EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 21, 1996

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[English]

The Chairman: Good morning.

From the Federal/Provincial/Territorial Task Force on Youth Justice, we're very pleased to have three people who are just going to summarize all 600 pages for us in 20 minutes.

Glenn Rivard is with the Department of Justice and is the federal co-chair of the task force. Alan Markwart, whom we've met before, is from British Columbia and is the provincial/territorial co-chair. Sharon Moyer is a consultant and author of the study A Profile of the Juvenile Justice System in Canada, which we are quite anxious to get.

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We're very pleased to have all of you. Mr. Rivard, will you be dealing off?

Mr. Glenn Rivard (Co-Chair, Federal/Provincial/Territorial Task Force on Youth Justice): Yes, I will.

The Chairman: We have lots of questions, so go ahead.

Mr. Rivard: Good morning, Madam Chairperson and members of this committee.

As co-chairs of the Federal/Provincial/Territorial Task Force on Youth Justice, Alan Markwart and I are very pleased to have this opportunity to present the major findings of the task force report to you today.

We're also pleased to have with us Sharon Moyer, who is the author of the profile report. This report gives a statistical overview of youth crime and youth justice processing. Ms Moyer is a researcher who has been hired to prepare this data, and she'll be available to answer any questions you might have about the profile report.

The task force was created by federal, provincial and territorial ministers responsible for youth justice, and was comprised of approximately 40 senior youth justice officials. Quebec did not participate in the task force in view of its comprehensive review of its own youth justice system, including a detailed look at all components of that regime by the Jasmin committee.

At the time the most recent amendments to the Young Offenders Act were tabled in the House of Commons in June 1994, the Minister of Justice announced that a comprehensive phase two review of youth justice issues would commence shortly thereafter. Creation of the task force was indicated as part of that process, and the work of the task force was intended to assist ministers responsible for youth justice, as well as aid this committee in its review of youth justice issues.

The task force commenced its work in November 1994 and met on numerous occasions over the course of a year and a half. Task force members divided themselves into six working groups to examine various youth justice issues considered under six headings: coordination and interrelationships with other youth-serving agencies, diversion and alternative measures, serious offenders, due process issues, cost-sharing, and publication and records. The work of these various committees was then integrated into a final report.

The task force report is a working document of officials developed to provide analysis, options and proposals for the consideration of governments and of the parliamentary committee. Its recommendations have not been adopted by governments and are not government policy.

As well, in addressing the many difficult and controversial issues such as age, jurisdiction, publication of identity, parental liability and transfer to adult court, the task force was not always able to achieve full consensus. Some of the recommendations, therefore, reflect majority opinions.

Due to the lack of information about programs that are effective for female young offenders, the task force report does not make recommendations relating to the specific needs of this offender population.

The report itself, entitled A Review of the Young Offenders Act and the Youth Justice System in Canada, is about 650 pages and covers issues at every point along the youth justice continuum. We thought it would be helpful to give you an overview of some of the main themes in the report before going into specific recommendations.

To assist you in locating specific recommendations, the written text of this presentation contains page references after each recommendation described. We certainly hope you'll find the task force report informative on a number of important issues.

The importance of crime prevention is acknowledged in the report, although not discussed in great detail in view of the work of other initiatives such as the National Crime Prevention Council, the Quebec Round Table on Crime Prevention, and the British Columbia Coalition for Safer Communities. Crime prevention as a theme underscores the importance of addressing the underlying factors associated with criminality, such as child abuse, family violence and substance abuse.

I know that other witnesses have talked at length about the importance of crime prevention through social development. This approach uses specific long-term programs that target the combinations of social problems that can increase the risk of criminal behaviour. Early interventions directed at youth at risk have prove to be effective, especially if the interventions focus on services that support families, and assist in achieving early success at school.

A second theme in the report is that the formal youth justice system need not be invoked to address situations where the conflict can be resolved by involvement of the youth and others close to the youth in the community, such as family, schools, and other community supports.

Another important theme in the report is the realization that the youth justice system cannot effectively address youth crime in isolation. Since many young offenders have multiple needs, a multiplicity of responses may be required, such as programs to address illiteracy, substance abuse, mental health needs and so on.

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A fourth theme is that there is a need to find alternatives to custody as a response to non-violent crime. A substantial proportion of youth are committed to custody for non-violent offences. The task force is of the view that effective responses for many of these offenders could include, for example, reparative sanctions and/or intensive community supervision and rehabilitation programs. It would seem an effective and efficient use of limited resources to target custodial programming resources to the smaller proportion of offenders who are found guilty of serious violent offences or who are chronic offenders.

The task force has identified a number of key challenges facing the youth justice system. These include a lack of public confidence in the system as well as differences across jurisdictions in charging practices, youth court appearance and youth custody rates. These and other challenges, in conjunction with the need to address social conditions that contribute to youth crime, have guided the task force in formulating its recommendations.

I would like to address the recommendations in the report that pertain to more use of front-end measures and also to dispositions that do not involve custody. Alan will discuss the recommendations pertaining to serious offenders, some due process considerations, and the provincial and territorial perspective on cost sharing.

[Translation]

Context for operation of the youth justice system: recommendations in this part of the report recognize that re-offending can be reduced if there is a coordinated response among various child and youth-serving agencies to youth crime and the involvement of families, victims and the community in the youth justice process. The goal of these responses should be to develop a reintegrative and restorative approach to youth justice.

Multi-disciplinary case planning is one means by which to realize this goal. Other mechanisms for a coordinated response include alternative measures programs, family group conferences, sentencing circles and youth justice committees. These latter measures are means by which families, victims and communities can get involved in a constructive way to hold the offender accountable, meet the interests of victims and develop responses relevant to the community.

Family group conferencing was originally developed in New Zealand and focuses on accountability of the offender, reparation to the victim and reconciliation of the offender with the community.

Victims, offenders, their respective families and supporters are given an opportunity to meet in the presence of a coordinator or facilitator. The aim is to discuss the offence and decide on an outcome which seeks to repair the damage and minimize further harm arising from the offence.

Family group conferencing can occur at numerous stages along with the criminal justice continuum, e.g. the process can be used to provide alternatives to the formal court process, to advise the youth court on sentencing, or to support and monitor a young offender after his/her release from custody.

The Task Force recommends that the Act should be amended to facilitate these measures. It also suggests that the provinces take measures to provide for their use in appropriate cases.

Cost sharing: the federal and provincial governments have shared and continue to share in the cost of youth justice services. There is a recognition by Task Force members of the need to develop and support alternatives to the formal court system and to custody, as well as rehabilitative programming for serious offenders in custody.

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There are differences of opinion amongst federal and provincial/territorial representatives as to how best to achieve these goals. Federal officials want to redirect limited federal funding to support these goals. Provincial officials see the need for additional funds. A point of view Alan will elaborate on later.

If additional funding is not available, Task Force members recognize that new financial arrangements should at least maintain stability of federal funding, and be introduced gradually so that service delivery is not disrupted.

These arrangements should also be flexible enough to allow jurisdictions to develop programs consistent with their own needs and priorities within the framework of shared policy objectives.

Age jurisdiction: there is a public concern that the Act does not address serious offending by children under 12. The Task Force acknowledges this concern and struggled with the most effective way to deal with it. The Task Force considered adopting an option which would allow prosecution of children under 12 in exceptional cases.

This option was ultimately rejected although it enjoy minority support. A majority of Task Force members felt that it was more appropriate that child welfare and mental health legislation and services should be reviewed to assess their adequacy for dealing with this small group of underage offenders.

With respect to the maximum age, almost all jurisdiction agreed that the maximum age should not be lowered because most 16 and 17-year olds can benefit from the youth justice system and transfer is available to deal with those who are inappropriate for this system.

Diversion: Diversion includes police cautioning or the use of police discretion not to lay charges, as well as alternative measures. It is premised on the idea that the formal court process may not be necessary to adequately address crime committed by many youth.

Greater use of diversion would allow the youth justice system to better focus its efforts and resources on more serious offenders. Formal police cautioning is a police-based procedure currently in use in England and Wales, New Zealand, and in several states in Australia. Cautioning is a formal warning which is intended to impress upon young persons the seriousness of their behaviour and to be an intermediate step between an informal warning by police and court referral.

The Task Force recommends amendments to the Act which would encourage police cautioning as a formal response to crime in appropriate circumstances, while jurisdictions, in cooperation with police forces, should develop guidelines to encourage and guide police in the exercise of their discretion to deal with cases informally.

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The Task Force further recommends that jurisdictions should develop or review objectives for diversion and alternative measures which would include a focus on reparation to the victim; greater involvement of victims and community in the decision-making process and follow-up; and encouragement of family and the community to become more involved in preventing and responding to youth crime.

Pre-trial detention: Data tells us that there are wide variations in the use of pre-trial detention in different jurisdictions and that nationally certain populations, such as aboriginal youth, are disproportionately detained before trial. The Task Force recommends that the development of community-based alternatives to pre-trial detention should be a priority. The active involvement of the family, the community and other youth-serving agencies in the pre-trial release process should be encouraged.

Community-based dispositions: In referring to these types of dispositions, it is important to distinguish between those sanctions where custody would not be ordered in any event, and those that are true alternatives to custody, such as intensive supervision. In view of the numbers of youth committed for custody for non-violent offences, there is reason to believe that there is a need to develop alternative sentencing options.

For example, the Task Force recommends consideration of a conditional disposition in the Act, subject to assessing the impact of conditional sentences used in the adult system. Jurisdiction should also give priority to the development of multifaceted programs such as intensive supervision, day attendance and other community-based programs which act as true alternatives to custody.

[English]

Alan will now talk about the recommendations relating to serious offenders, information sharing, parental responsibility, due process issues, and cost sharing.

Mr. Alan Markwart (Co-Chair, Federal/Provincial/Territorial Task Force on Youth Justice): Thank you, Glenn. The issue of serious offenders was one of the most controversial and difficult to resolve. The task force recommendations on serious offenders focused on two main issues: the timing of the transfer application and the criteria for transfer. With respect to the timing of the transfer application, almost all of the task force concluded that it should be brought after a finding of guilt and in the context of sentencing. Proceeding in this way would be advantageous because the facts relied upon by the court for determining a transfer application have been proven beyond a reasonable doubt and delays and duplication of processes and preparation of medical, psychological, and other relevant reports would be avoided. This would lead to a more efficient and expeditious process.

