[Recorded by Electronic Apparatus]
Thursday, October 31, 1996
.1104 
[English]
The Chair: Good morning, everyone.
This morning we're beginning with the Vancouver Family Court Youth Justice Committee. Good morning to Lisa Martz, Patsy George, Charlotte Gottschau, and Jim Siemens. Charlotte and Jim are the co-chairs.
Welcome. I know you have a brief to present. We're happy to hear that and then we'll have questions.
Ms Lisa Martz (Vancouver Family Court Youth Justice Committee): Actually, I'm ready to go first, Madam Chair.
First of all, good morning to everyone.
[Translation]
Welcome to Vancouver. How splendid to have the sun present for your visit.
[English]
We are members of the Vancouver Family Court Youth Justice Committee, which is sort of an ad hoc group. We provided a written brief to this committee last year and Jim Siemens, the primary author of that, is with us today.
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This morning, though, we thought we would each come prepared to speak about one or two of the issues that we hold closest and dearest to our hearts, selected from the list of topics in your mandate document. I will go first.
I will just explain what really brings me to the table today. I am a lawyer in Vancouver. I have a background in representing, as defence counsel, young offenders in youth court, and a particular group of young offenders: youths who were wards of the Ministry of Social Services here and children in care of the social service agencies. Those are the young people who are my clients. The other experience that formed my attitude towards young offenders was when I worked with Judge Thomas Gove on the Gove inquiry into child protection, so my focus is on youths who are involved in the social services system.
I have three points I'd like to express to the committee this morning. The first is that I personally have real concern as a lawyer about what I feel is the somewhat misdirected focus on the Young Offenders Act. As a lawyer and as someone who worked in youth court, I'm probably one of the few Canadians who has actually read the Young Offenders Act from beginning to end. It's always been my view that most people would be amazed to see how little there is to that statute in reality.
Average Canadians are not lawyers. They don't have to read statutes. I had to do it. It's part of my job. The Young Offenders Act has some important principles in mandating separate courts and separate custodial facilities for use. The rest of it is largely procedural provisions, and in my view the public deserves to have that explained to them. There's a great deal of concern about youth issues and youth crime, but those go far beyond the Young Offenders Act itself.
I have some concern that government and politicians legitimize the public's assumption that it's all about the Young Offenders Act, and I am surprised to see that even this committee's terms of reference refer to a ``comprehensive review of the Young Offenders Act''. On the other hand, your mandate document clearly addresses issues far beyond the statute itself. I'm concerned that the debate is focused on the statute, when clearly that's only one aspect of this whole area. That's a point I feel quite strongly about.
The second point I'd like to make is simply that in my experience in youth court and working with young people, I have never found that severe penalties, particularly jail, were deterrents to young people. The young people who are most likely to reoffend.... I was dealing with the young people who are most at risk for criminal careers and multiple offences. The youth I represented were drug addicts and psychologically troubled. They had no stable home lives. They had no consistent supports or role models in their lives. They were subject to terribly negative influences. Many of them were what we call ``street involved''.
The very nature of those young people's problems is that they cannot recognize that there are consequences to their actions. They cannot plan their lives. They cannot organize themselves. They can't themselves get out of the bad situation they're in. So what happens is that court orders and the threat of penalties just don't reach them. These kids are just not in control of themselves or their lives. What then happens is that they inevitably breach court orders and they end up serving time in custody.
I have first-hand experience of the revolving door phenomenon we hear so much about. A young person starts off with a relatively minor property offence. A well-meaning and well-intentioned youth court judge says he is going to put a curfew on the youth so that he won't get into this trouble. He won't be breaking into cars at midnight if the judge says he has to be in his house by 10 p.m. This is the legitimate parental response. The trouble is that you have young people who are not living lives in which they're in a position to start complying with those things. They begin to breach the court orders. They come back to court several times, and ultimately youth court judges who are having their orders flouted feel compelled to send those young people to jail.
I have real concern that the system is based on an assumption that for many young people isn't borne out. The threat of penalty doesn't reach many of the kids, certainly those I dealt with.
If, when they get sent to jail, time and jail do make a difference - and as defence counsel, I have to reluctantly admit that they sometimes do - in my view, it's not because of the punitive aspect of jail. It's because of the resources they may link up with there.
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The local youth facility here is called the Willingdon Youth Detention Centre. There are psychologists who liaise with that facility. There are drug and alcohol counsellors.
The young people I saw actually benefiting from their time in jail benefited because they linked up with those people. Also, they had a safe, structured environment. That's what was beneficial for them, not the steps of sanction and punishment.
I'll make my last point this morning in order to make sure that my friends and colleagues here have time to say what they need to say.
I have some real concerns that the system, as it presently functions, leaves jail time as counter-productive or wasted in many cases. In my experience, that's counter-productive for youths and offenders with only minor records, because time in jail draws them into a criminal subculture even faster and further than they might have otherwise been drawn. I've seen that happen.
As for the phenomenon I mentioned earlier whereby you have young people with minor offences who end up going to jail, we do know that the presumption in the Young Offenders Act is that first-time offenders certainly shouldn't go to jail. But very young people, who really aren't a safety risk, often end up in jail due to the fact that they can't comply with the court orders imposed upon them.
They go to jail. They adopt the attitudes of the young people there, and the youth-centred community becomes their community. They adopt their values and goals. Those people become their friends. So there's a concern in my mind that jail time does exactly what we don't want it to do for some young people.
The second part of my point is that jail time can be wasted. In cases in which the period in custody is helpful, it reaches a young person, stabilizing particularly drug-addicted young people. It's just a time when they're not exposed to drugs at least, so they get clean and straight for a time and have a chance to think about their lives. Sometimes it's the first time kids attend school or therapy regularly.
In the system as we have it, certainly as it operates here in Vancouver, which is the system I know, you have those kids who benefited from jail time, but then when they are released, they're sent right back to the dysfunctional environment that led them to jail in the first place. We simply don't have the resources here to help them make that transition, even though it's clear that discharge is a crucial time for a young person. It's when they're on the threshold. Success in jail is one thing; success in the community is what we're all interested in. Yet decisions are being made, even as we speak, to cut back on resources at that crucial time.
As a committee, we are aware that the local youth detention centre recently has cut back on the number of discharge workers, who are workers assigned to help kids plan for after their release. In my submission, that's a very serious false economy. As a society, we're spending huge amounts of money on incarceration, but then we're throwing it away for the lack of willingness to make much smaller expenditures on positions like discharge workers to help the kids get back into the community.
I think it's self-evident to everyone that the rehabilitation of young offenders is the best means of protecting society. That's one of the primary principles in the Young Offenders Act with which I don't think anyone can argue. But in my submission, there's a real betrayal of public trust when the rehabilitation momentum that has been created for a young person through the significant expenditure of public funds on jail is lost when a young person is cut off when they return to the community.
So if we're going to continue to feel so strongly about the need to incarcerate young people who have broken the law, we have to put many more resources in the transition stage for their return to the community.
I can go on all morning, but that's not right. That's what I have to say this morning. I'll turn it over to my colleague, Patsy George.
Ms Patsy George (Vancouver Family Court Youth Justice Committee): Thank you very much. Our committee is concerned that some segments of our community across Canada, in searching for solutions, have been proposing a variety of changes to the Young Offenders Act and its implementation. With the strongest voice possible, we want to register our opposition to the idea that parents should be held responsible through legal means for the behaviour of their children.
We are aware of the social and emotional circumstances in which certain parents appear to be not taking their parenting role seriously. We consider this to be a child welfare issue, not a vicarious legal responsibility.
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In circumstances where an irresponsible parent or any other adult might be promoting and encouraging offensive acts by the youth, it is our understanding that civil law already exists which provides the people with the protection they need.
Moreover, it would appear counter-productive to us that the parent is held responsible for offences committed by the youth when the purpose of the Young Offenders Act is to hold the youth responsible and accountable for his or her actions. Instead of taking the approach of blaming or giving parents vicarious legal responsibility, we strongly recommend that family-based intervention for juvenile offenders be promoted and strengthened.
We can refer you to an example here in B.C. There are 26 communities in our province where parents of youths who are acting up and are involved in offending behaviours come together as groups to utilize each other's help, counsel, and resources to develop more effective ways of thinking about their family life, solving problems together, sharing responsibility for change, and getting involved in their neighbourhoods.
This program, which is sponsored by the Boys and Girls Clubs of B.C., is an excellent example of how, given support and opportunity, parents will come together and take responsibility for finding solutions. More than half of the families who attended this program reported that their teenaged daughters and sons were involved with the law prior to entering the program. After 9 months of attendance, 74% of the parents or more reported significant change in themselves and also in the behaviour of their teens.
An evaluation of this program has been completed and is ready for release in the next few days. We will arrange for your committee to have a copy of that report. This is one example and I'm sure there are several, not just in our province but also in other parts of our country.
Thank you very much.
Ms Charlotte Gottschau (Vancouver Family Court Youth Justice Committee): I'm a family lawyer but I work more on the divorce end of things. I don't work with young people particularly. I came to family law late in life, as I've seemed to come to everything late in life; I'm a Capricorn.
In 1976, before the Young Offenders Act, when the Juvenile Delinquent Act was still in effect, I was posted as a brand-new but mature probation officer to a small interior B.C. town. The era of the lay magistrate had just finished and this was replaced by the touring court, with the legally trained judge and the crown counsel. The RCMP and the police were no longer the prosecutors.
The probation officer before me had a drinking problem, which he did not acknowledge. There was only one probation officer in the town and he discriminated against aboriginal youth and sent many of them to the kiddie jails in the big city of Burnaby on the coast. He and the police were drinking buddies.
When I came, I was a new PO; I was a brand-new broom and I was energetic. I set up youth diversion programs, including community work service, youth worker programs, and a driving while intoxicated education program.
I felt I should stand up for the kids because no one else seemed to, either in the justice system or in the community, including the kids' parents. It seemed as though the system fed on the young offenders. They fed on the bad kids and punished them and tried to jail them.
No adults seemed to think about their own youthful pranks, which they had performed years before: their Halloween vandalism, the joy rides, the shoplifting, stealing cars and produce. They never stopped to think that these would now be considered serious crimes and that if they had been charged back then, they too would have been labelled criminal rather than having people say boys will be boys.
For the next two years, I recommended diversion for every single juvenile who came my way. Not one youth went to youth court. I spoke with their parents, arranged diversion programs, and spoke with the victims but didn't really do any victim-offender reconciliation. The police, although we joked around together, became a little perturbed because every youth who came my way didn't go to court.
.1120
So because of their attitude, I made an appointment to see the regional crown counsel, who was in the nearest town two hours away. He suggested I start sending these kids to court, but I send them to court with a lawyer. Now, this had never been done before, and this is under the Juvenile Delinquents Act.
So I took his advice, and it turned out that no matter how bad the lawyer was, none of the kids were convicted because the police, up to that point in time, had never provided anything but hearsay evidence.
So when the youths entered our justice system - this was when the JDA was still around - the good things were that lawyer involvement increased the quality of police investigations and reduced the number of youths charged. The bad thing, which is still as true today as it was then even, although we have the young offender system, was that youths saw the hypocrisy of the system and they grew contemptuous. They thought lawyers lied to get them off. These kids did not understand why they had reacted or acted out in the community. They didn't understand that because their parents were fighting all the time or were physically abusive, they were angry and got it out of their systems by doing other things. They thought when a lawyer spoke for them in court the lawyer was lying. They still think this.
The kids saw youths punished more severely than adults for the same infraction. Homeless youths were jailed because nobody knew what to do with them. This was before trial and before pleading. They were put in jail so a report could be prepared on what should be done with them. Well, homeless adults are not jailed because they are homeless.
Youths are jailed for breaches of their curfew. Adults aren't jailed for this. Mind you, nowadays there is so little room left for anyone in jail I think even juveniles are not jailed as often. If a youth is sentenced to one year in jail, he or she serves this one year. An adult would get out in four months for good behaviour. It is all hypocrisy. We are treating our juveniles much more harshly than we treat our adults.
Police use the criminal drug laws to harass and charge certain youths when they might not so readily charge an adult. Again, of course, the hypocrisy of the drug laws is beyond belief. As a result, because they go to court, youths are trained by example to be adversarial and litigious.
We expect our youths to respect us and we expect them to respect our precious property, but we've never respected our own youths. Youths learn by example. We've never given them a respectful example to follow. We want to jail our youth long-term, to life imprisonment, for murdering adults. How many adults are jailed for life for murdering their children? I don't know of any. When you think about the child, then who is going to defend us when it is the adults who are defended? These are the hypocrisies youths learn.
What do we want our kids to learn? If we use the adversarial justice system, we teach the kids how to be adversarial. Look at our society today. There is the union-management fight. There are escalating drug wars. There is polarized politics and the polarized media. Our society is full of anger and vengeance.
If we use a restorative justice system, a community-based victim reconciliation forgiveness model similar to what they're using in South Africa today, we teach our youth how to become valuable, caring members of society and we contribute to the healing of the wounds in our society.
Thank you.
The Chair: Thank you.
Mr. Siemens.
Mr. Jim Siemens (Co-Chair, Vancouver Family Court Youth Justice Committee): Good morning.
When I looked over your highlight sheet of the matters you wished to discuss today, it became very difficult to put something together that would cover so much. So I thought I'd tell you my idea of what diversion should be about.
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Because I was appearing here early, I went for a walk. I asked my walking partner what he knew about criminal justice, youth and the Young Offenders Act. He is a man of about 45 years of age. As we were walking in the dark, he told me a story about his youth and how he was making a habit of stealing from the local Hudson's Bay Company. In due course, he was apprehended. He was caught. He said he felt this had been his intention. He knew eventually he would be caught and something would happen. He was from a very large family in Winnipeg. He was taken into the office and the police were called.
It happened to be a very good police officer, a very caring man who also knew the family. The police officer talked to him and struck up a relationship with this young man. He had him make restitution to the Hudson's Bay Company. He spent probably four or five hours a week with the young man, and he explained what life and criminality was about. This young man felt really recognized. He felt he was an important person in the community and people did care.
He never reoffended. He looks back on it now as one of the most salvaging projects anybody ever undertook on his behalf. He started to do better and he had a much easier time.
In British Columbia, we have a number of communities experimenting with youth diversion in the case of first-time offenders. The ones I have been paying particular attention to are in Burns Lake, the Kootenays, Richmond and Maple Ridge. There you have the involvement of the offender, the Crown, the police, probation and a society set up to monitor and provide mentors for the young offender.
The offender must acknowledge responsibility for what has happened. Consequences are explained to him. This is done immediately, within 14 days of the offence having taken place. There is a mentor from the community assigned to this young person. He or she do their consequences. If there is money to be repaid, the community has gotten behind it and jobs are made available from various businesses. When the young person has completed the time in this business he is given a recommendation for a job well done. The mentor signs him off and he is free to go about his business.
But in many cases this doesn't happen. The mentor, who is dealing by this time with the family and the youth, continues in many instances and becomes a friend and a person responsible for keeping this young person on the so-called straight and narrow.
The program operating in Maple Ridge has a 93% success rate. This means 93% of those youths who have been before the committee don't reoffend within a one- to two-year period.
We think each young person who comes before the courts and is sentenced to custody costs the system $100,000 plus. It is a tremendous savings in time, money and human resources to look at another model, and this would be youth diversion.
Thank you.
The Chair: Thank you.
Mr. St-Laurent.
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[Translation]
Mr. St-Laurent (Manicouagan): First, thank you for coming here to give us your testimony. We need it so much.
Ms Martz, your speech is interesting. It is already three years since we were elected to Parliament. The first speech I gave, in light of the personal experience I had acquired when I was working previously in a detention centre, argued that the present system of incarceration is absolutely outmoded and obsolete. It may once have been a good thing but it is outmoded in terms of both the hierarchy and the results. The results obtained are not really the ones intended.
From my personal evaluation and my experience, and because the Bloc Québécois has assigned me the responsibility on this topic, I have estimated that the rate of recidivism of the people who are in penitentiary at this time is in the neighbourhood of 80%; that is, that 80% of the penitentiary population have already served time previously. That is what I would calculate the recidivism rate to be in the country's prisons.
