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EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, April 18, 1996

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[English]

The Chair: We are called to order.

Our witnesses today are Lorraine Berzins and Rick Prashaw from the Church Council on Justice and Corrections. We'll all be glad to know that they have something to say about Windsor. I didn't plan this. Windsor - you know, the centre of the universe, Jack.

Feel free to make your presentation and we'll ask our questions after. Take the time you require.

Mr. Rick Prashaw (Coordinator, Communications, Church Council on Justice and Corrections): Thank you, Madam Chair. My name is Rick Prashaw. I am the communications coordinator for the Church Council on Justice and Corrections. I also take a lead in the area of youth justice for the Church Council's work.

Ms Lorraine Berzins (Coordinator, Analysis, Church Council on Justice and Corrections): My name is Lorraine Berzins. I have been on staff with the Church Council for about 15 years now. I take the lead in the area of analysis and research about criminal justice policy generally and family violence more particularly.

Mr. Prashaw: If you look at the date on the cover page of our brief, we had hoped to be here as far back as last fall. I think there have been three postponements. Some of them were our responsibility, and some I think might have been the committee's, and also Parliament was prorogued. Nevertheless, we're happy to be here today.

Even though the presentation will largely be based on what you have, we have more recent developments and work that we also want to tell you about. We'll do our best to tell you when what we're saying is in the brief you received last September.

Also because of the several postponements, we regret that we were not able at this time to have a board member present. We like to have a board member present when we go to Parliament and that was not possible for today.

As we look around the table and review the membership of the Standing Committee on Justice and Legal Affairs, we realize that many of you are new. However, some of you have heard us before. You know that our presentation comes in the context of being a national ecumenical church coalition consisting of 11 national churches representing many of the Catholic, Protestant, so-called main-line churches, the Salvation Army, Mennonite, Quaker, Lutheran, totalling 11 denominations. We have a long track record of promoting what we believe are better ways of doing justice in our country. None are so apparent or so necessary as how justice is administered for our young people at risk or in conflict with the law.

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We are convinced that justice has everything to do with restoring right relationships between and among people living in a community. Consequently, justice has everything to do with repairing the harm caused by crime, primarily to its victims, the community and the offender. We need to break from long-standing definitions that see crime only as the breaking of a law, with the subsequent rush to find out who the lawbreaker is and to administer a penalty, to assign blame and punishment. If we have only that, we cannot hope to achieve the breakthrough towards a more meaningful and effective youth justice system, which many within and outside of the criminal justice system deem essential.

We want to take the opportunity as a church council this morning, and in this comprehensive review, to articulate what the key elements of an effective youth justice system are. At its core is a restorative approach to youth justice, hallmarked by several distinguishing principles. Youth justice needs to be inclusive. Youth justice needs to be healing. Communities need to play a central role in problem solving. There needs to be a vigorous denunciation of the criminal act, but not in a way that humiliates the person in a destructive way. There need to be serious, meaningful consequences for criminal behaviour, with the offender held accountable in ways that are not punitive. There needs to be a quicker yet significant resolution of cases. Finally, there needs to be a multi-system and cross-jurisdictional approach.

We envisage a youth justice system in which the starting and finishing points to any response to crime are in the care that is provided both for the victims of crime and for the youths accused of those crimes. This care should never be interpreted as either excusing or minimizing a young person's wrongful behaviour. What it does mean is expressed in the words of Quebec Judge Marcel Trahan, who, when ruling on a case involving a bicycle theft, said in his court room, ``I care more about the kid than the bike''. We would add that we care equally about the kid who was the victim of the bike theft.

It is when we build those responses to crime around the circles of care that we can construct for both the victim and the offender. When we empower communities to draw on their rich and as yet largely untapped assets and resources that it becomes possible to do justice in a way that both heals the harm and heals relationships.

Today, we want to tell you about our attempts to bring this restorative approach to youth justice through several community-based initiatives now under way in our country. Specifically, we want to tell you about our knowledge and experience with circle sentencing, with family group conferencing, and an Ottawa project to establish the first youth justice committee in the province of Ontario.

First, however, we think it important to give you some background for our work and analysis in this area. We belong to a lot of networks - both church and criminal justice - that meet regularly to pool information on the justice system. As you no doubt are hearing from other witnesses, there are many problems, which we allude to in our written brief. There is much more to be said about the present reality, but it is self-evident that despite the goodwill and best intentions of many who work in the system, more than a quick fix is required to address what now ails the youth justice system.

The Church Council believes that you have the opportunity as a committee to help the country turn away from a philosophy and approach that does not serve the needs of those affected by crime and to then subsequently look seriously at credible and positive alternatives.

Ms Berzins: We noted in your mandate that one of the issues you're concerned about is the appropriateness of the adversarial approach for youth justice proceedings. This is an issue about which the Church Council has a lot of concern, and we've addressed it in the brief you have received. In the original it was probably on pages 8 to 16. We want to take some time this morning to develop this in further detail as it is an aspect of our present criminal justice system that the public needs to learn more about in order to better understand why a different, less adversarial approach to justice would be in the better interest of victims and communities and is not at all a way of going soft on crime or letting offenders off the hook; to the contrary. Of course, we all want protection from violent behaviour, and the Church Council believes we must get tougher on the causes of crime. But it's time to get smarter about how we get tough on the causes of crime. We know the adversarial approach to criminal justice cannot help us to do that job.

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Let me give you an example of how the typical criminal justice approach is not giving us satisfying justice, and this is a true story. A young offender in an Ontario community, a quiet loner, was involved in a frightening stabbing attempt at his school some time ago. He has finished his closed custody sentence and is now on probation and continuing psychiatric treatment. The justice system expects that this is enough for the community to accept him back without fear or anger. He has paid his debt. The job is done.

But how is the community supposed to cope with him living among them again? How will they know if they are safe, if he is sorry, if they can trust him again? What is likely to happen to him and his family if he is just feared and ostracized and scapegoated for the rest of his life? What effects does this continue to have on his already traumatized victims - the one he tried to stab, the students who saw, all the parents and neighbours who heard about it; the circle is quite great - or on the whole sense of safety in that community and school or its real protection from him in the future, or on others who are perhaps also a potential threat and are in this community that is now full of suspicion and fear and remains unable to talk openly about dealing with such problems among its young people? What if he just moves away from that community? Will he have to run from the memories all his life? Can he ever heal? Can the community he left ever heal? Yes, he paid his debt, but the job of justice is certainly not done from the community's point of view.