As a prelude to decisions regarding the appropriate criteria for transfer, the task force considered a number of options. In the course of doing so, the task force was aware of the relationship that exists between the transfer criteria, placement provisions, and maximum sentences in the youth court system.

First, the current objectives of public protection and rehabilitation of the youth were considered in the context of the status quo. A second option considered was modifying the current transfer criteria in an attempt to clarify their application. Third, a modified status quo was examined that would retain the current transfer provisions but would increase the maximum disposition in youth court to five years less a day for the most serious violent offences other than murder. Fourth, the task force examined accessing longer sentences in the youth system through exceptional sentences as an alternative to the transfer mechanism. A final option examined was modification of the current criteria to ensure more frequent transfers in respect of particular offences such as murder.

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After consideration of all the options, a substantial majority of representatives of provincial and territorial jurisdictions agreed that the provisions for transfer to ordinary court should be strengthened to better respond to serious violent offenders. They recommended that the transfer provisions should be modified to ensure the transfer of a substantial majority of young persons over the age of 14 who are found guilty of murder, and some increased reliance on transfer for other serious violent offences. Some representatives wanted to go further than this. Federal representatives did not take a position on the identified options, preferring instead to await the results of the review of the act by this committee.

The recommendations regarding the placement of those transferred and non-transferred youth in custodial facilities have as a main theme the objective of giving greater discretion to provincial directors to place older youth, who are subject to long sentences, in either an adult or youth facility. This reflects a general concern about the placement of older and criminally sophisticated adolescents who are actually young adults in youth custody facilities, because they can, for example, have a detrimental influence on younger adolescents in custody.

There is a particular concern with the administration of the seven- and ten-year sentences introduced for murder in Bill C-37, especially given that most provincial facilities are equipped to accommodate relatively short sentences; for example, 30 to 60 days in duration.

Federal representatives shared a concern with their provincial and territorial colleagues about the placement of older and younger offenders in youth custody facilities. There are differences of opinion, however, about the specific mechanism and ultimate result in addressing this problem. For example, a substantial majority of the task force recommended that section 16.2 of the act be amended to provide for presumptive placement of a transferred youth under 18 in a youth facility and over 18 in either an adult provincial or federal facility, depending upon whether the remanet of the sentence is two years or more. The use of presumptive placement was problematic to federal representatives who felt that placement decisions should be made in accordance with specified criteria.

In the interests of facilitating age-appropriate programming for older adolescents in the 16- to 19-year-old age range, the report recommends that the act be amended to allow for the placement of these older adolescents in special custodial facilities for the rehabilitation of youthful offenders, regardless of whether they have been committed to custody under the act or sentenced as young adults in ordinary court. It also recommends studies to determine whether it's feasible to establish cooperative custodial treatment programs for serious violent offenders in the same age range, regardless of whether these older adolescents have been committed to custody under the act, transferred to adult court, or sentenced as young adults in ordinary court.

Turning to the issue of information sharing and records, the task force concluded that there are no sound reasons to believe that a general or partial lifting of the publication ban on the identity of young offenders would enhance public safety. A substantial majority did not support a partial lifting of the ban, which would, for example, allow for publication of identity in cases involving serious offences. The report, however, recommends some enhancements to the public notification provisions brought about by Bill C-37. For example, it recommends that public disclosure of the identity of a young person should be authorized by a youth court at an ex parte hearing in exceptional and urgent circumstances where the offender has been found guilty of an offence involving serious personal injury, where he or she poses a risk of serious harm to others, and such immediate notification is necessary to reduce the risk.

Another clarification of the Bill C-37 provisions would allow in exceptional cases for media publication of the identity of dangerous young persons who meet the criteria in subsection 38(1.5) of the act, but where disclosure of information to selected persons would be insufficient to reduce or avoid the risk of serious harm to others.

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As Glenn said, there's a need to promote multidisciplinary responses to youth crime and greater community involvement. In order to facilitate this, the act should clearly set out the purposes for information sharing, and the list of people who may receive information should be expanded.

With respect to parental involvement and responsibility, to encourage greater parental involvement in the formal court process the task force recommends that the YOA and the Criminal Code be amended to expand the circumstances in which parents are permitted to make representations to the court, such as at bail hearings and hearings to set the terms of a conditional supervision order if the parents are in attendance at that time.

The task force also recognizes a need to develop plain language information brochures for parents on their rights and responsibilities in the youth justice process and to take administrative steps to encourage and facilitate greater parental involvement. The task force also recommends that consideration should be given to amending section 718.2, as introduced by Bill C-41 of the Criminal Code, so that it is deemed to be an aggravating circumstance for sentencing purposes where a parent or guardian, or other adult in a position of trust of authority or in a relationship of dependency with the child or young person, commits an offence with or is a party to an offence committed by a child or young person.

The substantial majority of the task force agreed that neither a criminal offence of contributing to juvenile delinquency nor a parental negligence-based offence should be created. Means by which provincial and territorial civil legislation could be strengthened to facilitate civil recovery from negligent parents for damages or losses arising from the criminal acts of their children ought to be further studied. It should be said that the rationale behind this latter recommendation is not the belief that parental civil liability would promote better parenting or reduce youth crime rates, but rather that means should be sought to maximize opportunities for compensation to victims, including circumstances where parents may have been negligent.

Turning to due process issues, a substantial majority of the task force recommended that a young person's right to court-appointed counsel should not be diminished. Current fiscal reality, however, should be reflected in an amendment to the YOA that would allow provinces and territories to recover the costs of legal representation from parents or young persons who had an ability to pay.

With respect to statements by young persons, the task force as a whole endorsed the general principle of incorporating more judicial discretion in determining the admissibility of confessions. This would allow the possibility of a statement that was voluntary and that complied with the charter to be ruled admissible, whether or not there was absolute compliance with subsection 56(2) or 56(4). There is a difference of opinion amongst members, however, as to whether judicial discretion should be exercised primarily in respect to technical breaches as opposed to breaches of a more substantial nature.

A majority of the task force recommended the amendment of section 56 so that rights could be waived by methods other than written or videotaped waivers. The task force also recommends that a standard waiver form should be developed for written waivers, which would have the force of law.

Finally, Glenn referred to the intention of the federal Department of Justice to redirect federal funding to support alternatives to custody and to the formal court process as well as treatment programs for serious young offenders in custody. No one questions the general principle of better targeting the resources of the youth justice system nor the merits of these types of programs. The question is how you get there.

The capping of federal funding and subsequent reductions in 1996 have significantly impaired the capacity of provincial and territorial governments to further develop these types of programs. Capping occurred at a time when the costs of young offenders services increased as a result of inflation, significant youth population growth in several jurisdictions, and increased costs brought about by legislative changes such as the seven- and ten-year youth court dispositions for murder and the placement of transferred young persons in youth custody centres.

Restructuring of cost-sharing arrangements in the context of fixed and possibly reduced federal contributions in future places the entire burden of developing new programs on provincial and territorial governments. This is happening at a time when they too are having to reduce expenditures and several will be witnessing growth in the general youth population. In addition, provincial and territorial officials question the ability of the redirection of funds to have the impact suggested.

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The situation is further complicated by the way financial arrangements for young offender services cannot be completely divorced from federal reductions and transfer payments for other social and health programs. These reductions have and will affect the capacity of provincial and territorial governments to maintain all forms of social and health programs for children and young persons, including services to young offenders.

In the view of provincial and territorial officials, the only fair and reasonable way to make reprofiling of financial arrangements work is for the federal government to share the risk by providing additional funding during a transition period.

In addition, the over-representation of aboriginal young people in the youth justice system is a national issue that must be better addressed. To that end, the task force has recommended the federal Minister of Justice should take steps to seek additional federal funding to develop new alternative programs for this population and thereby reduce their over-representation in the youth court, and especially youth custody systems.

Thank you for your time and for your invitation to speak with you today. We're happy to answer any questions you may have.

The Chairman: Thank you. I have to tell you we received, as you know, the report towards the end of last week and I haven't talked to individual members to see where they are in terms of their reading of it. I can honestly say I've lost some sleep over it, because I was trying to get up to speed for today and for the little media flurry that happened when the report hit.

I'm going to start in the usual fashion with 10-minute rounds. We have quite a bit of time, so we'll start that way and see how it goes. Normally we do one 10-minute round for each party and then we go back and forth, but let's see how this works. If we need more time for individuals, we'll try to accommodate that.

Mr. Langlois.

[Translation]

Mr. Langlois (Bellechasse): Thank you for your very enlightening presentation. It is a change for me from the Election Act, on which I've been working for some time.

I think our general approach to young people in trouble should be an early identification of the problems, whether the approach is enshrined in provincial or federal legislation. Certain groups in our society are at risk. In our nuclear era, children often pay the price of family breakdown. Schools are another part of the socialization of children and can detect which ones may be a risk for society.

I think there should be a number of amber lights before we come to the red light of the Young Offenders Act and transfer to adult courts.

Based on your expertise and your personal opinion, I would like to know whether there was any discussion of greater sharing of resources of all levels of government - provincial, federal and territorial - so that the thread we have for tracing the behaviour of young people does not start being used when they are brought before the courts, but rather as soon as a problem is detected by the people in society who are responsible for young people generally. This could avoid recourse to the courts and to steps that are taken purely in the interest of protecting society.

I'm not denying that at some point, when a young person has been given every chance... Sometimes they may be given only one chance, particularly in cases of murder, because society does ultimately have the right to protect itself by incarcerating people who commit such crimes.

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I think that there are some communities that do not seem to use this holistic approach. I would like to hear what you think about this.

On the second round, I will have some much more specific questions about your presentation, including the topic of formal cautioning and the legal implications of such a practice. But first I would like to hear your opinion about what I've just said.

Mr. Rivard: Thank you. I think you've spoken very clearly about one of the aspects of the Task Force's approach, namely that the youth justice system does not function without reference to society as a whole. Society must focus more on the development of children. The report discusses this point at some length. We certainly agree with this view.