Statistics Canada or other sources do not report the same figures, since the calculations are not made in the same way. Among other things, and it is important to say this, some data evaluate the recidivism rate at 38 or 39 per cent. This in inaccurate, since these calculations take into account only a six-month period following probation. If an individual has repeated his offence within that period, he is listed among these 38 per cent. But if, six months and one week later, he robs a bank, he is not accounted for as a repeat offender. In my opinion, this is falsifying the data for motives that I would term political.
We have gone beyond that stage. Our committee is very sincerely trying to find alternatives to incarceration. I myself believe in this and that is my conception of it. That is why your comments, Ms Martz, are very interesting.
What solutions have you explored, a little like us, in our travels - I mustn't say our wanderings, since there is a rather amusing tangent to that - as we work and travel throughout the country to do research, meeting people like you who have some experience and solutions to contribute and trying to find alternatives in order, later, to write to the Minister and tell him what should be done.
Have you, with the means at your disposal and/or in accordance with the territory you cover, done a little research or analysis? Have you met people who could tell you there was a solution to bring the recidivism rate down to 10 per cent? You also talked about this a little bit, Ms Gottschan. Have you done any research that might advance us in our work today?
Ms Martz: I'm sorry, but I am going to answer in English; it is easier for me.
Mr. St-Laurent: Please do; there's no problem.
[English]
Ms Martz: I myself have certainly not done anything that I could call research, Monsieur St-Laurent. I just have my experience as counsel in court over an eight-month period, where I did exclusively that work. For the youth I was working with, it was clear to me that the glimmer of hope for reaching them was the connection with qualified and caring people.
There were many young people who would go in and out of jail. It was literally a revolving door. We would deal with one charge. They would be sentenced to the youth detention centre. They would serve their three months. If I marked in my calendar their discharge date, I knew I would see them again within a few days or weeks after that, because they were entrenched in that world.
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The young people I represented, because they were connected to the social services system, did have access to services. Each young person had a social worker. Some young people had been assigned something called the ``one-to-one workers''. They were positive role models. They were usually younger people who spent some recreational time with them in a therapeutic way to get them away from negative influences. Some of these young people were also connected with drug and alcohol counsellors.
In some cases I began to see a connection there. The time spent with these professionals began to make a difference. The young person responded well, but inevitably the trouble was that these contacts were very limited.
The one-to-one worker would meet with the young person once or twice a week. The drug and alcohol counsellor would meet with the young person once a week. It was just impossible for any of these qualified and hard-working people to make any real headway or difference in that young person's life.
It always seemed to me that if you could take these young people and, instead of sending them off to the YDC, to the youth detention centre, to that environment which is false in the sense that it's structured.... They get marched through their days, they're forced to go to school; they develop some good habits, but there's no reason for them to learn the skills to carry on that responsible lifestyle outside in the community.
Perhaps they could have that kind of heavy intervention in the community, in an environment where they can start to learn to develop the skills to do this themselves - to get themselves out of bed in the morning, to get themselves to school. Obviously these young people need help.
What I'm trying to say is it's the human contact with qualified people that makes the difference. It doesn't need to be in an institutional setting. In fact, the institutional setting doesn't advance the kids or help us as a society, because it's an artificial environment. It needs to take place in the community in order to get the young person on the right track. That's my view.
[Translation]
Mr. St-Laurent: I very much liked this somewhat more humane approach. It puts a bit more emphasis on the human side of judicialization.
The next question is addressed to Ms George.
We have met some people who refuse to acknowledge that the judicialization of young offenders is not solely a matter that has to do with the justice system. Everyone is aware that it is a matter for each and every one of us in society and that, for several years now, the tendency has been to wash our hands of it. To some degree we have lacked a sense of responsibility. It is not a shortcoming; it is just one of the turns that life has taken for us, taking us in that direction.
But today, we meet a bit more often, and the people we encounter remind us of this. They are asking us why we separate the children from the parents when a child has a problem. That is what happens, ultimately, when a young person steals some chocolate from a convenience store. Often, it is not because he is hungry and really needs chocolate. There is some other big problem behind that, on which we are not doing enough work.
I say not doing enough, because there are places where work is being done on it. In Quebec, there are some places where it works really well. Some examples could be derived from that, but what applies in Quebec is not necessarily applicable here. There are questions of mentality and culture.
There are some things that work very well in the North, too. We have just come from the Yukon Territory. We also went to Whitehorse and we saw other places such as Iqaluit, where there are sentencing circles that function well, that give some surprising results.
Perhaps it is a culture that cannot be applied here. Perhaps we should take some pieces from it and apply it here.
Ms George, you seemed more prepared to reply to this kind of question, but it may also be Ms Gottschan.
Do you think, for example, that the parents should be more present?
I will even add to my question what Mr. Siemens said.
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He says he knew someone who had the great luck to know a kind police officer. Instead of doing strictly repressive work, the policeman acted as a consultant, he turned toward the family, etc.
It seems to me that we might have a worthwhile solution there. If there were a repeat offence, not just once, but two or three times, and depending on the seriousness of the crime, the justice system could come in, the justice system we have today, but improved, of course. At that point, the parent would have a better role to play. He would feel more important and not shunted aside by the system. The police officer would feel like a member of society rather than a mean man in uniform who does mean work. It would cost a big less for everyone and we would get better results.
[English]
Ms George: I'd like to start my comments by saying that looking after the welfare of children and youth is a community responsibility; it's not just that of the parents of that child. It's all of us together who ought to be concerned about working together to improve the conditions in our neighbourhoods and in our communities so children are brought up safely.
The only solution we would consider would have to involve not only the child or the youth who is in question but also the parents and the guardians and the rest of us who have that responsibility as a community. That's why our committee is taking the position that the diversion programs involve not only the parents of that offender but also other members of the community who are equally interested in seeing a resolution that is going to work. There should also be some supports given to that youngster and some solutions developed jointly.
That whole idea of mentoring and of people working together, not only to monitor the behaviour of the child but also to be a support to that particular family, is the key. To me, that is the assumption we make. It is a community responsibility.
I would like to refer to a particular example. In 26 communities in B.C., 500 or so parents come together on a weekly basis, 10 to 15 of them in each group. The majority of those people, 78% of them, reported they had already gone to five or six different resources to get help for themselves and for their children. To me, that means the majority of the parents are motivated to make a difference for their own lives and for that of their children. The question is whether the appropriate kind of services are available in our communities.
It seems to me that if we can work together and think of this as a collective community responsibility, then we can get somewhere, rather than leaving those individuals and those families alone.
The Chair: Does any one else have a comment? Mr. Siemens.
Mr. Siemens: The model I'm speaking about today, the Ridge Meadows diversion program, is predicated on the belief that everybody involved, the victim through to the parents, the justice system, the probation, all of them must be involved in making it a successful diversion.
I don't know where Mr. St-Laurent's feelings come from that diversion is not successful. In most of the places it is being tried, it is anywhere from 75% to 90% successful in keeping those people from reoffending in from one to two years. This would seem to be quite a successful program, if I were looking at it.
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There is another program in Richmond that I've looked at. It is initiated by the police, and psychologists are involved in working with the sometimes violent offenders who in many cases come from violent homes. They have an ongoing relationship there that might last two or three years, and it is open ended. It can go on forever if it must. The success rate, again, is phenomenal in keeping people out of jails and keeping them from reoffending.
I recognize what you say. Maybe it is important the we look at them not only as first-time offenders but offenders throughout a number of years, perhaps during their teen years. I don't have any problem with that. But the models we've been looking at generally, at this point, have been first-time offenders.
You asked whether we have done any research on it. We haven't done research in the traditional sense, but we have talked to judges, to prosecutors, to police officers, to custodians in the youth detention centres, to parents, to doctors, and to nurses. We have talked to virtually everybody who comes in contact with youth and we have got their impressions.
In almost each and every case, they're dissatisfied with the experience that we have for young people in the court system. There has to be a better way. The only one we have been able to come up with is the diversion of first-time offenders, and a continuing mentoring program will be successful.
Thank you.
The Chair: Thank you, Mr. St-Laurent.
Mr. Ramsay, you have ten minutes.
Mr. Ramsay (Crowfoot): Thank you, Madam Chair. I'd like to thank our witnesses this morning for being here and for the presentations they have made to the committee.
We have been all across Canada. We've heard many people. We've visited many institutions, closed custody and open custody. We've talked to young offenders in those institutions. I think we do have to divert money from the back end of the system into the front end - into the early detection and prevention area - but that's beyond the mandate of the justice system.
The problems that youth have, in my humble opinion, result from the lack of love and care that they need. In other words, they need emotional security. They need physical security. They have all of these needs, intellectual needs and so on, as they grow and develop. If the parents do not provide those, we have these problems. I don't know whether we can address that.
The justice system addresses the problem of protecting society when there's a breakdown in providing these needs to the children. They react through anger, hatred, fear, or whatever, but most of the ones I chatted with during our tour across the country knew right from wrong. They knew that what they were doing was wrong. How do we pass a law to make parents love their children?
I'd just like to read a quote from the Jasmin report:
- It is vital to underline the parents' role in the prevention of delinquency. Parents are the primary
models available to children, as they are the primary responsible adults with input into their
behaviour.... Research indicates that lack of mutual affection and commitment between parents
and children, and lack of supervision and discipline by parents, are associated with delinquency
in their children...
- The adolescent's relationship with the father emerges as even more significant than that with
the mother.
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I see programs that are being designed and I'm very interested, Mr. Siemens, in this program where for some reason or another you're able to divert successfully for at least a year. So that's 93% of all the young children who come before or into your program. That's a very encouraging sign.
We've seen other remarkable programs. They're picking the youth up and providing that care and feeling of love and commitment to them that they've somehow missed getting from their families. Your example of the police officer is typical of that. That young fellow saw something or he got that care and attention for just a short period of time from that peace officer that he needed.
But we have spoken to young offenders who simply say that rehabilitation by really concerned people within the program is a crock. We asked the young adults in the institutions if the rehabilitation material provided for them there was doing them any good. They said very clearly that if they want it to help them, it's good and it will help them, but if they don't buy into it, forget it, it won't do them any good. My notes record more than one of those kinds of comments.
I just want to touch on one other thing, if you wish to comment on it. We see these very good programs that are designed by people who are motivated like you to change the system. But if the government is spending $100,000 to incarcerate a young offender, you'd better believe that someone is benefiting from that $100,000.
We have what I call an expanding criminal justice industry with very powerful vested interests to maintain the status quo. For an example, if we could cut 50% of the young offenders from coming into the system, there's going to be a lot of people losing their jobs. We would need fewer judges, lawyers and crown prosecutors, and fewer people working in rehabilitative programs, perhaps.
We were up to a small community in the Yukon that we were told was a dysfunctional community. They're begging for a mere $50,000 for a program that they would be able to initiate for their children, and do you know what it's costing the taxpayer for what we're spending this week in B.C. and the Yukon? We're spending over $80,000.
So I'm saying there's a real battle because of the obstacles to change, because there are strong powerful institutions within the justice system that will fight the change. There are good people within those systems who would like to see the change, just like Charlotte. You mentioned you were in that system and you saw the obstacles and attitudes and so on that we have to change. We can't change it overnight. We just can't flip it over and say overnight that this is the way we'll go. It has to come gradually and people have to work at it.
Ultimately the justice system must protect society, must protect your child and mine, and must protect our property. You spoke about the preciousness of our property, and I thought I heard a sort of a cynical ring, but the most precious property we have is our bodies. The rapist will use someone else's body and violate their most precious property.
So I think the responsibility of the justice system ought not to be confused with responsibility of other social programs, the early detection and prevention programs that must be run at the provincial level and in the territories, from the federal level but from the territorial governments. I don't think you'll find anyone not supporting that, but then we do have the duty and responsibility.
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What do we do with the young offender who is a ticking time bomb, has reached the end of his sentence, is to go back into society and has not responded at all to the rehabilitative programs that have been available to him? What do we do about that?
We go into the adult area as well and we see that. I got a call this morning from one of the newspapers about a death caused by someone out on early parole.
Do you have any comments you'd like to make on this whole host of areas that covers?
The Chair: Mrs. Gottschau.
Ms Gottschau: When you say that the justice system has to protect society, the question I have to ask is how do you define society? Our children are included in society. It's as though children are somewhere else. We have to protect our children and surely the justice system should take that into account, if you want to really go back to the first principle.
When you say our bodies are our most precious property, really I think our children are our most precious property. We don't look at our children as precious resources, the children we have to build on, who our going to become our society in the end.
The other comment I want to make is that in the 1950s - maybe its because of the war and the veterans came back and they were more mature and they went to university - we were trained to give up our responsibility to the experts. Parents were trained that they had to go to the police. We were trained that we had to go to doctors and lawyers, everything but to rely on ourselves and our community.
I think because of the fact that we have less money now, as a society we are taking back some of our responsibility, certainly in health care. Your hearing is another facet of that and I think is probably aimed, or should aim, at how we as a community, as Patsy said, and how we as parents take back our responsibility of bringing up and training our children.
Our children are legislated out of early jobs. I used to set pins in a bowling alley. There's no such thing any more because there's probably a union, and the other thing is that it's considered a safety hazard. I used to take tickets at the theatre and I used to do all sorts of stuff when I was young.
What is left for young kids now? If you're lucky to have a parent who was brought up by his or her parent to encourage kids and not criticize all the time, then you'll turn out all right. I just think that as a society and as a justice system, children have to be included in its protection.
The Chair: Thank you. Mr. Siemens.
Mr. Siemens: Certainly what you say about family and fathers and so on is incredibly important in the bringing up of a young person, but I think we have to remember that it comes from community. It doesn't come necessarily from those two people trying to do everything with their kids. The community must be involved. When there are single mothers and so on, it's again community, and there have to be people in there who are interested in the welfare of that child, that precious person.
In the models I've been mentioning to you, in the case of Ridge Meadows and so on, this is taken into consideration as well. The parents are involved in the program, and in many cases it is single mothers. But there are also community people, men and women, who are involved in mentoring this young person and seeing that they get into another space, that they learn some new habits, and that they learn the benefit of excellence.
Kids are concerned always in doing a good job. If they're going to be a criminal, they want to be a good criminal. If they learn the other side of it in being a good citizen and being a citizen who participates in what's going on in his or her community, they will be better for it. They'll do better in school, they'll do better at home, and they will start to pass on the skills that they're being taught.
In the case of Ridge Meadows, which I am so fond of mentioning, they are working in the community in stores and in businesses. They're making restitution and they're putting on programs for handicapped youth who want a Hallowe'en party. That's the thing that's happening this week. Those people are all involved in it.
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It is not just one or two people who have been involved. There are 130 cases that have come before that committee in Ridge Meadows, and there is a 93% success rate. That is a tremendous savings in cost and in human resources. It's as you say, $100,000 goes somewhere and is used for something. I think it is used in this case many times to feed the system, to keep it going, to get it bigger and always better.
We have a problem in British Columbia at the moment where the government is saying it is such a bad society that they'll have to double-deck them, double them up in all the rooms because they don't want to build new prisons. But they have all these acting-out people. A community must be there.
Thank you.
The Chair: Thank you Mr. Siemens. Ms George.
Ms George: I want to respond to a couple of things that you said, Mr. Ramsay. You spoke about the importance of the relationship of the adults and the children, the parents and the children, and you went on to assume that somehow it isn't there; that if it were only there, then we wouldn't have any problems.
I think we need to be careful and not blame the parent again. My experience is 30-some years as a social worker in many parts of this country. I can tell you that many of the young people we are talking about come from situations and families who have lived in poverty situations for more than one generation. These are parents who are struggling with unemployment, the lack of affordable housing, and a number of other factors that put a lot of pressure on approximately 25% to 30% of our population in this country.
It seems to me that we need to be addressing those issues as well, and not simply focusing on whether the parent has the personal ability to provide love and caring. I'm saying that one's ability to do those things is influenced by the social and emotional conditions in which they live. As elected officials, you have the responsibility of dealing with those issues as well.
The other point I want to make is that for too long we have compartmentalized our responsibility as a community, whether it is at different levels of government or at different ministries. It is more and more obvious to us that unless we integrate the services, programs and policies, not only among the various ministries but also the various levels of government, as a community in other words, we're not really going to address these issues.
