:
I call the meeting to order. This is meeting number 21 of the Standing Committee on Justice and Human Rights. For the record, today is Thursday, June 3, 2010.
Members, you have before you the agenda for today. We're continuing with our review of Bill , Sébastien's Law, an act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other acts.
I was hoping to actually have a planning meeting in camera at the end of today's meeting, but given the fact that we're already starting late and we have three panels to deal with, we may not get to that. If we have some extra time, we'll discuss some committee business.
Today's meeting, as I mentioned, is divided into three panels. We have our first panel with us. First of all, we have William Trudell, representing the Canadian Council of Criminal Defence Lawyers. Welcome back. We have the Canadian Bar Association, represented by Scott Bergman and Gaylene Schellenberg. Welcome back to you, as well. And finally, we have, as an individual, Simon Fournel-Laberge. Welcome.
I think you've been told that each organization, or each individual, has ten minutes to present. Then we'll open the floor to questions. If you can do your presentation in less time, it will leave more room for questions. And given that we have a fairly limited timeframe, I'd appreciate your definitely staying within the ten minutes.
We'll start with Simon.
My name is Simon Fournel-Laberge. I was invited here today following a report in which I participated on CBC Radio and TV. The subject of the show was the changes that the government wishes to make to the Youth Criminal Justice Act.
I want, first of all, very humbly say that I am not an expert in this field and I do not pretend that I have the solution to the dilemma that society faces with this particular problem. However, I can share with you my personal experience with the youth justice system.
In the eyes of many people, I am living proof that the current justice system, that is really focused on making youth aware of the seriousness of their crimes, on rehabilitation and reintegration, is working. In my case, it took three sentences in youth detention centres before acquiring the tools necessary for my reintegration. I am now 24, I am studying, I work, I pay my taxes and I do everything possible to become an acceptable, responsible and productive member of our society.
But what would have happened to me if at the age of 16, when I was still searching for my identity, I had been labelled as a re-offender and if my picture had been published on the front pages of newspapers. What opinion would I have of myself today? Would it have been so easy for me to find a job, to change my circle of friends and to find the courage and the personal self-esteem necessary to go back to school? I really wonder.
I agree totally that the public has to be protected from violent crimes, but statistics are proving that coercive and punitive measures, repression and longer custody sentences will not prevent crimes from being committed and will not decrease the chance of people re-offending. I believe in prevention and education rather than in repression. However, I am not against longer custody sentences. The last sentence that I was handed down was two years and for me, it was the most beneficial of all. It gave me more time to work on myself along with psychoeducators and my parents. I was able to make contacts with victims, make sincere apologies and make restitution the best I could.
That has allowed me to forgive myself over time and to turn the page on my past as a young offender. Would it be the same if, for example, a 17-year-old in the same situation as mine was transferred into an adult institution as soon as he reached the age of majority? I don't think so. I believe that he would have been penalized because of the lack of resources in the prison system. Prison guards are not trained or mandated to come to the assistance of inmates.
So the question is: should we treat young people in the same way as adults if they commit a serious crime? I do not believe so. We do not treat them this way in any other sphere of our society. For instance, minors do not have the right to vote, because society considers that their moral judgment is not developed enough. A youth under 18 cannot buy alcohol, tobacco or lottery tickets because we consider that he is not able to choose or decide what is good or bad for him. Isn't it, therefore, a paradox to want to judge teenagers as adults? However, this in no way minimizes the damage caused to innocent victims by these young offenders. Would it not be better to invest all this money and energy to provide appropriate resources to inmates who, in the majority of cases, have serious addictions or mental health issues, in order to give them a better chance of turning their life around?
During the difficult years of my youth, in spite of my violence, lacks and deficiencies, Quebec society and Canadian society believed in me and gave me the kick-in-the-pants and the help that I needed. Thanks to that, I can speak today before you and I am proud to contribute to building our society for the future.
And don't fool yourself, I am not the only young person in that case. I am also speaking on behalf of many other youths who make it today thanks to the system presently in place.
I thank you for listening to me.
:
Good morning, everyone. Thank you for allowing me to be here and the CBA to be here.
I'd like to start off by saying that although the CBA doesn't support passage of the bill in its current form, there are a number of proposed amendments that are positive and ultimately ought to be included in the YCJA. For example, the recognition of diminished moral blameworthiness or culpability of young persons is a very significant step in the right direction. Also, we support the amendment prohibiting youth under the age of 18 from ever being sent to adult institutions.
With that said, on balance, the CBA cannot recommend passage of the bill in its current incarnation. With the emphasis being shifted toward pre-trial and post-conviction incarceration of youth, the bill would be a step backwards for the YCJA. Bill represents a radical shift from the guiding principles behind the hugely successful YCJA and recognition that most youth come into contact with the law as a result of fairly minor and isolated incidents.
The YCJA recognizes the importance of diverting minors and minor incidents away from the criminal justice system, with an emphasis on extrajudicial measures such as warnings, cautions, referrals, mediation, and also family conferencing. The YCJA stresses the importance of rehabilitation and reintegration of youth offenders throughout the act, including in the preamble and also in the purposes and principles of the act. One of the key objectives is to keep young offenders out of jail except for the worst, most violent, or habitual offenders. For those violent or habitual offenders, the YCJA opened the door to adult sentences and opened it more widely and perhaps rightly so. It was a move in the right direction.
With that said, Bill is a step back to the dark days of incarceration for youth. It is a movement away from diversion, rehabilitation, and reintegration.