Mr. Langlois: I was expecting a somewhat longer answer.

Let's come back to some specifics, such as the question of age. In your view, we don't need to lower the age from the current level of 12. I agree with you that there is always something arbitrary about setting an age. If we were to reduce the age to 10, someday a child aged 9 years and 11 months would commit an equally serious offence. Then there would be talk about reducing the age to 9. However, we have to draw the line somewhere.

The same is true about the voting age. In 1785, it was decided that the age would be 25, and later it was reduced to 21. The voting age today is 18. Some jurisdictions are talking about lowering it even more. The fact remains that some individuals will deserve to vote, whereas others may not. So there is always something arbitrary about setting an age, and I understand your reluctance to deal with this issue. It is something to be discussed, and it was raised in the House of Commons by at least one of the recognized parties.

I would like to hear more about what you call formal cautioning. What would be the status of individuals who had received such a warning? Would they be somewhere between limbo and heaven or limbo and hell? would this be a preliminary involvement with the justice system? Would such people be viewed differently if they subsequently had to appear before a criminal court? Could the formal cautioning be given only at the time of sentencing or could it also be given at other stages in the procedure? I would like more explanation about this new approach, with which I am not familiar.

[English]

Mr. Markwart: There are different levels and types of cautioning. There are two types at the police level. The first level is what is commonly exercised by the police. The police do have discretion in terms of making their decision whether to lay a charge or not.

That's an informal discretion. Typically, what happens is that the police officer may encounter a young person involved in, for example, a shoplifting offence and may make the decision to take the young person home and the matter is dropped with an informal warning. That can be construed as a kind of informal caution. There has been some suggestion that since the implementation of the act - Ms Moyer could maybe speak to this a little bit better - there's been a decrease in the exercise of police discretion and a consequent increase in the laying of charges.

One of the ways of addressing that is to encourage the police within the act to exercise their discretion on an informal basis more frequently.

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A second kind of cautioning is a formal police cautioning system, and there are systems such as this developed in England, New Zealand and in Australia. A formal police cautioning system is a step beyond the informal discretion wherein a young person is brought before a senior officer in the police detachment with his parents and they go through a kind of semi-formal procedure of discussing the offence and the potential consequences in future. The senior officer then cautions the young person and in effect warns him that if there is any further occurrence, then there will be a different result.

Insofar as the status of the record of that kind of informal caution is concerned, I think you're correct that it's something that would have to be worked out in terms of whether a previous record of a formal caution would be able to be used at a later date or what exactly the legal status of the record would be.

There's also another kind of caution, and it's employed in a couple of provinces already, British Columbia and Manitoba for example, where crown counsel on reviewing a report by the police, instead of laying a charge, will simply issue a caution letter and in effect decide not to take any further action.

I would point out that the system of cautioning in England, Australia and New Zealand has led to a considerable reduction in the demands on the youth court system and the formal processing of minor and less serious cases without any detriment to youth crime rates. Therefore, it's a kind of system in which we could possibly screen out more of these minor cases.

I don't know if Glenn has anything to add on that.

[Translation]

The Vice-Chair (Mrs. Torsney): Mr. Ramsey, you have ten minutes.

[English]

Mr. Ramsay (Crowfoot): Thank you, Madam Chair.

I wish to thank you for the work you've done and the submission you've made this morning. I understand you've been at this for over a year and that there were 40 officials representing all provinces and territories except Quebec.

You've touched on many of the areas that certainly are of concern to me about the act, and you've made recommendations I sometimes find a little bit confusing in that you make a recommendation and then you refer to a majority consensus, or a majority and a substantial minority that disagrees with it. So it will take a little bit more reading on my part to really grasp what final conclusions we can draw from your document and your study.

During the course of your examination of the YOA, did you have access to information regarding programs such as the Sparwood program in B.C.? Did you have access to that information, to what's happening there?

Mr. Markwart: Yes, we did, and generally the Sparwood program is modelled on family group conferencing approaches that have been adopted in New Zealand. In New Zealand it's been adopted on a system-wide basis and it's been reasonably well researched.

There is also a police-based family group conferencing system that's been established in some states in Australia, and again there's been some research on that. We considered that research as well.

The Sparwood program has not been researched per se. It has been described but not researched in terms of its actual effectiveness. But yes, we did consider that information.

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Mr. Ramsay: Within the brief you've submitted - and I have that larger copy in my office - do you make references to the authorities that you did study, the programs that you did have access to, the information that you did have access to during your examination of the YOA issues?

Mr. Markwart: By and large, yes. The key references are footnoted and there are references at the end of each chapter.

Mr. Ramsay: Did you have access at the time of your examination to Professor Nicholas Bala's examination of the question on whether or not the age should be lowered from 12 to 10?

Mr. Markwart: Yes, we did.

Mr. Ramsay: Did you make reference to that report in your brief?

Mr. Markwart: Yes, we did.

The Vice-Chair (Mrs. Torsney): May I point out that if you look at the references for chapter 3 on the age issue in the large document, two of Professor Bala's studies are referenced there.

Mr. Ramsay: Thank you, Madam Chair.

As I went through some of your recommendations, you dealt with the ability of a 12-year-old to direct counsel. I've always been troubled by that ability of a 12-year-old to direct counsel. Would you just review your rationale for your recommendations with regard to that? What conclusions did your task force arrive at with regard to that particular issue and the rationale for it?

Mr. Rivard: Certainly the task force did identify that as an issue and concluded it was an issue that required more attention be paid to it. There is a series of recommendations that are really directed at the practising bar itself and the law societies. They suggest, for example, that lawyers who represent particularly young accused go through a training program.

There is a specific reference to a program that's been developed by the American Bar Association. They would go through a program that gives them a better understanding of the dynamics of working with young clients and better trains them to deal with that reality.

The task force concluded that it was still an appropriate age in which the Young Offenders Act could apply. There was no desire to raise the age to a higher limit, to 14 or whatever, but there was a recognition that particular attention had to be paid to the relationship between the lawyer and particularly young clients.

Mr. Ramsay: Do you feel that a 12-year-old has the capacity to direct counsel? That's the question.

Mr. Rivard: That is inherent in the jurisdiction of the act. Essentially, by extending the jurisdiction of the act down to the age of 12, you're concluding that 12-year-olds have the capacity for criminal actions and the capacity to understand the nature of the criminal justice system and their role in it and their role vis-à-vis their lawyers.

However, we don't conclude from this that they have exactly the same capacity as adults would. We recognize there is a need to be conscious of the particular developmental stage of 12-,13-, and 14-year-old young offenders and to take that into account in the process.

As I said, we have recommended training programs for the lawyers who are involved. We have recommended the development of guidelines by the bar to assist them in dealing with that reality.

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Mr. Ramsay: Would you favour leaving in the YOA that particular reference to young offenders having the right to retain but to direct counsel? Would you recommend to this committee that this remain untouched as a result of your examination of that issue?

Mr. Rivard: Yes, the task force report maintains the position that ultimately there is the right of the young person to counsel and a right to the solicitor-client privilege. Perhaps I should add that there are also a number of recommendations directed at encouraging the ongoing participation of the parents, including in terms of working with the young person's counsel to assist in that process.

The task force does conclude, however, that if there is a conflict of interest between the parents and the young person, the young person remains the client of his defence counsel, and ultimately the defence counsel has to take instructions from the young person.

Mr. Ramsay: Do you believe that a 12-year-old who has been arrested for a criminal offence and perhaps incarcerated will have the capacity to direct counsel?

Mr. Markwart: I appreciate your point. It was an issue that was examined by the task force. I would certainly agree that a novice 12-year-old who is initially arrested probably has very little understanding of the youth justice process, the legal procedure and all of that.

That's precisely why the report recommends that counsel go through training programs and develop rules of conduct around this. We cannot presume simply...because at the initial stage a 12-year-old may not understand that he is unable to understand. Some degree of understanding of that can, in effect, be taught through the solicitor-client relationship. The counsel can clearly explain in language that a 12-year-old can understand what the meaning and implications of the various legal procedures and decisions may be.

It's really an educative function that the role of counsel can and should play. The parents should also play a role, subject to the limitations of the solicitor-client privilege.

Mr. Ramsay: Thank you.

The Vice-Chair (Mrs. Torsney): There will be another round, Mr. Ramsay. Madame Cohen is next.

Ms Cohen (Windsor - St. Clair): Following along on this point, in the old province of Ontario under previous governments...I really don't know what the situation is now. I can suspect what it probably is, but let's just stay with this.

The official guardian had a program in the province of Ontario to retain counsel on behalf of our children who were basically being taken from their homes or whose family life was being interfered with by the Children's Aid Society. It was an interesting program that many lawyers participated in, starting in about 1980 in the province of Ontario.

There was a whole body of case law that developed around the issue of the role of counsel for a child in child protection proceedings. It dealt with how to take advice, how to give advice, and how to deal with a child who in many cases couldn't instruct you because the child was an infant or certainly a toddler.

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I'm sure that jurisprudence has been developed in other jurisdictions as well. So I'm wondering whether you had an opportunity to look at that kind of thing.

By the way, I'm not disagreeing with your position. I'm just trying to enlighten all of us in terms of what's a pretty guarded issue in terms of instructing kids.

Mr. Rivard: Certainly the task force is aware of that situation and the differences between the youth justice system, which is a criminal law system, and a child protection system. The view would be that the two of them, in effect, come hand in hand. If you are going to charge somebody with a criminal offence and hold them criminally responsible, then they have a right to counsel in the normal criminal context.

Child protection legislation is a very different animal, a very different regime with very different purposes. It is an intervention to protect the interests of the child and it can extend right down to infancy. Therefore, the considerations that would govern the relationship between the lawyer and the child in that case would be different. There is much greater scope for the counsel to act in the best interests of the child rather than simply to follow the child's instructions.

Ms Cohen: I'm going to interrupt you, Mr. Rivard, because I think you may be missing my point. There is jurisprudence on this. The Law Society of Upper Canada has dealt with the issue; the Official Guardians Office in retaining counsel in Ontario has dealt with the issue. Even though in child welfare proceedings we're dealing with the best interests of the child, nevertheless the lawyer takes instructions from the kid, not from the official guardian or anyone else.