I worry when you say that the kind of things we are recommending are beyond or not necessarily the mandate of your committee. It seems to me that you're part of the Government of Canada and you are part of the community of Canada, so we need to be addressing all of us working together in an integrated holistic way in order to address these issues. If we go our separate ways, the fragile families are going to remain fragile.
The Chair: Thank you, Ms George.
Ms Martz, I'm tempted to ask you if you want to comment on Mr. Ramsay's remarks about the criminal justice industry, since you're part of it.
Ms Martz: A point struck me, and I think Patsy's already addressed it. I do agree that there are limits to what the justice system can do. I have no problem with the point of view that says many of the youth at risk we're talking about should be addressed through other systems. But I absolutely concur with what Patsy says, that we've gone down the wrong path in allowing different governmental ministries to operate as separate kingdoms. We're wasting a lot of money and energy that way.
I also think that where a crime is committed under our present system, it's inevitable that the young person will go to court when a criminal charge is laid. I do think there is scope to involve young people in the kind of positive programs that we were discussing this morning, through the court process. Judges are always looking for choices. Young people generally start off with probation orders. The spectrum of possibility is endless in terms of the options we can put in front of a youth court judge in which to direct that young person to participate.
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Jim is telling us about community-based voluntary-type diversion programs. Another part of that spectrum might be court-ordered participation in community-based programs. The judges I've met with would love to have more choices in disposing of the kids who come before them.
The Chair: Thank you, Ms Martz. Mr. Gallaway.
Mr. Gallaway (Sarnia - Lambton): Thank you, Madam Chair. Thank you, witnesses, for your presentations this morning.
This is our second-to-last day of hearings and it's been a long process. I think much of what has been said this morning brings us full circle back to the beginning, and that is, why have a Young Offenders Act? I've heard a lot of rationale this morning.
Ms Gottschau, you have raised the whole subject of why children are cynical and some of the hypocrisy in the system as we deal with children who are in conflict either with society or with the law.
I think of what has occurred in this process over what seems like about a year now in terms of this review. There have been press reports suggesting that certain members of this committee have made up their minds with respect to what may or may not happen and what may come out of this process. I'm not that removed from society to realize that there's also a political party that has suggested we repeal the Young Offenders Act and put it back into the old Criminal Code, and that says children are in fact members of society and are adults from whatever age they come into conflict with society. So I don't know exactly whose mind is made up at this point.
I think that in all fairness Ms Gottschau has outlined some rationale for dealing with children separately, but I would like to ask any one of you to respond to the whole idea of why you feel a Young Offenders Act is necessary. Or perhaps you will buy into the other philosophy that the Young Offenders Act isn't necessary, or there's been a third strand running through this that it's really a child welfare issue and that we should really deal with it at the family-based or community-based intervention level. I realize it's rather open-ended. It's Thursday and it's early.
Ms Gottschau: You're so right. I certainly would not like to see the young offenders dealt with under the Criminal Code. The Criminal Code itself is a little old-fashioned also and somewhat hypocritical.
At this point our society is in the throes of a lot of anger and vengeance, so we have a lot of very damaged youth and damaged adults. I suppose my hope is that we do look at children and the community-based programs and that where we start to heal is with the younger people. But we do need to have a Young Offenders Act or something similar.
As Ms Martin said, for all aspects it certainly can deal with the hardened juveniles and the more tender juveniles. It's just that when anything is in writing, people tend to use it more. That's the problem.
Mr. Gallaway: Thank you.
The Chair: Mr. Siemens.
Mr. Siemens: Thank you. I guess the purpose of the Young Offenders Act was to recognize that those people needed a special place within the justice system and to a large extent has afforded that. We have said that until 17 years of age they will be accorded a special status and they'll be treated differently.
If you were to do away with the Young Offenders Act, I hope you would use the model that has been in operation in Sweden for some years, where it isn't possible for the so-called young offender to come before the courts in any way. They're considered to be youth at risk and are treated as such until they're 17 or 18 years of age. They are then dealt with through other agencies within the community. I think to a large extent it has been successful.
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If we can't look at it from a community-based, caring system wholly, then I guess we have to continue to have the Young Offenders Act with the protections that are there. One of those protections is that you can't arbitrarily raise a youth to adult court; it must go before a judge. So you have greater protection there; it isn't just a bureaucrat's decision to move that young person into the criminal justice system as we know it for adults. I think we must continue to have this act at this time until we come up with a better solution.
Ms Martz: Mr. Gallaway, your question allows me to have another chance at my pet peeve, which is the attitude that the Young Offenders Act is really no big deal.
I think people forget that youths face charges under the Criminal Code. The Criminal Code still operates over young people. All the Young Offenders Act does is mandate a separate court system, separate judges, and separate facilities. There are certain procedural protections, most of which are equivalent to the kind of procedural safeguards adults get, modified in some cases. There are special provisions to do with a young person's rights, the way they need to be read their rights. The effort is there simply to acknowledge the age of the young person and their need to have things explained to them.
In my mind, there isn't anything dramatic about the Young Offenders Act other than the point that there are maximums. The maximum sentences are different, and that's where the focus is. I think the average Canadian, when asked whether they would want a 13-year-old to be sent to the same jail as a 55-year-old hardened criminal with a record of violent criminal offences as long as my arm, would say obviously not. I don't think anybody would see that as a good solution.
I get so frustrated when the debate gets focused on whether to repeal or stick with the Young Offenders Act. I think most of the principles that underlie it, in this day and age in this country, are pretty much accepted across the country by most Canadians, if they just understand what's in it.
The Chair: Thank you, Ms Martz.
I want to thank you all very much. You've added to the debate in a very eloquent fashion and we were very pleased to have you here.
We'll rise for a few moments while our next witnesses get ready.
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The Chair: Colleagues, perhaps we could take our places. Order. I see we need a strict discipline approach to this committee. You're going to have to go to parliamentary boot camp for a week.
I want to welcome, from the Union of British Columbia Municipalities, MayorGillian Trumper, Port Alberni, B.C.; Mayor Steve Wallace, Quesnel; and Ken Vance, senior policy analyst.
Welcome. I understand you have a brief to present before we have questions.
I'm going to caution my colleagues that one question took 9 minutes and 49 seconds. We're not here to lecture, we're here to hear. Let's try to keep that in mind.
Please go ahead.
Ms Gillian Trumper (President, Union of British Columbia Municipalities): Thank you for the opportunity to appear before you. Welcome to British Columbia and to Vancouver.
I'm both president of the UBCM and mayor of the city of Port Alberni on Vancouver Island, for those of you who haven't been there. Steve Wallace is the first vice-president of the UBCM and mayor of the city of Quesnel, where you were yesterday. He's also the chair of the UBCM justice and protective services committee. Ken Vance is our senior policy analyst.
The UBCM represents all 179 local governments in British Columbia, 151 municipalities and 28 regional districts. The main function is to represent local government in its dealings with the provincial and federal governments. The main policy-making session is the annual convention in September of each year. Between conventions, the executive and committees respond to emerging or ongoing issues.
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We would like to point out to you the issues that we want to discuss concerning the youth justice system. We would like to briefly summarize the paper on young offenders that was endorsed by local government at our convention in September. It is entitled Hope for the Future: A New Approach to Young Offenders, and I think you have a copy of that. At least, it has been sent to you.
I'll focus on two issues in the paper - the need for change and the community safety approach proposed by the UBCM. The UBCM is proposing that a new approach be adopted towards dealing with young offenders, and that these changes be incorporated into the Young Offenders Act and the programs associated with it. We would suggest that this new approach be focused on the needs of the community, the needs of the victim, and the needs of the youth.
We need this new approach, as the current process does not appear to be working very well. Today we are faced with increasing costs of crime and increasing concern in the communities about crime. It is estimated that the spending on police services, the courts, legal aid and corrections reached $9.7 billion in 1993-94 - an increase of 13% in constant dollars since 1988 - and that the total cost of crime could range as high as $46 billion annually. Current trends suggest that these costs are going to increase as we move into the 21st century.
There is a growing belief in the communities that crime is increasing and local communities are not safe. Successive polls have suggested that 50% of Canadians feel less safe than they did five years ago, and 48% of Canadians believe violent crime is increasing.
In the case of youth, the community sees the following trends. Youth involved in violent acts and gang group activity are becoming younger in age, and many are still in elementary school. School boards are reporting an increase in verbal and physical assaults on teachers. Possession of weapons, particularly knives, by young persons is increasing, and many youths feel they need weapons for protection. Some youth violence is becoming more intense, random and vicious, often with little evidence of a premeditated plan to hurt the victim or evidence of serious provocation. In reality, whether or not crime is increasing and our communities are no longer safe is not clear. It is what many people perceive to be happening, though, and we need to address this belief.
The Young Offenders Act has generally downplayed the responsibility and accountability of the offenders for their actions. It has failed to acknowledge the victim in dealing with the crime, and it has ignored the concerns of the community or the role that it might play in addressing the crime. The focus of the Young Offenders Act has tended to be on the institutional needs of the justice system rather than on the individuals involved, and on the personal tragedies. It has resulted in a backlog of court cases and the inability of the justice system to deal in a timely and effective fashion with the needs of the community, the victim or the youth. In its current form, the Young Offenders Act lacks the financial resources and tools to rehabilitate the offender, and it is unable to respond in a timely manner to punish the offender if required.
On the community safety approach, the UBCM is proposing a two-dimensional approach that is directed towards the safety of the community and the impact of crime on it. It is an attempt to provide a balance between the needs of society and each individual member. The intent of this approach is to ensure that the community is provided with the services necessary to assist youth with problems, but at the same time it requires that the youth and the parents be held accountable for acts committed against the community.
The first approach is based on the development of a social infrastructure. The development of the social infrastructure is designed to ensure that the community has the tools, or access to the tools, to respond effectively. We would point out that the local community cannot implement this process in a meaningful way without the financial support and program assistance of both the federal and provincial governments.
Resources to undertake this new approach should be reallocated from the existing $9.7 billion that we currently spend on the justice system, including the $100,000 a year we spend to incarcerate youths each year. The funding needs to be provided on a long-term basis.
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We are suggesting that the Young Offenders Act needs to focus on social development and the prevention of crime. Examples of programs that might be implemented under this process are youth at risk programs, family counselling and parenting classes, youth programs, and alternative sentencing.
I would like to take a moment and highlight two alternative programs that have been undertaken in British Columbia - in Maple Ridge and Sparwood. I know you've heard about these programs earlier. We would suggest these could be promoted and encourage the development of these types of programs in the future by the Young Offenders Act. These two programs illustrate the important role the community can play to reduce crime.
The Maple Ridge program was begun in mid-1994. The program had the following objectives: to deal with charges promptly, to increase the youth's awareness of the way in which his or her actions affected the victim, to let the youth and his or her family know that the community as a whole is concerned about this conduct, to provide for restitution where appropriate, to follow up on an individual basis, to involve the community in the solution, and to leave the youth with a feeling of self-worth.
A youth conference committee has been established by this community. The committee is designed to involve the whole community in addressing youth crime - service clubs, businesses, churches, etc. The committee works directly with crown counsel, the local probation officer, and the RCMP. Crown counsel determines, on the basis of the case, which youth are to be referred to the youth conference committee. Only first-time non-violent offenders are considered for the diversion program.
The community's interest in undertaking this program was to see young offenders dealt with rapidly, to free up court time for more serious offenders to also be dealt with more quickly, to save taxpayer dollars, to assist parents and families with problems, and to build a more closely knit community with old-time friendliness and involvement.
The program to date has reduced the time for dealing with the young offender to 15 days rather than 30 days or more through the courts. In the short time the program has been operating, it has had a 95% success rate.
As for Sparwood, the program was initiated in 1995, and it has eight objectives: to divert young offenders from the traditional court system; to provide victims with an opportunity to participate actively in the process of seeking reparations; to arrange compensation, where appropriate, for material damage or loss; to make offenders aware of the consequences of their behaviour; to involve the family and close friends of a young person whose behaviour has offended in the process of dealing with the consequences of that behaviour; to involve the victim, their families and close friends, if appropriate, in the process of dealing with the consequences of youth offences; and to lay the foundation for a gradual restoration of trust between all persons affected by the young person's offence.
This particular program was initiated by an RCMP officer in Sparwood. This program involves a two-stage process. Under the first stage, the investigating officer is encouraged, in minor and appropriate cases, to deal with a young person informally, in consultation with the victim.
In cases that are more serious, the second stage of the process involves the organization of a ``resolution conference''. The purpose of the conference is to explore the impact of the incident on everyone affected and to determine the appropriate punishment.
Both of these programs focus on the need for the community to be involved in addressing the crime, the need for the concerns of the victim to be dealt with, and the need for the youth to take responsibility for his or her actions and to be held accountable for the consequences.
In both of these programs, the human dimension of the crime is clearly recognized - the personal tragedy - and the need for the community to play a role in restoring the peace and harmony.
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It is our understanding that the RCMP, which provides police services to most of the province, has introduced the Sparwood model into a number of other communities in British Columbia. Our own community is looking at this particular program.
At this point I would like to turn over the presentation to Mayor Steve Wallace, who will outline the second part of the UBCM proposal for dealing with young offenders.
Mr. Steve Wallace (First Vice-President, Justice and Protective Services Committee, Union of British Columbia Municipalities): Thank you, Mayor Trumper, and thank you, committee, for the opportunity to present.
I'll focus on two aspects, namely the need to ensure the community is protected and the need to ensure that victims' needs are addressed.
First is the safety infrastructure. The development of the safety infrastructure is designed to ensure that courts give more weight in their decisions to the protection of the community. Ideally, the social infrastructure will minimize the need for further action. However, in the event that a crime is committed, particularly a serious crime, then the safety infrastructure will protect the community.
The focus of the safety infrastructure is to deal primarily with youth who are repeat offenders and have committed violent crimes.
Zero tolerance: We are suggesting that under this policy, there needs to be clear recognition in the Young Offenders Act that violent crimes are to be dealt with directly by the courts. The anonymity of young offenders should be removed when a violent crime has occurred, and the community should be informed of who was responsible, whether the offender is a youth or an adult.
We recognize that there are some dangers in this approach, since in some circumstances it may glorify the action, particularly if it is gang related. In other cases it may have a negative impact on other members of the young offender's family. However, we have proposed it for two reasons.
First, there is the basic issue of public safety and the need to ensure that the community is informed of who might be a dangerous offender in its midst so that it can take precautions. Second, it's meant to act as a deterrent to other youth - to let them know that these actions are not acceptable.
Public shaming has long been a tool for dealing with unacceptable behaviour in the community, and it has been effective. While naming a young offender may have some negative aspects, it can also provide some positive benefits in that the community may be better able to provide needed support to the family, and it may provide an incentive for family members to step forward sooner about family problems.
In the case of violent crimes, the Young Offenders Act should apply to youths 10 years of age and older. We have proposed that the age limit for violent crime be lowered from 12 years of age to 10, to reflect the fact that youth are growing up today much faster than they did in the past.
On compensation to the victim from youth and/or parents for property crimes, our organization is proposing that where a young offender has damaged or stolen property, the emphasis should be placed on ensuring that any expenses incurred by the victim are reimbursed. The Young Offenders Act needs to clearly identify that the youth and/or parent or guardian will be directly responsible for all costs related to the crime and that this applies no matter what the age of the offender.
We are suggesting that tools need to be provided in the Young Offenders Act to ensure that the financial costs of the victim are fully addressed. For example, the cost of a broken window, stolen stereo or damaged car should not be a matter simply between the victim and the insurance company. The window should be fixed, the stereo replaced, the car fixed, and so on.
On direct responsibility by youth and/or parents for criminal actions, we are suggesting the youth must be required to take responsibility for their actions and, where appropriate, be required to undergo mandatory treatment.
The Young Offenders Act needs to provide the tools that will place the onus of responsibility on the young offender to show why he or she should not be required to undergo drug or alcohol treatment if they have a problem. This should not be a human rights issue, but rather an issue of community safety.
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The parents or guardians must be held accountable for the actions of their children. If the parents or guardians have been negligent in supervising or raising their children, they should be held responsible for their actions. The Young Offenders Act needs to provide the tools that will place the onus of responsibility on parents or the guardian - if the child is a ward of the state - to show that they were not negligent in supervising the child, and why they should not be held responsible for the child's actions.
