue of publication. I worry that under the proposed provisions of the Youth Criminal Justice Act there will be publication of identifying information for young people who are not being treated as adults. I think that is inappropriate, inconsistent with the United Nations Convention on the Rights of the Child, and unnecessary.

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This is a situation in which the words of the Prime Minister, as reported in the media, ring true: this is a pandering to the media. We have a newspaper war, with newspapers saying to open things up so that they can identify young people. It's not in the interests of society or of young people to do that.

I want to briefly address the issue of legal services for young people, in particular, in clause 25. The youth justice system is a very complex system. The act is particularly complex. Most young people who are going through the system need to have legal services, particularly if they are being dealt with in the courts. There's an important place in the pre-court stage, in the so-called extrajudicial stage, perhaps not having lawyers always available.... But if someone is going to court, if they're facing lengthy sentences, they should have access to legal services.

I am concerned about two things. First of all, I am concerned about the principle found in subclause 25(10), that is to say, the principle that a province may require parents to pay for lawyers for their children. First of all, this gives the wrong message in suggesting that parents should be accountable for the wrongs of their children. Secondly, I think it's going to result in parents discouraging their children from having access to legal services. They'll say, we're going to pay for this, we want you to plead guilty, we think you're guilty, and don't get a lawyer. I think that will very much discourage young people from having access to legal services. I think subclause 25(10) should simply be eliminated.

If you decide to have subclause 25(10) there, I have another concern, that is, there's a recent decision of the Ontario Court of Appeal which suggests that and requires that at a pre-adjudication stage a judge should assess whether the parents, in the judge's view, have the ability to pay, and if they do, that a young person should not have a lawyer and the parents should be in some way pressured into paying for the lawyer, even at that stage.

Subclause 25(4) should make it clear that it is the means of the young person that are to be the sole criteria to determine whether the young person can obtain counsel, that if the young person can't afford to obtain a lawyer, which is the usual case, a direction should be made for the provision of legal services for the young person, and that the parents' means, at that stage, should not be taken into account. Otherwise, even more young people will be discouraged from having access to legal services.

I certainly could go on, but I've really used up my 10 minutes—and then some—so I'll open this up to questions on those issues or others.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Bala. As you probably know, having been here before, we're under the rule of the bells. We'll have to suspend at 4.05.

Mr. Cadman, you have seven minutes. If you were to use less, it might work well, but we're under your control.

Mr. Chuck Cadman (Surrey North, Ref.): How about if I use less? I just have one question for Mr. Bala right now.

Thanks again for coming here today. I know that you you support the idea of bringing children under 12 years old into the system somehow. I think that was one of your recommendations from last time.

Prof. Nicholas Bala: Yes.

Mr. Chuck Cadman: I just wonder if you could expand on that, on how that could be done or on how you feel that should be done.

Prof. Nicholas Bala: Well, I do worry.... I've written a paper that was funded by the Department of Justice, but it is my own view. Right now in this country, I have a concern about offenders, children under the age of 12: the vast majority of them should be dealt with by their parents, by their schools, by the child welfare system. But I am concerned that some of the most serious child offenders right now are not being adequately responded to by the police and other social agencies, that there is a lack of legal accountability there. That affects both how victims perceive the system and how the police can respond. Indeed, it means that some children are not getting adequate access to the services that they need and should have.

I also worry—while I don't believe in deterrence in the sense of “longer sentences are going to result in fewer young people committing offences”—that the message going to children under the age of 12 is that they can commit crimes and there will be no accountability. Now, most children under 12 are not aware of the fact that there is no accountability; they believe that there's accountability to their parents or otherwise. But those who are committing the most serious offences get the message from the police that there is no accountability, that there may be no accountability, so I think it sends a very bad message to those children.

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I also think it sends a bad message to society to suggest that children under 12 cannot be considered accountable for their acts. I realize there is accountability, in fact, through the child welfare system and otherwise, but it is problematic. I worry that we may not get a response on this until we have the kinds of tragedies we've seen in England and the United States, in which an 11-year-old commits a homicide and then everyone says, well, what are we going to do about this? There is some response in the child welfare system, but in fact, it would be inadequate. Other people who have written about this have expressed similar kinds of concerns.

There are a variety of solutions for this. I think the parliamentary committee recommended, and I support it, a response that would keep the majority of children under the age of 10 in the child welfare system, but for the most serious offenders, there would be a way of dealing with them through the criminal justice system, through the youth justice system.

Mr. Chuck Cadman: Are you suggesting some kind of mechanism like we have in the transfer mechanisms right now, whereby on special cases there could be an application made to the court to have them...?

Prof. Nicholas Bala: I think that would be a very good working model, perhaps something like that list of most serious offences and, indeed, like the idea that a repetition of serious offences would be some basis for it. Yes, that would be one model that I think would be very workable for that age group.

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

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

Mr. Maloney, do you have anything?

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I can pick up a couple of questions.

Mr. John Maloney (Erie—Lincoln, Lib.): I will defer to my partner here—

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

Mr. John Maloney: I always defer to my colleagues.

Mr. Jacques Saada: But my colleague is a natural leader so there is no problem there.

The Vice-Chair (Mr. Ivan Grose): Mr. Maloney seemed to be writing more than you were, so that's why I asked him.