I was just trying to educate Mr. Ramsay. He seems to be suggesting by his questions that a 12-year-old is a 12-year-old and may not have the full capacity that a 40-year-old has to instruct counsel. Somehow that should take him into a different system or we should look in a different paradigm.

Perhaps if one part of this committee wants to look at that issue - and I think your report agrees with me - then the federal law, or the Young Offenders Act, is not the place to decide whether a kid should be denied the right to counsel or how a kid should instruct his lawyer. That is not within our jurisdiction. The place for that is within the professional body of lawyers and other people who are much better equipped to deal with it, because you'll have more flexibility.

Mr. Markwart: That's essentially the thrust of the response in the report. Obviously the act assumes that a child as young as 12 is capable of forming criminal intent and is therefore responsible for his act. It's therefore consistent to say that if that child has that capacity and is responsible, he also would have a capacity to instruct counsel. You have to bear in mind that the understanding of legal procedure requires a much finer degree of understanding. Ultimately it's the child who must call the shots around this, so to speak, because it's the child or young person who suffers the penalties. They're the ones who go to jail.

Ms Cohen: That's not to say that the sensitive taking of instructions and counsel for lawyers in the course of their own professional development couldn't provide a way to involve parents or other professionals in their system.

Let's talk about federal transfers to the provinces. Looking at the statistics that were produced - and we really only just had a chance to look at the profile document this morning - don't you think it costs a lot more money per person in Ontario, Manitoba, Alberta, and to a certain extent the Yukon in the north, although that is culturally a very different situation...? If you put the kids in custody you're going to spend more money.

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Is it fair if provinces are setting their own priorities, if they're instructing their crowns to seek pre-trial detention, if they're allowing their crowns and their police to lay charges for schoolyard shoves, for level one assaults, instead of trying to deal with it in some other way? Don't you think it's fair game - and I'm playing devil's advocate here - for the federal government to say we're not going to write you a blank cheque for 50% of your transfers, folks; you guys don't have a grip on your own priorities and your own programs, and so we are going to say to you that we want a negotiated deal where you rejig your priorities so that you're spending your money more wisely?

I'm playing devil's advocate, and I'm looking at the provincial co-chair and not the federal co-chair here.

Also, it seems to me, from a cursory view of the report and of the statistical analysis and from what we've learned as a committee travelling, that increased custody doesn't necessarily translate to less recidivism. Increased custody doesn't necessarily translate to a better system, but it is more expensive.

Mr. Markwart: It seems to me essentially what you're saying is that if you have a service-driven cost-sharing formula, in effect you reward those jurisdictions that have higher rates of custody, and that's not a very good social policy. I think people would agree with that, and really that reflects maybe, in retrospect, an original mistake that was made in the cost-sharing agreement.

But the suggestion is not that it would continue to be the policy. Essentially, what you're talking about in terms of the disparity of expenditures among jurisdictions that are closely related to the custody rates could be dealt with by way of.... Instead of having a service-driven cost-sharing formula, especially related to custody, the distribution could be more closely related to a per capita distribution.

In terms of the proposed reprofiling, the issue really is the difficulty in implementing it, especially since the federal contributions are at a fixed level and potentially being reduced in 1998-99 further than what they are. For example, if a province is required to, say, take $5 million out of custody expenditures and redirect those funds into, say, the development of alternatives to custody.... Nobody questions the development of alternatives to custody. The problem facing the province in that circumstance is that it would take a considerable period of time to plan, develop, implement those alternative-to-custody programs, for them to get credibility, and for them to impact the rate of use of custody. Meanwhile, while $5 million is being taken away from custody, your actual costs remain the same, so you're having to carry the costs on this side and, at the same time, to invest $5 million more - in fact, it's a larger amount if you do the calculations - in terms of developing these new programs.

All of these costs are being incurred by the province with no new investiture by the federal government. I think the provinces would agree that we should develop more alternatives to court and alternatives to custody, but let's work together to do this.

Ms Cohen: Thanks.

The Vice-Chair (Mrs. Torsney): Mr. Langlois.

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[Translation]

Mr. Langlois: On page 4 of your lengthy report, under point 1.1, you talk about the role of Quebec, which decided to adopt a parallel approach. Your comments are very much to the point. In the last paragraph you say ``Quebec's approach to youth justice cannot simply be transplanted to the rest of the country.''

I would like you tell us how you reach this conclusion, and if you were familiar with them personally, tell us about the findings of the Jasmin Report, and whether or not they are similar to yours.

[English]

Mr. Markwart: Maybe it's overstated in the sense of saying that you cannot transplant the system in Quebec to other jurisdictions in the country. But what that statement really reflects is that there are considerable differences in view among the different jurisdictions about how systems should be organized, and that those differences, whether you like them or not, should be respected. There are also considerable differences in terms of the approaches taken in the child protection and child welfare systems in Quebec versus that of other jurisdictions in the country.

I don't want to overstate this, but it's probably safe to say that the approach taken in Quebec is more interventionist. That is not a view consistent with the view and approach taken in at least several other provinces. I'm not saying one is right and one is wrong, but this is simply the reality of the way it is.

You also asked about the Jasmin report. The recommendations of the Jasmin report, as I understand it, were certainly considered. In fact, the recommendations around parental involvement are expressly referenced in this report. The Jasmin report, as I understand it, was a report on the administration of youth justice as opposed to a close examination of the substantive provisions of the Young Offenders Act itself. So there are some differences.

[Translation]

Mr. Langlois: I am changing subjects here, and I am mixing up our discussion a little. Our Criminal code still has a provision today that has existed for a long time. I am referring to section 215, which is rarely used, and is about the failure to provide the necessaries of life. This failure to provide applies to anyone, who, as a parent, foster parent, guardian or head of family refuses to provide the necessaries of life for a child under the age of 16 years. This provision has been interpreted by our courts as applying to material things only.

Sometimes we are asked whether this failure to provide the necessaries of life should not be extended to include a refusal to perform the fundamental parental duty of providing children with some minimum level of upbringing. In some cases, should parents not be held criminally liable for total or almost total abdication of their parental role with respect to the children they brought into the world?

[English]

Mr. Markwart: Yes, that issue is examined in the report. There is a particular discussion of the possibility of an offence based on parental criminal negligence. There is a specific option set out.

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As you know, in order to prove negligence a number of different grounds must be satisfied. It is very difficult to establish a connection in terms of criminal liability. Criminal liability is a personal and individual liability. Essentially, when you're looking at a a relationship between the parent and the child you're bridging over into areas of vicarious liability, which is fraught with problems.

Nonetheless, there was quite a close examination of this option and it was rejected. There was some minority support for having a parental criminal negligence based offence, but this was minority support. It was not supported principally on the grounds that cases would probably be rare. There was also considerable concern about, in effect, criminalizing bad parenting. It was thought there are more constructive approaches that may be taken in terms of dealing with a negligent parent.

I'm not sure if this fully answers your question.

[Translation]

Mr. Langlois: I will simply follow up on a comment made in the report, which may exhaust the subject. In your presentation, you mention the rare cases in which civil reparation can be obtained from the parents. I understand that we may wonder about the advisability of including or implementing a system of criminal reparation in the process. Is it difficult to get civil reparation from the parents because they are insolvent or because of our rules on evidence or because it is quite simply impossible to determine the responsibility of parents for a criminal act, because there is no connection between the parents and the offence that caused harm to a third party?

I don't know why you mention the rare cases in which the civil liability of parents is a factor.

[English]

Mr. Markwart: The discussion earlier was a discussion about potential criminal liability as distinguished from civil liability. In a civil context, the standard of proof is different. It's not proof beyond a reasonable doubt; it's on the balance of probabilities.

Discussion in the report about the potential civil liabilities of parents does not actually take a definitive position on civil liability. Essentially what it says is that this is primarily an issue of compensation to victims. If there is a situation where a victim has suffered losses or damages and requires compensation, and if the young person is not able to pay and the parents may be able to pay, and if the parents were indeed negligent at the time, then it's a matter of weighing and balancing the various competing social interests. There may well be merit to developing civil mechanisms to facilitate compensation to victims.

What the recommendation says is that the relevant case law and provincial legislation should be further studied to see whether there are steps that can be taken to provide compensation by negligent parents to victims.

Notwithstanding all of this, I don't think we should raise our expectations because we are still talking about situations of actual negligence. These are probably fairly uncommon and also difficult to prove.

The Vice-Chair (Mrs. Torsney): Thank you.

Mr. Maloney.

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Mr. Maloney (Erie): On the issue of age and the lower end, the recommendation of the committee was not to lower the age from 12. This was on the assumption child welfare legislation was the proper forum to do this. We saw this in our travels, especially with the situation in Quebec, where they certainly did not advocate a lowering of the age.

Was there a feeling among other provincial jurisdictions that their child welfare legislation was inadequate in this area? Was there a desire expressed to tighten it up or improve it? If not, what do we do in this situation?

Mr. Rivard: I think it's a mixed bag. Some jurisdictions feel they have addressed this and the commission of a serious criminal act by a young person would be sufficient to draw the involvement of the child protection agency.

As to the exact nature of this involvement, it would depend very much on the circumstances of the case. It would depend on the family, the child's needs and this sort of thing.

Other jurisdictions indicated they would have to review their legislation to ensure it would be adequate to respond to this type of scenario.

All I can say is this recommendation received wide support from the task force members, including the provincial members at the table.

Mr. Maloney: You also seemed to have a fall-back position in your report. If you were going to acknowledge reducing the age, then you set out various criteria for doing that. What was the reason for this, then?

Mr. Markwart: I think it was a simple recognition that this is a very controversial issue and there is a possibility some changes may be made. Essentially, what it speaks to is this. If changes are made there are a number of criteria and considerations that should be developed within any legislative provision to limit its application and make it as reasonable as possible.

Mr. Rivard: When you fall below the age of 12, you start to run into various concerns about the capacity of the young person to understand the nature of his act and the capacity of this person to understand the criminal process. Basically what we were saying is that while we did not recommend this, if a decision was made to extend the jurisdiction downward on an exceptional basis, there would have to be consideration in each individual case of the capacity of the young person in these two respects.