Sentencing should be linked to criminal actions. The Young Offenders Act needs to ensure that youths who come before it with records of continuous and ongoing criminal activity are dealt with in such a manner that it is clear that ongoing and repeated criminal activity will not be condoned by the community and that the safety of the community takes priority.
We're also suggesting that under this policy the courts, when sentencing these youths, must take into serious consideration the effect the incident has had on the victims. The courts must consider the impact of the crime on the community.
In conclusion - it is a page-long conclusion; we are a government too - I would point out that today there is an increasing concern in the community about crime and the safety of communities. The approach of our group in proposing changes to the Young Offenders Act and the programs associated with it is one that attempts a balance in the needs of the community, the victim and the youth.
The approach, which focuses on values and obligations that each of us have in our community, focuses on the safety of the community and the needs of the victims for assistance and acknowledgement. It is an approach that focuses on the need for youth to take responsibility for their actions and be accountable for the consequences. It is an approach that is workable, as is illustrated in the programs under way in British Columbia in Maple Ridge and Sparwood.
Maple Ridge and Sparwood are extremely important as communities. One is in the interior and the other in the lower mainland, and one has a high population density and one does not.
The UBCM is proposing a two-dimensional process that focuses, first, on the development of social infrastructure needed in the community to deal with the problems faced by at-risk youths and their families and, second, on creation of a safety infrastructure designed to protect the community from criminal activity. This approach would coordinate social service, education, health and justice programs delivered in the community in an effort to build a safer community, and it will require a long-term financial commitment from the federal and provincial governments to implement.
The resources needed by the community to respond to a multi-disciplinary approach to potential youth crime problems would be reallocated on a long-term basis from the existing$9.7 billion that we're spending on the justice system and incarceration of youth each year. The outcome of this approach ultimately would be to save taxpayers money.
To emphasize, the outcome of this approach ultimately would be to save taxpayers money. The resources used would be directed in a positive way to prevent crime rather than in a negative response to crime, and the courts would be used as intended - to punish offenders when the community's safety is at risk.
Under this new approach the focus of the Young Offenders Act and the message it would deliver to the public is the following: the important role of the community in restoring and maintaining peace; the role of the victim in determining what happens to the offender, and that the offender will repay the debt incurred from the harm caused; the important role of the family; the role of the youth in understanding and taking responsibility; and the important role the justice system has in ensuring that the offender is dealt with in a timely manner.
Under the UBCM proposal, the function of the Young Offenders Act would be to promote community safety, to promote accountability and responsibility of the youth in the community, and to promote the timely application of justice in the community.
Thank you for your indulgence.
The Chair: Thank you.
Mr. St-Laurent, you have seven minutes.
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[Translation]
Mr. St-Laurent: My questions will be primarily technical. The figures for British Columbia that you included in your brief, that is, $9.7 million, 13%, $46 million, $100,000, etc., where do they come from? Are those figures for the whole of British Columbia?
Mr. Wallace: Yes.
Mr. St-Laurent: We too can give you some information. We are not here simply to listen.
You say that, according to a certain poll you took, the crime rate is declining in the country, but the crimes are more violent. Concerning minor crimes, there are fewer and fewer. However, the crime rate is on the decline.
You also say that we are now more aware of the crimes that are being committed, etc. That is more or less normal, since the media still have some things to talk about. They are not required to keep silent.
You, who are from the Union of Municipalities, one of your big concerns is the money allocated to the municipal police forces. Several people are talking about this, and we too talk about it and wonder about it. We see that the role of the police is a little less repressive, a little more focused toward prevention.
There are even some who see the police officer's role somewhat as that of a counsellor who, when he sees a young person in the process of committing his first theft, will try to take him to his parents and to undertake some kind of counselling process.
But this means that while he is in the home, sitting down with a family, doing some good work, he is not on the road keeping an eye on speeding and doing his conventional job as we understand it today.
We make him play some other role and this will necessitate some additional funds from the municipalities, because, as you said, people are now demanding that crimes be solved and that society be better protected.
In the long run, this new role will pay off. So, has the Union of Municipalities thought about the financial repercussions of this new role that we want the police to play? Or do you simply say: ``We'll assign that to someone else and, as far as the policeman is concerned, we will make him play his conventional role''?
[English]
Ms Trumper: Mr. St-Laurent, on your first comment about police changing their role, a lot of that is happening with community policing. Some of the things you talked about in terms of a police officer taking a young person home rather than doing the conventional police action are happening. Right through British Columbia there is great movement into community policing, which is doing a lot of those things.
Yes, I would certainly agree that if police forces were going to be doing many of things that are talked about in dealing with youth, the rest of society will be asking where they are when something's happening and they have other roles to play. What we're saying and believe is that it shouldn't just be the police who are doing this. They should be working in conjunction with other agencies to provide those services to youth. What happens is that so often today they're working in isolation from each other, so there's not that cohesiveness in dealing with young people.
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[Translation]
Mr. Wallace: In Montreal, in the neighbourhoods of Notre-Dame-de-Grâce and Côte-des-Neiges, the program is very good. British Columbia, and my city, Quesnel, are asking for the same program as in Quebec and in Montreal. It is an extraordinary program.
Our city has some money to fund this program, but the province doesn't.
Mr. St-Laurent: You say you want to implement this program in your municipality, Quesnel, that you have the necessary money, but that the province does not. In other words, the province has not become involved in the experiment. Is that what you have just told me?
Mr. Wallace: Yes. We have a reserve of five million dollars. We have therefore asked that the Montreal program, the Sparwood program and the Maple Ridge program be implemented in our city.
Mr. St-Laurent: I am not acquainted with the Sparwood and Maple Ridge programs, but I assume they are the same as the one in Montreal, more or less?
Mr. Wallace: No. In Montreal, it is a police department program, while in Sparwood and Maple Ridge, it is a community program.
Mr. St-Laurent: Concerning the victims, how do you envisage their participation? What should be included in a legislative package to ensure that the victims are accounted for? What should the bill provide in that regard?
We should be clear on this. The purpose would not be to force victims to do something, in addition to being victims. But there are some victims who will no doubt want to be consulted on some things, and not only about financial compensation.
I am not referring only to rape, which I call the most savage way to kill someone. I am referring to the victim, for example, who comes back from a vacation and finds that his home has been burglarized. He has not been physically violated but he feels victimized. You feel weak in situations like that.
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How do you see the role of the victim in non-extreme situations? We're not talking about murders or rapes, but property, for example. Should we be consulting victims more often? Should we take greater account of the victims in the compensation process? Are there some areas in which, ultimately, we feel comfortable in this?
It is all very well to invent the system we want, but we will always need a prison somewhere. Where do you see the prison? At what point in the process do you see it? We all know that prison, as we know it, is for all intents and purposes, useless. It is a parking lot for the undesirable elements, but we will always need some prisons.
[English]
Ms Trumper: I'll just answer the first question. Just going back to your question about where the statistics came from, they're from the National Crime Prevention Council in March 1996.
As for your question regarding the victims, certainly the Maple Ridge program does that. I can tell you about a particular incident.
Here's what they do with these first-time offenders. I think this is where a great deal of work has to go. Unless they don't want this, the victim - these are some of the crimes that will be very difficult and painful to the victim - is present when that youth is brought to that committee.
One specific case - it was in Sparwood - involved a shoe store. A youth had either shoplifted from it or done some damage to it. He met with the owner of the store. The storekeeper said the youth would come in on Saturday mornings at such and such a time to do some work in his store. That's what he would be prepared to do. The committee allowed that to happen for, I believe, six months. It was some length of time like that. This young individual did a lot of the menial work that the storekeeper just wasn't able to do or didn't have time to do.
At the end of it, this youth did so well that he was turned around and was taken on as a part-time employee on the weekends to work in that store. It took us time, but also the storekeeper took the time and realized that if he was going to be part of this process, then maybe he had to do something to try to help this young individual.
So many of the victims are saying that they want to be part of the solution. I don't know how you write those sorts of things into the act, but those are the things that need to be considered.
There are other problems that do occur - I can tell you this from my own experiences - such as where damage is done to particular buildings. We ran into a problem with damage being done to schools whereby we wanted the young person to do the repairs or something like that. Unfortunately, the union stepped in and said that it is their job.
We had to work very hard to sort that one out, but we managed to. We made everybody realize that everybody is going to benefit if the youth has to do something rather than going to court and doing all those various things. They have to go back to repair the damage they've done. It's a difficult one to write into legislation. I certainly would agree with that.
Did you want to talk about the jails?
Mr. Wallace: The reason for jail would be only for the repeat or violent crime offender. When we have communities that get involved, the penalties that the youth impose upon themselves is generally harsher than that which would be imposed upon them by the courts.
The bonding and the manner in which the program is offered - when I talk about bonding, it's the victim to the offender or the victim's family to the offender's family - is an important aspect of the healing process.
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When I first looked at the program, I'll be honest with you that I really didn't like it that much. It didn't appeal to me that much.
The great advantage it has is that it works in 95% of the cases. Of some forty or fifty individuals dealt with in this program, only two reoffended. So the likelihood of success is extremely high, which is why we endorse that program.
Mr. Ramsay: I don't think I can recall a presentation that is as well balanced as this one. We received many presentations both leaning toward the rehabilitative aspect of young offenders, as well as those who would get tougher in terms of trying to protect society. I think this is an extremely well-balanced presentation, and by and large I support your recommendations.
What I'd like to ask you is this. You claim to represent 179 local governments in British Columbia. These are all the local governments, which are made up of 150 municipalities and 28 regional districts. I'd like to know to what extent the people of B.C. have had an input into your presentation and recommendations.
Mr. Wallace: The committee has worked on this for three years. We have had community meetings throughout B.C. where there have been violent crimes. Those reports have come to us in person, whether they're from municipal officials, their staff or people like Chuck Cadman, whose son Jesse Cadman was killed in a violent encounter. We have had several of those kinds of people make presentations to us. We have had presentations from the justice and probations arms and from communities. We have had three conventions in which a number of issues have been addressed.
But most recently our convention addressed this specific item. Of all our seven priorities, we decided to do away with the other six for one year and simply focus on this one.
That is why every single city, town, village or regional district in British Columbia, whether it was the city of Vancouver or the village of Telkwa, has had input into this. That's why it's so comprehensive. That's why it's so balanced. We think it's extremely logical. Again, there is no municipal government absent from the Union of British Columbia Municipalities.
Mr. Ramsay: Thank you. Could committee members then assume that this brief is representative of the majority of the citizens of British Columbia?
Mr. Wallace: There were some 125 representatives at the final session to dot the i's and cross the t's on this brief. There was not a single opponent in that hall to what we were going to present. I use the word ``assume'' with great trepidation in most cases, but not in this one. I would think that if someone were to come forward to oppose this, they would be in the vast, vast, vast minority.
Mr. Ramsay: You stated that the Sparwood program was started by an RCMP officer. Was that a retired member or an active member? What was that member's name?
Ms Trumper: He's an active member of the RCMP who moved to Sparwood. I can't give you his name. We can get it for you. He actually made the presentation to us.
Mr. Wallace: He's a sergeant, and his name starts with a B.
Mr. Ramsay: That's all I have, Madam Chair.
Mr. Maloney (Erie): I'd like to make a couple of comments or address a question on the safety infrastructure.
Many of these children and parents are low-income families. How do we deal with this fact in your compensation for the victim from the child and the parents of that child? How do we compensate or impose a financial burden on people who just don't have the money? Say they're welfare recipients.
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Mr. Wallace: The compensation is not financial in many cases where there is no ability to pay. What we find is that the victim and the offender, once in the same room, sometimes alone, work out an accommodation regardless of the impediments you may throw in their way. It could be working off time or giving time for dollars. It could be a simple ``I'm sorry'' given publicly or privately.
We're finding that our traditional thoughts on resolving the conflict between the offender and the victim generally don't apply. In a number of cases, these are tearful kinds of venting. In most cases, they are simply a manner of giving both the victim and the offender a final say and a degree of closure.
I'll reiterate. In most cases, the offender heaps upon himself a greater penalty than he or she is due. In most cases, the victim reduces that penalty to a degree they think is manageable and laudable.
Mr. Maloney: I'll direct my comments to holding parents responsible for the criminal actions of their children. How would you envisage this happening?
Mr. Wallace: At our committee and conference, we struggled with this quite a bit.
I was in the gallery for your last presentation. I can tell you that where applicable, where a family unit is intact and where a provincial government has guardianship, there must be some manner of restitution or repayment.
We believe repayment provides closure and finality. As such, each situation is different. If it's left as a matter between the victim and the accused, it often works itself out in ways that we would not guess. That is our solution to that problem.
All circumstances can and will not be handled by parent-guardian restitution. In many cases, this restitution will not work because either the parents or the offenders have washed their hands of that family relationship.
Remember that we're talking about first offenders. We're talking about diversion here. We're not talking about violent or habitual offenders. We think we've got a really good shot at the first offenders with the restitution and the involvement of the families.
Mr. Maloney: This leads now to the sentencing. Could you elaborate a little more on what you mean by sentencing linked to criminal actions, community impact and victims' concerns?
Mr. Wallace: Again, what our committee looked at and what our conference told us is that diversion may in fact be a manner of freeing the court system. I know that when you asked that question you might have been thinking of the court system, but we are not. We are thinking of an alternate manner of handling the first offenders - or, with some exceptions, perhaps second offenders. That has been done, but not often. That is how we are looking at it. We are not looking at handling them within the court system at all. We have reserved that for repeat and violent offenders.
Mr. Maloney: What about the repeat and violent offenders? Are we washing our hands of them? Will we put them in a facility and throw away the key? What are we going to do with those people?
Mr. Wallace: Our committee believes that within the Young Offenders Act, the repeat and violent offenders should not be able to turn down help, psychological or otherwise. They should not have the right to exempt themselves from any kind of action, whether that's, as I say, psychological, physical or otherwise, that would seem and be deemed to be reasonable in their rehabilitation.
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Mr. Maloney: On safety infrastructure you take a very hard line. On the other hand, the balance is the social infrastructure. Are they inconsistent, or are they compatible?
Mr. Wallace: The hard line we're taking seems to be - when I say this, I speak on behalf of the membership - a situation in which repeat and violent offenders will not be permitted to turn down help. The softer line is in the diversion program. That's how things make sense.
It seems somewhat schizophrenic if you take a look at it from the point of view of how we're going to deal with an entire young group, but we're not saying that; we're splitting it. The hard line is this way. The soft line is this way. Diversion is this way. Violent and repeat is over here.
As such, we think that will yield results. We have given you two examples - there are many others - in which it does yield results.
Mr. Maloney: In dealing with the hard line, in terms of the necessity of the imposition of treatment, you said that they don't have the right to deny it. Is that the only approach you have for the hard-line children?
Mr. Wallace: Our committee and convention believe that once people avail themselves, whether mandatorily or by choice, to whatever help they and the authorities deem necessary, that is a first step.
We don't have the answer. We're simply making suggestions. We would like to see you people pass laws and try something different for a change, because what is happening now is not working.
Mr. Maloney: Thank you, Madam Chair.
The Chair: Ms Trumper, you wanted to add something?
Ms Trumper: We have a name for you: Sergeant Jake Bouwman. You were right about the B.
I'd just like to add a comment to some of the discussion that has taken place involving the family structure. One of the things we see at UBCM is that there are so many dysfunctional families today that sometimes these children are not even living with one original parent. There are major problems there.
That's why we see programs such as these that involve the community. They're to provide that support to an individual in trouble. For the first time, it gives that child or young person the support and help they need. There are a lot of children out there who just don't have the support services at home at all. It's very easy to talk about the family unit as a whole, functioning as if you have both parents there. Consider single parents who are doing their best. There are many children who don't even have that, unfortunately.
The Chair: I wanted to ask a couple of brief questions for clarification. One is with respect to the issue of publication. The other is with respect to the lower age limit, which nobody has really questioned you about.
On the issue of publication, from what you said, you're talking about publishing names in the cases of violent and more serious crimes. I appreciate that differentiation, but have you considered what would happen if naming the accused would name the victim? This has been an ongoing difficulty, particularly in cases of sexual abuse when the victim either doesn't want his or her privacy breached, or they're embarrassed, or for whatever reason. Would it be part of your presentation - or have you turned your mind to this - to leave something like that to the discretion of a judge for giving guidelines?
