:
Thank you very much.
Merci beaucoup. My name is Juliette Nicolet. I am the policy director at the Ontario Federation of Indian Friendship Centres. I'm going to try to be brief.
The Ontario Federation of Indian Friendship Centres represents the interests of 29 friendship centres across Ontario. Friendship centres serve status and non-status first nations, Métis, and Inuit people. We provide holistic, wraparound, culture-based programming in such areas as health, education, employment and training, children, parenting, addictions counselling, seniors, and justice, of course. Eighty per cent of the aboriginal population in Ontario—80.4%—reside outside of reserves and 36% of the aboriginal population in Ontario are under the age of 19.
The justice programming that friendship centres provide in Ontario has been around for 30 years. Our court worker program is just over 30 years old. The community justice program, which is an alternative measures program, has been running since 1999, so for 12 full years.
I'm going to provide a really brief outline, some high points, of our position on Bill , on the substance of it. But in general our primary concern is that it seems to mark an overall drift toward a more punishment-oriented regime that we do not feel serves the interests of the public and, more specifically, the interests of the urban aboriginal community and urban aboriginal youth.
We know that at this point already the Youth Criminal Justice Act has a differential impact on aboriginal youth in Ontario and across Canada, but I'm speaking for Ontario. A number of the amendments made are likely to worsen the effect the YCJA already has, and they don't allow us to see, in the fullness, the possibility of positive action the YCJA might have.
The first issue I will bring to your attention is detention prior to sentencing. Bill amends subsection 29(2) of the YCJA, which refers to the use of pre-sentence detention if there is a likelihood for the young person not to appear. To give you an idea, the court worker program deals with indigenous people in the courts. Thirty-two per cent of appearances of court worker clients in Ontario are for administration of justice charges. This means that there is an extremely high rate of charges that will inevitably result in the use of detention prior to sentencing, increasingly for aboriginal youth, as opposed to others, because of the high rate of non-compliance with administration of justice charges. So this is a problem to begin with.
Second, I'd like to highlight the police record of extrajudicial measures. We believe this will reduce the use and effectiveness of such programs as the community justice program, which has had a very high success rate. There has been 82% compliance with the conditions in the community justice program for the people participating, which we think is very good, as well as decreased recidivism.
The third highlight is publication of names. The OFIFC disagrees with this approach on principle. We think it's needlessly punitive, and it flies in the face of the need to minimize stigma for aboriginal offenders, who are already highly stigmatized in society.
Fourth, and last, we think that denunciation and deterrence should not be part of a youth sentencing regime. The amendments to include denunciation and deterrence are not appropriate for youth, and are not appropriate, in particular, for an aboriginal population. Sentencing, inasmuch as it is possible for it to address some root causes of criminal behaviour, should do so. Sentencing for aboriginal youth should be aimed at the reduction of criminogenic factors and should be oriented towards pro-social outcomes. Putting more of our kids in jail will not result in increased or better outcomes for our children, and inevitably will not result in better outcomes for society at large.
As a small aside, we know that in Ontario, aboriginal gangs are migrating from the prairies over to the Kenora and Thunder Bay regions, and that much of the recruitment for these aboriginal gangs takes place in youth detention centres and, after age 18, in jails. Increasing opportunities for incarceration are going to lead to an increase in criminality.
In conclusion, we at the OFIFC are very concerned about ensuring that the sentencing regime for youth provides us with alternatives and with opportunities to continue to place an emphasis on preventative, culture-based, community-driven measures and programming that address the root causes of crime--poverty, the effects of racism, and a high incidence of addictions and substance abuse--and that allow us to expand programming options. These include Kizhaay Anishnaabe Niin, which is traditional gender roles programming that teaches men and women about gender responsibilities and how to be good men or good women in the world; Streetwolf, which is specifically addressed to justice-involved youth to try to get them off that track in a culture-based way; and Wasa-Nabin, which addresses youth aged 12 to 18.
These programs have been shown to work. They keep kids out of trouble and keep kids in school, which is not the direction these amendments go.
Finally, I'd like to conclude with a request. There needs to be more time to allow the YCJA to work. More funding needs to be put into programming to allow this to happen. For aboriginal kids, the effects of the YCJA have not yet been felt. This is a result of a lack of programming. It's not necessarily a result of any inherent problems in the legislation.
Thank you.
:
Thank you very much for inviting me.
Because of time concerns, I will address only a limited number of the proposed changes.