Mr. Jacques Saada: Thank you very much for your presentation, Mr. Bala. I must say I'm really impressed with the balance with which you approach things. It's soothing.

I would like to understand one thing. You are referring to subclause 25(10), and you say it should be suppressed. Subclause 25(10) deals with the recovery of legal costs or lawyers' costs or whatever. It says specifically that it doesn't prevent programs to recover the costs. My question to you is this: if we push a logic, whether this clause is there or not, what does it change?

Prof. Nicholas Bala: I should say, by the way, which I think I mentioned in the brief, that it makes more sense to me to say to parents that if their child is put into custody and they don't have to support their child, we'll go after them for the costs or part of the costs of looking after their child and supporting their child in custody if their child is found guilty. The way subclause 25(10) is now written, the provinces can go after the parents whether their child is guilty or not guilty.

Now, it's a good question. The present legislation is silent and, as you may know, there is controversy in some provinces that are starting to go after parents. I think it would be quite permissible for the federal government, under its powers under section 91 of the Constitution Act, to say that the provinces may not go after, cannot proceed against, parents to recover for services.

Mr. Jacques Saada: So in fact what you are saying is not only to suppress it but to replace it by the contrary.

Prof. Nicholas Bala: Yes, I think that's a much better way of putting it. Indeed, I think, though, that a court would now perhaps look at the legislative history. If you just removed it, that would already give a message, but you're right: I think a much better thing would be to say that it is the obligation of the state to provide counsel without recovery from parents. And indeed, if you're thinking that way, you could identify services that you think parents should provide for or contribute for. Custody might be a legitimate factor. In other words, parents should have an incentive to keep their children out of custody, not to keep their children from having legal services.

Mr. Jacques Saada: Let me pursue that line a little, if I may. If you ask a parent who has money to support his kid and if those who do not have necessarily the same means would not support the kid, aren't you basing the approach on the parents' resource availability more than the actual need? Is it not a punishment that you impose upon the parents?

Prof. Nicholas Bala: Well, it is saying that if you have the means, we expect you to pay for your children. If you don't have the means, at a certain level you end up on welfare and you have a sort of graded scheme. It is a notion that.... In fact, I raise that almost rhetorically. I think there's a lot to be said for not making parents pay for any of these services, to say it's like education or health care—and parents are already burdened.

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I don't think parents encourage their children to commit offences thinking that there's no financial ability to pay or need to pay, but if the concern coming back from the provinces is that this is costing too much money and they want to recover from parents, I'd say the first thing to go after is custody. But I don't disagree with saying let's not make any.... Most countries don't make parents pay for any of these things, but if you're hearing the pressure to do something, I'd say the first thing is custody, then legal services—or not legal services at all.

Mr. Jacques Saada: My problem is that I don't hear pressure to do something. Actually, to the contrary, I think they are trying to fit into this bill what the reality now is in Canada. Anyway, that's something we can debate, Mr. Bala. I understand your point.

Prof. Nicholas Bala: But I would prefer to see no.... I mean, there's enough tension between parents and young offenders as it is. Typically, once a young person has committed an offence, there's so much tension in that household. We want to promote the rehabilitation of that young person; it's wrong to place more pressure on the parents. It's not in society's long-term best interests. We're being, as they sometimes say, penny wise and pound foolish. We think we're saving a few dollars on one thing or another, and we're making it more likely that this young person could grow up to be a serious and repeat offender.

Mr. Jacques Saada: I'd like to go to paragraph 37(2)(b), harmonization of sentence.

The bill speaks about harmonization of sentences, but of course we'd have to think about whether they are speaking about harmonization of resources. Sentences can be scheduled in this kind of bill, federal jurisdiction, resources are going to be split federal-provincial.... What impact do you think this dichotomy will have on the actual implementation of this harmonization of sentences?

Prof. Nicholas Bala: I am concerned about this issue. Right now we have enormous disparities in sentencing practices among provinces. I worry that the present legislation as drafted will in some ways increase that. There are so many places where provinces can effectively opt out of things or not have the services. I am aware of the fact that the federal government is talking about using financial incentives to provinces to have resources available, but this is why I would like to see judges having more control over the process.

It has been my experience in dealing with different groups that judges as a group are very committed to the welfare of the young person who's in front of them—balancing a variety of concerns—and if judges, taking everything into account, have the power to say that this young person needs these services, they'll make that order—if the legislation gives that power to them. I think the combination of judicial responsibility and a degree of federal financial support would go some way towards reducing the disparities that are now in the provinces.

Mr. Jacques Saada: I don't remember exactly where it was, but in your brief you refer to the decisions made or not made by provinces in terms of social support and so on and so forth. You say—in my view, very rightfully so—that this bill really cannot force a change.

You come from a university in Ontario. Did you have a chance to make representations to the provincial government on the basis of what you are exposing here in this brief today, in terms of the need to devote more than money, but in the field of youth justice, less into custody and more into all other measures...?

The Vice-Chair (Mr. Ivan Grose): Could your answer could be brief, Mr. Bala?

Prof. Nicholas Bala: Yes.