It appears that one impetus for the bill is Mr. Justice Nunn's report, “Spiralling Out of Control: Lessons From a Boy in Trouble”. But Justice Nunn himself has actually spoken out against over-reliance on incarceration of youth, saying recently:
There’s no evidence anywhere in North America that I know of that keeping people in custody longer, punishing them longer, has any fruitful effects for society. Custody should be the last-ditch thing for a child....
Indeed, Justice Nunn has some disdain for certain aspects of Bill itself. He is quoted recently as saying “They have gone beyond what I did, and beyond the philosophy I accepted. I don’t think it’s wise.”
In the CBA's view, one area where the bill does go beyond what Justice Nunn recommended is the deletion of long-term protection of the public in favour of the more general concept of protection of the public. Without further insight, one can only assume that the deletion of the words “long-term” before “protection of the public” is intentional. This raises serious concerns about young people being locked up for longer periods of time, situations that should only be reserved for the most serious cases.
Except for those most serious or habitual cases—and I pause parenthetically to note that Dr. Croisdale recently talked about the most serious cases being between 5% and 10%, and I believe he testified before this committee on May 13—it's in the interests of both society and the young person to focus on how rehabilitation can best be achieved. The reality is, the vast majority of young people who come into contact with the justice system do so once or twice and likely never come back again. That's what I took from Dr. Croisdale's evidence, and that's what the CBA took from it.
The proposed addition of denunciation and deterrent as sentencing considerations is of very great concern to the CBA. On the one hand, the bill seeks to amend the YCJA to recognize youth's criminal diminished moral blameworthiness in contrast to adults. On the other hand, what the amendments do is import denunciation and deterrents. These are clearly adult-based sentencing principles. Moreover, the literature has conclusively found that incarceration is generally not an effective deterrent against a young person.
Since the YCJA was proclaimed in force in 2003, rates of youth crime have gone down consistently, while the rates of incarceration of young persons after sentence have also gone down. The empirical evidence seems clear. The YCJA is working as intended. Where is the evidence that such drastic and expensive changes are necessary right now for Canadian society? The CBA hasn't seen any such evidence. Before spending massive amounts of money on what appears to be a structural overhaul of some aspects of the system, one would think that significant and widespread public consultation should be the first order of business.
The government backgrounder on Bill C-4 states, and I quote, “...often the system is powerless to hold violent and reckless youths in custody, even when they pose a danger to society.” Again, the CBA has seen no evidence to support this proposition. In fact, the current YCJA appears to be quite effective in keeping truly violent and dangerous youth in custody pending trial.
The amendments to pre-trial detention, with a focus on the newly created serious offence category, would not serve to keep more violent or dangerous youth off the street. What it would do is widen the net of pre-trial incarceration to include many non-violent and in some cases relatively minor offences, like assault—simple assault, that is—uttering threats, possession over $5,000, possession of a stolen credit card.
Like all Canadians, CBA is of the view that pre-trial detention is necessary for truly violent youth who pose a very serious risk to the safety and security of the public. The difficulty we have with Bill C-4 is that the proposed amendments do not align with that desired goal. In the name of protecting the public, a youth charged with a serious offence, like a schoolyard fight, could potentially find himself or herself in pre-trial detention.
Violent offence is now going to be defined as “an offence that results in bodily harm and includes threats or attempts to commit such offences”. Bill C-4 expands the definition of “violent” to include dangerous acts as well. Even if an act is not violent or does not result in bodily harm, conduct that gives rise only to the risk of bodily harm or endangerment would now be considered violent. At the very least, the CBA takes the position that at least an intent or recklessness component ought to be built into the revised definition of violent offence.
It's incompatible, in our view, to say that young people have diminished moral blameworthiness and to only then create a very serious category of offence that includes endangerment of another by creating a substantial likelihood of causing bodily harm. The very notion of diminished moral blameworthiness is premised on the fact that youth do not think about the consequences or nature of the acts in the same way adults do.
While Bill C-4 contains some important and positive amendments, we cannot support its passage in its current form. In its current form it will undermine, not foster, the long-term protection of society. Practically speaking, the bill means more young people going to jail for longer periods of time. The bill is a move away from a restorative and rehabilitative model of justice toward a more punitive model, which we see as both unnecessary and contrary to sound public policy, which itself is based on well-accepted social science. The social price tag will be hefty, no doubt, but the fiscal costs will really be just as steep.
Thank you for your time.
:
Thank you, Chair, and members of the committee. It's an honour to be asked to come back. And I understand that you have limited time, so my opening remarks will be brief.
I want to recognize Graeme Hamilton, who is sitting behind me. He's a young lawyer from Toronto who was very helpful to us in preparing our submissions today.
I want to share with you a couple of anecdotes that describe the spectrum we're talking about here, but first I would like to congratulate Parliament for what has been accomplished so far. It strikes me that we have a successful piece of legislation that works, and all the studies and work that went into this legislation and all the background information shows that it's working. It is indeed a product of a lot of work, a lot of thought. So in some respects, before you move to really looking at whether the substance of the bill should be changed, you ought to reflect upon the success that has been generated by this piece of legislation, and a shift to denunciation and incarceration is really short-term pain for long-term pain, if I could borrow a phrase.
Let me just read you two things. Our representative in the Yukon sent me this:
In Whitehorse, the Yukon territorial government's department of health and social services created a youth justice panel, unique in Canada, which decides whether a youth is eligible for post-charge extrajudicial sanctions and what the terms will be. The panel includes a probation officer, a representative from the department of education, a member of the RCMP, a youth advocate from the Boys and Girls Club, a first nation representative, someone from Victim Services, the youth's defence lawyer, and a designated crown. It's an example of community resources being used to assist youth who have broken the law to have meaningful consequences in the community at large, rather than only in the courtroom.