In subsection 2(1), regarding the definition of “violent offence”, it would undoubtedly be useful for Parliament to define what's meant by a violent offence. In general, members of the public discriminate between violent and other offences in their views about how certain cases should be dealt with.
The normal definition of “violent” is covered quite adequately by proposed paragraphs 3(a) and 3(b) of the definition. Hence, proposed paragraphs 3(a) and 3(b) alone should constitute the definition of “violent”.
I would, therefore, suggest cutting proposed paragraph 3(c) of the definition:
an offence...[that] endangers the life or safety of...person by creating a substantial likelihood of causing bodily harm.
Such an addition to the definition of “violent” implies that an offence could be considered to be violent if someone were to make the argument that the behaviour involved did not, but could have, created bodily harm. Simply put, this allows far too much to be included in the definition of “violent offence”. A first-time impaired driver could be seen as violent. And indeed a youth who shoplifts a candy bar from a department store and runs out the door through a crowd could be seen as endangering those in the crowd, because there is a substantial likelihood that he would run into somebody, causing bodily harm. Besides being overly broad, youths, because they're youths, will not foresee possible consequences in the same manner as will a more thoughtful adult.
If anything can be considered by some judge to be a violent offence, then the real notion of violence is cheapened. It is important to the public, I think, that truly violent offences be named as such and that other offences that truly do not involve violence not be seen as being given similar treatment. The definition of “violent offence” is important because violence is, quite properly, one of the gateways to a custodial sentence. The distinction between intentional violence and other offences should be maintained.
Second, I'm concerned that the invitation to the judge, under the changes to the sentencing principles in proposed subparagraph 38(2)(f)(ii) to try “to deter the young person from committing offences”, could have two unfortunate effects. The change would make a false promise to the public that the judge, through harsher sentences, can accomplish individual deterrence with youths. Data would suggest otherwise. My concern is not so much that the judge will be taking responsibility for and being blamed for crime by this youth, but rather that it gives credence to the unsupportable belief among ordinary members of the public that courts could, by handing down harsher sentences, reduce the level of youth crime.
More importantly, this section could encourage judges to use custodial sentences to deter the young person from committing offences when a proportionate non-custodial sentence was a possibility. Hence, it has a high likelihood of increasing subsequent offending by the youth.
Research findings suggest that incarcerating youths will increase the likelihood of subsequent offending, especially when we're talking about those who are being incarcerated for the first time. Prison sentences are sometimes necessary, but if we are sending youths to prison for the first time, we should realize that there is convincing data to suggest that this experience increases rather than decreases the likelihood of subsequent offending.
The change that is proposed to paragraph 39(1)(c) equates extrajudicial sanctions with findings of guilt. I'm concerned about this for two reasons. In the first place, it makes, for denunciatory purposes, the impact of full court processing of a case the same as the impact of extrajudicial sanctions. Findings of guilt by judges are important events and should not be equated with extrajudicial sanctions for which a youth has not been found guilty by a court. For extrajudicial sanctions, a youth “accepts responsibility for the act or omission that forms the basis of the offence that he or she is alleged to have committed” and a prosecutor has decided that there is enough evidence to proceed with the prosecution.
If a youth is in a fight, he or she might accept responsibility for an assault, but it's quite possible that defences might exist. For a finding of guilt by a court to have the special meaning it should have, accepting responsibility for a misdeed and being found guilty of a criminal offence should not be seen by the youth, or other observers, as being the same.
Furthermore, by equating a finding of guilt to extrajudicial sanctions for this purpose, it could be that a well-informed youth would refuse extrajudicial sanctions when extrajudicial sanctions might otherwise have been appropriate for the youth, the crown, the victim, and the court. Extrajudicial sanctions are an important part of the Youth Criminal Justice Act. They shouldn't be morphed into being indistinguishable from findings of guilt.
Generally speaking, I think the changes made to section 72, the test for an adult sentence, are an improvement over what currently exists. However, there's one addition that would be useful. It's important for Parliament to provide clarity to the crown, defence, and the court on how the presumption of diminished moral blameworthiness or culpability is to be rebutted by the crown. Otherwise, until this is settled by appeals courts or by the Supreme Court of Canada, the crown will be forced to meet a test that's defined nowhere. I think the public and the crown should know what this test is so it can be met. Furthermore, I think Parliament should be doing this rather than the courts.