Not in this kind of forum, but I have communicated at different times to people in the provincial government, including politicians, my view about that: that we should place more emphasis on these community-based things, as I've written. For a variety of reasons, the present Government of Ontario hasn't had these kind of hearings.

Mr. Jacques Saada: Are there actually policies in this regard in Ontario?

Prof. Nicholas Bala: Some of them are explicit and some of them are implicit. Certainly I don't think that Ontario has the kind of devotion to child and adolescent issues that, for example, is apparent in Quebec.

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The Vice-Chair (Mr. Ivan Grose): Mr. Saada, time's up. I'm sorry.

Mr. MacKay, you have one short minute.

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

Mr. Bala, thank you for being here. I apologize for missing your presentation. I have your notes, and I do understand that you are favourably disposed to a mechanism that would bring a child outside the normal parameters into the youth criminal justice system, similar to the system that we have now of transferring a youth into the adult system, where we could bring in a young person in very specific and very serious circumstances so that they could be the beneficiaries of this new system.

I have a specific question for you. Under the new legislation, with respect to breaches of probation.... We know, and I know, as a former crown attorney, that this was a huge problem. Breach of probation under the youth justice system was rampant and was one of the most serious problems in terms of the credibility in the community and the faith that both adults and youth alike had in the system.

Under the proposed legislation—I don't have the reference in front of me, but I know that in the adult system it's section 733, where it talks of the type of breach. In the new language, it's “wilfully”. Under the adult system, it's different language, and there's a different standard, in my opinion, that is to be applied. The mens rea element is much higher in proving that a youth was “wilfully” breaching a probation order, an order of the court, as opposed to the adult system, where “without reasonable excuse” is the language that's used.

I just wondered how you felt about that and how problematic this is going to be if the new system maintains that wording.

The Vice-Chair (Mr. Ivan Grose): I'd say that was a three-minute question in a one-minute space.

Mr. Peter MacKay: Thank you.

Prof. Nicholas Bala: You asked about a number of issues there. You're right in identifying breach as a big problem, but I don't perceive it as so much of a legislative problem. In other words, it's not that the language is too narrow. Rather, it's that the resources are not there and/or often probation officers feel that it's not appropriate to bring a case back to court, particularly for minor breaches or if the young person is making progress. I don't think that's necessarily always a bad thing.

I think the idea of wilful breach as such is saying that if you're a young person, we must have a sense that you knew what you were doing was wrong and that you were wilfully doing it; we hold young people to a different standard of accountability. I don't think that is necessarily inappropriate.

Mr. Peter MacKay: Okay.

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

Is it the mood of the meeting to ask Mr. Bala to stay? I assume it will be about 5 o'clock before we return.

Would you be willing to do that? You mentioned a 6.30 train.

Prof. Nicholas Bala: It's at 5.55, but I could certainly be here for—

The Vice-Chair (Mr. Ivan Grose): Is it the mood of the meeting to ask him to...?

A voice: Ivan, you said it would be 5 o'clock before we return.

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

A voice: We'll be back at 4.30.

Mr. John Maloney: I think we'll only be half an hour.

The Vice-Chair (Mr. Ivan Grose): We'll be back sooner than I thought.

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The Vice-Chair (Mr. Ivan Grose): Thank you for staying, Mr. Bala. It's one of the problems here. We react to those bells like Pavlov's dogs.

We're a little out of order here, so I think we'll start with Mr. Cadman, for a three-minute round.

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

On extrajudicial measures, Professor Bala, some people have expressed some concerns. Most people think of extrajudicial measures in terms of first offences, non-violent offences. There is the ability here, essentially, for a young person to keep coming back time and again after a diversion, a caution, a caution, a caution.... Because there's the problem of record-keeping and communications between police, you could wind up having a person back time after time on extrajudicial measures, whether it be diversion as opposed to it just being the first offence and a non-violent offence. I just wonder if you have any ideas on that.

Prof. Nicholas Bala: There are several issues you're raising there.

I think the new act contemplates, as indeed the present legislation allows, a young person going through alternate measures or extrajudicial sanctions more than once. I think we have to recognize that we're dealing with teenagers. My own experience is that to say well, I told you once and that's it.... You have to repeat a message often.

The issue is, are we holding young people accountable in some way? Extrajudicial sanctions often have a significant element of accountability to them. Is it a cost-effective, socially appropriate way of responding? Does it meet the needs of victims?

Particularly the way that extrajudicial sanctions are contemplated here, they may well have an element of accountability and, as well, some element of rehabilitation and appropriate involvement of the victims. The problem with going to court, I think, is that inevitably in our society court is a formal place, and often the young person becomes disengaged in that process. A well-run, community-based extrajudicial sanctions or alternative measures program actually engages the young person more than going to court, so I don't consider it a less meaningful sanction. It's certainly more problematic as you move in towards violent offences, and that's why there are restrictions on that.

Record-keeping, in theory, should not be a problem. The act certainly allows for appropriate record-keeping. Whether the reality is always there is another factor that, again, often relates to funding.

Mr. Chuck Cadman: What we've heard is that most of the concern is on police-based diversion. Police don't talk to each other sometimes; it could be three months down the road and one policeman doesn't know that another one just cautioned a kid three months earlier.