While many of the matters diverted are property charges, we have also successfully diverted violent and sexual offences. In addition, there is a person on contract to the government to facilitate victim-offender reconciliation conferences, which bring together the victims of crimes committed by the youthful offender, supported by adults in his life, to repair the harm he caused. These conferences have been successfully used for offences such as break and enters, assaults, and violence in group home situations. It is this type of intervention that will actually reduce crime in the long run. The spirit of the existing legislation gave rise to this very successful program in the Yukon.
In Saskatchewan, our representative talks about this:
It may be useful for a moment to reflect that the characteristics of being far behind in education, of having a disability, of being poor, and of having a psychological or psychiatric disorder are not common among the children of Canada but are definitely common among the children who are held in custody.
There, in my respectful submission, are the two extremes. We have a very successful program in the Yukon where the principles of this legislation are being put into effect, and we have an example from one of our members in Saskatchewan of, in their experience, the type of people who end up in custody. So we know which extreme we want, and I would respectfully submit that you want the same.
So when you look at serious offence, as it's defined, it expands that definition of offences that could catch these types of young people. It doesn't deal specifically with a violent offender we're concerned about. So I would ask you to look at that definition of serious offence and really see whether it's going to punish the people who are targeted and the young persons who don't have the assistance they need.
Young people live in their heads. This is all of our experiences. And when they go to jail, they will withdraw even further unless they are as successful as the gentleman to my right who articulately talked about his experience. Kids withdraw. So if you incarcerate kids, they will withdraw further. They have already withdrawn in the community. And that's not what we want, because what they will do is attach themselves to an identifiable group of criminals in custody. That's not what we want.
I want to say to you that.... I'll leave it for questions, but there are a couple of issues we are very concerned about.
There is a lot of good stuff in this bill. You are reflecting changes that may be necessary; you'll decide it. But in the definition of “serious offence”—and we agree with the submission of the Canadian Bar Association—paragraph 3(c) states,
an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.
This is a direct response of Mr. Justice Nunn's report. And I would respectfully ask you to add this word,
an offence in the commission of which a young person knowingly endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.
“Knowingly”, in the criminal definition, imports a number of degrees. You can know definitely, you can be wilfully blind, or you can be reckless. These are all terms that are embodied in the word “knowingly”.
Some other learned suggestions were made about “or ought to have known”. I don't think that a young person.... How many times did my mother say to me, “You ought to have known better.” The point is that young people just don't. So I would respectfully submit that if you import “knowingly” into paragraph 3(c), you will catch a deficiency that Mr. Justice Nunn was talking about, and you protect, in my respectful submission, the principle of catching someone who takes a risk. He doesn't have to directly know it. He can be reckless, because that's part of the definition.
Extrajudicial sanctions, extrajudicial measures cannot be used as a trap later on. It's not like a bite at the apple or the criminal.... You are given extrajudicial measures because we want the community to deal with this. As a defence counsel, I am going to be very concerned about allowing extrajudicial measures to go ahead if I know at some point in time it is mandated that they're going to be held against my client if he or she trips up down the line. So to encourage extrajudicial measures and then to use them as a club later on.... And most of these young people don't have lawyers when they entertain this. They're going to want to have lawyers. So I really don't think, in my respectful submission, that's really where you want to go with this.
The last thing is, and I echo the Canadian Bar Association, we don't need to import the principles of denunciation in this legislation. The fact that there is a separate piece of legislation for young people, the fact that this bill, in its wisdom, recognizes a degree of moral responsibility is enough. We do not have to put in.... And I would respectfully submit that it is going to create all kinds of problems, because a judge will look at the principle of denunciation and it will move to the forefront naturally. It will move to the forefront naturally, and that's not what we want.
We want to make sure the holes are plugged where they need to be plugged, but keep the spirit of a very successful piece of legislation that can be held up throughout the world as a good example.
Those are my opening remarks. Thanks very much.
[Translation]
to you especially, Mr. Fournel-Laberge. You testimony is very important for us and is very touching.
I have a few questions for the Canadian Bar and for Mr. Trudell concerning this specific bill.
[English]
Here's just a tiny preamble first. The government clearly overshot Nunn. The government clearly imported its own portable philosophy into this bill and overshot.
However, the CBA brief and even Mr. Trudell suggest that there are serious and important changes that need to be made or could be made to the YCJA. We must do our best as parliamentarians, but not to say it should all be adopted or it should all be rejected. I think there's stuff on the table here that we need to save. I want members of the committee, since we're maybe a week or a month or two away from looking at changes to this law to save it.... Indeed, in the brief of the CBA, on pages 5 and 6, they're admitting that there are some very good things to be implemented here, so I won't spend much time on that.
It's not part of my questioning, but in passing, you might want to talk about the publication bans for youth. I believe these can be saved, because the almost universal comment on our part is that it's good that it rests with the discretion of the judge. That's a positive step. In the four and a half years I've been here, it's good that the government realizes that judicial discretion is important. The criticisms in the brief are very accurate, but it seems to me that they could be fixed by tweaking some words, by making sure the judge only “shall” consider lifting of publication bans in cases where there are serious and violent offences and in dealing with repeated or habitual offenders. That seems to be the crux of the criticism of giving the judge that discretion.
I think what you also you object to, and perhaps I do as well, is the word that the judge “shall” consider lifting the publication ban. Maybe that should be changed to “may”. I don't expect you to respond to that, because I think we're already thinking that we can maybe propose some amendments that might save some of these aspects.