The biggest problem here has little to do with the decisions, whether the penalty was too tough or too lenient. It has much more to do with the process of how those decisions were made. We have come to realize that a chief underlying reason that the present approach to justice is not helpful to victims and communities - in regard to all these other issues that have nothing to do with the actual penalty - is that it relies on a punitive sanction as its only tool. This is what has given us an approach to justice that's adversarial, and we can now see how much it is this adversarial approach that is one of the major impediments to what the public most wants when it says it is dissatisfied with the justice system.

Let me explain what I mean and how this works. Think about what we seek when we seek justice as an irate and frightened victim or exasperated community. We seek the shared sense of what is right and wrong, the holding to account for wrongdoing, the affirming of the importance of the rights of the person injured, the prevention of other wrongdoing or harm, and, of course, some sense of proportionality between the gravity of the misconduct and society's response.

But what do we get from an adversarial system? The potential result on an admission or finding of guilt is the deprivation of certain rights and liberties for the express purpose of inflicting pain. That is what punishment means if you look it up in the dictionary, even though many people have many more positive aims in mind when they call for more punishment.

The possibility of prison or custody or a criminal record is always a threat. What is set in motion in our civilized country is an adversarial process to safeguard against the risk of mistakes of unjustified violation of these human rights. And what you get today is a legal industry that turns the search for justice into a game of technicalities that is played between two lawyers in court. What you get is an offender who is encouraged to plead not guilty, to deny everything, to make no amends to the victim, to show no remorse. The entire system concentrates on the rights of the accused more than on the victims' need for support and reparation, and it can only be so when what's at stake is a deliberate infliction of pain as retaliation that is justified in law because the person has done something bad enough to deserve it.

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We can't get away from the adversarial system unless we try to get away from punishment as the result we are seeking to meet our aims. This really shouldn't be such a problem, because all the research is showing that we have been fooling ourselves to think that punishment is effective for what we want to accomplish. It feels emotionally satisfying in the abstract, but there is no conclusive evidence that it deters offenders - and I'm sure you've been hearing that from other people. To the contrary, the resulting stigmatization isolates offenders and reinforces criminal identity in a subculture.

Yes, we do need to express our revulsion sometimes, and to set limits, and to exact consequences that may feel painful, but to do so through the legal sanction of punishment is to use a tool that simply cannot work. All that is learned from punishment in this system is how to avoid it by lies and omissions.

Dealing with all these matters adversarially flies in the face of everything we know about all the things we're trying to achieve. It flies in the face of human growth, personal change, moral responsibility, relationships and community strengthening. It flies in the face of any real, solid, grounded public protection. To the contrary, it fuels what makes people feel like enemies of each other when they come out of court. And especially, it flies in the face of what victims need most, for the current system gives more attention to the law that has been broken by a crime than it does to the harm that has been done by people.

Having been a victim of a serious crime myself - of a hostage taking - and having checked this out with many others who have been victims of crimes, I can tell you that what victims want most is quite unrelated to the law. It amounts more than anything else to three things, if you think about it. Victims need to have people recognize how much trauma they've been through, and they need to express that and have it expressed to them. They want to find out what kind of a person could have done such a thing to them and why, and it really helps to hear that the offender is sorry, or that someone is sorry on his or her behalf. Of course, this will not always be possible, but our adversarial system actually stands in the way of meeting many of these needs. As a past victim, I know that and I quite hesitate to go that route again.

For example, in my personal life, someone recently got hold of my bank machine card and has run up a $10,000 bill on my credit line. I have a million questions about who, how, why. I'm angry, I may discover that I have been betrayed, and I want my money back. If it is someone I know, such as one of my kids' friends with a big problem, I really feel for the kid and the parents and I really want them to get good help. But I know that if a charge was laid, the accused would get a lawyer and would be encouraged not to answer any of my questions, not to respond to any of my concerns. Any parent-to-parent discussion would then be out of the question. I am therefore afraid that there won't be any benefit for me by having a charge laid. I probably won't be any further ahead in getting my money back, and I'll be further behind and more bitter in everything else.

For a lot of victims you meet, the bitterness may be coming from exactly this kind of experience, and that's what I mean when I say the adversarial system stands in the way of meeting the needs most important to a victim. It stands in the way because it's adversarial, and we now believe that it has to be adversarial as long as its purpose is to punish. It also gives victims no other way of expressing their feelings and needs except to denounce the skimpiness of the sentence, which never seems like enough in many cases, to express the trauma of what they've already been through, and it puts them through a process that seems to humiliate them.

Public sentiment is also influenced in the same direction because there is no way of knowing, from the mere pronouncement of the length of the sentence, if real worries and concerns are being properly addressed. Calls for punitive measures can only escalate because they never satisfy the need behind the demand. Let's face it. How much punishment can ever be enough to appease the rage and grief and moral outrage of some criminal acts? It's a bottomless pit and we're sinking more deeply into it because longer penalties lead to more appeals, which prolongs the whole mess for victims even more.

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When we speak against punishment as the wrong tool for sentencing, it's not because we think we should go soft on crime; it's because we believe we must increase the possibilities of achieving the real justice Canadians seek without, among other things, the adversarial backlash that currently works directly against it. At least alternative measures in the youth system give us a chance to do something different, and we believe these should be expanded and made more meaningful.

We believe the crux of the matter is that we're caught in this tough versus lenient measurement when the missing link isn't about that at all. It's about all the human needs, feelings and worries we have when we're affected by a crime. But we're so boxed in by the current approach to sentencing that even those of us in the community who know better than to believe that jail is the answer can find certain sentences too lenient.

We each have our own special concerns about the kind of offence that needs to be taken seriously by our society. Even the most left wing, if you want, of us can find ourselves sounding pretty right wing when we hear some of the verdicts and sentences that are handed down in the system that we've got now, because we have no other way of knowing if the community and the victim are getting what they need.

The Church Council has come to the conclusion that the only way we can break out of the current impasse in order to develop some more effective approaches to youth justice is to encourage experimentation with processes in which community members can start to participate, to have a say in what is done so that the whole variety of objectives for victim, offender and communities can be seen to be addressed.