Mr. Maloney: Do you know in how many situations this actually happens? Is it so minuscule it is hardly worth mentioning? Is it significant enough that we have to be concerned about it?

Mr. Markwart: There are some statistics presented in the report at page 103. I won't give you all the details, but for example it says 1.1% of all persons apprehended - this would would include adults, young offenders and children under 12 - were children under 12.

In 1992 and 1993 combined, there were 5,823 children. But this was only from RCMP jurisdictions that were reporting and this represented only one-third of the Canadian population. So the numbers are fairly large. It is in the thousands. But you have to remember that the vast majority of these are very minor infractions of shoplifting, wilful damage and so on. In fact, 87% were children under 12 who were apprehended for non-violent offences, principally theft under $1,000.

Mr. Maloney: Let me move to detention. The report recommends perhaps we should separate older youth offenders from younger offenders. There was some about question as to whether we would put them in with the adult offenders or whether we would have a separate detention facility for the 16-, 17- and 18-years-olds.

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Do the provinces have the resources and will they put aside the resources to do this? I think it's probably a good idea. I think there is a concern about whether their actions will speak louder than their words.

Mr. Markwart: It will be up to each jurisdiction, of course, to look at their available resources and make a decision as to whether they're able to do it.

I'd just like to clarify. The recommendation here is that if we allowed for the placing together of the 16- to 19-year-olds, including 18- and 19-year-olds who had been convicted in the adult system and are legally adults, there still would be the expectation in these facilities or units that they would be separated from other adults. So we are not talking about taking the 16- to 19-year-olds and putting them together with 25- and 35-year-olds.

It is probably more feasible in the larger jurisdictions where there are larger populations. It would be less feasible in the smaller jurisdictions.

Mr. Maloney: If Madam Chair allows it, I have one last question.

On the issue of making parents responsible for the legal aid bills of their children, what do we do in a situation where the parents have the resources? Let's say they are at their wits' end with the child. They've done everything they can with the child and now they will be held responsible. The parents themselves may be a victim of their child's actions. Has this been a concern?

Mr. Markwart: I appreciate your point, but I think you could say parents are victims of their children in many respects. If the child doesn't brush his teeth properly everyday, the parent bears the cost of the dental work and so on. There is a general assumption parents will assume responsibility by and large for expenses incurred in the course of raising their children.

The Chairman: Thanks a lot.

We'll go to Mr. Ramsay and then we'll come back to you. Mr. Ramsay.

Mr. Ramsay: To follow up and maybe finish off as far as I'm concerned on this area of the age of 12, Professor Bala recommended in his report to the Minister of Justice that the age be reduced and he gave his rationale for doing so. Did the task force have comparable studies opposing this recommendation upon which they made their decision?

Mr. Markwart: Did we have comparable studies? Certainly Professor Bala's very extensive report was considered in detail. A lot of other information, research and statistics were also considered in detail. It was simply a matter of weighing these and making a decision. It was not a unanimous recommendation by any means. There was some minority support for Mr. Bala's position.

There was absolute agreement that this is not a question of whether there should be social intervention in these cases of serious or consistent offending. It's really a question of what form of social intervention there should be.

Most people came down on the side of the non-criminal intervention. They had a variety of different reasons, as Glenn said, around issues of capacity, responsibility and potential detrimental effects.

Imagine the possibly of putting a 10- or 11-year-old in a youth custody centre mixed together with a sophisticated 15-, 16- or 17-year-old. The results at the end of the day may well be to make this child worse.

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Mr. Ramsay: I gather from my examination of Professor Bala's report that this is not really what he is saying. He is saying the treatment options are wide open. He is saying the authority of the Young Offenders Act should be broadened to encompass serious crimes committed by 10- and 11-year-olds and he gives a rationale for this. If a murder is committed by an 11-year-old, is a child welfare response an adequate societal response to this?

He made a statement to the committee. With regard to his study, he says:

...it's probably one of the most exhaustive recent treatments of the issue by an academic in this country. It traces the history, the variation in provincial offence rates and responses and some of the problems that are there, and comes up with the ultimate conclusion.

This ultimate conclusion was, of course, to reduce the age.

So my original question to you was whether you had comparable studies to examine that refuted the conclusion and the rationale expressed by Professor Bala in his report.

Mr. Markwart: No. I don't think comparable studies were necessary. Professor Bala's report was very comprehensive and very extensive. It considered all the pros and cons of the issues. He drew a conclusion. We considered the same pros and cons of all of the issues plus some additional information that came to light and reached a different conclusion. There was no need for a separate report from a different expert drawing a different conclusion.

Mr. Ramsay: Thank you for this answer.

In the final time I have left with you, I would say this. I have some concern that any changes to the act must be supported by a broad segment of society. If we are going to separate a 12-year-old from his parents in the area of directing counsel when in many cases adults have difficulty directing counsel, do you feel this is going to be acceptable to parents across the country? They're responsible for their child in all areas. Do you think it will be acceptable to separate the parent from the child and leave this child standing alone in this very vital area? Regardless of what the courts have said about this, will it be acceptable to the Canadian people?

Mr. Markwart: This is the current situation. It's not a matter of ``will''. It's a matter of ``is''. Children as young as 12 and 13 have an independent right to instruct counsel. I certainly am aware of the number of parents who take considerable exception to this. This concern reflects the rationale behind the recommendation around law societies developing rules of conduct to involve parents as much as possible in the process of consultation and decision-making around children. These are to help bridge this gap and involve the parents as much as possible, bearing in mind there are limitations around solicitor-client privilege.

Mr. Ramsay: Thank you.

The Chairman: Thank you. Mr. Kirkby.

Mr. Kirkby (Prince Albert - Churchill River): There was some suggestion by the Reform Party that children as young as 12 could not properly understand and instruct counsel. There is also the suggestion by the Reform Party that we reduce the age at which people are subject to the Young Offenders Act criminal sanction. Would these two propositions not seem to be going in exactly the opposite direction? If you believe that at 12 young people do not have the capacity, would this not be one thing to take into consideration if you were contemplating raising the age as opposed to reducing it?

Secondly, whether the age is 12 or 10, no matter what age you choose as a cut-off there is always going to be an exception. If you lower it to 10, then some 9-year-old is going to do something horrible. Then you'll be crying to reduce it to 8 or 7 or 6 and then it just goes on and on. It's not the proper way to look at this issue.

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Rather than having a particular age, what about having a seamless system of the criminal law put forward by the federal government including this type of societal response and the provincial government social service type of response? Then, no matter which side of the line the problem falls on, it is going to be met with a sincere effort to try to do something to intervene in the life of the child.

Mr. Rivard: I think you're absolutely correct. A lot of this thinking is very similar to what motivated the task force on this issue.

Clearly any age limit has an element of arbitrariness. There will always be exceptional cases that fall below it. Quite clearly, though, the more you lower the age the more you run into difficulties related to the capacity of the young person to either understand the nature of what he or she has done or to understand the legal system and to work with counsel.

You used the term ``seamlessness''. I think this is really what informed the thinking of the task force. Rather than coming up with another arbitrary age limit, which would have its own problems associated with it, we looked to the capacity of the child protection services and in extreme cases the mental health services to intervene in an effective fashion. We made a recommendation that they review their services to make sure they could do so.

I think this puts the case very well.

The Chairman: Mr. Rideout, do you have any questions? Mrs. Torsney.

Mrs. Torsney (Burlington): I wanted to ask you one thing about this issue you identified at the end. I don't mean to belabour it, but I'm going to slightly.

If I get this straight, there are a couple of provinces such as Ontario, Manitoba and Alberta that are putting too many kids in custody. You agree the system needs to be changed and they need financial help in making those changes.

Doesn't it seem a little ironic to you that a province doing a good job, such as Quebec or B.C., has a better rate and therefore will need less help? They've cost us less money. They'll need less help. Then there are provinces that have cost us more money because they're incarcerating too many kids. We're paying part of this. They're going to need more help in changing to a different system. These are sometimes the province giving tax refunds to their citizens. On the one hand, they're saying they can't afford this. On the other hand, they're giving tax refunds because they have so much cash on hand. And they'll get more money than other citizens in the country.

The Chairman: Do any public servants want to comment on the politics of this?

Mr. Markwart: [Inaudible - Editor] ...be my client.

Mrs. Torsney: You're not from Ontario.

Mr. Markwart: But I just wanted to comment that -

The Chairman: I think tongues are being bitten right now. It's an interesting observation, but maybe we don't require an answer. Do we, Mrs. Torsney?

Mrs. Torsney: No. It's just a little interesting.

Mr. Markwart: I can fully respond to the first part of the question, anyway.

I take your point. However, if you agree those provinces indicated have overused custody for less serious offences, then you could argue that in order to correct this situation there should at least be a short-term investment of financing. This is notwithstanding that they may have been indirectly rewarded to date on a service-driven formula. There is yet an even greater need for those jurisdictions to have some complementary transitional funding to assist them in developing some alternative programs, which in turn would reduce those rates of custody.

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Speaking from a province with a rate of custody that is half the national average, I can tell you that the capping, the reductions and the potential reprofiling have really stood in the way. For example, we would really like to start a major initiative around police-based diversion and widely expand Sparwood-type programs, but what's really standing in the way is the lack of financial resources to do that, especially in light of a rapidly growing population incurring additional cost because of seven-year and ten-year sentences and various other things. We would like to able to work cooperatively with the federal government. I think we have a shared interest in doing this, but we can't do it completely alone.

Mrs. Torsney: For the sake of the kids, I agree it's worth the investment. It just really makes me a little crazed to think that in some of those very same provinces they seem to have endless amounts of money for bricks and mortar to make the prisons more secure, to increase the harshness of the sentence for some of these kids in custody, and to create a boot camp model that doesn't seem to have been tested to work anywhere. That's a political comment.

Can I just ask one other question?

The Chairman: No.

Mrs. Torsney: I gave them ten minutes when I was chair.

The Chairman: I know, but I'm chair now. It's Mr. St-Laurent's turn now. You will recall he was such a faithful traveller with us. I'm sure he has lots of questions.

Mrs. Torsney: Okay, but I need to be on the next round. It's a technical question.

The Chairman: All right.