I understand the changes that are being suggested to the publication bans, but before you do anything on that, there's something simple and independent of these changes that needs fixing in this area. Section 75--current and proposed--makes the publication ban or lack of it part of the sentence. The problem is that if a judge hands down an adult sentence in which the ban is lifted, the sentence is appealable but the press has already published the name. Given the nature of Internet-posted information, the name is now public forever, regardless of what the result of any appeal might be. An appeal on this issue is worthless. Paragraph 110(2)(a) should be amended to include wording like “and the time for all appeals has lapsed or all appeals have been decided”.
Without challenging the purpose of the proposed replacement for section 75, I would suggest some changes. It's important to remember that the publication of names will almost certainly make reintegration of the offender as a peaceful member of society more difficult. Because the publication of the names is likely to increase the difficulty in reintegrating the youth, there should be compelling evidence that there will be some crime prevention value of the publication. In that context I make the following suggestions.
The list of cases to be subject to these changes is proposed to be very broad. As noted above, violent offence is proposed to have a very broad definition. If the definition in subclause 2(3) is not amended in the manner similar to what I've suggested, then it should apply only to violent offences meeting the criteria of paragraphs 2(3)(a) or 2(3)(b), explicitly excluding paragraph 2(3)(c). There is no point in lifting a publication ban for cases that do not cause harm or indeed an attempt or threat to cause bodily harm.
More to the point, this section is much more damaging to the possible reintegration of the youth than the limited disclosure allowed in section 127. Furthermore, it creates an important inconsistency with this section. I would suggest that you consider that the loosening of the publication ban should apply only to those offences covered by section 127; in other words, an offence involving serious personal injury. Once again, the message is clearer if the provision is restricted to those cases that have high levels of concern.
It would make sense that another pre-condition be added to the conditions that must be met to allow the publication of the name. The publication of the name should only be allowed if the disclosure already permitted in section 127 can be demonstrated not to be sufficient to reduce the risk of committing a violent offence below the level of a significant risk.
In keeping with the fact that this is part of the sentence, the test should require that the court define that the publication of the identity of the youth outweighs the benefit of the publication ban by reducing substantially the likelihood that the youth would commit an offence involving serious personal injury prior to the expiry of the sentence.
Finally, of course, since proposed subsection 75(4) indicates that it would be part of the sentence, the lifting of the publication ban should not be allowed until all appeals have been exhausted.
The Youth Criminal Justice Act is understandably complex and in need of some changes. Though it has largely accomplished many of its important goals and is recognized internationally for being an example of an effective youth legislation, it is not perfect. Clearly, however, I believe that some of the amendments that are before you could be improved.
Thank you very much.
:
I want to sincerely thank the members of the committee for the opportunity to appear a second time.
The first time I appeared before you, I had three hats on, a researcher's, an educator's and a grandparent's. I will be reiterating the same core message this time around, so I will keep my remarks brief to allow more time for questions and discussion.
My core message from that first appearance still holds true today. To my mind, rehabilitating young offenders and protecting victims are two sides of the same coin. I want to tell you that it is not one or the other, but both at the same time: protecting the victim while rehabilitating the young offender. In other words, protection for victims is achieved through the rehabilitation of young offenders. That is the position taken by the Association des centres jeunesse du Québec, Quebec's youth centres association, and the Association québécoise Plaidoyer-Victimes, Quebec's victim advocacy association. Clause 3 of Bill seriously threatens that principle, which is essential, in my view.
My message is primarily supported by the entire body of scientific literature and by real-world experience that has shown that young offenders do not have the same level of development as adults and youth, in general, and that that is an important consideration in order to have a real juvenile justice system that is not merely a copy of the justice system for adults. These principles are included in the act but are seriously undermined by the wording of clause 3.
Good rehabilitation programs for young offenders produce much better results than purely repressive measures. And that is also very well-documented. In short, a law that is fair to both young people and society must not be based solely on the severity of the offence when judging an act and sentencing a young person. A fair law must be based on a complex criminal justice system specifically for young people. It is one thing to have a law, but something entirely different to have the whole system necessary to apply that law. And that system must constantly seek to maintain the uneasy balance between the needs of society and the victim, and the needs of the young offender.
This complex system should include a system for applying the law where there is a differential assessment process based on the principle that every young person is different, that every case is different and that every context is different. My colleagues from aboriginal communities did a good job of demonstrating that earlier. This complex system should also include a differential intervention system that includes the possibility of alternative justice and rehabilitation, as well as a process that allows victims to participate and that gives them the support they need. That, too, contributes to rehabilitation. In addition, this complex system should incorporate an organization that promotes the participation and involvement of parents and should especially include rehabilitation, monitoring and intensive community supervision programs, as well as open custody and closed custody enforced by competent staff. I realize that creating a system of this nature extends beyond the federal government's reach and comes under the jurisdiction of the provinces, but I think the law should very clearly open the door to such a system. Finally, this system must also include an investment in research to encourage the development of better practices. That is a broader responsibility of the federal government.