Prof. Nicholas Bala: In a well-run and properly resourced force that focuses on these issues, they can and should keep records of that. In reality, sometimes they don't. It's sometimes the same with adult offenders. But in that regard, the problem is certainly not the legislation; the problem is provincial or local implementation of it, making it a sufficient priority, and training around that.

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

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

Mr. Maloney, three minutes.

Mr. John Maloney: I want to zero in on youth under 12. Your main premise was that these children are probably better taken care of by parents, schools, or child welfare. But there's a perception out there, both in youths under 12 as well as members of the public, that there's no accountability, that they can get away with it because they're under that age. As a consequence, you would perhaps like to have some provision whereby these youths could come under the umbrella of the Youth Criminal Justice Act.

Is the problem simply one of better communication, of letting youth as well as the public know that there is accountability? If there are weaknesses in the accountability through the child welfare system, which is provincial, is it not up to them to step into that and shore up their part of the system as opposed to criminalizing youth under 12?

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Prof. Nicholas Bala: Criminalizing children under 12 should be a last resort. There's no doubt that there is a level of misinformation on the part of the public and of parents and children, but there is also a reality in terms of the way legislation is written, particularly in Ontario but not only in Ontario, that a child welfare response is not always going to be appropriate.

To take an extreme case, if we have, let's say, a homicide committed by an 11-year-old, we have a child welfare response, and certainly in a very serious case like that, the child welfare authorities would respond. Child welfare legislation in every province says that the best interests of the child is the sole test. If this 11-year-old child has just committed an offence like that, focusing only on the best interests of the child is not necessarily appropriate. The protection of the public and concerns about victims are also legitimate factors to take in account. That's at the high theoretical end.

If you want, though, at the middle range of serious offences, the reality often is, if you're running a child welfare agency in, let's say, Ontario.... But elsewhere, you say, we have child abuse cases, all these cases, and somebody phones up and says, well, I think this young person has just committed his eighth B and E. The social worker says they have kids who are being abused and somebody's phoning up about B and E...? It's not going to be a big priority for them.

So the reality in those middle range of cases is they're also not actually dealt with. In theory, they could be dealt with, but the reality is that they're just not enough of a priority, and understandably so for many social workers. So I think we have both a theoretical and a practical problem.

Mr. John Maloney: You referenced successes at Earlscourt in your brief. What do they do that's so successful and that perhaps should serve as a model for other parts of the country?

Prof. Nicholas Bala: Earlscourt is a wonderful program. They've actually written a brief and they've also suggested a legislative solution, a sort of hybrid federal-provincial legislation that would see not necessarily a youth court response but at least a better legal response. They recognize that there's a problem.

One of the problems that Earlscourt has is that.... For most parents whose children under the age of 12 are committing offences and get referred to Earlscourt, they take up their service and say, this is great, thank you for helping us, we know our child has a problem, and you have a good program. But there's a range of children whose parents say they don't care. Many of these parents themselves have criminal records or whatever. They're exactly the kids for which you'd say that this voluntary intervention is not going to work, that we need to have a legal mechanism for getting at these kids. That's where a model based on youth court could be appropriate.

I realize that the committee recommended a narrow range of going to 12. I can understand that government policy at this point seems to be to go to 12. It's not a perfect solution. It is an issue that is likely, in my mind, to come back at some time. Canada, by international standards, has one of the higher levels. Twelve is very high. There are some Scandinavian countries that have even higher levels. England's, for example, where they of course had the terrible tragedy, is at 10. A number of American states have it at at 7. I don't favour going that low.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Maloney, and one more quick question.

Mr. John Maloney: In an average year, how many children across Canada would come within the category that you feel would require interventions below 12?

Prof. Nicholas Bala: Well, we don't necessarily have good statistics. It would depend on how one would define it, but I think we'd be talking about dozens, maybe 100, certainly not a large number—as opposed to literally thousands over the age of 12. We're not talking about—in my mind—a large number. We're talking partly about symbolism. We're talking partly about intervention in the most serious cases. We're talking partly about people knowing that there is a remedy there and not using it.

In other words, if children under 12 only knew that if they do something really bad at some point—and they're not going to know where the line is—something is going to happen. If the message is that nothing happens, it tends to exacerbate problems.

Mr. John Maloney: Thank you.

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

Mr. Peter MacKay.

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

Mr. Bala, further on these lines, it appears that you are one of the few witnesses we've heard from that does favour this approach. I had a question on the statistics, and I have another question with respect to police response.

• 1650

Of these dozens or possibly 100 that might be caught by this umbrella, do you have any sense for instances where children in this age category, 10 to 11, are being used, either by adults or by older children? I have personally encountered situations like that—again, a very relative few. As you've said, we would be talking about the most extreme circumstances, where there have been repeat offences, where the extrajudicial measures have been attempted. Are you familiar with those types of situations, either anecdotally or otherwise?

Prof. Nicholas Bala: There are two things you're raising. One is on the statistics. There are police-based statistics which suggest that as much as 10% of youth offending, depending on how you define it, currently involves children under the age of 12, so it's significant. This is certainly significant, but by no means a majority of offences are committed by under-12s. In particular, they commit a large number of arson cases, for example, and some sexual assault cases, but most of those cases, even under a modified legal regime, in my view, should not be dealt with by.... Yes, the police should be involved, but it wouldn't involve a court-based response.