But where the rubber hits the road, where, as Mr. Trudell put it, the real philosophical battleground lies, is with the terms “denunciation” and “deterrence”. And here are my questions for Mr. Bergman and Mr. Trudell. Though it's not much talked about around here, the YCJA already has a preamble that mentions, in general terms, that the youth should become aware of the gravity of his or her offences, and that the youth should take into consideration restitution. There's no word of denunciation and deterrence, but there is an aspect that, combined with the Supreme Court's decision, I think imports a certain element of denunciation and deterrence without using those terms. You will also hear from my friends, if I could in some sense prophesy what they're going to tell you, that there is an aspect of specific deterrence that's very important for the youth, and general deterrence is left on the table for the Criminal Code.
I guess what I'm getting at is, how far can we go in changing the preamble--not as far as the government wants, of course, but far enough to take into account one of Justice Nunn's considerations about making the protection of the public a primary goal? How far can we go to beef up the aspect of the personal responsibility of youth, without crossing over, as I've said here many times, to the whole adult notion of criminal justice? As I said to one witness, why don't we just have the Criminal Code, because we're almost getting rid of the Youth Criminal Justice Act by making it a matter of total denunciation and deterrence, like section 718 of the Criminal Code.
How far can we go, Mr. Trudell, if we can perhaps start with you, to nudge it a little further along the road in wording? How can you help us with specific wording?
:
I think what you're all looking for is a balance. So I think you take the words that you find are missing and you try to incorporate them in the preamble. Accountability is part of the act. It's already there, holding young people accountable. You can import “protection of the public” as long as you understand that “protection of the public” is not a narrow term. “Protection of the public” includes looking at the individual offender and their individual needs.
I would suggest that what you could do is change the preamble to find a balance. You could say that it reflects that young people should be held accountable for the protection of the public, in keeping with the presumption that young persons are to be held to a less.... You know exactly what the words are. You can put it all in there so that it's balanced.
What happens is, if you use just the word “denunciation”, what you're doing is denouncing the crime and you're taking away from the spirit of the act, which is a reflection that these are young people, and before we move to the ultimate incarceration we have to look at the balance.
I would respectfully submit that might be the way to do it. Put all the principles that we're trying to protect in your preamble, not just add “deterrence” and “denunciation”, reflecting the spirit of why we have this legislation. If that's what you do, then when a judge looks at it, a judge can say, “Okay, we have to protect the public”. What that means is we not only protect the public by throwing away a key, we have to protect the public by looking at the spirit of the act and how the accountability of this young person fits in.
If you take the preamble and the emphasis on denunciation, and you take it and you do not give as much emphasis to the uniqueness of this legislation, then you gut the spirit and you take away the discretion that's really important. It's not only the discretion of the judge, but it's the discretion of the crown attorney, for instance, to be able to make the decision.
Rigid terms translate into a rigid system, and I think the collective wisdom around this table should be able to find a balance in the preamble that reflects everyone's concerns.
:
This also dovetails back to Mr. Murphy's question, so I want to make sure I answer both of them at the same time, because I think they're similar.
Right now there's a nice balance that is struck. If a young person, for example, commits a very violent crime, and is out on the lam, so to speak, and there's a real risk to the public because this person is armed and dangerous, or potentially a risk to the public, then there's a discretion. The crown attorney and the police apply for an order, they lift the publication ban, it's very tightly monitored in terms of how long the publication ban can be lifted for, it hits the newswires, they end up catching the person--and usually when they're young people they're not going very far, because they have a very small circle to go in--and then the ban is removed. If after, for example, 24 hours, which is when the order would be enforced, they haven't found the young person by that point, they go back to court, it's judicially supervised, and there's a request made to extend that order, and that's exactly what's done.
So those are the kinds of circumstances right now where it works, and I think it probably works quite well.
The issue with broadening the publication ban—and this is to Mr. Murphy a little bit too, and I think you know the witness over here had a lot of interesting things to say from a very first-hand perspective—is right now the YCJA is about rehabilitation and reintegration, and what we heard is if you lift the ban what you do is you inhibit the ability of a young person to reintegrate. So what you're doing, in a sense, by lifting a ban is you're undercutting one of the primary driving principles of the YCJA, and I think that's a fundamental concern.
:
Thank you for the opportunity to present to the committee regarding Bill .
Statistics Canada does not take a position on the proposed amendments in the bill. The presentation we have prepared contains our most recent data on youth criminal justice. All data sources used are clearly indicated as are any pertinent data notes. Distributed for your consideration are the most recent Juristats related to youth crime, youth courts, and youth corrections. Furthermore, in July, Statistics Canada will be releasing new crime and youth court data, which may also be of assistance during your examination of Bill . My colleagues Ms. Mia Dauvergne, Ms. Rebecca Kong, and Mr. Craig Grimes will help to answer any questions.
Using data received from police services across Canada, we can examine trends in youth accused of police-reported crimes. Over the last ten years, there has been a substantial shift in the trends regarding youth aged 12 to 17 accused by police. The rate of youth charged has dropped while the rate of youth cleared by other means has increased. Cleared by other means includes, for example, judicial sanctions and police discretion.
Crime can be classified into two categories: violent and non-violent. Most crime committed by youth is non-violent. This has been a consistent trend over the last ten years. In 2008, seven in ten youth accused of crime had committed a non-violent offence. The rate of non-violent crime committed by youth in Canada has been decreasing over the last ten years, while the rate of violent crime has remained relatively stable. As the youth crime rate is predominantly driven by non-violent crimes, the overall crime rate as reported by police services in Canada has also dropped over the last ten years.
The top ten offences accounted for 93% of all police-reported offences committed by youth aged 12 to 17 in 2008. Seven of the ten shown are classified as non-violent crimes. The most common police-reported offence committed by youth in 2008 was theft under $5,000. This along with mischief and assault level one accounted for about half of all police-reported offences committed by youth in 2008.