Some emerging models are paving the way for this, but we don't pretend for a minute that we have found a panacea. We know full well that this is a very difficult challenge, because we face many conflicting interests and pitfalls. The legal adversarial game has many drawbacks, but we don't want mob justice or the punitive abuses of the old helping system for juvenile delinquents. We need safeguards to make sure everybody's rights and interests are protected.

Overall the communication process and community mediation possibilities that these models provide do give an opportunity for victims to be supported, for offenders to get some important but safe feedback, for members of the community to work at the problems of living together - all the social problems that the offence often brings to light. Ideally, these approaches could be instituted and encouraged at points prior to the intervention of the formal criminal justice system - in schools and through the various community and social services - but it may take some time for this approach to gain credibility outside the justice system.

Therefore, mechanisms to promote the use and the popularity of more diversion should be very seriously considered by your committee. Procedures that allow charges to be stayed to give the community an opportunity to work out a plan for another solution can offer some safeguards to a public that needs reassurance that a problem is not just being ignored.

This kind of provision exists in Japan, for example, and we know that a proposal for some legislation that would encourage this in Canada is currently under consideration by the Department of Justice. It's a proposal for what is being called a summary disposition court, and we thought you would be interested in information about this possibility that has been developed in collaboration with 21 national agencies. We have brought a descriptive document that we will table with you here today.

We want to stress, though, that a whole range of new alternatives is not what is going to be effective by itself. The Church Council is about to publish a whole compendium of the many kinds of alternatives that have been tried in the past. We are aware that while many of these alternatives are extremely good interventions, they have not solved a lot of the problems that we still face. There are a number of reasons for this, which we have analysed in detail, and we'll make sure you get a copy of the compendium.

We have come to the conclusion particularly that no matter what the sentence, if the process of handing it down is still stigmatizing, labelling, scapegoating, and doesn't include some good expressive justice for victims and communities, we will just be adding more bureaucracy to the same old problems, spending a lot more money and still not solving the problem.

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We believe we have to dig much deeper than that if we're going to get beyond what stands in our way. People are thinking of many more positive things when they use the word ``punishment''. It's often a poorly chosen catchphrase for much more positive aims, such as holding offenders to account, denunciation, reparation and support for victims, assistance with fears in the community, something an offender can do to earn his or her way back and make a fresh start. These are all very legitimate aims that people are seeking and we need to extricate them from the word ``punishment''.

Now that we know punishment and jail are not the way of achieving them, we should not assume that the public is not capable of understanding that if given a chance. We have to provide possibilities at least for people to have an opportunity to connect the positive aims they seek, when they seek justice, back to the soul of our common humanity in an effort to bring out the best in all parties.

This may sound exalted and lofty, but it really is not. It's really very simple and down to earth when you're dealing with real people about real situations in their communities. We have many examples to illustrate that.

We know there are several fine judges who are trying to do this in individual cases, but we believe that the courtroom decision-making process that we generally have tends more to bring out the worst in all the people and keeps us entrenched in desperate competition for the individual good and not working together for the common good. When this is affecting the youth of our country, we feel it's a very serious issue that we must stop and pay attention to.

The only way we can overcome what stands in our way is if we fundamentally shift our direction and change the way we see the big picture of what justice is about, so that what we are seeking is not further destructive pain but the overall positive purpose of assisting with the healing of all those who have been affected.

Justice has to make sense and has to be seen to be making sense if public confidence is to be restored and a meaningful effective view of justice put in place.

Now we'd like to take the rest of our time to give you some examples of how this is beginning to happen in some places, including Windsor.

Mr. Prashaw: We'll go to the centre of the universe, as the chair said, and tell you first of all about a case that you may already know something about, the Windsor case of Kevin Hollinsky.

These initiatives that follow for the rest of our presentation you will find in the written brief.

One July night in 1994, Kevin Hollinsky, Joe Camlis, Andrew Thompson, and two others had a boys' night out at a downtown Windsor bar. Several hours later Kevin got behind the wheel of his 1985 Firebird. He and his buddies were trying to get the attention of a car full of girls. Kevin was driving too fast when he lost control on a bad curve. Joe Camlis, Kevin's best friend since the age of four, and Andrew Thompson were both killed. Kevin was not physically hurt. The two others in the car were injured.

Kevin pleaded guilty to two counts of dangerous driving causing death and the Crown asked for a jail term of between eight and fourteen months to serve as a lesson for other young drivers.

In the words of a community police officer, we knew we had been telling high school students a very clear message that if you drink and drive and kill someone, you are going to jail. But Kevin did not go to jail, both because of an extraordinary intervention from the parents of the victims and because of a courageous and innovative court judge and police who took a risk with an alternative serious community sentence.

What happened that day in the justice system in Windsor is recorded best in the words of Dale Thompson, Andrew's father. Andrew was one of the boys killed. He told the court:

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Kevin Hollinsky received a sentence of 750 hours of community service and he has so far spoken to 8,200 students. It is an extraordinary program and sentence that includes a strong message from the police, Kevin, another friend who was in the car and survived, and Mr. Thompson.

Students are profoundly moved by the presentation. Last year, for the first time in years, Windsor and Essex County had a summer without a high school student being involved in a fatal or serious automobile collision. After hearing the presentation, one school principal told the police he was confident it would save lives in the future. In my thirty years in education, I have never seen a presentation that has made such a dynamic impact on students as this one.

Lloyd Graham, a recently retired Windsor police sergeant in charge of community policing, was initially unhappy about Kevin not going to jail. I have to say now that he makes the case for alternative sentencing. Nobody will ever convince me that sending him to jail was the best thing to do. You could send him to jail for five years and you wouldn't have punished him the way you've punished him by having him do what happened here. This man was forced to live with the consequences of his irresponsibility day after day. Everyday on which he went out to speak, he relived it. He touched many young people in the city in a way we could not. It's hard to reach teenagers, but he did. Kevin showed them that they are not invulnerable.

The non-custodial sentence was appealed by the Crown, we suspect partly because it so challenged the current mindset of the justice system. In November 1995, three appeal court judges deliberated for half an hour to confirm the original sentence, stating that they could not think of a better way by which the principles of general deterrence were served than by having Kevin speaking to 8,200 students rather than sitting in a jail cell.

We quote here the remarks of the original judge who heard the case in Windsor, Judge Saul Nosanchuk:

Mrs. Camlis, the mother of one of the victims, agrees. She has been to several of Kevin's school presentations. It was not an easy thing for Kevin to do because he relived it every time he talked about it. I think his two friends can be very proud of what he has done for them with his life since the accident. He has said to me many times, ``I've done it for them; It's the only way I can say to them that I'm sorry''.