Mr. Wallace: For the most part, I would agree with you, but I'm from a small town. I don't care whether you hide the name or not because -
The Chair: No, because you know everyone.
Mr. Wallace: - I'm going to know who it is anyway. So that system seems to work now not by design but more by fluke in the smaller communities. There is a built-in ``moccasin telegraph'' system that protects the small community. If you could take the larger cities like Vancouver and break them into small neighbourhood units, it would probably work there as well.
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But I do agree with you that when those extraneous kinds of things float to the surface, then there has to be unfettered discretion, and the courts have to have that.
The Chair: So your point, then, with respect to publication is to give the power to the judge, but force the judge to consider certain things before he makes up his mind.
Mr. Wallace: That is correct.
The Chair: Okay. Now, with respect to the lower age limit, this is very controversial. You're smiling, so I know you know that. Here's my question, and it's always the same one.
Let's assume for the moment that this is not the case in every province. Offhand, I don't know whether it's the case in B.C., but in some provinces, such as Quebec and Ontario, the child welfare authorities may intervene with respect to a child. They may see a child as being in need of protection - or I think in the Yukon it's in need of guidance - where there has been behaviour that would otherwise be criminal if the child were old enough to be charged.
For instance, if a 10-year-old commits a series of car thefts in Ontario, Quebec or the Yukon, that would be enough to allow the child welfare system to intervene. They would then have to determine - and I want to be quite clear about this - whether the parents have the means and ability to take appropriate steps to give that child guidance or therapy, depending on the severity of the case.
Now, for me this thing bogs down when we start talking about imposing the criminal justice system on a 10-year-old who has committed certain offences. I'm just wondering what added benefit there's going to be there.
When I asked this of the Attorney General in Manitoba, she finally just said, no, I think sometimes we have to define our reaction to children's behaviour by the behaviour rather than by the culpability of the child, and that sort of thing. So it means she's finally admitted that it's just because people want a criminal justice approach to it rather than that this approach is going to do any good.
Playing devil's advocate, I would say to you that you have a child welfare system in British Columbia; make them deal with it. Ultimately the province is going to have to pay for it. The province is going to have to pay for anything we do to a 10-year-old anyway, so let them define how they're going to approach the problem.
So I'll throw that back to you and see where you go with that. And it may be outside the parameter. I appreciate you're bound by your own discussions, so it may be outside that parameter.
Mr. Wallace: Well, if you've been watching the child welfare system in British Columbia closely in the last little while, you can see the tremendous upheaval -
The Chair: Yes.
Mr. Wallace: - that's occurred in that system. The Matthew Vaudreuil case is just one case that has been sensationalized across the country.
But I have two points for you. First, it was the general feeling of most everyone in the room - and I cannot put my finger on any one person who jumped on the age - that it had to be lower. We don't know whether 10 will do it, but the view of the elected municipal politicians in British Columbia is that things are happening too quickly, the crimes are happening quicker, people are being induced to the criminal activity sooner, and we had to react.
So to make light of it, our number 10 might be the first two-digit number you come to when you begin to count. But to be more serious about it, it's a number that would handle some of the more recent habitual criminals in Vancouver, particularly with the sensationalized case of car thefts, where no one can do anything. So this would in fact stream a number of sensationalized cases, thereby appeasing a number of people in the public who are asking for something more.
I would like to see it tried. I'd like to see us go forward with the age of 10, with an accommodation, just as you have suggested, for the severity and perhaps the habitual nature of the crime. If an 11-year-old has stolen his 58th car that month, and people are saying we can do nothing, then perhaps the provincial laws do not apply.
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It's parallel to one other item I didn't want to let go by, but that was brought up - not in this brief. When you talk about 17 as the young offender's age, adult responsibility brings adult rights. If you can let them drive at 16, then perhaps you should look at the adult responsibility and adult rights, when they occur, and at what age. I just leave that with you as an aside; it's not in the brief.
So we do have that year lapse where adult responsibility brings adult crimes, adult charges, upon youth. There seems to be a year delay, particularly in British Columbia, from the time they get their licence and assume the adult responsibility to the time they're actually accountable for that adult responsibility at 17.
Ms Trumper: I would like to comment on the age of the 10-year-old. As Mayor Wallace has pointed out, it has brought up an issue that has been brought to us many times.
Only yesterday I had a principal in my office talking to me about the elementary school, the problems they have, and how they're dealing with the drug issue, with an elementary child selling whatever they were selling in the school yard.
We're trying to emphasize that unfortunately, where the high school, then the junior high school, was where the problems were in many cases, now it's the elementary school. That's where we're trying to bring the attention, to the frightening, downward age group of children being involved in very serious crime, or starting on that road.
The Chair: I think others have identified that problem. It's a thorny issue for us.
Ms Torsney's going to.... It's a good thing we have gun control, because I'd like to say no to her, but I think I'll just let her ask a little question.
Ms Torsney (Burlington): It's just a little question.
The Chair: Sure.
Ms Torsney: Since you raised this issue of adult responsibility, I just wanted to know if UBCM's position is that 16-year-olds will be voting in municipal elections in the next round.
Voices: Oh, oh!
Mr. Wallace: The responsibility for that is with the provincial government.
Ms Torsney: But is it your position to advocate for that?
Mr. Wallace: As far as advocacy is concerned, we've left that with the provincial government. The age at present is 18. If they wish to lower it for whatever reason, that would be their accommodation. As far as voting is concerned, if I had my druthers I'd let everybody vote.
The Chair: I want to thank you. I'll tell you that whether people agree completely with you or not, it's been an excellent presentation, very well thought out, and we appreciate your contribution. Thank you.
We'll stand for a minute until our next witness is ready. We have to take little breaks, because we have to go about 40 miles to the facilities, so....
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The Chair: Could we get back to the table, colleagues.
From the International Centre for Criminal Law Reform and Criminal Justice Policy, we now have Mr. Daniel Préfontaine and Mr. Yvon Dandurand, who have moved to lotus-land from Ottawa.
Welcome.
Mr. Daniel C. Préfontaine (Director, International Centre for Criminal Law Reform and Criminal Justice Policy): Good morning. Thank you.
The Chair: I know you have some remarks you'd like to make, and then we'll have questions for you.
Mr. Préfontaine: Thank you very much. It's indeed a pleasure for Professor Dandurand and me to be able to come and share with you some of the information we have been able to accumulate over the course of the last many years.
First, I should indicate that we have not prepared a written submission, which we would normally do, simply because there was just too little notice to do that for you. Nevertheless, we certainly are prepared to assist the committee.
If you do have some additional inquiries you'd like us to make for you, particularly in our role as a United Nations-affiliated institute and our connections with the organization of the United Nations in Vienna, the crime commission and crime division....
Let me say first that our purpose is not so much to offer you any recommendations today, but rather to relate to you some of the conclusions we have identified on the relevance of international standards, and the expense of other countries with respect to the area of juvenile justice.
As with everything else, it doesn't sit in isolation. It's connected to many other concerns at the international level. Then, in turn, the member states of the United Nations have to look at these in the domestic context.
Let me explain a little about the International Centre. I've left you a brochure and our annual report. We are a not-for-profit organization that is supported by a number of partners. These includes the University of British Columbia as an institution; Simon Fraser University; an international society called the International Society for the Reform of the Criminal Law; about 300-some-odd jurists and others, professionals in the business of administration of justice in 32 countries; the Government of Canada, which supports us in an indirect way through their financial assistance and the provision of some of their experts when we need them for our bilateral programs; as well as the Government of British Columbia, particularly through the Attorney General's department.
We also have foundations that support our work, but we are an independent, not-for-profit organization affiliated with the United Nations as a network of institutes that helps the United Nations implement standards, provides technical assistance and advice, and helps different countries change their justice systems and modify the administration of their justice systems.
All right, so much about the centre; we would like to bring the international standards to your attention. In the event that you have not had an opportunity to take a look at these, we would highly recommend that you have your staff do so, and that you ask the Department of Justice and other departments, as well as those provincial governments that are concerned with these standards, to let you know more about them.
I'm just introducing them to you today, in the event that this hasn't been done. In our capacity as an International Centre for Criminal Law Reform and Criminal Justice Policy, I think it's appropriate that we do that.
What standards are we talking about? Well, we have a number of instruments that exist. I'm sure you're familiar with a number of them: for one, the 1959 Declaration of the Rights of the Child; second, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, also known as the Beijing Rules, because they were drafted in Beijing back in the mid-1980s, and they were formally accepted in 1985; the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, and those relate to work that was done and passed by the General Assembly in 1990; and the final set of United Nations Guidelines for the Prevention of Juvenile Delinquency, called the Riyadh Guidelines.
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You have baselines there. They are what we say member states of the United Nations should do if they are to be living properly, if you will, as good members, good citizens, of the international community.
Having said that as a country they would accept to implement these, they should then make efforts to do so, both in legislation such as the Young Offenders Act and in different pieces of provincial child welfare and youth protection legislation that we have and, more particularly, in the day-to-day administration of the laws.
You also have the more important, broad instrument called the Convention on the Rights of the Child. I would draw your attention to articles 37 and 40.
Now, there are some very good materials that have been published by Multiculturalism and Citizenship Canada on the Convention on the Rights of the Child. I would give you my copy, but it's the only copy I have, and I'm sure you can get hold of it. But if you haven't already done so, I would recommend that you look at that -
The Chair: We have.
Mr. Préfontaine: You have, okay. I'm speaking particuarly of articles 37 and 40. They do again repeat what we should be doing, and they endorse the rules I've alluded to.
I will leave with you a very good publication of a United Nations group of experts, of which Professor Dandurand is a member, representing the International Centre. This group of experts has looked at what needs to be done by member states in terms of complying with the minimum standards and guidelines. I will leave it with you; I have an extra copy here.
There is a number of articles there that will tell you very briefly what we are talking about. So I will table that - whatever way you do this now - as exhibit whatever, and I'll leave it with you. I'll hand it to your clerk or one of your researchers.
The Chair: Thank you.
Mr. Préfontaine: If you don't my saying this, you should particularly look at page 93, which talks to juvenile justice standards and norms and tells you what this means in terms of the day-to-day implementation of the different standards and rules. There's everything from saying you should separate young persons from adults.... And I must tell you that what you will find in the Young Offenders Act reflects what subsequently was put in these rules.
What am I talking about? Remember that the Young Offenders Act in the transition period from the Juvenile Delinquents Act was a process that started basically in 1961 when John Diefenbaker called for this report to take place, and then it went through a process until 1982 to see the emanation of the present Young Offenders Act, and the amendments that have taken place over the years.
In 1985 when the Canadian delegation was in Milan, we were already saying these are the kinds of things that should be on the table and should be enshrined by the United Nations as minimum rules for the administration of juvenile justice.
One has to be careful that we don't get people saying, oh, we put it in the Young Offenders Act because the charter requires us to do that. Well, the charter comes to endorse in fact what was already put in the Young Offenders Act back in 1982. I just thought I'd make that point, because it does get overlooked from time to time.
Of course, the standards I'm talking about are part of a larger number of standards. I think you must also look at the Convention on the Elimination of All Forms of Discrimination against Women. You must look at the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, and at several other instruments, the treatment of standard minimum rules on the treatment of prisoners.
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I will again table with you a compendium of United Nations standards and norms in crime prevention and criminal justice. It has all these things in there, and clearly you will want to look at some of this, so that it would be relevant in the broader context. You can't look at this in isolation and say it's just the Young Offenders Act, or it's just the minimum rules with respect to the administration of juvenile justice.
You must look at the others to see the interlinkages. Of course I presume you're doing that, and I don't mean to be pedagogical here, but I think it's important that I just put that on the table in our role as an international centre trying to implement, and promote the implementation of, standard minimal rules.
Canada, of course, has been quite good - even better than quite good, if I can put it that way - as a country promoting the standards writ large, and in fact it has made reports. I would suggest that if you haven't already got your hands on some of Canada's reports, there are two or three in particular that are very instructive in terms of what we have achieved in the international community, in the international context, in implementation and practices at the provincial and territorial levels.
They include a report that.... I can't recall now if it was published. There was one in 1988 that the Department of Justice prepared. It was Canada's report on the implementation of the Beijing Rules, the 1985 rules on the administration of juvenile justice. There has since been another report, but I've been gone for some time now, so I haven't been able to find out when.
There is a more recent report that is very helpful as well. It's Canada's July 1994 report to the Committee on the Convention on the Rights of the Child. I think it speaks a lot to what you have to look at in terms of prevention, education, schools, community, the kinds of things that have to be in place in order to make the law work.
If I may say so, in most of the countries we look at, the laws always look very good and they're usually quite solid. It's when you get to the implementation that you run into difficulties, particularly in federated states where you have difficulties from place to place, and in our country, province to province, because of the differences we must recognize in our federation.
We have had a chance to review the official reports of 58 countries in the United Nations Committee on the Rights of the Child, and my colleague Professor Dandurand will speak to those in a moment.
One of the things most of these reports call for is the continuing test of the best interest of the child, and protection of the child's rights is paramount. There are exceptions, and we see those exceptions in the Young Offenders Act, in the transfer provisions, where the recent amendments do call for the protection of the public to be paramount. That's consistent. It's not inconsistent, because there is flexibility for different types of societies and different types of situations that have to be accommodated.
Again, on the issue of the minimum and maximum ages, there are words in these standards that they should be under 18, but you can and must have exceptions to deal with the difficulties and different types of offences that have to be taken into account.
I think I should probably stop here. I'm going to let my colleague take over and give you a bit of the flavour of some of the research and synthesis he has done over the last several years.
Mr. Yvon Dandurand (Counsellor, International Centre for Criminal Law Reform and Criminal Justice Policy): Thank you. I suppose many people in various countries are looking to international standards as something that might solve their problems, very much like many Canadians look at the work of this committee and the Parliament of Canada as something that is important, because many people hope the legislative framework is going to solve their problems.
In practice, as Daniel Préfontaine has just mentioned, if you look in detail at the experience of most other countries, whether they're developed or not, the difficulty always resides not in coming up with a law, even though sometimes it represents difficult compromises to be made between various interests, but in implementing it. I think that is the one common denominator everywhere, and this is why at the international level you will have noticed.... Whether it is at the UN or at the regional level - the OAS, the Commonwealth, the Francophonie or whatever - you will have seen less time spent on new standards and a whole lot more time spent on trying to make them work, whether it is in the area of justice for victims of crime, the area of juvenile justice, or criminal justice in general.
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Daniel has talked about the international standards, and unfortunately, because those tend to be minimum standards, when you look at them you don't get a whole lot of guidance. You get a lecture, so to speak, on those things that a state is not supposed to do. Basically the logic behind that is that these rules are there to prevent abuses of power and to protect the rights of young people.
Now, there is one noticeable exception, and I'd like to draw your attention in particular to the Riyadh Guidelines. This is a little different, because the Riyadh Guidelines of December 1990 are actually offering advice. They are not standards per se, but they are offering advice.
You might want in particular to look at part I of those guidelines, which deals with the fundamental principles, which in the spirit of that declaration should inspire state intervention in the area of crime prevention. You will find words such as ``the well-being of young persons from their early childhood should be the focus of any preventive program''. So focus on the child. You will find words such as ``a child-centred orientation should be pursued''. You will find words such as ``official intervention ought to be pursued primarily in the overall interests of the young person and guided by fairness and equity''.
Now, even this approach, even though you find it in the Riyadh Guidelines, is far from generating a perfect consensus even within the international community. A more recent report by the United Nations experts' group meeting on children and juveniles in detention has adopted actually a quite different approach, saying that it should not be a child-centred approach but a rights-centred approach. Basically they are advocating that in trying to promote the welfare of the child, what should dictate your decision is not so much the needs and interests of the child but his rights. So you come to a situation where very often you are prepared to sacrifice the child and his needs in order to protect his rights.
Now, of course it's always a difficult compromise for any society to make in terms of the approach, but I believe there is a growing consensus, certainly in many other countries and in the international community, that if we want to make a difference a lot of our intervention in the area of juvenile justice will have to be centred on the child and not so much on the incident. In criminal law the tradition, of course, is to focus on the incident, on the crime, and if you stop and think about it you will see that both approaches have very far-reaching implications.