I will now turn to what happens once charges laid by police move into Canada's youth courts. In 2006-07, theft was the most common type of case completed in youth court, followed by assault level one and break-and-enters. The composition of cases being heard in youth court is changing. We are seeing fewer cases involving less serious offences, such as possession of stolen property, and an increase in more serious offences, such as uttering threats and weapons offences. Since the introduction of the YCJA there has been a 26% decline in the cases completed in youth court. While there is variability in the magnitude of the decline in caseload, all provinces and territories have experienced a decline since the YCJA.
In addition to the decrease in the total number of cases, there has also been a decrease in the number of guilty cases stemming from youth courts. While the decline began in the early 1990s, the introduction of the YCJA coincides with a decrease in both the total number of cases completed and the number of guilty cases.
Of the approximately 56,500 cases heard in youth courts in Canada in 2006-07, 60% resulted in a guilty finding. For those cases where the youth was found guilty, the most frequent sentence was probation. In recent years the proportion of violent cases resulting in a custodial sentence has been declining. In 2006-07, these cases were at their lowest levels in 15 years. Since the first year of the YCJA, all provinces and territories have experienced large decreases in both the numbers and proportions of guilty youth cases receiving custodial sentences. The use of custody has also decreased across all offence categories.
The average length of custody for all youth cases in Canada was 72 days, compared with 124 for adults. When split by violent and non-violent offences, we see that there is a difference in the length of the custodial sentence imposed: 117 days for violent cases versus 54 days for non-violent cases.
By far, the average length of custody was the longest for homicides, at 1,084 days, which is almost three years, followed by attempted murder and other crimes against persons. On any given day in 2008-09, about 900 youths aged 12 to 17 were in sentence custody, which was down 8% from the previous year and down 42% from 2003-04. In fact, the number has been declining annually since 1995-96.
Looking at slide ten, we see that the youth in remand outnumber those in sentence custody. In 2008-09, 52% of all young people held in custody on any given day were in remand.
Youth continue to spend fairly short periods of time in remand. Four of the eight jurisdictions that provided data in 2008-09 indicated that youth spent, as a median number of days, one week or less in custody. Since the implementation of the YCJA, the median number of days spent in remand has varied across jurisdictions. Overall, in 2008-09, 54% of youth released from remand had spent one week or less in remand. This proportion has fluctuated between 53% and 56% since 2004-05.
For youth there are operationally two levels of custody: open custody, which is less restrictive, such as halfway houses; and closed custody, which are secured facilities and would include detention centres. Among the reporting jurisdictions, the trend in time spent in open and secure custody has fluctuated.
Once again, thank you for the opportunity to present to the committee. This ends my presentation.
The first thing, substantively, that I wanted to say is that the Supreme Court of Canada has made findings about youth and their reduced moral blameworthiness and the principles of fundamental justice as they apply to youth. I would like to praise Parliament for its consideration of amending the Youth Criminal Justice Act to incorporate those findings. Those, generally speaking, relate to moral blameworthiness, the definition of “serious violent offence”, and the onus provisions where it's not presumed that kids will be treated as adults are.
But Justice for Children and Youth disagrees with the proposals to make the act harsher, because the legislation currently is working. In fact, it is the current legislation that allowed the young man who presented before you to receive the very sentence he said was beneficial. That's the current legislation that got him to where he was.
I was lucky enough to have participated in the national consultations with respect to this legislation. There was one, I believe, in every province. The consultation I attended was attended by police officers in significant numbers, crown attorneys, probation people, criminologists, psychologists, sociologists, lawyers on both the crown and defence side. In those consultations, every single person said the legislation is working--every single person, after repeated questioning.
I'd also point out about the current legislation that in the case of Sébastien, the young offender received an adult sentence. It is the current legislation that was working and that achieved an appropriate sentence for that young offender.
I would echo the submissions you've heard from so many others that denunciation and deterrence do not work. They cannot work. I would encourage you to look at our written submission, which refers not just to the criminological and psychological research that's been done on this point and which is quite conclusive, but also to some quite new research done by a neuroscientist for the Department of Justice, in which he has taken MRIs of young peoples' brains, and photographically, they look different--the impulse control. Putting language in legislation cannot make their brains work differently. So it does not work.
In addition, if I tie this back to the broader general principles of the act and to what makes criminal justice seem fair to people, sentences must be proportionate. They must be proportional to the thing you've done wrong. It cannot, in my submission, be proportional to punish a young person for something some other young person might do or to punish them for what they might do in the future but haven't done. To maintain proportionality, in my view, you cannot have deterrence and denunciation as sentencing principles.
My next point is that the long-term protection of the public should not be changed. Young people, no matter what they've done, are going to spend more time out of custody than they are in custody. It is the long-term protection of the public that's essential. When they are finished with the youth criminal justice system, I want them to be contributing, positive members of society. That must be the long-term focus.
Anyone can trip on any given day. There is nothing we can do to guarantee the short-term protection of the public other than by locking everyone up in boxes and not letting them out. People, if you live in Toronto, are going to get shoved on the subway. It will be an assault. It will even be kind of deliberate. It won't be what most of us think of as a crime, but we will be on the subway and we will get assaulted. You can't eliminate that.
I would also like to point out that in a time of restraint, I think it is critical that Parliament not spend money on anything that cannot be shown to work. All of the evidence suggests that the proposed amendments will not work, and there is no evidence, to my knowledge, that says they will work. In my view, it would be irresponsible to be spending taxpayer dollars on something that may make someone feel good about thinking they're doing something, but if there is no evidence, we shouldn't be spending money on it.