There is overwhelming evidence that this sentence is not only serious but meaningful, effective and less costly to taxpayers than a jail sentence. Yet given the clamour today for stiffer jail penalties, in our belief it is ironic that in many respects Kevin's sentence is much tougher than jail ever would be. He has suffered personally both survivor guilt and post-traumatic stress disorder, and many times he's had to face the consequences of his actions and take responsibility.

In many cases victims and offenders are not acquainted with or at least are not as close as Kevin was to his friends. While victims and offenders are often not friends and are not expected to become friends, the current adversarial system strives to keep victims and offenders apart in ways that will always undermine such constructive sentences as Hollinsky's. Other restorative practices such as mediation, sentencing circles, and family group conferences can humanize the judicial process by fostering similar meaningful sentences. We believe there are many people like Kevin who have committed serious crimes but for whom a custodial sentence is not only not necessary, it indeed might be ineffective for both the individual and the real needs of the community.

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We support creative alternative sentences. We feel they're certainly appropriate for less serious crimes. If the case of community safety is properly addressed, these creative sentences, alternatives to custody, are also appropriate for more serious crimes.

As well, we want to tell you about an initiative here in Ottawa. We have received funding from the Department of Justice, as well as from the Ottawa police, to be part of a multi-discipline group that includes crown attorneys, police, defence, mediation, and dispute-resolution people to try to set up the first youth justice committee in the province of Ontario.

You probably know that under section 69 youth justice committees are authorized, yet we feel they exist in too few provinces. We're aware of only Alberta, Manitoba, Newfoundland and the Northwest Territories. We think they should be promoted more often.

We support this involvement of communities in doing justice. Over time these youth justice committees develop an ability to respond to local issues in a manner that is appropriate to that community and an ability to meet the needs of young offenders, victims, and the community at large. These initiatives can help bring the more formal criminal justice system into the community by encouraging leadership, community ownership, and responsibility for youth justice.

Youth justice committees will assist young people in taking responsibility for their actions with the involvement and support of their communities. These committees will also provide the community with information and education about crime and crime prevention.

We also want to talk to you about family group conferencing. We have received some formal training in family group conferencing from the Australian pioneers of this approach to juvenile justice, which you may know is based on the traditional Maori tribes and model of healing.

There are two types of family group conferencing that we're aware of, one that puts the police front and centre acting as the coordinator, which is more the Australian model, and one that puts the social worker and the social services system more front and centre, which is more the New Zealand model.

The approach involves assembling in a room the offender and supporters of the offender - usually his actual family, often relatives, sometimes neighbours, counsellors, a teacher, a favourite football coach - along with the victim of the crime and their supporters, under the supervision of a coordinator. In Australia the coordinator is often a police sergeant.

In conferences that have been observed there the number of people in the room might range from 5 to 30.

The offender plays an important role in describing the nature of the offence. The psychological, social, and economic consequences of the offence for the victim, for the community, and for others are elicited in discussions guided by the coordinator. Disapproval - often emotional disapproval - is usually communicated by victims and often by victims' supporters, and, yes, even by family members of the offender, to the youth who has been accused.

At the same time the professional who coordinates the conference strives to bring out support for and forgiveness towards the offender from the participants in the conferences.

These conferences are possible only in the cases where the offender admits responsibility. They are used in Australia, and now New Zealand, for a number of types of crimes, including property crimes, arson, and certain assaults.

The Australian experience confirms that increasing confidence by the police and the public in this model has led to even more serious types of crime being referred to conferences. For example, in a city in Australia called Wagga Wagga, of about 100,000, police, through the use of family group conferences, have reduced referrals to court by over 50%.

These family group conferences rely heavily on the element of denunciation of the criminal behaviour by the people who are really connected and involved in the young persons' lives.

We're open to answering in the question and answer period any questions on family group conferencing.

We are concerned about family group conferencing. Nothing is perfect, and we have heard that there has been some criticism. We know that certain ethnocultural groups may object to the police role as coordinators of this model, especially if they've had a history of bad relationships with the police.

Conferencing in Australia has also had to overcome turf wars that tend to happen between various professions, such as police, Crown, and other professions involved in justice.

The long-term impact of conferences on youth appears to be more favourable than that of the court. For many victims and offenders and communities who have participated, the conclusion is that justice was done.

We also want to tell you about circle sentencing, which now is taking place in several jurisdictions, where participants are often able, and communities are able, to confront pain and search for healing in allowing the community to go on living together. Cal Albright, of the Saskatchewan Federation of Indian Nations, refers to this pain that's associated with the circle process as ``good pain'', which can result when our intention in justice is to heal, rather than the ``bad pain'' that results from an intention that is intended to inflict suffering that only reinforces destructive feelings.

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There are those who see the value of these circles only for native communities and who are convinced they're not going to work in non-native settings, particularly in large cities. However, Judge Barry Stuart, and others who have been talking to us and who have been partly responsible for the pioneering of these circles, thinks exactly the opposite is true. These circles can work in large urban and non-native settings. They have to be adapted, we have to be flexible about them, and we have to make sure that in these larger cities where resources exist for people - sometimes to a much better extent than in the smaller communities - we find the identifiable community of the offence, find out who is really connected to the offender and to the victim - it might be the favourite hockey coach, or the grandmother, a concerned teacher or neighbour - and bring those people into the circle. Judge Stuart explained that bringing in people who are somehow connected in real terms to the offender and victim enhances the outcome.

Whether it be circles or family conferencing, there is often a coming to the senses that takes place when the young person realizes that people who matter to him are upset and critical of his behaviour. Such criminal behaviour is denounced, but the offender realizes that this is done by people who care about him. Frequently, the youth is more disposed to recognize the love and the care behind the denunciation. Those in the circle know, or come to know, that the offender is more than just his crime.

As with conferences, we too have concerns about circles, and there is some very legitimate criticism taking place in this country about some of the groups - some women's groups, some victims' groups - that have experienced them in these small native communities. We think this criticism is legitimate, that we have to attend to it, but it doesn't mean we reject the model. What Judge Barry Stuart reminds us is that we should judge circles and conferences not by perfection but by the existing criminal justice system. When the benefits far outweigh anything that now exists and is happening in the court room, let's fix those problems that exist with circles and conferences, but let's not reject them because of this criticism.