Now, I know this committee is going to look at, among other things, the adequacy of the principles that are contained in the act. One could make comments about how many there are and how confusing it might be at times for people to understand how these different principles are supposed to work together. But perhaps a more appropriate question here is not whether we have the right guiding principles but whether we provide a clear focus for our intervention.
Now, if you oppose our different statements in our Young Offenders Act to what you may find, for instance, in similar legislation in New Zealand, you will find that in other legislation in other countries, New Zealand being an example, you have a very clear statement of what the focus of the intervention ought to be. You will find, for instance, a clear statement to the effect that controlling crime is not something a youth justice system can do; controlling crime is something that a society can do, that a family can do, that all kinds of other institutions can do. But what the criminal justice system, or our official answer, can do is provide an appropriate response, one that will be used as an opportunity to teach the child about responsibility and to exemplify how we want to deal with each other.
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Now, if you look at some of those standards - I'll be brief; I know we have used a lot of time - in relation to some of the issues that are being considered by the committee, you will note that the standard minimum rules do not say a whole lot about the standard minimum age or the minimum age for criminal responsibility, and that is largely because countries could not agree on what that minimum age should be.
If the committee does not already have this information, we can copy some information for you about the minimum and maximum ages currently enforced in most European countries. It is out of a report we received from our sister institutes, HEUNI in Helsinki, and we can leave that as well with the committee.
The other question is the one of maximum age.
Mr. Préfontaine: I wonder if I could add that what you will find is that there are very few countries where it is lower than 12. Where it is 10, there's a test, and where it's sometimes even lower, there's a full-blown test that has to be gone through to determine that what they call the age of discretion has been reached. We'll table this with you for your information, and you will see that usually it's 12, 14, 13.
You have the odd one. The U.K., for example, has a 10- and 14-type of structure. Another one is Switzerland, which has 7 and 15 and a very different way of looking at how it should be done.
So it's not as if it can't be done. You'd have to look at it in the context of our charter, too, as you know.
Mr. Dandurand: When you look at the experience of all countries, age is a very problematic factor. You will see that countries have struggled with the problem in one way or another. They've all come up with their own response, but basically age provides a very rough criterion in terms of dictating or helping us determine what kind of response to crime we ought to give as a society.
This is true of the minimum age, and this is why there was no consensus. There still is no consensus within the international community in terms of minimum age.
It is also true of the maximum age. In terms of the maximum age, of course, the convention provides that 18 is the age under which a person is a child, for the purpose of the convention, but you will find that in terms of criminal justice systems around the world, the maximum age also varies considerably.
This is the case even within a country. We have a copy of a survey that was done by, of all groups, the National Rifle Association, although the document provides a very useful compendium of waiver statutes in 50 states and the District of Columbia. This is something, too, that we can leave with you. What you see there is a very confused country in terms of the maximum age. When you look from state to state, I guess what you would find, certainly in my opinion, is that each state legislature has been struggling with the issues.
Now, if age is such a problematic criterion, and Daniel alluded to the fact that many states now are going for a hybrid kind of system where age is a criterion, but only if it is qualified for certain offences after a certain test, and so on. If age is a qualified criterion, what should we use?
Well, you will find a lot of people increasingly suggesting that we should use the seriousness of the offence, and this is something we're borrowing from the adult system. If it is a serious crime, treat it one way; if it is not, treat it another way. That also flows from the logic that says the system is there to respond to the incident, not to the individual. You can see in whether or not one applies the criterion of seriousness as opposed to the criterion of age that one is basically wavering between an incident-centred versus an individual-centred approach.
Now, there is something that has to be said, and it is beginning to emerge in various research and reports to which we have access. That is that although it might provide some kind of reassurance to the public, the seriousness of the offence is a very dangerous kind of criterion to use when it comes to young offenders.
Why is that so? Well, when you're dealing with young offenders, one of the single most important determining factors of future recidivism is what you do in the first instances - whether it was serious or not, how you react to the first incident. Any parent knows that. It is not the first time the child takes away some coins from his mother's purse. It's not whether it was 50¢ or $50, really; it's the fact that it was the first time, and the child's future behaviour will be largely guided by the initial response.
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So to suggest that the seriousness of the offence will provide the most important criterion for determining what we ought to do basically flies in the face of what we know about child behaviour, education and teaching responsibility to children.
There are a lot of other items covered by the international standards. If I could touch upon it briefly before I conclude, one is privacy. If you looked at section 8 of the standard minimum rules, you would find that the standard there is quite clear. It states that:
- The juvenile's rights to privacy shall be respected at all stages in order to avoid harm being
caused to her or him by undue publicity or by the process of labelling.
- In principle, no information that may lead to the identification of a juvenile offender shall be
published.
The problem with privacy, as you will have noted from my quoting the standards, is that privacy is defined mostly in terms of the publishing of information on the young individual. There is another consideration that must be addressed, and that is to what extent privacy - disposition of a particular legislation - will prevent the mobilization of the community in order to give an effective response.
I know some of that has been addressed in Canada through fairly recent amendments to the act, but the problem remains. It remains, because if we all agree that the challenge largely lies in implementing the law and giving it full strength, what lies as an obstacle to that full implementation?
One obstacle, of course, is resources. Not only in Canada but elsewhere, most countries are looking to communities as the level at which the intervention should be centred, and they are looking at community resources as opposed to government resources in order to make a difference.
In order to mobilize communities, it should be obvious that what is required is to allow communication among the people who are supposed to play a role. And to the extent that any privacy provisions are deterring effective communication among actors, this can create a problem.
I have one last point about privacy, and I will refer to the submission made by the previous witness, who was talking about the fact that in a small community people know about the offence and the offender.
Now, what is oftentimes overlooked is that they don't know about the disposition. They do know that someone has committed a crime or some offence. They know that the kid was picked up by the police. They also know that the kid was released the same day. They then typically do not find out what was done, thus creating the impression that nothing was done.
I promise this is my last comment. Just to emphasize the question of early response, in reviewing the material we had we were quite impressed by the submission that has already been made to this committee by the National Crime Prevention Council. In looking at it and in looking at what is being proposed by other similar groups around the world, we believe the work of that particular committee of the National Crime Prevention Council really stands out as one of the most promising ones.
In looking at this, we note that of course it emphasizes the importance of early response, and some Canadians will say, well, that is one excuse or one reason for using the criminal justice system to intervene at an earlier age. The point we're trying to make is that you don't need the criminal justice system to intervene at an earlier age to make a difference, but you have to be clear about what you're trying to do.
A year ago a study was done in British Columbia on the numbers we're talking about. It was done by the Avison Research Group. Using police data, the research was looking at the cases, brought to the attention of the police, of kids who were under the age of 12.
The estimate based on police data was that there were 3,500 cases in 1994. Out of those, 729 under section 15 of the new Child, Family and Community Service Act of British Columbia would normally qualify for the police officer to report these kids to the youth protection director.
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We're talking about 22%. Some people will say let's focus on those 22% of kids who committed a serious offence. I submit to you that perhaps this is a mistake, because in your youth justice system you're going to find the other 75%, or a great proportion of them, if you don't focus, under the age of 12, on all those kids who come to the attention of the police.
The current system is that if the offence is not serious, we provide no response. That is also true of part of our response under the Young Offenders Act. Now, I'm not saying that a response is punishment, but I'm saying that every crime is a serious matter. If it wasn't, it wouldn't be a crime in our society. To suggest to its children, whether they're under 12 or over 12, that their behaviour is serious but not serious enough for us to do anything about is a serious mistake on our part.
I will conclude here. Thank you.
The Chair: Thank you very much.
Mr. St-Laurent, do you have some questions?
[Translation]
Mr. St-Laurent: On the role of the prisons, how do you see the current incarceration, from the research and the work you are doing? Is it appropriate to keep the prisons as they now are, with their limited effectiveness, or should we simply turn towards some other option, a bit more modern, that is more responsive to the current needs?
Mr. Dandurand: I presume you are talking about prisons for adults?
Mr. St-Laurent: Yes, of course.
Mr. Dandurand: The International Centre for Criminal Law Reform and Criminal Justice Policy has been involved for close to two years now in an international project aimed at modernizing correctional systems around the world. Everywhere in the world they are giving more thought to the issue of alternatives to incarceration.
Of course, when you look at the statistics on their face, Canada looks like one of the countries that uses imprisonment most often. But sometimes those statistics can be biased to some degree, given the way in which they are gathered.
I will reply to your question with a ``yes'': using our prisons otherwise is a priority. It is a priority as well for another reason: the prisons are expensive and there is cause to allocate these resources to other, more promising models.
Mr. St-Laurent: What is your opinion on the minimum age? You no doubt have some data on that. At present, it is 12 years of age. Should we go lower or is that sufficient?
Mr. Dandurand: Between 10 and 14, the problem is not so much the barrier you're going to put between the two but rather a problem of coordination between the child protection services and the youth justice services.
It is possible, in both cases, to respond to the youth's conduct in a completely adequate way. In my opinion, the Act is adequate at this point.
The issue is whether in some cases, such as murder, the Act should include a red flag to signify to those involved that this is a question that requires greater attention than the more usual criminal conduct.
I start with the premise that committing minor crimes is normal conduct among most children. This is not a perspective that everyone shares, but if you look at the international statistics on reported crime, you realize that it is normal, in a given population, to find that 30%, 40% or 50% of the young people have been involved at least once in conduct that the society defines as serious criminal conduct.
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If we start from that premise, we take this into account when developing our response. The issue is whether we respond adequately when such normal conduct occurs. Very often, unfortunately, we don't respond in the right way because we tend to think that the initial conduct is not important or that it is not important if the crime is not considered too serious. In terms of education, the first manifestation of the conduct is absolutely crucial. The first response is crucial.
Mr. St-Laurent: You spoke of the coordination of services as an attractive alternative, because basically you mean there is a lack of such coordination.
Mr. Dandurand: A huge lack, and that has already been brought to the attention of this committee, through a comparison with what is possible in that area in Quebec and in British Columbia.
There have been some interesting indications in British Columbia since the establishment, a few weeks ago, of a new child and family ministry which, we are told, will develop an integrated approach. For the time being, it is a promise since the ministry was created only a few weeks ago.
In my opinion, it is a very promising indication, provided the provincial government proceeds with a second stage in the implementation of that legislation, with the integration of the services not only in Victoria but at the level of the communities as well.
The second stage of implementation would be decentralization, and I tend to think that the Quebec approach can serve as a model to a number of other provinces.
Mr. St-Laurent: Thank you very much.
Mr. Préfontaine: Less than 2% of the offences are committed by children under 12.
At some point, you have to look at the whole issue in the context of the number, and the offence as well. If it is very serious, you can't take the liberty of continuing to rely on the Youth Protection Act or the Child Protection Act in the various provinces.
Quebec's Youth Protection Act does some extraordinary work. They are trying to coordinate the services to treat the child's problem in its entirety.
[English]
The Chair: I would like to remind people who are participating and who are in the audience that if you have a cellular phone it should be deactivated. It's very rude to our witnesses to have a cellular phone go off in the room. There is a sign posted on the door. Thank you.
Mr. Ramsay, you have seven minutes.
Mr. Ramsay: Thank you, Madam Chair.
I'd like to thank our guests and witnesses this morning for their presentation. Much of what you have said is very interesting to me, and I think it will be beneficial and helpful to the committee.
We have, of course, been hearing rather repeatedly during our tour of Canada of the need to re-empower the communities, the grassroots communities, to give more resources and authority to the grassroots level. We heard the last witnesses, who represent the local governments here in B.C., come forward not only with a well-balanced presentation but also with programs that are working very well within the province.
Rather than a need to go beyond Canada for an idea of what to do about some of our youth problems, there is also the indication that we have to go the other way as well. As our witness from the last panel said, it doesn't matter as long as it works.
I share the same view. It doesn't matter to me what the program is, as long as it's effective.
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So I'd like to ask you, from the international perspective, if you have any examples of countries that are successful in dealing with their crime rate, or do you even have any examples of groups within societies that are successful? As you know, in Canada we have the Hutterite colonies that are very successful in at least the crime aspect.
As a peace officer, I remember we always had Chinese families in the small communities, and they were never involved in crime; I can't remember a complaint.
Do you have any international examples we could draw from that are working? Perhaps you could leave a testimony on this with the committee. We could perhaps have a look at that, and it might be suitable for our situation here.
Mr. Dandurand: I think no, unfortunately, in terms of a conclusive example. There is definitely a trend in many countries to try to find such programs. Of course, it's one thing to try to find examples that work in small communities or in small segments of the community; it's another thing to try to invent models that would work in complex rural or urban areas, and so on.
I didn't mention that because it's not totally related to the international context, but I am also involved in a local project here in Abbotsford, which is called the Abbotsford Community Sentencing Project. I will use that to perhaps give a word of warning. I totally agree with you, sir, that much of the impetus for change is not going to come from Vienna, New York, or whatever; it will have to come from communities.
In the case of Abbotsford - and you will hear the same thing from Maple Ridge or other groups - what is underestimated is the time it takes to develop those things. To develop a different approach at a community level, you need a long-term investment in that community.
In the case of Abbotsford, it took a whole year of consultation with the community and various actors - official actors and informal actors in the process - to get agreement on an approach. So it basically requires a long-term investment. I haven't seen any leadership so far in terms of supporting those communities.
I believe that what may work for a Chinese community you mentioned, may work for a northern community, might work for a small Italian community near Montreal or whatever, may not work for Abbotsford or for Chilliwack. I think the emphasis there is to empower communities to find what their problem is and what they want to do about it.
Having been involved recently as a resource person in the Abbotsford group, I found that really there are no resources. All they had to do - all the actors involved in that project, from the judges to the prosecutors, everybody else - was use their Saturdays and their Sundays and meet in somebody's basement, or basically there was no resource to support the project.
Everyone is enthusiastic about it, but when the community decides to do things differently, when a community comes to the realization that there has to be a better way, there should be some support, some help, provided to that community, in terms of making it feasible.
There's one thing I found really interesting. I don't know if the committee has already seen it, but I just finished reading Rupert Ross's second book on returning to the teachings, where he described the experience of native communities. He has a word of warning there that I found important: when it comes to empowering communities, one has to make a distinction between empowering communities to punish or empowering communities to make changes.
You will find that in some communities, at first when they're told they should be empowered and should have a right and a role to play and so on, they really have this vision of, oh, finally we'll get control over the handles here, and we're going to be able to really come down on crime. That's what takes so long to develop. You have to basically do a lot of developmental work with that community to help that community identify the source of its problems before you can turn that power over to a community.
I know there are models such as community courts that are popular, not only through sentencing circles but also in the United States and in other countries, but they're a two-edged sword.
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Mr. Ramsay: Yes, I understand that.
The Chair: You have 30 seconds.
Mr. Ramsay: Well, I'll just close off. The vast majority of the presentations we've heard from the communities have come from the point of view of their care and concern about their children. So rather than there being an overbalancing on the punishment side, I sense from what I have heard that if there is an imbalance at all, it would be on the side of the care and compassion for their children.
I want to thank you, and I'm out of time.
Mr. Préfontaine: I wonder if I might just answer in terms of information. There is a recent publication - which we will get for you, and send to the committee - from the Office of Juvenile Justice and Delinquency Prevention of the Office of Justice Programs of the United States Department of Justice.
It does give a whole series of examples of what - ``seems to be working'' maybe is not the right term - is being attempted, including some very interesting types of intervention programs in Massachusetts and in Vermont, in the eastern part of the United States. These try to deal with the whole issue in a community-based type of approach.
So we'll get that from them and have them send it to you, or I'll get in touch with your researcher and they can get it for you.
Mr. Ramsay: Thank you.
The Chair: Thank you.
Ms Torsney, you have seven minutes.
Ms Torsney: Thank you. The beginning of your presentation was very interesting, because it set some context for looking at international examples and our responsibilities as an important international player. In terms of defining those norms, of course, our impact, higher or lower, would affect the norm.
My goal here is to try to figure out how we can have fewer people become victims and how we can have fewer crimes committed. So when I look at some of that stuff, it's very interesting, but sometimes I'm not sure exactly what it means.
Having listened to people across the country, particularly here in B.C. and in the Yukon, I wonder about some of the problems, how we really rate internationally. I'm very concerned about a couple of things, for example, the rates of incarceration for young people. Of course, the norm must get very much skewed upward by the fact that we have the second highest rate in the world for incarcerating young people, and consequently by the fact that there aren't as many diversions or alternatives for young people as there should be.