I'm sorry, Mr. Rivard wanted to respond as well.

Mr. Rivard: I don't want to prolong this debate, but I feel I should say something on the issue of cost-sharing. I certainly don't want to duplicate the discussions that are currently under way.

I can't really comment on the totality of the available federal funding, but certainly from the perspective of the Department of Justice, the fact that the federal funding is limited does not act as a sufficient reason for us to continue to direct that funding in a way that is less than optimal - in fact, it's quite the contrary. It's precisely the reason why we feel compelled to redirect this funding to a more useful purpose.

We're certainly trying to work with the provinces to minimize any negative consequences of that, and we have already agreed that this has to be done with an element of flexibility and a gradual process of changeover.

The Chairman: It's the nature of a federation, isn't it.

Mr. St-Laurent.

[Translation]

Mr. St-Laurent (Manicouagan): Thank you, Madam Chair.

[English]

Thank you.

[Translation]

I will begin with a very easy question about age limits. One of the comments you make is that we don't need to reduce the age generally in order to prosecute 12-year-olds for a criminal offence. Generally speaking, I agree with that completely.

However, throughout our travels, we noticed certain things. Some almost seem to take pleasure in asking whether imprisoning young people age 12 and over, or imprisoning anyone, played a positive role and acted as a deterrent for people on the inside.

In your presentation, you recommend that the age not be lowered below 12, but you qualify that with the words ``generally speaking''. In which cases should the age be reduced below 12? And even at age 12, in the case of really serious crimes, given that imprisonment as such... What do you mean exactly when you use the words ``generally speaking''? Are you suggesting that in some cases the age should be reduced to 10? In which cases could this be done?

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Mr. Rivard: The recommendation was not to reduce the minimum age set out in the Young Offenders Act, but we considered the possibility that some day the government may wish to do so. We therefore looked at giving the courts jurisdiction in exceptional cases for some children under the age of 12. The report emphasizes the factors that must be taken into consideration when a court decides to extend its jurisdiction to children under the age of 12. However, we think this should be done only in very exceptional cases.

Mr. St-Laurent: In other words, you are allowing for the possibility that a judge could do something in the case of a 10-year-old who had committed a really serious crime. I may be mistaken, because I see the reaction of the gentleman...

Mr. Rivard: That is certainly not the Task Force's recommendation. All we said was that if the government wanted to do this, a number of factors should be considered.

Mr. St-Laurent: I see. I will change subjects. You spoke about a specialized treatment program for young people between the ages of 16 and 20. You suggest an approach for serious offences, for the ``serious young offenders'' you refer to in one of your chapters.

This could be a specialized approach implemented within existing facilities, but the idea would not be to build new prisons. I would like to hear what you think about this and get further details on it. There are already programs in place, and places, which are not necessarily prisons, where serious young offenders are put. How could we put them in prison without building new prisons? I'm interested in hearing your answer.

[English]

Mr. Markwart: The reality is that in many jurisdictions there are no dedicated treatment programs for older adolescent serious violent offenders. There may be some in the larger jurisdictions where there are sufficient numbers to warrant the development of special programs. However, one of the problems in the smaller jurisdictions is that we're looking at really quite small numbers, and in effect we have the same population that's divided among three different jurisdictions. There are those from the 16- to 19-year-old age range who are sentenced to custody under the Young Offenders Act for serious violent offences. There are 18- and 19-year-olds who are sentenced as young adults under the Criminal Code to provincial adult centres, and there are young persons in that same age range who are transferred to penitentiaries.

One of the problems in the youth custody system, provincial adult system and federal penitentiary system, all of which are dealing with youth in the same age range serving time for serious violent offences, is that you'll often find there are no dedicated treatment programs because there is not a sufficient critical mass - a sufficient number - to warrant the development of a specialized program, and each of the three systems says that.

One of the possible ways of addressing this problem is to identify the numbers in those three systems and see whether it is feasible to bring together the numbers into one dedicated treatment unit, for example. We are not recommending the development of new prisons for this purpose. It is entirely possible that a violent offenders unit could be a small one, for example, and could be developed as a unit or wing of an existing youth custody centre, as a unit of a regional psychiatric centre, or wherever it may be feasible to do so.

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[Translation]

Mr. St-Laurent: You suggest we begin by conducting an experiment in two provinces. I imagine, that in the course of your travels, you went to certain provinces - I'm thinking of Manitoba, for example, where the opinions are diametrically opposed to those contained in your report.

However, there is a government in British Columbia - and here I am restating somewhat the question asked by my colleague earlier - that has just introduced, six or seven weeks ago, I believe, a new Department of Children and the Family. Judge Gove said that this approach was similar to the Quebec program, but this time it was made in B.C. So you have seen the two opposing views of this issue.

Which provinces would you suggest be chosen for these experiments? Should we just consider the people living in the province, or should we bear in mind that if the experiment is carried out in a province such as Manitoba, given its opposition to the recommendations contained in your report... I'm not sure I am making myself clear.

[English]

Mr. Markwart: I think it would be up to the particular jurisdictions to decide whether they wanted to be part of a feasibility study and look at it, so I'm not sure which jurisdictions would elect to pursue this further. I think it's safe to say some would be interested in seeing whether it would be worth while to pursue, which I don't know.

The Chairman: We'll come back to you. If we have a feasibility study I think we should spend money in Windsor.

Mr. Discepola.

Mr. Discepola (Vaudreuil): Thank you, Chair.

The whole question of age is obviously one that we're not going to resolve very easily. One of the recommendations you made hasn't been touched upon by this discussion. You said - and it's very perplexing to me - ``a substantial majority of young persons over the age of 14 who are found guilty of murder, and some increased reliance on transfer for other serious violent offences'' should be transferred to adult court.

I am perplexed, because obviously you've stated that 12 seems to be a reasonable age as well as 17. We changed the law recently to transfer 16- and 17-year-olds to adult court unless there are reasonable grounds to show that the interests of society could best be responded to by keeping them in the youth system.

I'm wondering if you could comment on why you recommend 14-year-olds be transferred to adult court, in particular the choice of words of ``substantial majority''. It seems to me you're either a 14-year-old and you should go there or not. Are you implying there should be criteria in the selection of those who should be transferred? If so, I'd like to know if you've analysed alternatives to just using age.

In my community, for example, because of a technicality - and we're always going to find exceptions, as has been pointed out by various members - we had the case of a person who was over 17 years old, and because they couldn't verify the originality of the birth certificate, although DNA could have proven very easily that the person was over 17 years old, the judge ruled that he had to be tried in the youth system.

Did you look at alternatives to simply saying age? There's nothing magical about a person turning 18. Had he committed the crime one week or one day earlier, he would have been under a different system. That to me is illogical, but I guess we use age as a cut-off point because we have to make that arbitrary decision.

Have you studied alternatives to just using age? Technically, since you're only talking about 60 or 70 major cases in the youth system, could they not be analysed one by one by professionals to determine the youth's awareness of his acts and to determine what his intention was? Then you could decide on whether this person was really aware of what he was doing and whether he should be tried in adult court, versus a 19-year-old, for example, who may have been just following along or who didn't have the same reasoning power.

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Mr. Markwart: The recommendation for the age of 14 simply reflects the current law, namely, that only persons who commit certain specified offences can be transferred after the age of 14. In effect that's a continuation. We didn't look at any other ages or, for example, at lowering it or raising it. It's not simply an age-based rationale. The suggestion in the recommendation is not that it should be based on age alone. It would be based on age and offence, and there would continue to be some discretion allowed for the youth court judge not to transfer it.

It simply says that it should be changed so that a substantial majority of those youths over 14 - 14, 15, 16 or 17 - would be transferred in the case of murder, but there would still be some discretion to allow for the exceptional case and the exceptional circumstance, which I think speaks to your issue of allowing for some assessment on a case-by-case basis.

I could go into the rationale behind this recommendation, but I think I've addressed your question.

Mr. Discepola: May I speak to that, please?

Why do you say that the decisions to transfer to adult court should only be made after judgment? You're implying that the person would be tried in youth court. I understand the rationale that all of a sudden all of the facts would be on the table and therefore you would be able to make a more informed decision, I would presume. But it seems to me that in essence you're putting the cart before the horse. Why not decide where you're going to try the person first and then treat him like that? Why would you want to wait until after the person has already been judged?

Mr. Markwart: There are two rationales behind it. The current process for transfer is extraordinarily complex and protracted. There is an application for transfer, a transfer decision, whether a decision is made to transfer or not.... It's made by a youth court judge. There's almost invariably a request for a review or an appeal of that decision, which requires additional time. At that transfer hearing, a number of witnesses are called, and there are medical and psychological reports, predisposition reports, and evidence as to the facts and circumstances of the alleged offence.

If a decision is then made to transfer, it proceeds to a preliminary hearing and then to trial. If the person is found guilty, he goes through a pre-sentence report process, with more psychological reports, and after that there is a placement hearing where, again, reports and witnesses are called to determine where he's going to be placed, despite the fact that the young person's been transferred and sentenced as an adult. It's extraordinarily protracted and expensive.

That process could be expedited considerably if the Crown filed notice at the outset as to whether.... If you construe transfer as essentially a sentencing decision and if the Crown filed notice at the outset as to whether he intended to seek transfer, then you could make the determinations as to whether the person is guilty, what the offence was, what the particular circumstances were, and what was his role.

At the sentencing phase, you would essentially roll in all of these previous processes of evidence - medical and psychological reports, predisposition reports, placement, evidence by correctional officials and social services officials as to resources available - and it could all be dealt with in one process.

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The second issue is really one of fairness. Currently a transfer decision is based on alleged facts and an alleged charge. For example, if a person is charged with aggravated assault and there are certain facts that are alleged, it may well turn out at the end of the day that the aggravated assault was in fact an assault causing bodily harm, and moreover, in the course of finding out those facts, it may turn out that the role originally played by the young person in terms of the degree to which he was instrumental in inflicting that harm may have been less then what was originally believed. If the transfer decision is made after a finding of guilt, then that decision will be a better informed decision made on the basis of proven facts as opposed to alleged facts.

The Chairman: Thanks, Mr. Discepola.

Mr. Ramsay and then Mrs. Torsney.