We refer to our brief again to note that we have commented on many other issues that we will not get to in our presentation, but we are open to questioning. We only have a conclusion left, but we would like you to note that we do have in the brief comments about parental responsibility and about wilderness camps and boot camps. I've also already given to the clerk of the committee a recent presentation that we gave on boot camps to the Ontario Task Force on Strict Discipline for Young Offenders.

Ms Berzins: We would just like to say a couple of things in conclusion.

The Chair: Go ahead.

Ms Berzins: We think it's really important to keep stressing that the YOA is only one of many tools for youth justice. There have been extraordinarily high expectations placed on this one piece of legislation even though it is clear that society cannot legislate away profound social problems. The attempt to do so is like trying to accomplish a wide range of household repairs with only a hammer. We need many tools in our toolbox for the different needs in home repair to be done successfully. In the same way, our society needs other options or tools besides the criminal justice system, which is the hammer, that are more appropriate for addressing social problems.

The criminal justice system alone cannot deal with the full range of problems and challenges that youths are facing today. We need a far better coordination across jurisdictions and between the systems that provide services for youth, and we believe that we really need some strong partnerships that involve the criminal justice system alongside the child welfare system, the child mental health system, the education system, the employment sector, and other child and youth services. We need to direct more resources and attention to all these other areas, and we would really endorse a move to shift a lot of the resources from the formal justice process into a lot of the community initiatives and a lot of the social services.

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This does not mean there's no connection between the criminal justice system and those other services. There needs to be an important connection made because so many of the problems are being funnelled into the criminal justice system, which does not have the tools needed to solve the problems.

The YOA and other legislation need to allow for communities to be real partners with the formal justice system. We think the federal government could play a strong leadership role in making a statement about this and encouraging the shift of the resources.

The other thing we want to leave you with is an image that we hope you'll think about for some time. The youth justice system is in a crisis in terms of the public perception of it and in terms of the way it's functioning to deal with the real problems. We would do well to seize the opportunity presented by this crisis for a remarkable turning point in our country's history to do justice differently and better. We believe it's important for all of us in the field of justice to learn what has transpired in the health care system in Canada these past many years.

Tough questions about costs and effectiveness of traditional health models have led to new ways of understanding illness and medicine. Traditionally, Canadians relied exclusively on a visit to the doctor to get well, at least in more recent decades. Now doctors work alongside other disciplines that look after us in a holistic way, with people like nutritionists, massage therapists, physiotherapists, acupuncturists and midwives, to name just a few.

There is the recognition in that field that there are alternative ways not only to cure illnesses, but to keep people healthy. Significantly, health practitioners came to realize that in the words of Scott Peck, who we quote in our brief, the condition of health is not a static state of perfect wellness; it is, among other things, a condition of ongoing healing.

Consequently, health is not so much the absence of disease as it is the presence of an optimal and ongoing healing process. We've learned over time that the determinants of healthy living go beyond fighting disease to also addressing matters related to everyday life and the environment.

I am saying this in detail because the parallel to the justice system, we believe, is a very strong one and we need to think about it a little bit more.

Many disciplines and systems have begun to work together in the health field, recognizing that wellness requires the collaboration of many people throughout the community.

We strongly believe those same lessons can be applied to our justice system, and we hope you'll think a lot more about that. It too has everything to do with the wellness of individuals and communities. Justice is not so much the absence of crime altogether, because that's probably an impossible goal in a society full of differences - power differences and economic differences - but justice may be much more the presence of optimal healing processes that enhance conflict resolution and problem-solving around all the many crises that could lead to more serious crime, not just dealing with the criminal incident in isolation, but stimulating the community healing capacity to recover from it, go on from there, and reintegrate the members who have had difficulty in conforming to the law and not harming other people.

This is the path of justice leading to wellness for individuals and the community. Those in the justice system must learn to rely much more on many partners and many disciplines. We really believe that this is our future and our hope and that there's a real chance in the youth justice system to turn this around in a way that truly makes a difference in how the public approaches the whole task of justice.

Thank you for your attention. We'd be happy to hear questions and your reactions.

The Chair: Thank you. I know there are questions. We'll begin with ten-minute rounds with the Bloc.

Madame Venne.

[Translation]

Ms Venne (Saint-Hubert): As you know, many witnesses have stated in their briefs that the challenge facing the justice system does not necessarily relate to the act, but rather to the way in which it is implemented in the provinces.

Some of the problems that are often mentioned include minimal use of alternative measures and very little community involvement. You mentioned these points as well.

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Why is there a lack of community involvement in your view? Resources probably. But are there problems with respect to information and commitment? Do you think it would be a good idea to amend the act to make community involvement in decision-making and alternative measures mandatory?

Do you think it would be a good idea and desirable to amend the legislation to provide that alternative measures should in future be the rule and not the exception? Do you think that would improve the situation of people involved in the justice system at the moment?

Ms Berzins: I think you have given some very good answers to your own questions.

Ms Venne: So you agree with that?

Ms Berzins: Yes, now I'd like to say a little more about it.

Ms Venne: Even if we were to remove the judges' discretion in that case?

Ms Berzins: That might become necessary. This is something the Church Council has been concerned about. We have contacts with people who work in the justice system, including Crown attorneys.

The problem is not so much the Act but the attitude of people, and the attitude of people who are involved in the justice system, who think of justice in punitive terms. They want a firm message to be sent out. The messages that are conveyed are often symbolic. We have a public relations problem, that is to say we think that in order to take an incident seriously, alternative measures cannot be considered. They do not have a good reputation, and that is due in part to the fact that in some jurisdictions, they may be too insignificant to really convey the impression that the justice system in taking the young person's behaviour seriously. We do not always think that the alternative measures used in a particular case are linked very logically to the problem that cause the crime or to the victims' needs. So we have to change this impression through good public relations.

Ms Venne: Here we're not involved in public relations.

Ms Berzins: No, but I'm coming to that. I'm trying to say that there is nothing in the legislation that prevents this approach at the moment. However, it would be good if the act were to encourage it further.

Ms Venne: Exactly. So then it will become the standard, or the rule.

Ms Berzins: Yes. It would be what we call a permissive measure under the legislation. It would be seen as an encouragement.