The criminalization and incarceration of aboriginal young Canadians is more than extraordinary. It's devastating to the community, and I think it's a blight on Canada.
Finally, yesterday we heard from a lot of facilities that said, look, we do good work, we bring some control, we establish some counselling, we work on some of the problems, but when the children leave here there's no post-custody support. And yes, that's why we have reoffending, because there isn't the support. So I wonder what you say to that.
I guess the last thing - just so that I can let you talk on - is my concern that we've heard many groups suggest to us exactly what you identified, that the focus should be on the children, not the crime. But in fact most of the groups that advocate changing the age advocate changing the age in a specific instance where the crime is more serious.
I wonder why to them that isn't an example of why the social services response has failed, that we've abandoned the children who are much younger. For these kids, their first crime often isn't the 57th car theft. It is really acting out in school, it's inappropriate behaviour, it's really the 5¢ that came out of their mother's wallet that no one realized, or no one dealt with appropriately.
Aside from the justice system, we must start intervening earlier, deal with our young people in a more appropriate way, and prevent those victims from being victimized in our community.
Now you get the rest of the time to talk.
Mr. Préfontaine: I'm just going to say a couple of words about the law, and the structure of the law that's in place at the federal, provincial, and territorial levels. If you are looking at the law as a way to deal with interrelations between members of our society and the law in terms of how it will deal with people who can't follow the norms and the rules, then I believe the Young Offenders Act as a federal piece of legislation has reached a balance.
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It will need continuing adjustment; every law does. Let's not kid ourselves that you make a law forever, but you have struck a balance in terms of what it's attempting to do. It reflects what is broader and more important, and that is the way that we as a society put values on bringing up our children and the kinds of principles we want our children to have and how we want to live in a peaceful society.
My colleague is much more astute and knowledgeable than I am on the part you're asking about, because I tend to be the legal framework type of person. I think you have a good framework here, at both the federal and provincial levels. It may need some more fine-tuning, but that's not where the issue is.
Mr. Dandurand: You touch upon many things. It is not a coincidence that the majority of Canadians are not happy with the current response; there has to be something wrong with it.
What are you looking at? Well, you're talking about prisons, incarceration for youth, right? If you talk to judges and prosecutors, for instance, they'll tell you in many cases it's because there's no alternative. So a lot of it has to do with what alternatives there are.
We have those long lists of principles and criteria and all those things the judge is supposed to consider, and all of that is supposed to come together when he picks a measure out of a hat. Well, if you look into the hat, there are only two or three real measures in his community. There's probation - and the last time I looked, the statistics in Canada show that somewhere close to three-quarters of the kids, of the dispositions, are probation - and then there's incarceration.
Of course we don't look so good when we compare ourselves to other countries when it comes to rate of incarceration, but look at probation. Probation is even worse. If you actually look at what happens when a kid is on probation, in many cases it amounts to no response. So we go through this whole thing, this involved process of rights and lawyers and legal aid, you name it, and then the conclusion is that you're placed on probation.
Stand at the door of a court as the kids come out and guess what the most frequently heard statement is going to be. It's a joke. You hear that and it's almost unanimous. You can predict it. You know that as this kid walks over that step, he's going to say the whole thing was a joke. Of course, a lot of people say if it's a joke, we're going to make sure it's not a joke. We're going to increase punishment. A lot of people say that, and that is not the answer.
The problem is that a lot of people cringe when you say we should intervene earlier. Why? Because the response so far is so screwed up. They say, well, at least protect those kids under 12 because if you're going to come and start messing up their lives the way you're doing with the kids between 12 and 18, you'd better stay away.
In British Columbia, 3,500 kids will come in contact with the police before the age of 12. The other way of looking at it is that if you don't deal with it, you know you're going to have a problem on your hands between the ages of 12 and 18, and you know you're going to see them again as adults. So I believe there's a huge case to be made for early intervention, as long as we define clearly what our purpose is in intervening and what it is we're trying to achieve.
In a way maybe, hopefully, Parliament in Ottawa can come up with a purpose, but more realistically, as suggested earlier by a member of the committee, the answer of what we're trying to achieve within a legal framework is going to be a question we'll find an answer to at the community level.
I have another point on intervening earlier, and this one is not based so much on my international experience as it is on my local work. I know the committee will be looking at parents' accountability. Well, when you look at early intervention....
I have had a chance to review about 100 case stories of young delinquents who were basically making crime into a career. I looked at those and then I searched back in my own experience when I used to work in the youth justice system, and I couldn't remember one case where the parent, no matter how incompetent they were, had not asked for help at least once, if not fifteen times. They often asked at the level of school counsellors. Well, they're not there any more. We're cutting back on those.
There's nothing in social services. I get phone calls at the university from people asking where they can get free counselling, free help. They can't get it. I don't have an answer to give them.
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So when we're talking about accountability and early intervention, there's an easy solution. Listen to the parents. Listen to the school teachers. They know which kid is in trouble. They can tell you. The problem is the lack of resources.
We're devoting a lot of our resources to prisons and probation, yet we know both of those measures are not effective. How do we rechannel or redeploy our resources? I would suggest not by trying to do it at some central desk somewhere but by empowering communities to identify their own priorities and to actually double their resources. Most communities have untapped resources they can devote to the task if you mobilize them, right?
Ms Torsney: The only thing you didn't touch on in your response was aboriginal youth and how we rate compared with the rest of the world.
Mr. Préfontaine: We have not in our aboriginal justice project looked at the numbers, but we do know that in terms of New Zealand, Australia and the United States, Canada seems for some reason, in certain parts of the country, to be close to or about the same as Australia.
In New Zealand they have started to get a handle on it through an innovative program called ``family conferencing''. They involve not just the family but also the victim, the police and the community representative. The judge brings them together and says, we have a problem we'd better deal with here, and how do we go about doing it? It seems to be working for them.
Last July 1995 we brought together six different countries with aboriginal justice difficulties and issues they are trying to deal with, and shared experiences. A lot of people now want to look at family conferencing. I believe the aboriginal justice directorate in the Department of Justice is having some of their people look at it with some of the native communities. It tends to say, however, be careful; this may not work for you. Something else may work for you, including the sentencing circles or the prevention, not after the fact, type of approach. You're going to have to deal with all the long-standing problems on your particular lands and in your communities - high levels of poverty, high levels of unemployment, bad records on education, health problems and so on, the things we all know about.
The other issue tied to this is the civil/criminal responsibility of parents for the criminal acts of their children. If you haven't had anybody talk to you about that issue - and I presume you have - I think you could look at New Zealand, and in legal terms, be careful of civil versus criminal and individual responsibility in the tort-type responsibility we as lawyers all know about in our system.
You might want to look at the 50 statutes in the United States that have laws that hold parents civilly responsible for some of the acts of their children. You might want to look at the school board act of British Columbia, which says the school board can go after the parents for the vandalism caused to a school. If I'm not mistaken, one of the cities or municipalities collected $700,000 from parents for damages caused by their kids to school property.
Then there's the whole issue of vicarious civil liability versus vicarious criminal responsibility. I would ask you to look at and have some research done on the New Zealand and Australia models, where, when a child under the age of 14 commits an offence, the court can be asked whether to impose costs and restitution on the parents. I haven't had a chance to take a look at our restitution provisions, but I think it might be possible under the current Young Offenders Act. I don't know whether that would cause a problem.
You'd have to be careful you don't attribute criminal individual responsibility to the individual. Under the youth protection acts and some of the school board acts there might be some opportunities there to...what, you're blaming parents here now, or are you trying to get back some of the damage that's been caused? It's a restitution concept, and it's tied to this whole problem.
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Ms Torsney: Boy, if I were one of those parents who'd asked one or fifteen times for help for my child and then was dinged by you to pay for school board damage, I'd be furious. I'd probably ding you for damaging my child - a counter-claim.
Mr. Dandurand: I don't think Daniel was suggesting this is the way to go. He was trying to be helpful with some suggestions. In terms of whether or not this is useful, when we discussed it last, unless he's changed his mind, we agreed that we are very comfortable with the position taken by the Crime Prevention Council that we have to raise the responsibility of parents, but using them as scapegoats is not the solution. Rather, taking any measures to help them act responsibly, not making the assumption that they don't...because in practice, it is not the case. Most parents, even the incompetent ones, have tried.
If we're going to talk about accountability - and the issue has come up here in terms of child protection in this province - should not the people who are presumed to offer those services be held accountable, such as school boards, school principals, teachers, counsellors, or people who have failed to provide assistance and a response?
So I don't think we were suggesting that this is something we want to promote, but if you are going to look at it, there are some avenues.
Mr. Préfontaine: Exactly. I'm glad you responded the way you did.
Our intention here is to give you information about what we have seen elsewhere, not to tell you that's what we recommend you should do. On the contrary, if it came down to it, I personally would say, boy, do I have problems with this. For your purposes, what I think in terms of whether or not you want to have parents held responsible is irrelevant. It's an example of what is being done elsewhere to deal with who should pay versus who should be punished, that type of issue, in the political spectrum.
Boy, you can get a lot of people on your political side, I think, if you say we should go after parents and make them pay for what they've done to cause us problems in our society. You can hear that argument being made sometimes. I'm not passing judgment on that, either.
The Chair: Thank you very much for your contribution. We appreciate it. We also appreciate the documents you've brought for us.
Mr. Préfontaine: Thank you.
The Chair: We'll rise for a few minutes.
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The Chair: We're back on the record. When I was practising, His Honour Judge McMahon used to call me ``the late Mrs. Cohen''. It seems to have translated to my political life, as well.
I want to welcome, from the Canadian Bar Association, Ms Bennett.
I understand you have a brief to present.
Ms Elizabeth Bennett (Vice-Chair, National Criminal Justice Section, Canadian Bar Association): Thank you very much. It is the pleasure of the Canadian Bar Association to be invited to be involved in this process.
The national criminal justice section of the CBA is comprised of both prosecutors and defence lawyers throughout the country. The young offenders brief, which we will have in your hands within the next week, I hope, was prepared in consultation with those lawyers across the country, including submissions from the Northwest Territories, British Columbia, Manitoba and Ontario, primarily.
Just so you know where I am from in terms of my experience, I spent 12 years prosecuting, 2 years with the defence bar, and I'm now back as an employee with the Ministry of the Attorney General for British Columbia. I am their senior appellate counsel and thus have not been in the trenches, if I can use that word, for more than 10 years. However, I have both prosecuted and defended young offenders. Prior to going into law, I worked in a young offender institute, which we now would describe as an open custody facility, in Langley, British Columbia, as a tutor.
Thus, I may not be well versed to answer any detailed questions with respect to the Young Offenders Act - it's not currently my area of practice - but I will certainly try to respond as best I can, given the brief I will be presenting and the experience I have.
I should also tell you that I'm a mother and a hockey coach, so I have considerable involvement at the ground level, although not necessarily in the criminal justice system.
The current review of the Young Offenders Act by this committee, in our submission, must acknowledge the highly charged public debate resulting from a few sensational cases involving young offenders. We recognize the need to ensure that serious crimes of violence committed by young offenders are prevented. However, public outrage to isolated, albeit abhorrent, crimes should not be equated with evidence of the need for harsher legislation.
The law has long recognized the need to treat young offenders differently from adults. Any further amendments to the Young Offenders Act should, in our view, remain committed to these principles.
There are many causes of youth crime. Using the Young Offenders Act as a panacea is a tempting, but only short-term, solution. The long-term solution must be to have young offenders turn their lives around and become productive members of society. This solution can only be found in a thorough analysis of the contributing causes of youth crime. Merely changing the laws dealing with young people in the criminal justice system will not reduce crime. In the view of the bar association, we must also change the manner in which the justice system deals with youths.
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The government appears committed to change. The first review dealt with greater punishment for violent crime. In our submission, the rehabilitation aspect should be the focus of the second review.
The Young Offenders Act enacted in July 1982 was the result, as you are all aware, of more than 20 years of deliberation on the reformation of the juvenile justice system. The major overhaul was hailed as a revolution in the Canadian juvenile justice, replacing the child welfare model of the previous Juvenile Delinquents Act.
I had the opportunity a year ago to attend an international conference dealing with youth crime. Going from the welfare model to the current justice model is something that is consistent with many countries. Those countries are now moving to a restorative model of justice, which I will be discussing in more detail shortly. I expect many of the submissions you've received and many of the groups you have spoken with are also speaking of restorative justice.
Approximately five or six points were raised in the mandate for the review: nature and extent of youth crime in criminal behaviour; public knowledge and attitudes about youth crime; the Young Offenders Act and the youth justice system; the Young Offenders Act itself, including an examination of the underlying issues governed by the current provisions of the act; alternatives to legislation responses to youth crime, such as how the government can more effectively prevent youth crime by tackling the underlying causes of poverty, family violence and drug abuse; the relationship between youth services and young offenders; and the special concerns for aboriginal youth.
Phase two directs a broader review of youth justice issues than that contemplated by the Young Offenders Act. It demonstrates an appreciation that many of the issues that bring young people into conflict with the law are not purely criminal in nature. Addressing the problems of young people in conflict with the legal system requires a global approach to help them become better adults. Our association applauds the interdisciplinary approach and perspective of this consultation. Recognizing the particular expertise we as lawyers bring, our focus will be on the legal aspects of the discussion.
In terms of the nature and extent of youth crime, in our view, the evidence to support a proposition that youth crime has been increasing over the past few years is unconvincing according to Statistics Canada. Stats Canada reports seem to indicate that youth crime is, at the worst, stable, if not decreasing.
Referring specifically to homicides, a psychiatrist and director of the Queen Street Mental Health Centre, Jeff Brooke, in an article called ``Kids who Kill'', found that there is no epidemic of homicide, nor has there been since we've been counting. The number of 12- to 17-year-olds charged with homicide in Canada in 1992 was about the same as in 1985, 1968 and 1957. The data does not support the media portrayal of rampant crime among the youth in Canada.
In terms of public knowledge and attitudes about youth crime, a few crimes perpetrated by young offenders are as sensational as the isolated cases that attract considerable media attention. Rather than focusing on the exceptions, it is more helpful to consider the broad perspective of youth problems offered by those who work with youth on a regular basis, including school teachers, youth service workers, child protection workers, doctors, counsellors, police and probation officers, as well as lawyers who represent and prosecute young people in conflict with the law. As identified by previous speakers, school teachers are the ones who can often identify, in kindergarten, children who are going to have problems.
My son's teacher, who has been teaching for 27 years, told me she had more resources for problem children 20 years ago than exists today.
We also support including young people in the consultation process as they provide their experience of and attitudes to the Young Offender Act. I would also like to add to this the people who are involved in youth in the community - for example, the minor sports organizations, children's theatre and so on - people who are dealing with these children before they commit crimes. Their views and ideas with respect to preventing crimes may be of some assistance.
Public knowledge and attitudes must be shaped by clear government statements and initiatives. The government has a responsibility to educate the community about the effectiveness and role of the Young Offenders Act. They must also promote public awareness of the many underlining challenges young people face long before they become involved with the youth justice system.
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Government resources should be used to ensure that the public attitude about youth crime is shaped by realistic and concrete data that accurately assesses the amount and type of youth crime rather than the exaggerated images exploited by the media.
To quote the justice minister, the Hon. Allan Rock, we cannot use misapprehensions as a basis for legislation. That doesn't affect just young offenders; it of course deals with any kind of amendment being made with respect to, in particular, criminal law.
I realize your time is somewhat limited and that you are running behind schedule. I will skip, if I may, to what I think is the focus, and where the Bar Association can assist this committee.
One factor I would like to raise, from personal experience defending youth, and also a very recent case where I was involved in a transfer hearing, is the urgent need for resources for young offenders who are mentally ill.
The case I had is before the court. I can't tell you many details about it. It's a circumstance where the only reason to transfer the youth was to ensure that he would have a longer period of supervision - not custody, but supervision - to take his medication. The offence he committed was serious. No one was injured, fortunately, but only for God's good grace.
He's mentally ill. All the psychiatrists for both defence and Crown said if he takes his medication, the chances of his being dangerous are significantly diminished.