On the issue of cases that, in my mind, could go to court, I think there would have to be restrictions on how the court system would work. Indeed, I would like to see custody as an absolute last resort. It is a significant gap in our present legislative scheme. Certainly the provinces could do the job a lot better.

To go back to the point that was asked earlier, if Mike Harris is concerned about this issue, one possibility is to say that you people in Ottawa aren't doing your job—and there's some truth to that—but I think we could say that we in Ontario need to look at our legislation. In fact, I have submitted to the provincial government that a lot of these issues could and should be dealt with by amending the province's Child and Family Services Act. That would be a way of dealing with a lot of issues. Certainly Earlscourt, for example, is largely looking in the direction of provincial action. By no means is it appropriate to say that it's just a federal issue, but in my view, there would be a federal and criminal justice role.

Mr. Peter MacKay: This idea that Children and Family Services is the appropriate way to go.... I mean, the codified language in both the old act and this new proposed legislation states specifically that we are not to be using the Youth Criminal Justice Act for the purposes of doing the job of Children's Services. With what you're proposing and a mechanism to bring this about, it would still have to meet that criteria. It would still have to comply with that clause.

I very much agree with your premise, because I think the usual knee-jerk reaction is to say, how on earth can we throw a 10-year-old in jail? That would be the very extreme, very rare circumstance. It's by no means something that is going to happen. Even in the number of instances you're talking about, it would be an even smaller percentage that would actually ever face those circumstances.

With respect to other countries, you've given us a couple of examples, like England and some of the Scandinavian countries. What are some of the American examples that you referred to?

Prof. Nicholas Bala: No American state is as high as 12; it's 10, it's 7, and some of them don't have a specified age. Now I should say that while on balance I favour lowering the age to 10, one thing you should know, particularly as a lawyer, is that it's very hard to get meaningful instructions from a 10-year-old.

Psychologists have done studies and have found that the vast majority of children aged 10 have a pretty good idea of the difference between right and wrong. In fact, for that, you can look at much younger children—6 or 7 years old. The problem is this: is the criminal court a very good place...? In countries that have trials with 10- and 11-year-olds, the child is effectively not paying much attention to what's going on in court. In fact, that's the same with children who are 12, 13, and 14. In fact, it's even true with people who are 25 years old. Some of them are sitting in court and obviously not getting much appreciation out of a trial process.

So it's not unproblematic, but on balance I think it would be preferable to have a way of intervening with a very limited number of 10- to 12-year-olds, certainly with restrictions on where the young people would be placed.

• 1655

You mentioned custody. I've written about favouring a regime in which if you're under 12 you'd never be placed in a custody facility anyway; we'd place you in a group home, at least up to the age of 12 or 14, and then perhaps have the balance of the sentence served, depending on the nature of it, with adolescents that are age-appropriate. I'm not saying to take a 10-year-old and place them with an 18-year-old in a custody facility—not under any circumstances.

Mr. Peter MacKay: How does it—

The Vice-Chair (Mr. Ivan Grose): Mr. MacKay, I'm sure we'll get back to you.

Sticking with the McKays, Mr. John McKay.

Mr. John McKay (Scarborough East, Lib.): I apologize for missing the first part of your presentation, but the schizophrenia of this place is sometimes difficult.

We have had a stream of testimony from witnesses, primarily based in Quebec, preferring an alternate model of dealing with this issue. To be very crude about the summary, what it appears to be is that the intake rate is substantially reduced—between Quebec and the rest of Canada. But I've been given to understand that what gets lost on the YOA stuff gets picked up on child welfare legislation, and that children are in fact brought into the system under that legislation and ultimately end up being incarcerated. I was wondering whether you could tell me a bit about how those two work together. Is the modelling in Quebec that is being suggested to us to follow in fact substantively different from the modelling that we see in Ontario or in other places in the country?

Prof. Nicholas Bala: There are a lot of questions that you're raising there. I think there are probably fundamental philosophical differences between Quebec and the other provinces around a series of issues related to children, youth, and family. In Quebec, they have a more supportive set of philosophies and more financial support for families and for day care and so on. There is a significant core of truth to that.

At different points, I have worked with and talked with judges from different provinces. Philosophically, it strikes me that the youth court judges in Quebec probably have a different, more rehabilitative philosophy as well.

On the other hand, that being said, there's probably also significant similarity. Some of the rhetoric and some of the briefs that I've seen coming from Quebec may not fully reflect all the views within Quebec. We've had some sensational and tragic murders in Quebec, and some people were screaming and saying that the Young Offenders Act was not tough enough: why were these young people only doing three years and why weren't they transferred to adult court? I'm not sure that those views were represented to the committee or reflected in the briefs.

You've identified that there is clearly research from Quebec indicating that while their rate of diversion, for example, is higher than that of other provinces—and on the whole I think that's desirable—if you actually look at young people in institutions in Quebec, they are probably sending more adolescents into institutional settings under their Youth Protection Act and child welfare legislation than other provinces. In fact, unlike Ontario, for example, they'll take the young person, the child, the adolescent, being dealt with under the Youth Protection Act, place them in the same facility as a young offender, and in fact give them fewer rights. That's a major concern that I would have about the Quebec model, if you like, which sort of gets lost in some of the rhetoric around the comparisons.