To summarize, it is my submission that we don't actually need any amendments, even the ones that I like. Lawyers would be all right if you didn't do it, because we've got the Supreme Court of Canada and it has already said those things, but I think it's a good thing to amend the act to reflect those rulings of the Supreme Court of Canada, because, fortunately for the world, not everyone is a lawyer. They don't all read Supreme Court of Canada decisions, and it's important that the law be as clear as it can be within the statute itself.
If you must amend in other areas, I have some cautions. One is that I'm personally ambivalent about requiring police to record extrajudicial sanctions. On the one hand, if a police officer at a crossing or an intersection made a written note of every warning he or she gave to people to be careful of oncoming traffic, you'd be surprised, and that's a warning, right? That's a police interaction with you, and it's a warning.
I don't think they have to all be written down. I think most of them are written down at the current time, but my caution is that if you mandate that they get written down, you must also mandate the destruction of those records.
If a young person is charged, goes to court, is found guilty after a trial, and gets the least reprimand, the record of that reprimand lasts for two months. Surely however long we keep police records should be less than that, because it's clearly less serious. If a record is going to be kept, I urge you to mandate its destruction and sealing as well.
Research does show that longer sentences don't work. They don't reduce recidivism. And as I've said, the current laws can already address that.
Finally, I ask the members of this committee to ask for and read the results of the consultation. I sat in rooms where every single individual was asked repeatedly whether they wanted deterrence as a sentencing principle, and uniformly they, including all the police officers, said no. I ask you to ask for and examine the costs of any proposed amendments, and I ask you to ask for and examine all the research about what works, because all of us want our children who have misstepped to be rehabilitated.
I'm not a lawyer, but I'm an advocate. I'm going to start with a quotation from Michele Landsberg: “So that's our Canadian contradiction: every time we're confronted with the results of our dysfunctional 'tough on youth crime' approach, we call for more and tougher punishments.” That was 1999. It hasn't changed.
I have a story, which I will end with. During the last ten years of the last century we appeared at every inquest on a young child who had died in the care of the state. And bit by bit, we found that the way in which to change what was happening at the inquest and to let people's hands get off the evidence and stop controlling the evidence in the public was to bring along a team of young people to listen, who had the same experiences as the people who had died in custody, to give evidence to the lawyer that she could use in the inquest. Bit by bit, we found that was the way to get truth into the situation, because the whole protective wall was taken down.
The final inquest was the Meffe inquest at the end of the nineties. The outcome was that the jury asked for immediate closure of the institution, and the Toronto Youth Detention Centre closed as a consequence of that. Since then, another major detention home has opened in Ontario, and that home has already collected many indications that putting kids in jail is the last thing you would do with them--the very last thing you do with them. It's dangerous, expensive, wasteful, and those kids are our children.
When I came to Canada in 1959 I came to work with delinquents, and I was amazed. The first person I met was a little boy, 14 years old, shuffling around in irons with two huge gun-carrying guards beside him. It was Steven Truscott. Over and over again.... I opened a little place called White Oaks in Ontario, and we brought in the children who were under 12--all of them were under 12--from different parts of Ontario, who had been sentenced for up to two years. The first two who walked through the door were two little brothers from Red Lake who could barely speak English, and they were there for an indeterminate amount of time. They were there, in fact, for about three weeks, and we got them right back to a home and to a different, decent kind of existence.
It was just frightening to me at that time, and I've never ceased to be shocked since with what I see when I go and visit people in institutions. I still work with people who come out of institutions and I see the damage it has done to them, and it's all done in the culture.
You can change all the laws you want, but unless you change the culture in institutions and the culture of this province in looking at crime and criminal behaviour, you're not going to change anything. Because that culture seizes the institution and controls it. As we used to say to the guards, “You don't run this institution. You know who runs it. The inmates run it.”
I will leave it at that, except that what I object to personally, and what DCI objects to, is the vindictiveness of the legislation, in our view. The way of looking at young people who are still children, still under 18, by the Convention on the Rights of the Child.... This document, for some reason, seems to have been pushed into the background in Canada, although to me it's the greatest document in the history of human rights that this world has produced. Even bringing that into play could change a whole lot of things, if it was rightly and properly done.
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Our overall concern is that this bill seems to have a law and order approach, get tough with young offenders. And we believe that the result of the bill as it stands will be that there will be more young people in custody. That truly causes us concern.
I want to talk briefly about two things. First are the principles under subclause 3(1) of the act. People have spoken about this before.
We're moving away from a focus on youth, addressing the circumstances underlying their offences and rehabilitation. We're moving to a focus on public safety, and not even long-term public safety. We're talking about public safety, and we believe this will just incarcerate more kids, and that's not what we should be doing.
We think this section fundamentally changes what the act is about. By moving it away from youth to public safety, I think we have in some ways gutted the original intent of the act. So I would suggest that this be looked at very carefully before people change it.
I've had some comments that it's really just a reordering of the intent of the principles. If you look at it clearly, it's more than that. And if it's simply reordering, maybe it should just be left alone. That might work well.
With regard to institutions, Les has talked a little bit about our experience. But in large institutions we see two groups: we see victims and we see bullies. And when we talk about the victims, just read the inquests about kids in state care in Ontario. I'll speak to Ontario because it's what I know best.
James Lonnie was a young man who was 44 hours in a concrete box intended as segregation for one person. He was placed with another aggressive young man who understood that Lonnie was a rat and he headed out to get him. And Lonnie spent that time screaming and yelling for help, without getting any. In the end he was beaten to death.
We have David Meffe, who was so bullied in a detention home in Toronto that he hanged himself. At the inquest that heard that, which was not made up of bleeding hearts, these ordinary citizens were so appalled by the conditions that they said the institution should be closed. That was their first recommendation.