At one point in my brief I spoke about a proposal for a summary disposition court. It would be designed to meet this need. We need a recognized procedure in the act that encourages much greater use of community measures. If we were to go so far as to say that according to certain criteria established in cooperation with the Crown attorneys and according to the policies in place in the various jurisdictions, a prison sentence is unacceptable, we would have to start by first finding a solution in the community.

An intermediate approach would be to say that we will try to find a solution in the community, and that this must be done. In cases where it fails, we would then look at what could be done according to other criteria of the act. A much firmer approach is required. So I agree with you.

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Ms Venne: So we're talking about establishing a standard, or a rule.

My second question relates to secure custody. I think it should be restricted to repeat offenders. I suppose you had this in mind somewhat when you say that even secure custody should only be considered after alternative measures have been looked at.

Ms Berzins: Yes, developing criteria to determine whether or not this would apply just to repeat offenders or not could be somewhat difficult. We have to be a little more flexible. In my view, the main factor is the dangerousness of the person. A youth may have committed just one crime, but they are so dangerous to the community that there is no choice but to hold that person in custody. Such cases are very rare.

There are many repeat offenders who are not really dangerous to the community. I'm thinking of non-violent offenses or situations that can be dealt with otherwise.

Thus I would hesitate to say that we should consider secure custody for all repeat offenders.

Ms Venne: Thank you, Madam Chair. That's all I have for the time being.

[English]

The Chair: Thank you.

Mr. Ramsay.

Mr. Ramsay (Crowfoot): I have only ten minutes and there's so much I'd like to focus on, but I'll just touch quickly on the case of Kevin Hollinsky, which you dwelt on for a considerable time.

In that case you have first of all something that occurred without the intent of Kevin Hollinsky. Yes, they were out having a good time and he was impaired. He didn't mean for his friends to die. We also have the parents in this case, who are willing to accept an alternative. That's quite a contrast to the parents we heard on Tuesday and the grandparents who were here, because of their different circumstances. They lost family members because of deliberate, planned, premeditated actions that took the lives of their loved ones. So I see where this is a good example and may fit into many cases. It won't fit into all cases.

I want to take us back to the time before the YOA when we had the Juvenile Delinquents Act. The courts had enormous powers to initiate responses to juvenile delinquent behaviour that bordered on the informal. I would like your understanding or comparison of what has happened since that time. Would we better off if we were proceeding with your suggestions from the viewpoint of the old JDA or the YOA?

When we moved from the Juvenile Delinquents Act to the YOA, two or three significant things happened. One was that we reduced the treatment options of the courts and left them with sentencing options, by and large. We eliminated the responsibility of those who led juveniles into a state of delinquency or law-breaking. We eliminated the penalty for that by eliminating the charge for contributing to the delinquency of a juvenile. We made it very formal. In other words, if the police pick up a youth, that youth now has rights, including the right of counsel, which is something you touched on and I appreciate it very much.

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I served as a member of a police force for 14 years. My colleagues and I kept more youth out of the system than we ever took into the system because we had the discretion to do that. We were able to make the decisions through our understanding of the circumstances and the facts as to whether or not what had happened was non-serious enough for us to be able to deal with it informally. We've lost that, and I'll be asking the chief of police, who will be appearing here this morning following you folks, about that.

What I see you suggesting is that we de-formalize our dealings with juveniles who come in conflict with the law. That can only apply, I think, to certain offences. When we get to a point where there is a deliberate act that injures another or takes another's life, we may not have the positive feelings expressed in the Hollinsky case, where the victim perhaps is still living or the victim's family is very concerned and upset about what has happened in a deliberate way. This was a mistake and, but for the grace of God, there go I, if I'm a drinker. I'm not a drinker, but I used to be, and I know that but for the grace of God I could have been in that situation, never intending to take the life of anyone.

We have to look at intent. We have to look at the consequences of one's actions. If there are no consequences to disobeying laws, then I think we're going down the wrong track, and I don't think you're suggesting that. You're saying that the consequences should change, the process of the consequences should change, and I would agree with that. I think the cake is in the eating. It doesn't matter to the people of Canada what processes we introduce as long as they will make their streets and their communities safer. We look at the results.

What would happen if Kevin Hollinsky had said, ``I don't want to do this. Yes, I'm sorry, but that's just beyond what I can endure - to stand before school kids and go through this again and again and again.'' Time will only tell whether that penalty will make a better person out of him or turn him into something that we don't expect. Time will only tell.

I guess my question to you is this: as you view your concept of changing the system, and the approach to juvenile crime, do you think we would have been better off, at least in some cases, if we had remained with a more informal system under the Juvenile Delinquents Act than what we have now? What we're now looking at is 12 years of the administration of a much more formal system where, as soon as a youth 12 years of age or over is picked up for committing a crime, he immediately has a right to defence counsel. It brings in the vested interest of the justice system - a very strong vested interest, because people make their livelihood doing certain things that the YOA has now granted in law must be done.

I want to leave enough time; you will have enough time, I think, to respond. I just want to recount something, and I heard it in the first session in the House. One of the members from the government side stood and told an account of when he was a youngster, where he had gone into a store and picked up an item. He had stolen the item, taken it home, and his dad found out about it and marched him down to the store and faced the owner of the store and apologized. He spoke of the benefit that the humiliation, the feelings of shame and remorse and so on, was to him. If he had had the right to a lawyer at the time his dad found him with that chocolate bar, what would have happened? I see that is what has been happening as a result of our change from the Juvenile Delinquents Act to the YOA, and I don't think it's been good for the system.

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We had another witness appear here before our committee on a different bill, and she was a very brilliant lawyer, in my judgment. She pointed out that in 1958 our prisons were only half full. Why, from that time until now, do we have our courts overflowing and double bunking in our institutions?

I would like to bring you back to the question of whether we are better off and whether your suggestion is not more along the lines of the old Juvenile Delinquents Act, where there was an informal setting. If we got past the police officer who said, ``This is too serious for me to deal with and I don't have the cooperation of the parents involved and the victims and so on, so I must turn it over to a more formal hearing'', and took it into the courts.... It was much less formal than it is today. Is this what you're looking at? It seems to me that you are. What I would like you to do is address that - the possibility that maybe the YOA isn't the right way to go.

To me, your presentation this morning is an extension of what we used to have, where the police officer could deal with it informally with the parents and those involved, and never formalize it. As a policeman I know that taking youths into court never, never, never - in my mind - made them less likely to commit that offence again. The fact that they could be, and the knowledge that they could be, we used extensively as a deterrent. The deterrent to me was important, but when I saw the results of going through the process - maybe 5% or 10% of those I saw go through that system benefited from it in a positive way.