That being said, I think there's a lot that other provinces can learn from the philosophy that Quebec has towards support of children and families.

Mr. John McKay: Thank you.

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

Mr. Cadman.

Mr. Chuck Cadman: I spent just over half a day at Project Turnaround at Barrie last year. My impression from talking to some of the young men in there was that they were okay with being there, with the structured environment. I just wondered if you have any views on that type of institution.

Prof. Nicholas Bala: There is some research. I know some people who work at that facility. I think there is a place for a strict discipline program.

On the other hand, I think the real issue is what its success is going to be in terms of reducing recidivism. In particular, the research done to this point suggests that this kind of program is not very effective unless it has, first, a significant counselling and education component—and they do have that—and secondly, appropriate community follow-up.

• 1700

In other words, when you have that kind of environment, then the question is.... Yes, the young person has a sense of discipline or self-discipline when they leave that facility, but if you don't follow it up appropriately in the community, you find out that you have as high a reoffending rate as you do with other kinds of facilities. The community follow-up is absolutely critical.

I don't think that kind of program is appropriate for all young people, by any means, and I think it has to be very carefully monitored. There have been places in the United States where they've had strict discipline facilities or boot camps that have in fact become quite abusive; they're having investigations and so on.

Yes, there's a place for discipline, and if the alternative is sending a young person to a custody facility where there is minimal programming and the kids are locked in their rooms and/or just watching television, there's a lot to be said for a more structured kind of program. But it has to be very carefully structured and followed up on; I think some of the rhetoric and some of the programs are problematic.

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

Mr. Maloney.

Mr. John Maloney: You indicated that you wouldn't want to see any youths under 12 in a custodial facility, a group home. In fact, is that not where they go when they're taken into custody under the child welfare legislation?

Prof. Nicholas Bala: There are two issues there. One, is there any intervention at all? As I pointed out, often the answer is no, there isn't. If there is, yes, they end up in a group home. Then the issue is how long they are kept there. Under child welfare legislation, the answer often is, not very long. In a very small minority—and this is where you get into the under 100 a year—you'd say, well, maybe that young person, for his or her own good, for the protection of the public, and for some sense of accountability, should be there for more than a few months.

Again, that's probably not happening under child welfare legislation and/or there is no public information about it. I don't favour publication of identifying information of young people unless they are being treated as adults.

On the other hand, with the child welfare model, often you can say, well, a young person in Toronto commits a sexual assault, has gone off to a group home, and we don't even know how long he is going to be there. There's no follow-up. Understandably, members of the public are saying they're outraged at this. If it's purely a child welfare matter, maybe the public has no right to know, but if there are issues of accountability and protection of the public, the public has some right to know that there has been appropriate follow-up, which we don't get under a purely child welfare response.

Mr. John Maloney: This is my last question. You thought we should have measures in our act just in case we might have to use them sometime. We talked about the differences in opinion between philosophies within Quebec and the other provinces. You weren't very complimentary to the Province of Ontario—for good reason. Also, we're looking at strict discipline facilities. If it's there, would there not be a fear—if it's there so that in a small, little case we could use it—that some provinces will in fact use it and abuse it? Is there not that concern?

Prof. Nicholas Bala: Well, with the under-12s, I think the issue is how you would write in a set of criteria that would restrict the use of it.

In fact, in regard to the history, the age was 7 under the JDA. It was used actually relatively rarely, even when there were no legislative sanctions, for a variety of reasons; I point out that it was about 10% of offending, with about 2% of cases through juvenile court.

One could structure—and there'd be a range of ways of doing it—the authority of the court to intervene in a way that would really keep that number very low. Certainly I would advocate that if this is done. To be candid, if you keep the age of 12, you are almost waiting for something to happen, for someone to come back and say, why didn't you deal with this? I think there'll be some element of truth to that. People will be saying that you had the responsibility and you.... I realize it's a difficult weighing of factors there, but it is problematic, I think, as I pointed out, on both a theoretical and a practical level.

I should say that I've written a significant paper about this. I think I let you have my e-mail address. My paper's on the web. I'd be happy to send it to you if you send me an e-mail.

Mr. John Maloney: Thank you.

The Vice-Chair (Mr. Ivan Grose): Mr. Peter MacKay, you haven't indicated so, but I'm sure I saw another question when I cut you off.

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

Yes, I do have a couple of questions that I'd like to pose to our witness, along the lines of the questions of my colleague, Mr. Cadman, about mandatory supervision and this follow-up.

• 1705

You're probably familiar with the situation that occurred in Shelburne, Nova Scotia, at the school for boys, where there was horrific abuse. I'm not comparing it in any way to the concept of boot camp, but it certainly, in many ways, made the point that if you send young people there and you treat them horribly.... This of course was not sanctioned or was in any way part of the programming, but the abuse that went on there.... Looking back at it now, the recidivism rate was skyrocketing with those individuals when they were released, so it certainly shows that locking them up, depriving them of normal community and family supports, and treating them harshly, where they are really paying for what they did, doesn't work.