And I listened to the young man this morning and I could see no reason why the things he was saying, the help he got, could not have been given to him outside a lock-up. He talked about the relationship with people and so on. I'm not sure you have to lock people in custody to get that kind of assistance. We should definitely see the kinds of things people are locked up for, and we should see locking kids up as a last resort.
On the other side, you have bullies. You have kids who are smart; they get in and they affiliate themselves with the toughest group in the place. They may never have beaten up anybody or stolen their food or just had them do degrading acts. Suddenly they are in an institution where, in order to survive, that's what you do.
Martha spoke about people coming out and wanting kids to be rehabilitated in the long term, and that's the safety feature. If we're going to get there, that's what we need to do.
Les, you have that one closing statement.
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1994 was a good year. It was a good year because the Convention on the Rights of the Child was beginning to be noticed. It's a very wise document.
I was at an international conference for young people in Victoria in 1994. We had gathered groups from all over the world to talk about the convention. There was a group of Quechua from Tena in Ecuador, Maoris from New Zealand, street kids from Vancouver, and a youth leader from Belfast. It all happened in a huge auditorium at the University of Victoria. The last afternoon of the conference came, and the grand finale was to be piped onto a gigantic screen. It was a show from Charlottetown, P.E.l., performed by a professional cast who were celebrating the marvel of Canada and what it could mean to all the young people who were there. There was singing and dancing, and the message was that Canada was some sort of heaven that had been found by all these happy refugees who had escaped the horrors of their home country to live a new life in Canada.
But then we noticed that the message was not getting across. The crowd in the auditorium was shrinking. They were gathering in pockets of space. And at first the conversations sounded confused. Then the confusion turned to anger. With amazing courage, the organizers closed down the pipeline to Charlottetown and people slowly moved to the large platform. It didn't happen by arrangement; it just happened. People went up to the mike, said a few words, and stepped away. People told stories. People cried. I felt so lucky; we all did, and we all knew how lucky that was.
The anger had started because Charlottetown was trying to sell a phony promise, and we all knew that it didn't apply to everybody, but our anger had faded to amazement. We had rights because we had taken ownership of the promise. That is what actually happened, and if you want confirmation, give Senator Landon Pearson a call and ask her. She led the conference in the Lord's Prayer and a peace came down on us all, a happy peace.
That's what should come out of these hearings—a peace that could wrap our angry and hurting offenders and bring healing to them, and a peace that will ease the pain of the victims and help them to reach out and touch hands for the sake of the children who will have the opportunity to rebuild justice in a world that we will have to leave to them.
I want to say that I feel very privileged to be here, particularly in light of the last discussion, about witnesses and time. I feel very privileged because I know many Canadians have a real interest in the work of this committee and this bill, including young people themselves.
As you know, I am the provincial advocate for children and youth in Ontario, and I am joined today by one of my advocates, Lee Tustin, who I can tell you is one of the foremost experts on the Youth Criminal Justice Act in the country and has done some work on it. She's also modest. I hope our presentation can be helpful to you.
I want to begin my comments by saying something about process. As you know, when the YCJA was created there was quite a process of consultation and participation at all levels, including the House of Commons committee. What was created was a youth justice renewal strategy. That became the YCJA in 2003, with several years of studying, consulting, and talking to people before making any changes to our youth justice system. I would guess that even in that process few young people were consulted about what they thought might be helpful in terms of changes. Yet there was a consultation process.
In 2008 Bill , which had changes similar to Bill , was introduced without any prior consultation. I'm told by other provincial advocates, as I wasn't in my position at the time, that round-table discussions were held throughout the country on Bill C-25 after it was introduced. I've heard again today and I think I've seen on websites that the report from those consultations has not been made public. Certainly I haven't seen it, or any of my staff. I think that certainly is curious when you're contemplating Bill C-4, which again I feel has not had any true consultation. This is true particularly because the consultations haven't been open and public, and my understanding is there has not been consultation with young people who might be affected by the bill you're speaking to.
I think it's really important that young people and the people who work with your legislation be consulted. I spent the last 25 years working with young people in child welfare and youth justice systems, and I can tell you that the most important things I learned did not come from a lecture or professor I was listening to or from a book I read. It came from the lived experience and wisdom of young people. I urge you, before you make any decisions, to find out what that lived experience and wisdom can say to you. People are saying this act is to some extent about public safety. I want to remind you that young people are every bit as much members of the public as I am or you are, the same way your children are members of the public, and they have a right to be consulted too.
I also understand there's been some discussion of the Nunn commission report about how protection of society should be a primary goal of the act and that a tool should be given to courts to ensure that the protection of society is taken into account. But the Nunn commission also said the Youth Criminal Justice Act is sound legislation, and the report expressed concern about deviating from the sound underlying principles that are enshrined in the act. This is exactly why I think we need a true consultation process before we change what basically seems to be, as people are saying, a sound piece of legislation.
Even some of the questions I've heard you asking today, and I know you have limited time.... It strikes me that to consider changing a piece of legislation fundamentally without knowing some of the information that you need to know—for instance, statistics with regard to racialized members of our community entering into the youth justice system—is a little bit, and perhaps this is too harsh a word, irresponsible without knowing and understanding. So I urge you to take your time and consult widely.
I've thought a great deal about what I wanted to say. I know that I'm one of a group of characters you're going to meet, and probably because of my position and where I've worked, you could probably guess the kinds of things I'm going to say. I want to get beyond that.