Thank you for listening, and I am ready to answer your questions.
Thank you, witnesses.
First, when it comes to your answering, I want to ask each of you whether you were invited to participate, and indeed did participate, in the minister's round table cross-country conferences in 2008 in various cities across the country. I'll let you get to that, but I have a specific question or summary as well.
I think it's always good to look at what the act is about and what the changes are about. If I could simplify it and then ask for your comments, it seems to me it's like this. The act had, in section 3, its principles as intending to do three things, in no hierarchy--three important things: prevent crime, rehabilitate young persons, and make young people subject to meaningful consequences for their actions. Those are equal principles in the act.
However it's trying to be spun by those outside the four corners of this document, this act attempts to make the protection of the public the major and the only concern, and to make persons accountable to promote rehabilitation--not the actual fact of rehabilitation--but promoting rehabilitation and the prevention of crime as means toward protecting the public. So the simple question is, is this a complete change in what the Youth Criminal Justice Act was enacted for, and that is the three prime principles I mentioned?
And is it just reverting to a Criminal Code by another name? The Criminal Code is to protect the public with the various measures put in it. It doesn't bother to have a preamble because the Criminal Code says it all; it's a Criminal Code. This act--which was not objected to by previous Progressive Conservative governments, was not substantially attacked until now--attempts to change it completely and make it really just an addendum to the Criminal Code. Would you agree with that, would you expand on that, and could you help us in any way?
But first, please answer the question as to whether you were at those round tables in 2008.
:
I was at one of those round tables in Toronto.
In answer to your question, it seems to me that the original section 3 is preferable. I didn't talk about the changes to section 3 because I had 10 minutes and I was focusing on other things.
I think the issue here is that the focus on protecting the public is a narrow focus that is very difficult to accomplish. I rather liked the original construction because it was talking about, among other things, long-term protection and it was focusing on the long term rather than short term.
The difficulty with focusing on protecting the public is that the language implies that the only way one could protect the public or the easiest way to protect the public is through incapacitation, through locking kids up or locking people up. And rather than saying that what we're trying to do is to prevent, rehabilitate, and hold people accountable and through that complex mechanism we will have a better society, it's telling us to take bad people and put them away. So I'm certainly not in favour of this.
In answer to your final question about does this in effect, then, turn this into a simple Criminal Code, my answer would be no. And the reason is there is a lot in the Youth Criminal Justice Act. The sentencing provisions alone, for example, are important and much clearer than the sentencing provisions in the Criminal Code, and I think are preferable in many ways, not just for youth, but the structure of the Youth Criminal Justice Act sentencing provisions are superior to those of the Criminal Code.
:
Whether it's premature, I'm not sure. My simple answer to that is that there are sections that I think should be changed and should be changed relatively soon. Let me give two examples of that.
Section 29, which has to do with pre-trial release, is important, and it has obviously been a controversial topic. It strikes me that this is a good beginning of what might be looked at because what it lays out in the Youth Criminal Justice Act, separate from the Criminal Code, is the beginning of, in effect, a code for what kinds of youth should be held in pre-sentence custody and what kinds of youth should be detained. For example, the test that the person should be charged with a serious offence, and the judge is satisfied that either of those two conditions should be met, is important. It restricts it more than the adult system does, so it's a good start.
I would also have wanted Parliament to look at the conditions and the relationship of the conditions to the purpose of the act as well. When a youth is released on bail, there should be more attention put to what kinds of conditions are put on the youth and for what purposes. At the moment it seems as if large numbers of conditions are put on the youth, and what we do see is large numbers of youth coming back into the system with new charges of failure to comply with those bail conditions. But I think the idea that the test is that there be a substantial likelihood that the youth is going to do one of these things, including commit a serious offence, not just a shoplifting, is important. So I do see that as a good start.
I've already mentioned that I think proposed section 72, which is a different test for the imposition of an adult sentence, is good. I don't think it goes as far as it should, because it doesn't indicate to the crown what the test is for rebutting the presumption. It should rebut the presumption. I think the original section 72 was flawed and that this is an improvement.