The Chair: Mr. Ramsay, I want to congratulate you. You went the full ten minutes. That was great.

Anyway, I'll let you respond.

Ms Berzins: I think what you're sharing is a very heartfelt anguish and some very good questions that we have to do some soul-searching about. And yes, I think what we are proposing is in many ways a de-formalizing. However, the YOA was brought in for very good reasons, too. There were some very serious abuses under the old Juvenile Delinquents Act.

Under the guise of helping - and we feel so much more positive about it because we think we're helping - we really can be punishing people considerably, in a way against which their rights do need to be protected. I think that was what was found in the use of the old Juvenile Delinquents Act, that some people were spending a lot of time in custody. When people got underneath what was happening, it was for their protection; they hadn't done something that serious. There were all kinds of reasons why it was being done, and they suffered a great deal from it. So there was good reason to say, with the adversarial system, we can't do this to people without also protecting their rights.

I think what we didn't have as strong an awareness of in those days when we brought in the YOA was how flawed the adult system was. We brought the worst of it in as well as the good, and I think that's what we need to take a look at. We're very concerned about the whole adult system; it's equally flawed. It's just more tragic when it's happening with youth, we think, in some ways.

The YOA allows for what we're talking about to be done. The provisions are there. It's just the punitive mentality of the adult system that permeates it, that is making it more difficult for that to be implemented. I think with the old Juvenile Delinquents Act, what was being done for the good of people was being done in largely punitive places with a largely punitive feeling to them. It was in fact, in reality, infringing on a lot of rights.

We think the public is going to need some significant time with a foot in both worlds, with much stronger encouragement to de-formalize, to use processes you're talking about. The condition is that whenever that is done, it cannot be done with the power of a community to punish and violate rights. I think the community's role has to be to look for positive solutions that are not going to harm or that are clearly not going to deprive the offender of rights. It's bad enough that the state has the right to punish, but at least only the state has it and the safeguards are there for that. People are going to need to experience that the other route is more satisfying to them before they're going to be willing to let go of that.

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I'd just like to say one thing and then I'll pass it over to Rick. You talk about the Hollinsky case being an exceptional case, and you're quite right. It couldn't be done in all cases, but there are many cases like Hollinsky's where the person is sent to jail anyway, and there are many victims who don't already have the relationship that Kevin had with the parents of his victims. They certainly don't start off with positive feelings. They start off with very negative feelings, which is a very human, healthy, normal reaction to a crisis.

There's nothing wrong with that, but people don't stay there. In our observation, if we give them a real opportunity to be heard and to express what they're feeling openly without being hemmed in by the courtroom situation, they move. They move toward not wanting to stay stuck in that. They hear other things. They hear what was accidental even though it's infuriating that it was accidental.

I think just so much more would be possible if we made room to attend to what the victims need and then use more imagination in finding out what they would be satisfied with. There's a whole dialogue around what it would take to try to help make this better. There are not too many people - there will be some - who are going to stay absolutely obsessed with the fact that only this long jail sentence will do it, because they will quickly realize that it's not really satisfying anyway.

Rick, I'll turn it over to you.

Mr. Prashaw: I have a very quick postscript to Mr. Ramsay's comments. I too think it interesting that it was your police experience and other items you also referred to that allowed you to identify with Kevin.

I think that if we could create justice processes that would allow us more and more to put a face and a real humanity on the offender and the victim and get away from the labels of thinking that there's only one type of offender out there or that there's only one type of victim, your own personal story would allow you to make that identification. Yet sometimes the processes we construct in the justice system don't allow that to happen.

I listened on Tuesday to that grandmother's horrific testimony involving the Ottawa murder and I can't imagine that. I just can't in my absolute wildest dreams imagine someone doing that to another human being.

At the end of the day I was left wondering where she is going to go with it all, where she is going to find healing, and if she, like some groups, is going to put all her energy only into the penalty and the harshness of the penalty. Some victims and some victims' groups are telling us that at the end of the day, even though they thought it was going to bring them satisfaction, even though they thought it was going to bring them justice, it didn't always do that.

I was on a Vancouver open-line radio show the other day with a woman named Wilma Derksen, who has founded a group called Family Survivors of Violence, and I'm suggesting that she get in touch with the clerk and talk about appearing when you go to western Canada.

Out of her experience of the abduction and murder of her daughter she found that the best advice she received in the days immediately afterward was from another family who had been wrecked by a murder, from a man who said, ``I lost everything by putting all my energy into the terms of making sure the offender paid. I lost my life.'' He suggested to her that she also look into taking care of herself and healing and other things.

There are such diverse voices out there, yet we often think the victims are all saying this, the offenders are all this way. I'm intrigued that it was your personal experience, your police record, and what you know of what works and what doesn't work...if you can somehow construct justice processes that are going to allow people to get beyond the labels and see people who are affected.

The Chair: Thank you.

Mr. Anawak.

Mr. Anawak (Nunatsiaq): Thank you, Madam Chair. One of the strangest occurrences that ever happened in the north happened when the justice system came up to the north. Crimes were committed, break and enter, whatever, by any number of people.

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Let's say a young person breaks into a housing association office and steals something from the safe. He is consequently caught by the RCMP and maybe two weeks later a travelling court comes along and appoints a lawyer for that person. The lawyer says to him, ``You can plead not guilty.'' The guy says, ``What does that mean?'' ``Well, basically you're not taking any responsibility for your actions.'' The guy says, ``But I did it.'' And that happens. The guy said, ``But I did it.'' ``Yes, but you don't have to plead guilty.''

That's a strange twist of events for somebody who thinks along the lines of ``Well, if I did it I have to pay for whatever I did''. I think that seriously undermines the whole sense of justice for these people. They have always thought that if they did something, they would have to pay for their actions, whatever they were.

On the other hand, those who would have been in the process of judging that person would have come along and said, ``He must have something heavy on his mind to have done what he did. Something must be troubling that person to have done what he did.'' Before the so-called justice system came in, the whole system was geared toward helping that person cope with whatever difficulties he had, instead of thinking the onus was on the lawyer to prove that he wasn't responsible for what he did rather than saying ``If I did it, then I'll have to pay for my actions''.