This legislation—and I'm sure you're quite familiar with it—certainly does move the yardsticks more towards emphasis on follow-up and community support after release, which is not there in a significant way under the present YOA. What more can we do to enhance this legislation in terms of having this intermediary before the child goes back to their community upon release from closed custody into something similar to a half-way house or similar to a structured, supervised environment, short of simply reporting to a youth probation worker?

Prof. Nicholas Bala: I think you've touched on a very important set of issues, first of all, on institutional abuse, which we have a horrendous history of in this country with children and adolescents, in a range of contexts. We are paying an intergenerational price for it and there are a range of responses to it. For example, access to legal services has an important role, in that people who work in institutions now know that if they're abusive to a child, there's a good chance that the child's going to pick up the phone and they're going to be held accountable right away. I believe we've seen a significant decrease in institutional abuse for that and other reasons.

What you're also touching on is that custody alone has very little impact on young people. Some of them, many of them, come from an abusive or neglectful home environment. Custody doesn't seem so bad compared to what they were dealing with on the outside.

Furthermore, another problem with it is that you take young people who are from environments that are actually not too bad and you place them with a whole lot of more serious offenders. Then it is literally a school for crime. They're in a peer environment where they're more likely to go out and get both the values and the skills, if you want, to go out and commit further offences.

The literature is very clear, I think: the most effective programs typically try to keep young people out of custody facilities. That doesn't mean no sanctions. It means structured sanctions in the community and restrictions on their behaviour, but services in working with families, working with schools, sometimes alternative schools, so it is keeping them out of that environment. If they do go into custody, that follow-up period is absolutely critical.

I understandably focused on things I don't like about the bill, but there are a lot of good things in this bill. One of the things I like about the bill is the fact that you have this mandatory, structured sentence of the two-thirds in custody and then the one-third follow-up. I think that's an important factor. What will be absolutely critical will be if the resources are actually going to be there to follow up. Are the provinces going to have the resources and the willingness to provide those services? Or are we actually just going to say, well, it's two-thirds of the sentence, that's it, you're out in the community, and a probation officer will call you in a few weeks or months, maybe?

Mr. Peter MacKay: Of course you know that in regard to the current act the administration done by the provinces is not being funded equitably, certainly not in the way that it was intended in the very beginning, after it was passed and we went from the Juvenile Delinquents Act to this new legislation. That 50:50 cost-sharing arrangement was never met. That's a big problem, I think, as we head into this kinder, gentler system on the one hand, which is certainly moving towards greater focus on non-custodial measures and preventative measures. I am very fearful that we're setting up this false sense of hope. If we go down this road but we don't have the funding, we're putting greater emphasis on the people that are already overworked; we're simply saying that we're going to send them more work but no resources.

Prof. Nicholas Bala: I couldn't agree with you more. There'd be some who would say to leave the act as it is and give them the power to change the funding formula and the resources to do it; we would actually see more changes than just changes in legislation. I think they go hand in hand. There is rhetoric from the federal government that they are going to put the resources there. It's absolutely critical, though, that there be that follow-up.

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Mr. Peter MacKay: What do you say about the complexity of the bill itself? Is it a make-work program for lawyers?

Mr. John McKay: He's leading the witness.

Some hon. members: Oh, oh!

Prof. Nicholas Bala: There are a lot of complex issues out there. A lot of the detailed changes are necessary and desirable. Parts of the bill could have been written in a more user-friendly way. Absolutely, it's a very complex piece of legislation. I'm not sure that it's a make-work project for lawyers; it's a make-work project for legislative drafters. There are a lot of complex issues there.

Mr. Peter MacKay: Thank you very much.

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

This is beginning to sound like “the king is dead, long live the king”.

Mr. McKay, please.

Mr. John McKay: You have to realize that all members of the opposition always bring it down to resources. That's the name of the game here.

I want to follow up on your answer to my initial question with respect to the rights that a child has in custody under child welfare, as opposed to the rights that a child might have under the YOA or this proposed legislation. Can you give the committee a sketch of the difference between the rights of those two children in custody, if you will?

Prof. Nicholas Bala: And by the way, there are all kinds of problems on the rights issue and how you deal with children under the age of 12 who commit offences. If you think the offence is grounds for involving the child welfare system, what kind of trial do you have under child welfare legislation to prove that the offence occurred so that you can get them into that system? Does the charter apply? Do the rules of evidence apply? There's not a whole lot of jurisprudence about that, but at least in theory the standard is actually lower to get into that child welfare model, which can be at least a theoretical problem. Also, there's a lot of variation, and we say, what are the rights?

In Ontario, we have pretty good legal representation under the child welfare system for children under the age of 12. In other provinces, they may not have a lawyer, for example, if they're brought into court under child welfare legislation. That's another set of problems. Maybe the charter is going to come into play and assure them the right to a lawyer.

Very broadly, the youth justice legislation has a broader set of legal protections than child welfare legislation does if we're looking at the country as a whole in regard to both the standards and how the charter might apply.

Mr. John McKay: This is not limited merely to children under 12. A police officer can make a decision as to whether the child is going to be processed under the young offenders legislation, under this legislation, or be handed off, if you will, to child welfare.

Prof. Nicholas Bala: Well, the police have the authority to use this legislation for 12 and up; under 12, all they can do is—

Mr. John McKay: There's no question.