Recently in Ontario, we've had quite a debate about a particular youth justice facility outside Toronto. Because we've been on one end of the debate raising the voices of children and youth, particularly youth who have been involved in that facility, people have said there is--and these are their words, not mine--the “hug-a-thug” group, and somebody referred to it as “bleeding hearts” earlier. And then there's the “law and order camp”. I think the polarization of those two camps is particularly difficult, and I want to find another way of having a discourse about youth justice. I think it comes from the voices of young people themselves. My act, which governs what I'm supposed to do, tells me I'm supposed to elevate the voices of children and youth, in this case in conflict with the law.
I spent, and have spent in the last year or two years, quite a bit of time in youth justice facilities in Ontario speaking to young people, meeting them when the veneer of their lives is stripped away, meeting them in these facilities. When I meet them, I don't know why they're there, but I'm talking to them. They're kids. As somebody said, they're every bit as much children or youths as is the child of anybody sitting around this table. You get to understand that they have hopes and dreams. And you get to understand that they are our future. You ask them what they want to do in the future, and they want to be a plumber, a doctor, a parent. They're somebody's sons or daughters. They are people.
To understand the issue with that in the forefront, with them in the centre of this room, you might make different decisions about the act you're contemplating. I really believe that. It also provides us with common ground, because I believe that people in my so-called “camp”, people who are the characters coming to tell you what's wrong with that, believe as much as you do that we want the best for our children and youth. We want public safety too. Speaking about these young people and understanding them will allow us to act differently, I think. That means also listening to them.
I want to say something else, and I'm thinking about what they might want me to say. In one of the places I was visiting--and it's happened many times--I was with young people in their unit, and suddenly there was a call for a lock-down, what the institution called a “code blue”. So all the young people had to go to their rooms, and they were locked in. This is not atypical from any other province. After they came out, I was able to talk to a young person again, and I said, “What happened?” He said, “Well, we were locked down. We have three CDs we're allowed to listen to on our unit, and one of the CDs was missing, and they needed to lock down all the units in the institution--not just this one--to try to find the CD.” It seemed curious to me. By the way, when they tried to find the CD, there were strip searches. They take everybody's clothes off, one at a time. They go in the rooms and look for the CD.
I'm not criticizing, and I don't work in the justice system, and maybe they're thinking--and I think they were--that the CD could be used as a weapon, and that it was a matter of safety. But I asked the young person how often this happened. “Well, two or three times a week”.
It occurred to me that if at any moment the guards who guard the Parliament Buildings could come in here and tell us to go to our rooms, take our clothes off because they had to look for something that was missing.... If that happened three times, and we didn't know it was going to happen, but we just got used to it happening, we might even think we understood why it was going to happen. When you're in custody in that situation, that's a common situation, and it's just one common element of what it means to be in custody. That's punishment enough in terms of what we need to do to young people if we're going to think we're punishing them. But--and young people will say this--it doesn't do a lot. It's common sense when you think about it.
When you think about your children, it doesn't do a lot in terms of rehabilitation and possibilities for reintegration. So the fewer young people, our children, we can put in that situation.... It's kind of obvious that we shouldn't be doing that.
That's the piece I wanted to say. I also wanted to say a little more about some of the pieces in the act, and I think that with Lee, during questions, we can speak specifically to those.
To me, the declaration principle that people have talked about that shifts the philosophy is really important, because I believe it blatantly ignores parts of the UN Convention on the Rights of the Child, which is also mentioned in the act and which the Canadian Parliament and Ontario's legislature have adopted.
I know there's been some discussion here to the effect of what good is that convention anyway, how enforceable is it, and that maybe that's the reason not to worry about it so much in the act. But what a message that is. It's particularly ironic when we're considering youth justice legislation and are honouring what we as a society say we need to commit to as people, and are teaching our young people how important laws are, that in regard to an act and a convention that Parliament and provincial legislatures have agreed to, we say that because it can't be enforced, it doesn't matter. What an irony it is to take that position.
My time is up. There is so much I wanted to say. There is a group of young people here from children in care. Yesterday they were speaking to Senators Pépin and Munson, talking about their struggles to make it through the child welfare system, how difficult it was. They had made it or were making it, but some of them were in group homes too. Under this legislation, they could be charged and end up in custody and have a completely different path, if they threw a glass at someone in a group home because the abuse they had suffered was triggered by something in that home. I want them to be remembered here too.
I know I'm out of time, but that's my message.
I wholeheartedly endorse your comment. It's not as if we haven't asked, but it seems to me that we've heard a number of times now that there were people who were not in the discussions, or the consultation process in each province, who should have been, like you.
We've also heard from people who were part of the consultations. One said just recently—and maybe you were in the room—that she didn't hear a person speak against the way the YCJA was working.
So I think it behoves us as members of the committee—and you will recall people asking the minister and members for a report on those consultations—to drive that point more strongly. I thank you for echoing those concerns.
My question is the following. The YCJA is working adequately. What this bill does, however, is it seeks on its face to address some of that act's shortcomings in a positive way, changes most of us agree with. The government, in perhaps over-reaching, to use my term, seeks to put a little philosophy in there that perhaps we on this side disagree with. To use the phrase “throw the baby out with the bath water”, what I fear is that we will throw the whole thing out and not achieve some meaningful amendments, or the whole thing will come in and do some irreparable harm in some regard.
I'll zero in on one very specific part of this, because we've had a longer debate on some of the deeper issues. I'd be very interested in your comments on the publication ban. Your group obviously cares very much about youth, but there is this element of protection of the public, and we heard that in some cases there ought to be a lifting of the publication ban.
Do you think that if the wording were a little more specific around “violent” and “serious” offences involving repeat offenders, even though they are youth, and if we still have that stopgap of judicial discretion, that would be effective?