Over the years we have come to the point where in the Northwest Territories we're now dealing with youth justice committees. We're starting to deal with not necessarily circle sentencing in our case, but with leaders of the community who deal with the offender for certain crimes. I think there are certain crimes that have to be dealt with by the justice system, such as murder, assault, sexual abuse and others, but certain areas of so-called crime can be dealt with by the community. It would work better.

I'll give you an example. Arson was committed in Rankin Inlet some years ago. A young guy burned the school down. Rather than punishing him with 7, 8, 9 or 10 years in jail, the community council - in our case the hamlet council - decided to take responsibility for that young man's life. This happened probably about 10 to 15 years ago. The young man is still in Rankin. He has not committed a crime since, which proves that there are certain areas where a person can be helped rather than being put in jail and possibly coming into contact with criminal elements. That would have been much more disastrous than what he went through.

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It's not so much a question as a comment that punishment in the form of incarceration is not always the answer. I shudder at some of the states in the U.S. that are going on three strikes and you're out. I mean, life is not a baseball game. It really bothers....

I don't mean to blame my colleague from across, but I remember there was some push for that three strikes and you're out type of thing in Canada for a little while. I think that went by the wayside, thank God.

I agree with my colleague from across that you have to look at cases individually. If a person meant to do it, then there has to be some justice, with some just punishment for that person. But maybe in certain cases there has to be the understanding that the person did not mean to do it, and while they have to pay for it, maybe there is a way to help that person be more of a valuable member of society by doing certain things rather than just incarcerating them.

I just wanted to make those comments.

Thank you, Madam Chair.

Ms Berzins: I really appreciate the comment. I fully agree, and I think the very process you're describing with a community is what makes the community safer.

So a little bit in reaction to what Mr. Ramsay says, that Canadians don't care about the process, they want the streets safe, I think the process of including them so that they know what is happening and getting the offenders connected to the real people in the community makes a big contribution to safety in that community.

The Chair: Mr. Maloney has a question.

Mr. Maloney (Erie): I'd like you to address the Australian experience, the family group conferencing and then the youth justice committee as well. How long has the Australian experience been going on?

Mr. Prashaw: It was 1989 when New Zealand passed legislation on family group conferencing, and it was within two years that the Australians, and particularly the teaching profession and police, showed an interest in it. So they brought it over from New Zealand about 1991 and have adapted it to fit their own country.

Mr. Maloney: Do they have statistics on how effective it is, on what is the rate of recidivism?

Mr. Prashaw: Yes. We will get that to the committee.

The Australian experience in several of the jurisdictions, several of the states there, has shown dramatic reductions in referrals to the court in terms of dropping it down. There's anecdotal evidence, but also the beginning of some good documentation by David Moore, a professor in I believe Victoria in Australia, on the impact on recidivism.

As police confidence in the approach grows, they are referring more serious cases to family group conferencing. They are, of course, as frustrated as any one of us where justice is not served. They experienced these conferences, had a healthy skepticism about them, and have come back to the precincts and said that it works, that it's far more effective than what they have experienced in the courts.

Mr. Maloney: Is it the police who make the referrals, or is the decision to...?

Mr. Prashaw: It can come from a number of ways, but in the Australian model, it is the police who coordinate the actual conferencing and do some of the pre- and post-conference work. But at the end of the day, when the conference is over, they make sure they create victim and offender support groups. The agreement has to be monitored, and if there's a failure to comply, then it goes back to the traditional court.

Mr. Maloney: What are the other ways to which you refer? You refer to the police in the Australian experience. What other ways are there?

Mr. Prashaw: It can go through the schools. It's an open-ended kind of process that would allow any community, any group within a community, to use this model. Churches are hosting these. It just happens that the police are at the coordinator chair for the Australian model. In New Zealand it's the social services model, where the social worker is there. The Australians had some critique of that model and decided to adapt it.

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But I'll make sure to get the committee the early findings, because some of the studies are still relatively new. Those who are good at research will know it's far too early to make a real lasting judgment on them.

Mr. Maloney: Do you have any information on the cost savings, or are there cost savings? With a 50% reduction in the court referrals there should be, but at what expense is the alternate procedure?

Mr. Prashaw: There would have to be cost savings, and I'll look that up for you. I think the information is included in David Moore's work and also in Terry O'Connell's. Terry is the Australian police sergeant who has been here and has met with some of you. I can't give you a figure today. But yes, when you're keeping that number of cases out of the formal system and doing it in informal models of diversion, there would be a significant saving for the taxpayer.

Mr. Maloney: The youth justice committee seems to be very labour-intensive. I have two questions. Is it mandatory that a police officer, a lawyer, a crown attorney and a social worker should sit on this committee? Is there a concern that because it is so labour-intensive, the backlog may expand considerably more than in the regular court system?

Mr. Prashaw: One of the benefits of the youth justice committee is its flexibility. The different jurisdictions can make it work for them and can tailor it to work for them. So Alberta, Manitoba, Northwest Territories and Newfoundland have very different types of approaches. Many of them involve the professionals, if not actually sitting on a board or at a hearing, at least in some of the pre-hearing work. Some don't. Some are only community members who have read the cases from the police and their recommendations. They've done their individual interviews before - and these are volunteers.

We have read in some of the evaluations, though, that volunteers have some questions about burn-out because of the number of cases. So there has to be some work done to make sure they, the citizens, get ongoing training. Some of these citizens in Alberta are apparently spending several nights a month hearing two to three hours of cases and resolving cases, so they're also complaining about burn-out.

Mr. Maloney: Would it be possible for this committee or some member to sit in on one of these hearings? Are they confidential?

The Chair: I don't know the answer to that, but we can look into it.

Mr. Prashaw: It would be interesting, when you do go on the road, to check that out with both the native council and the friendship centres. I can get the contact for Alberta and Manitoba for the clerk as well. I think it's possible. There would be a lot of sensitivity about confidentiality and respect for the process, but it might be possible to do without turning it into a circus. You might be able to participate in a hearing individually - without a whole committee looking in - at the end of a day.

We are just starting one, so we haven't reached the stage of referral of cases. But I think Manitoba and Alberta precede the YOA. They have a long history of these, as well as Newfoundland, which runs the whole alternative measures program.

The Chair: Thank you very much. You've really challenged us, especially those of us who have worked in the old system. It's hard to refocus yourself.

We'll adjourn the meeting so the new witnesses can get organized.

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