Prof. Nicholas Bala: They phone the child welfare authorities, who then have their own discretion. As I pointed out, sometimes they'll say that they're too busy, that they don't think it's serious enough or enough of a priority, or that they don't think they have a legislative mandate—in some provinces, they don't have a legislative mandate—so they're not going to adequately respond.

Mr. John McKay: Do children get warehoused under the child welfare legislation?

Prof. Nicholas Bala: Well, it depends on how you define “warehoused”. If you mean placed in facilities where there's not always adequate programming, I'd say that “warehousing” in that sense is more of a problem with young offenders than it is under child welfare legislation—if I'm looking at the country as a whole and in a very gross generalization. But it's a problem under both.... As I pointed out, many children in Quebec, many adolescents over the age of 12, will be in the same facilities whether they are young offenders or children in need of protection, so there may not be much difference in terms of the programming.

In general, though, and I think quite appropriately, we spend more effort and more resources on dealing with adolescents who are in custody under young offenders legislation than we do on adult offenders. I think that's appropriate; we get a payoff for that. They are more humane, more treatment-oriented kinds of facilities as opposed to those for adults.

Mr. John McKay: If a child is dealt with under child welfare legislation, is the concept of looking after that child more of an open-ended concept, that there's no finishing of the sentence, if you will, and that kind of idea? Are children in effect—and again, you mentioned some place in Montreal—just there at the pleasure of the welfare authorities?

Prof. Nicholas Bala: There's judicial control, but certainly child welfare dispositions are more open-ended and can be indefinitely renewed, whereas a young offender's sentence is, as the name implies, finite. So yes, there's the potential for it to be indefinite. The problem under child welfare legislation is that if you're talking about a serious offence committed by somebody under the age of 12, the sentence may be indefinite; it may be very short. Who knows what's actually going on? There's not that kind of accountability.

• 1715

One of the problems with child welfare legislation is that there's the potential for abuse, if you want, on both sides, for things that, if you're responding to the offence, look very short or inadequate. On the other hand, if you're concerned about the rights of children, which I am, things sometimes seem arbitrary and there seems to be less respect for legal rights than there is under the justice system.

Mr. John McKay: So the child—

The Vice-Chair (Mr. Ivan Grose): Last question, Mr. McKay.

Mr. John McKay: Okay. So dealing with children under the child welfare legislation could actually have perverse legal effects: that the child would end up in a facility for a greater length of time than he would under a stricter legal regime. The other point of perversion would be that at that point where the child goes into the system: somebody is making a decision and the child really doesn't have any say as to which stream the child ends up in.

Prof. Nicholas Bala: I guess that's my point: a child welfare system, which is a very important way of dealing with children in this country, is not an appropriate way to respond to serious, repeat offending, and in my view, that would apply to 10- and 11-year-olds as well as older adolescents.

We have, I think, on the whole, wisely made a decision.... If you go back to the model we had under the Juvenile Delinquents Act, we tended to lump them together. Now we say there are differences between children who are offending and children who have problems with their parents. Some of them are in both categories, but there are many who should be treated in very different kinds of ways, with different legal rights and different responsibilities.

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

Mr. Saada, quickly, we have no time to lose.

Mr. Jacques Saada: I have just a very quick question.

Did you have a chance to visit the youth court building in Montreal?

Prof. Nicholas Bala: Yes, I have been there.

Mr. Jacques Saada: I was puzzled with the comment you made a moment ago. Indeed, it's not generalized, and it's only one of a kind and so on, but it's quite fascinating to see that you have the detention centre—I'm calling it that because I don't know what the official wording is—at the same place, in the same building—but in a different location—where you have those who are there to be protected. The convenience of this joint presence is just because the professionals serving one and the other are sometimes common.

This is really the trend that Quebec would like to promote. I'm not here comparing with the rest of the country. I'm just speaking about the philosophy within Quebec itself to have, under the same building and in the same house, but with some limitations, the youth who need such a diverse array of services. That's a model, really, that is very appealing. I'm a very poor seller of this model, but if you have a chance to visit it, it's really fascinating to see how the philosophy was translated, concretely speaking, into a building, with the actual design, the distribution of rooms, the direct access to the courtroom, and so on. It's just fascinating.

Prof. Nicholas Bala: I should say—and I don't want to hold myself out in any way as an expert on Quebec—that there are actually facilities in Ontario like that, where you have, in one physical building, child protection and young offenders—but physically separated. My understanding is that there are places in Quebec where they're in fact put, if you want, in the same room.

Mr. Jacques Saada: This is correct.

Prof. Nicholas Bala: That's the problem and the concern that I raise. There are certainly overlapping needs between adolescents who are in need of protection and adolescent young offenders, no question about that, and a well-designed facility can take that into account.

The Vice-Chair (Mr. Ivan Grose): At this point, I'd like to thank you very much, Mr. Bala. You've opened up a whole new line of questioning that I hadn't heard before, and as a result, a whole new group of answers, which is what we're here for. Thank you very much and thank you for your patience during the interruption.

Prof. Nicholas Bala: Thank you for hearing from me.

The Vice-Chair (Mr.Ivan Grose): I hope your train's on time.

Meeting adjourned.