Mr. Ramsay: Thank you, Madam Chair.

I'd just like to make a comment about this whole business of the power and the authority of a 12-year-old to direct counsel. I am of the feeling that it should be a joint process with the parent or guardian. Certainly it might be appropriate from a legal point of view to give the child the final say, if we wished. In that regard, it wouldn't matter then if some future government does reduce the age to 10 or to below age 12.

We see where children may face some type of a situation where they need a legal representative, whether they're dealing with provincial legislation under the Child Welfare Act or whatever. I'm sure that the parents are involved very heavily in directing counsel if that is the case.

In view of what Mr. Kirkby was saying, I'd like to ask you about this. There are some here who support the idea of the federal government using transfer funds to interfere with the provincial authority to administer the YOA. You made reference to funding being made available for programs such as the Sparwood program.

When the representatives from the Sparwood program appeared before the committee, the one thing they pointed out very clearly is that they didn't want funding from the governments, that the resources for that program were coming from the community. If I remember correctly, they indicated that if funding came from the provincial or federal governments, then of course the strings would come with it.

In fact, this committee has heard over and over again that we should be empowering communities to deal with early detection and with preventive programs that would deal with first-time and second-time offenders, as the Sparwood and Maple Ridge programs apparently do. And we've heard that if we could attack the problem of youth crime from those areas it would create a very small demand on resources, which would be the way to reduce the more expensive areas of closed custody and open custody.

Do you have comments or thoughts on this that you would like to share with the committee?

Mr. Markwart: Yes. I'm aware of the Sparwood program and that it has operated with few resources. To some extent that's not true, insofar as there are considerable resources in terms of police time that is dedicated to carrying out the family group conferencing approach. But one of the critical issues around the development of programs is.... It is true in the case of Sparwood that it was a community initiative done with very little cost. One cannot assume, however, that all of a sudden these programs are just going to magically spring up in every community in British Columbia and elsewhere. There certainly is a need for community development, training, a whole lot of work in developing and promoting these kinds of programs, if we really want to encourage them, and that costs money.

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Mr. Ramsay: We were informed that this program has expanded into ten RCMP detachments in B.C. and is now expanding into Alberta. Whereas the formal approach, the legalistic approach, is failing, community resources and individuals at the community level seem to be moving in an informal way to deal with the problem of youth crime the formal system may have failed adequately to deal with.

Mr. Markwart: The Sparwood program hasn't quite expanded to several communities. It has expanded to some communities. There are plans to do so, and there are also requests for funding to support that.

The Chairman: Mrs. Torsney.

Mrs. Torsney: Thank you.

As all of you are aware, of course, Canada is one of the signatories to the United Nations Convention on the Rights of the Child, and that convention specifically identifies that there has to be a separate youth system of justice and of holding youth accountable for their crimes. When I read pages 13 and 14 of your presentation, I wasn't sure that would exactly match up with our obligations under the charter. I wonder if you could elaborate on whether or not you took this into consideration; whether you're comfortable with it and whether you think it would stand the test.

Mr. Markwart: Yes, it does require a separation of youth and adults, although I think it's implied that there should be some kind of flexibility and there shouldn't be an absolute rigidity about this. Let's say, for example, you have a young offender who committed an offence when he was 17. He's committed to two or three years of custody. He's now 18 or 19. His co-accused committed the offence when he was 18 years and one month and received an adult sentence and he's now also 18 or 19. It doesn't make any sense. Although they may be legally defined as distinct, one being a youth and one being an adult, from a practical and common sense point of view it doesn't make much sense to me that they should necessarily have to be separated in those circumstances.

The other thing is that Canada has already filed a reservation around that provision of the Convention on the Rights of the Child in any event, as have several other western industrialized countries across the world. In light of the reservation, there would be no question that it would be allowed.

Mr. Rivard: I can add to that. As Alan has quite correctly pointed out, there are situations in which older young people remain in the youth facility to complete their sentence; and that's a current example. We have entered a reservation to the notion that there should be an absolutely strict line if you have one week left in your sentence but you've turned 18 and you have to be sent into a provincial facility. We wanted to avoid that sort of scenario.

I would only say that in these types of situations the cases are examined with two major considerations. One is quite consistent, I think, with the principles of the Convention on the Rights of the Child, and that is what is in the best interests of that particular young person. The other one is an unavoidable necessity, and that is what is necessary for public safety or the safety of the other inhabitants of the correctional facility.

Mr. Markwart: I might add that there are other countries in the world which do this type of thing. In effect, there are young adult facilities, including in Europe, and specifically in England, where there are essentially three levels of types of facilities: facilities for children under the age of 16.... Their young offender age is the same as ours, but they still have what are called ``young offender facilities'' for those between the ages of 16 and 21. Youth who have been subject under youth court proceedings there or as young adults are placed together in those facilities, because they are considered to be of similar maturation and they have similar needs.

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I'm also aware.... I can't recall off the top of my head, but some European countries in effect have older adolescent facilities. Germany comes to mind.

Mrs. Torsney: I guess sometimes we submit reservations because we have a system that doesn't match up, so I'm not sure which is first, the chicken or the egg. We have a reservation because we would be in contravention of the charter under our current system. As for whether that's a justification for the way we do things or not, some people would argue it's not.

I thought your example, Mr. Markwart, was quite interesting, because of course the adult, the person 18 years and one month, receiving a similar sentence would of course be eligible for parole in the adult system and would be out a lot faster than the youth who is 17 and three-quarters and was in the youth system and had a similar sentence.

Mr. Markwart: Not necessarily. It would depend on the length of the sentence.

That's actually one of the problems with this proposal. It's acknowledged that there are considerable differences in the regime for the administration, as you know, of a youth sentence and an adult sentence - and not only an adult sentence but a provincial adult sentence versus a federal adult sentence. It would be, to say the least, a bit of an administrative nightmare to keep track of the different kinds of regimes. You have to take the bad with the good, I suppose. There are always some disadvantages to whatever you do.

Ms Sharon Moyer (Consultant, Federal/Provincial/Territorial Task Force on Youth Justice): Also, from the perspective of some of the clientele of this facility, 16- to 19-year-olds, the difference between remission and parole and no remission and parole might create some internal problems.

The Chairman: Maybe I could ask just a couple of procedural things. I think this has been an excellent session, in the sense that we've obviously stumbled inadvertently, or on purpose, because of our great skills, on much of the same information as the task force has. In my view our work is quite complementary, whether or not we come to the same conclusions, and I'm certainly not in a position even to guess at that right now.

Your report has certainly given us a lot to work with. I have to say from the appendix we got today that the work you've done is incredible. I can tell because Paddy hasn't taken her nose out of it since she got it. She has been very, very busy. Every few minutes I hear ``aha'' next to me.

I haven't discussed this with anyone - I certainly haven't discussed it with staff of the committee - but if we wanted to have another session, is it possible to do that? Mr. Markwart, you're from halfway around the world, but is there some way such that if we had specific questions we could get them to you and get responses during the month of December?

Mr. Rivard: Whatever would assist the committee.

The Chairman: There's also teleconferencing. I'm technologically deprived. I still get irritated if I get voice mail, but....

Mrs. Torsney, I'm going to go out of order and ask you to ask your question and then I wonder if you can take the chair for me, because I have to leave.

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Mrs. Torsney: Mr. Markwart, or I guess it's the section that was covered by Mr. Rivard a bit more.... We talked about this when we were in British Columbia. It was really interesting. We were talking about level one assaults, and you mentioned to me afterwards that in British Columbia schoolyard shoving matches are not dealt with in that manner. In my province they are.

I found just an incredible example the other day - from a lawyer, in fact - of a neighbouring school district where three kids were leaving a physical education class and two of them linked arms with the one individual and put him in the shower for fifteen seconds. The child wasn't soaked through. Everybody laughed. It was a high school prank. I'm sure you may have been involved in that in high school yourself at some point. The next day these two kids were charged with assault.

To me that is bizarre. Yes, maybe that child in the centre who was put in the shower was terrorized. Maybe we need to talk about that. Maybe these kids need to sit down with their parents. But what are we going to do? Is it covered off sufficiently in the diversion section? To me, it's going to be a hugely expensive process to put these kids in, and a bizarre message to them, when that's behaviour that probably most of the guys around this table engaged in at the end of a gym....

Never? It's funny, because the lawyer who had mentioned it to me had gone to a boys' school and said, my God, my entire class would have been charged with assault at various points in their high school career.

It's not that bizarre an occurrence, yet that's how the school board is choosing to deal with it. How are we going to get...? I don't think there's a satisfactory resolution of that if it goes into a courtroom - they all just come out thinking the system really is a joke and it's bizarre - rather than people talking about what the kid experienced and why it was inappropriate and getting the parents involved and finding a better behaviour.

I'm not condoning the behaviour; I'm saying there has to be a better way. But that charge will come up as violent assault and people will say violence amongst young people is on the increase.

Did you guys talk about that? Are you satisfied this diversion you're talking about would give strict instructions to school boards and police forces that, come on, this is not what we want to do here? Or do you think that's an appropriate way for them to deal with it? I don't know.

Mr. Markwart: From what you have described, I would fully agree with everything you said. It's an inappropriate use of the criminal justice system.

As for what you do about the situation, there is a recommendation in the report, in particular around schools and developing cooperative policies with the youth justice system that emphasize alternative forms of dispute resolution and policies which, while not being tolerant of conduct of that nature, would look at using the criminal justice system only as a last resort.

Certainly what you described would fit with many of the recommendations of the report on informal use of police discretion, maybe a formal police cautioning, some kind of alternative dispute resolution mechanism that is developed in concert with schools. Those are exactly the kinds of situations we need to address better.

The Chairman: It will be really interesting to get the panel's reaction to that tomorrow, because you'll have all different forms of professionals there, professionals who have to deal with this.

Mr. Ramsay.

Mr. Ramsay: I would like to follow up a bit on what Mrs. Torsney touched on and just point out that there are levels of authority that could have been approached. It seems we've developed a system that has undermined the lower levels of authority, whether it's the authority of the principal or the authority of the peace officer to deal with that informally. Why would that case ever get to the level it did? In the past, as Mrs. Torsney has said, most of us have been involved in that kind of prank, either at the receiving end or by participating at the other end. The example she has given shows a glaring formalization of the system.