So it's a mixture of things, some of which I spoke against, but in previous times I've made it clear that there are other things that I think are important in this. For example, the pre-sentence custody, starting from what's there and looking at it, if this committee were to take that on as a serious project, I think you could well come forward with something that would build on and improve upon, from every perspective—and this is not an issue of political parties—that I think you could probably agree on would be a better system of detention before trial than what we have here or what we have in the proposed amendments.
:
Thank you very much, Mr. Chair.
Through you, Mr. Chair, I express my sincere appreciation to each of my colleagues for this opportunity to address the justice and human rights committee regarding my private member's bill, Bill , personating a peace officer.
I'd like to start by saying that I appreciate the support received during second reading, which allowed this bill to be sent to your committee, and the willingness of my colleagues from all parties to carry this discussion forward.
As the committee is aware, I was moved to table this bill following discussions I had with the victim of a horrendous crime in my central Alberta riding of Red Deer. Flashing lights and a police uniform were used as weapons to abduct a 16-year-old who had just earned her driver's licence. This brave young woman was held captive for 46 hours and brutally assaulted before she managed to escape from her attacker. The cold fact of the matter was that she was abducted only because she thought she was doing the right thing. When confronted by someone she thought was a police officer, she did what she had been taught to do: she stopped and she followed instructions. And in this case, she ultimately lost any opportunity she might have had to protect herself.
When citizens see a police uniform, they naturally trust the authority that comes with it. Personating a police officer is a serious breach of the public's trust, and it has the same effect as using a weapon: it forces the victim to submit.
It has another effect that is also of great concern, not only for the general public but for the police who are out there trying to do their jobs. Mr. Chair, for this young woman, the police uniform no longer represents safety and security. With time, she will cope with this fear and will hopefully regain her trust in authority. But every time we hear of these types of incidents, one more person has had this trust shattered.
The police I have spoken to in my riding, both RCMP veterans and serving members, have also encouraged me in my quest to have the Criminal Code amended so that the personation of a peace officer in the commission of another offence be considered an aggravating circumstance for sentencing purposes.
This bill seeks to add one short section following section 130, which committee members will have before them. That is all it does. It does not seek to affect any interpretation of the offence. It would simply direct a sentencing court to consider an aggravating circumstance when dealing with the conviction under section 130.
To expand the discussion further, there are aggravating circumstances defined in section 718 that apply to all criminal offences. There are also some special cases of aggravating circumstances attached to specific offences within the code. To be clear, this bill seeks to be a special aggravating circumstance in regard to the specific offence of personating a peace officer.
Of course, within the parameters of the maximum sentence for personating a peace officer, the appropriateness of a sentence would still rest with the sentencing court. But it is up to us, as legislators, to establish sentencing provisions in the Criminal Code. Therefore, we should recognize that this is a crime that can have varying degrees of harm and therefore should be penalized accordingly.
I was aware that with the changes introduced with Bill , the maximum sentence for personation was increased to five years from six months. The specific case I have outlined was dealt with prior to its passage, so there was only a six-month sentence allowed. But it did beg the question of whether personation of a peace officer is not just as serious to a victim as being abused by a person in a real position of authority, which is considered to be an aggravating circumstance.
Some of the specifics I encountered when I first started looking at this issue related to section 718 of the Criminal Code, which sets the principles of sentencing. In section 718.2, we see that aggravating circumstances would be involved if there was “evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim”. This would apply if an offender had an existing relationship with the victim, such as a teacher or a coach, or it would apply to a real police officer who may have abused a position of trust, but it doesn't apply to offenders who are posing as police officers.
I hope this committee will recognize this gap in the law and work with me to fill it through the acceptance of my private member's bill.
Mr. Chair, during debate in the House, all parties remarked about the lack of credence that was given to this type of public deception. It was only in the preparation of comments that the prevalence of this deceit in the commission of crimes in Canada was brought to a conscious level for members. For victims, it's always at a conscious level.
In section 130, the crime is in the deception of the public about a person's status as a peace officer, whether or not it was for the specific purpose of facilitating another crime and whether or not another crime is actually attempted or committed. But in cases where the deception is intended and in fact does facilitate the commission of another more serious crime, this is an extremely serious instance of the offence of personating a peace officer and therefore it deserves an appropriately high sentence.
In conclusion, let's give the sentencing courts the tools they need to apply appropriate sentences in serious cases and thereby seek to protect innocent people from these types of crimes.
Again, thank you, Mr. Chair and committee members, for your prompt study of this bill. I am pleased to answer questions from members.