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We don't know the other end of it; why would the parents? Perhaps if the child were of age he would have the right to retain and direct counsel.

So here we go. We're formalizing something that should have probably been handled by the teacher or the principal, and the police should have never been called in. Back in our day, that's the way it was handled.

I have grave concerns that we're continuing to formalize the system at a lower and lower level. We're denying or undermining the authority of parents, school teachers, principals and so on. We're even undermining the authority of police officers, and I wanted to touch on the area of allowing police officers greater discretion to give warnings.

I was a police officer for a number of years, and if we thought there could be a counter-action because we had warned a young child, we wouldn't warn. We would go through the legal formal process of charging. I have seen cases where a police officer intervened, there was physical force required, a warning was issued and later the police officer was charged with assault. Then he would lay a counter-charge of obstruction of a peace officer. These are problems we run into when we begin to formalize to too great an extent.

I've taken up most of my time. I wanted to deal with the area of disclosure. On page 14 of the brief you presented here today you say:

A substantial majority did not support a partial lifting of the ban which would, for example, allow for publication of identity in cases involving serious offences. The report, however, recommends some enhancements to the public notification provisions brought about byBill C-37. For example the task force recommends that public disclosure of the identity of a young person should be authorized by a youth court at an ex parte hearing in exceptional and urgent circumstances where the offender has been found guilty of an offence involving serious personal injury, he/she poses a risk of serious harm to others and such immediate notification is necessary to reduce the risk.

I'm a little confused there. Could you provide the committee with an example of what you're referring to?

Mr. Markwart: I could give you a couple of examples that I've run into in British Columbia. I'm sure similar examples have occurred elsewhere.

As you know, under the public notification provisions of Bill C-37 an application notice has to go to the various parties, a hearing must be set and a psychological report may be ordered. All of that can be a protracted process.

This recommendation speaks to urgent circumstances where, for example, a young pedophile is scheduled to go on a Boy Scout outing on the weekend and he does not have a condition of probation, or maybe his order has already expired to not associate with children under 12 or under 14, or whatever age is selected. There is a need to notify the leaders of that Boy Scout troop about what to do. Obviously if you find out about this on Wednesday and he's going on Saturday, you need to take rather urgent measures.

Another example I ran across was the case a former young pedophile who had served a considerable period of time in an open custody sex offender treatment centre and was released - his order had expired. I believe he was 19 or 20 at the time. It was learned that he was in a common-law relationship with a young woman who had a young child. I'm not sure whether it's appropriate in circumstances such as that to wait for the two weeks, three weeks or one month in order to go through the whole process of notification. But clearly the mother of that young child needed to be warned of the risk to the child and you needed to take some rather urgent action.

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Mr. Ramsay: Then it seems to me that in the case you cited of the young pedophile in the scout troop, you're not talking about publicity awareness.

Mr. Markwart: No, that's a notification.

Mr. Ramsay: Okay, but what about that young pedophile being hired as a babysitter? How would the parents be protected from that if your recommendation went forward and we accepted it? In other words, what about a reasonable protection of the public that would occur through the removal of the disclosure requirements?

Mr. Markwart: The current public notification provisions would allow for the notification of the parents in the case of babysitting, but this specific recommendation speaks to where there are urgent and exceptional circumstances. I gather that in the last part of your question you're suggesting that if the identity of that young person had been able to be published in the first place, we would have avoided that circumstance altogether. There would have been no need to go through the notification provisions.

Mr. Ramsay: That's not what I meant. How would the authorities know I might hire that young pedophile to babysit, unaware of the danger I would be subjecting my children to?

The Vice-Chair (Mrs. Torsney): Mr. Ramsay, I wonder if our federal officials could also explain in this context. There are some new initiatives to allow you, if you were hiring a babysitter or a scout troop leader, for instance, to be able to ask the person for a clearance of his or her record. I wonder how that would work in this context. We would be able to say - at least that's what our intention is if we haven't fully done it yet - Glenn, if you want to work for me as a babysitter, produce a record that you don't have any record related to pedophilia or anything else. Glenn would never come to you to apply for that job if he knew he couldn't get a clearance, whereas Alan might come to you with that clearance, for instance.

Am I making it clear?

Mr. Ramsay: I'm not very clear on what you're saying. Do you mean everyone who is not a pedophile must have a clearance in order to babysit? Is that what's being said?

The Vice-Chair (Mrs. Torsney): There's a process for those who are involved in volunteer organizations and what have you. I'm not sure if it extends all the way down to every parent hiring a babysitter - and perhaps it should. But if you're about to engage Glenn Rivard as your babysitter or as your scout troop leader, you could ask him to come to you with a clearance that he doesn't have a record.

I'm not sure how it works in juvenile circumstances, though. Glenn seems to know something about it and Alan doesn't.

Mr. Rivard: There has been a recent expansion of the use of the Canadian Police Information Centre. This actually goes back about two years now, or at least 18 months. It includes a more complete keeping of the record of those charged with criminal offences, particularly offences that are directed at children. It allows both police forces and volunteer agencies to determine whether or not there has been a previous conviction for any offence, but obviously we would be concerned about offences that would affect the safety of children. So in your example, the Boy Scout troop could make it a requirement of all its leaders that they produce statements showing no record of previous convictions.

The Vice-Chair (Mrs. Torsney): Would parents be allowed to ask for that as well?

Mr. Rivard: I confess I don't know the answer to that, but Alan does.

Mr. Markwart: That's a records disclosure issue as opposed to a publication issue. It's part of the problem in a private circumstance that if parents want to find out whether there's any previous youth record, it cannot be disclosed under the act.

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This is discussed in a fair degree of detail in the publication and records chapter of the act. It's actually quite complex, and it's a very difficult and thorny issue. In a circumstance like that, a parent could ask the young person to go to the police and obtain a criminal records clearance. Under freedom of information legislation, the RCMP is obliged to provide a complete record of what they have on file. The young person could then bring that record to the parent or to the babysitter.

But there's a problem. How many parents would ever be aware of that procedure and would actually act on it? Arguably, it also flies in the face of the intent of the disclosure provisions of the act. It's an issue that is recognized and discussed in the report. Quite frankly, it's not quite resolved.

The Vice-Chair (Mrs. Torsney): Mr. Ramsay, if you don't mind, the example you gave is that the parent would have the information if it had been published in the newspaper. I guess the question is how you process all that information. What if you were on vacation in Florida the day the story broke? Six months or a year later, Johnny presents himself as a potential babysitter, and my goodness, if you missed that newscast.... This clearance thing could make -

Mr. Ramsay: I understand. I understand very clearly the rationale behind the disclosure or the prohibition on disclosure. I understand that, but we must balance the rehabilitative possibilities that it allows with the safety of society.

If I'm in California and it's revealed through the news media or whatever that this young individual is a threat to my children, then I'm going to find out about it when I come back because people will know about it. Parents will know about it. My neighbour will know about it. Parents have a - most of us anyway - very sensitive radar system when it comes to picking up information that's in the best interests of their children, particularly with respect to their safety.

If your task force can offer a recommendation that will provide for the safety of society while at the same time maintaining the rehabilitative possibility that this legislation is designed for, I would certainly like to hear it, and I'd be willing to support it. But until that is provided, then I don't see the balance between the right of the offender in terms of rehabilitation and the safety of society. What I'm looking for in your recommendation is that balance, and honestly I don't see it.

Mr. Rivard: I'd like to make just two points. First, there was - and I can say this without hesitation - considerable discussion of this issue in the task force, and there was an examination of all of the options and implications. I think there was a sense on the part of the task force that a general lifting of the publication ban would really have quite idiosyncratic results.

You cannot count on the media to report all of the right cases - whatever those might be - that you want to use to inform people. You cannot count on the fact that people will read that or see it on television or whatever or that the word will travel around. And furthermore, if it's reported in one town and that young person then moves to another town, whatever benefit there might be is lost. And in fact there's a concern that type of reporting might prompt people to move to other communities where they're not known. All of this led the majority of the task force members to conclude that linking the lifting of the publication ban with public safety was really not a valid approach. There wasn't a reliable link.

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However, the task force did look at what might be called high-risk situations, and there are recommendations to deal with that. Alan has spoken about the ex parte process, which builds on a current process in the act and allows for faster processing where there is a danger.

In situations where there is a significant risk of harm, the current recommendation in the act allows for authorities to inform particular individuals - or even a class of individuals - who may be susceptible to that harm. For example, with respect to somebody who is a babysitter for half a dozen families and is convicted with respect to one of those children, it would be possible to inform the others.

There is also a recommendation in the report that in fact would allow the lifting of the general publication ban if it could be shown that it would in fact reduce the risk of harm in that sort of scenario. But that's a very different thing, a very exceptional thing, compared to a simple general lifting of the publication ban.

The Vice-Chair (Mrs. Torsney): Mr. Rivard, I would like a clarification. Did you just say that the current act has both of those provisions?

Mr. Rivard: The current act allows an application to court -

The Vice-Chair (Mrs. Torsney): Okay.

Mr. Rivard: - to obtain an order that would inform an individual or a small group of individuals about a risk from an offender that they are susceptible to.

The recommendation would, in those very same circumstances, allow a lifting of the general publication ban, but again it's seen as an exceptional case. The person must have been convicted of a serious violent offence, you must be able to identify a likelihood of further victimization, and you must be able to show that informing the individuals or the public would in fact reduce that victimization.

The Vice-Chair (Mrs. Torsney): Thank you.

Mr. Ramsay, between the two of us, that was 18 minutes and I don't think I was the bulk of it.

Mr. Rideout or Mr. Maloney, do you have any other questions? No?

Then I would like to thank our witnesses for coming before us and giving us this opportunity to discuss the issues.

There seem to be a lot more interesting recommendations in the report than those that were first gleaned from the newspaper articles. In fact, the report was portrayed as very simple and focused in only one area, so I guess we know what the media does sometimes.

Thank you very much. As the chair indicated to you, we may have further questions or we may need to get in touch with you. Hopefully, with your help, we'll exercise that.

Thank you, everyone.

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