So the concern I personally bring to you concerns those offenders who are mentally ill. There are simply no resources for them.
I would like to address some of the creative alternatives to incarceration for young offenders. It is the view of the Bar Association that we need to put fewer children in prison, but to do that and to achieve the protection of community, we must create alternatives. I hope to expand a bit on, and perhaps answer, the question Mr. Ramsay raised earlier regarding other programs that appear to be working.
Mr. Préfontaine spoke briefly about the New Zealand project of family group counselling. I had the opportunity to discuss family group counselling with Judge Michael Brown, the principal youth court judge in New Zealand. Judge Brown is also a Maori. Family group counselling developed out of his interest, and the interest of others, in addressing the problems of aboriginal children in New Zealand.
I understand from Judge Brown that this system is working in New Zealand. Since 1989 the recidivism rate has dropped dramatically, not only for young offenders but also for the next group up, the 18- to 21-year-olds. So it is a progressive system that seems to be working significantly. In fact, in one of the jurisdictions one of the youth court judges has been sent back to regular duties. There isn't enough work in youth court any more. It seems to me that's a significant fact.
Family group counselling started with the Children, Young Persons and Their Families Act of New Zealand, which came into effect in 1989. The family group conference is a central decision-making forum for the more serious cases in the youth justice system, including those that appear in the youth court. It is also a principal mechanism for diversion from the courts, and it is a way in which people, families and victims can participate in the decision.
Under this model no information is laid in the courts until after a family group conference has been held. If the offender has been arrested, the courts must refer the case to the youth justice court for a family group conference before entering a plea unless the charge is purely indictable, or the young person, after receiving legal advice, intends to plead not guilty. It's obviously a system that works only for those who admit to the crime and are pleading guilty. If the offender admits guilt, the family group conference may decide on the alternative to prosecution.
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The structure of the family group conference is that the whole family comes together, including the extended family, particularly with the Maori population. The victims also attend. The participation of the victims ranges anywhere between 50% and 83% who actually come to these conferences. Judge Brown's view is that as long as one victim comes, that's 100% improvement over the current system, where we have closed victims out of the process.
The family can deliberate privately after the conference, negotiate an arrangement with the young offender, and then come back to the conference with a proposed plan. If an agreement on an alternative measure is reached, the youth court justice must attempt to persuade the prosecutor to accept the decision. Absent an agreement, the matter goes back to court and so on.
So the court system doesn't lose control of the process. The process is apart from the court system, which is a bit different from our current sentencing circles.
The family group conference is divided into three stages: information sharing, private deliberations and the formulation of recommendations, decisions and plans. The matter then proceeds before a youth court judge, who decides whether to act on the recommendation.
Several options are available to the youth court. Apart from the standard disposition, the court may order supervision with or without conditions, with maximums and so on; community supervision; short periods of incarceration or supervision with residence requirements. These are all available, of course, to our judges under the current act.
Apart from these options, any person or organization can be nominated to administer the option, which allows for tribal and cultural authorities to monitor their youth with resources provided by the department of social welfare. The system assures the young offenders hear from the victims of the crime and assume responsibility for their actions. It involves the young person and his family in the resolution of the matter.
I heard this summer from a lawyer in Botswana. He tells us that the police practise a similar model on an unofficial basis in Botswana. The members of the offender's family, the victim, and social welfare workers participate, with the social welfare officers acting as mediators. The success of the process depends significantly on the willingness of the victim to participate and refrain from pressing charges. It often results in the case being resolved if the offender acknowledges the harm done, apologizes and offers to make reparation. That is in Botswana, adoption of restorative justice.
I would like to read something very briefly from a letter that was sent to Judge Brown. It was in response to the hanging of a young man in a prison. The portion of this letter I'm going to read to you addresses, I think, many of the concerns raised in Canada, not only in New Zealand and other places of the world:
- The questions I wish to ask are these:
- Why did we all bother to make so much effort to give him a chance to start again if there is no way good work can be sustained with suitable follow up programmes?
- Why do we continue to hold against children the circumstances of their birth and up-bringing? None of us chooses the family we were born into.
- What can we do, where can we go, to stop all this awful carnage? (Not the just the deaths, but the wasted lives)
- ...
- Many of us who knew Damion are asking why, why and why - and much as we care none of us
know the answers. Please who can help? I would help, I would do something, but no one knows
what to do. Children cannot be allowed to drift, and children drift because they have no vision of
a future. Unemployment is a bleak future. Drugs and crime appear to offer the riches television
tells us successful people have. Criminals too readily become the heroes elders, teachers and
social workers aren't.
This is a result of family group conferencing: the victims become involved with the young offenders. They appreciate not only the damage that's caused to them but also the source of the damage. This is not unusual in New Zealand, I'm told by Judge Brown. The victims there are often becoming involved in the rehabilitative process with the offenders who offend against them.
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One main concern that has been drawn to my attention from people working in the field, with respect to similar systems in Canada, is the training of the facilitators. If we are going to have this system, the facilitators must be properly trained and must be confident in their ability to mediate very difficult circumstances and situations.
The system in New Zealand addresses the aboriginal community. In Canada we have the same, if not a greater, concern with the distressing circumstances of many aboriginal youths and their disproportionate involvement in the criminal justice system.
The criminal justice system, according to the Royal Commission on Aboriginal Peoples, has profoundly failed the aboriginal people. It has done so in failing to respect cultural differences, failing to address overt and systemic biases against aboriginal people, and in denying aboriginal people an effective voice in the development and delivery of services. This must end.
Because of their age and vulnerability, the aboriginal youths involved in the criminal justice system have problems that are even more compelling than those of their adult counterparts. One of the most serious shortfalls of the system is that an aboriginal young offender must often serve a custodial sentence a long distance from his home community.
Aboriginal youths are often removed from their families, elders and communities at a time when they are particularly vulnerable. Culturally sensitive remedies for aboriginal young offenders, developed in collaboration with aboriginal people, must be incorporated into any revision of the Young Offenders Act.
You are, I believe, hearing from the aboriginal communities. There's not much I can add to what needs to be done for those citizens of our country.
In concluding, the national criminal justice section believes that incarceration for young offenders should be used only for the most serious and violent offences and that treatment and rehabilitation should be the goals of our youth justice system.
Sufficient government resources should be dedicated to the problems encountered by Canadian youth to ensure the special needs of young people are met before they become involved in the youth justice system. An interdisciplinary model for delivery of services to youth should be a priority. Alternative models of justice directed to keeping young people out of the criminal justice system, wherever possible, should be implemented by the Canadian government.
Finally, in summary, we believe the youth justice system must become more responsive to the special needs of the aboriginal young offender.
Thank you very much, Madam Chair, ladies and gentleman, for listening to this submission.
The Chair: Thank you very much. Mr. St-Laurent, seven minutes.
[Translation]
Mr. St-Laurent: You work with young people on a hockey team. That's very praiseworthy.
You must know, as a mother involved in society, at what point children are aware of the law that concerns them. Are they afraid? Do they know that if they commit a crime this or that event will happen? You are familiar to some degree with what I am trying to illuminate on this issue.
[English]
Ms Bennett: Thank you. My experience is that the young offenders are afraid the first time they are apprehended by the police. They are afraid the first time they're caught shoplifting. The first time in youth court is terrifying. The first time in a youth detention centre is a very effective deterrent provided it is a short, sharp sentence.
A couple of years ago I had a young client, from a very well-to-do family, who spent a weekend in the youth detention centre after committing an arson. She had been living in a group home for a year. Her parents had not been able to deal with her for some time. That frightened her sufficiently that she would never go back to the institution. I saw her father two days ago, who said she has not committed another crime.
However, I think that once the children go into the system and adapt to the system, it becomes much less of a deterrent. I don't know if that answers your question.
[Translation]
Mr. St-Laurent: Yes, exactly.
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Could, in your view, the disclosure of the names of young offenders who commit minor or major offences have some deterrent effect on children?
You work with children. You coach them in a hockey team. You are in a position to know, perhaps better than someone else, at what point, for a young person, the disclosure of a name can be the factor that will deter him from committing a crime or have some positive impact on him in regard to the action he has just taken.
What is your opinion on that?
[English]
Ms Bennett: I think that publishing names would have the opposite effect of preventing them from committing further crimes. I ascribe somewhat, I suppose, to the labelling theories - that once you've labelled them a criminal, people start to respond differently to them. Once their teachers know they've committed an offence, albeit even a minor one, their teachers respond to them differently. People in the community will respond to them differently. In my view, that is not the way to achieve crime prevention. That's my concern about publishing the names, the response of the community. We tend to back away from them.
Would it make them more of a hero? I suppose in some circles it would be something to brag about. Publishing the names seems to be very effective for adults charged with impaired driving. Other than that, I'm not sure it would assist in crime prevention for young offenders.
I don't know if that assists, but it's just my view.
[Translation]
Mr. St-Laurent: In your work, your occupation, your profession, you are trained in the law. When you are trained to argue, it is usually to defend adults, I imagine.
With a child, the approach is different, and the way he is treated should be as well, but it isn't. When the client is a child, I image that for the majority of defence lawyers, for example, he is a client like any adult.
Should the training of lawyers be modified so that, for a young offender, you adhere to some rules that are somewhat more flexible, more oriented toward the social aspect, before going to court?
It was said that it is necessary to change the approach of the police officer who always hands out tickets or who, as soon as the kid has stolen a chocolate bar, grabs him and takes him to court before going and taking him to his mother. Now, the thinking is rather that the police officer should first go and take him to his parents the first time. The second time, perhaps...
Shouldn't the lawyer have the same training, the same approach?
[English]
Ms Bennett: This is something I have thought of in the past dealing with young offenders. I think the lawyer's response to young offenders unfortunately depends on the lawyer who is appointed to act for the young offender. I think many defence lawyers do use the models you suggest in that they aren't necessarily there to have their client acquitted at all costs, because that's not always the appropriate route.
In fact, when I articled, the lawyer I articled to, who's a very highly respected defence lawyer, took the position that it is not always the best thing to fight young offender cases to the end. Perhaps they should be resolved, have the person admit responsibility, if indeed he's committed the crime, and move on from there.
So I agree with you, and I have to speak on a personal basis because I'm not sure of the position of Canadian Bar Association. I think that is a better approach to defending young persons. Obviously, if they deny the offence, then you have to go through the usual channels. We don't want innocent young offenders convicted simply because it's more expedient or because it's better.
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I don't know what Parliament could do about something like that. I think that's something that must be addressed more at the ground roots level. It is something that is practised by many respectable lawyers. I agree with you that unfortunately it depends on who was there.
The Chair: Thank you.
Mr. Ramsay, seven minutes.
Mr. Ramsay: Thank you, Madam Chair.
I would like to thank you for your presentation before the committee today. You're a hockey coach.
Ms Bennett: That's an interesting part of my person. I'm a hockey coach. I'm a qualified hockey coach.
Mr. Ramsay: Good.
Ms Bennett: But I didn't grow up in Vancouver. That's the problem.
Mr. Ramsay: Would you recommend eliminating penalties in hockey for younger players?
Ms Bennett: Eliminating penalties in hockey?
Mr. Ramsay: Yes.
Ms Bennett: In the Pacific Coast Amateur Hockey Association, we do not have penalties for the 6- and 7-year-olds unless it is boarding or a cross-check. Then it's up to the discretion of the referee.
We also have parents on the ice with them. Often they simply have a little talking to and are told their conduct is not appropriate, or their coach may bench them. Otherwise, they are sent to the penalty box and they cry. That's inevitable.
The 8- and 9-year-olds have full penalties. They're normally called. It's just at the 6- and 7-year-old age where we deal with it on a very informal basis. By the time they're 8 or 9, they know they're not supposed to hit somebody with their stick.
Mr. Ramsay: Why would you penalize an 8- or 9-year-old?
Ms Bennett: Why would I make him or her sit in the box for two minutes?
Mr. Ramsay: Yes. Why would you penalize them for a violation of the rules? Why do you do that?
Ms Bennett: They need a swift response with respect to why that behaviour is not appropriate.
Mr. Ramsay: Do you think they know at that age what they're doing and that what they're doing is wrong?
Ms Bennett: Some of them do and some of them don't. You'll often see them throw their hands in the air because they don't understand why the penalty has been called. At that point you will often have the coach or a parent there. When I run my kids, I have a parent sit in the penalty box and explain to them why the penalty has been called. It also teaches them one aspect about refereeing, and that is that referees don't necessarily see everything.
Mr. Ramsay: Yes, we see NHL players throw their hands in the air too when they're penalized and object because they don't think they have violated the rules.
I don't know whether this parallel is fair. I discussed this whole area of justice and penalties and so on with a person. We got into this whole area of hockey, and I thought I'd bring it up. I don't know whether it's applicable, but I saw some parallels that I thought were.
If a young person at 8 or 9 years of age knows that tripping is not right or cross-checking or high-sticking or whatever is not right, then they have a sense of what is right and wrong. Of course, if we look at the stealing of cars and so on by children who are under the age of 12, they also, I would assume, have a sense of knowing that what they're doing is wrong.
The concern in the area of lowering the age is what we do to protect society as well as what is in the best interests of the child. Do you feel that in order to take action, in a hockey game, you have the authority to do it?
If an 11-year-old steals a car, do you think there is a proper basis in law for intervention to be taken, bearing in mind what is in the best interests of the child as well as in protecting society? Do you think there's a proper basis in law to do that?
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Ms Bennett: The parallel you draw is.... A hockey penalty lasts two minutes. The worst that can happen is that there'll be a power play and a goal will be scored.
In your family if your child does something wrong, the parents hopefully will act swiftly. The best parallel I see with the way we deal with children - and I know I'm not directing your question directly, but I will - is that the aspect, in my view, that's relevant is the swift action. You delay dealing with young offenders; that is the problem. You must have a swift response regardless of whether it is a swift diversion from the system or something else.
To answer your question with respect to lowering the age, the Bar Association's position is that 12 is low enough. I think we all recognize that many youth do appreciate right from wrong. Children at age 8 or 9 know they're not supposed to steal cars, hopefully. But it depends unfortunately on the background they've been raised in.
When I was at the international conference, the investigating police and lawyers involved in the Bulger case were there and showed us the pictures. So I have graphically seen what 10-year-olds are capable of. I'm not speaking naively that I don't think young people can do serious damage.
However, in my view, once you start putting young persons into the criminal justice system, you do two things. First of all, they've had their first exposure to the criminal justice system. At 10 or 11, when they may not appreciate what the system is all about, when they may not appreciate what the judge is or what the prison is or what diversion is, their first impressions are all-important.
In my view, the first impression from a criminal justice system, which is the ultimate sanction we can bring, must be when they are truly capable of appreciating the seriousness of what's occurred. There's a difference between appreciating the difference between right and wrong and appreciating just what a serious thing you've done. I think that's part of the difference.
If you are thinking of lowering the age, for example, New Zealand has an age of 10 but it is only for crimes of murder. As a member of the bar and as a member of the practising public and community and so on, I would be very loath to see the age lowered below 12 provided we provide a network in our community for these children who are stealing cars, who are breaking in, who are committing crimes of violence.
Mr. Ramsay: With respect, if I may, you haven't addressed my question.
Ms Bennett: Sorry, I thought I had.
Mr. Ramsay: My question was whether you believe there is a legal basis, when something like that happens, when a crime is committed by someone under the age of 12, for intervention. Is there a proper legal basis for intervention?
Ms Bennett: Perhaps I didn't understand -
The Chair: You've had your time, Mr. Ramsay. But I think what he's maybe referring to is child welfare legislation in British Columbia.
Ms Bennett: Child welfare - yes, they can intervene in British Columbia. They can and do intervene; that's my understanding.
Mr. Ramsay: Do you feel it's adequate?
Ms Bennett: It's adequate. Fortunately, we have not had any of these cases of children under 12 committing horrible offences, at least that have met the media. In my view, if it's not adequate, then that's the system we should be supporting to make it adequate.
Mr. Ramsay: Thank you.
Ms Bennett: Thank you. I'm sorry, I did not understand your question. I apologize.
The Chair: Ms Torsney.
Ms Torsney: Just to finish off that whole issue, the criminal justice system is not the only system that exists in our community. There is a social response, there's a health response, there are other responses that can be just as serious and perhaps more effective in delivering consequences for actions and in habilitating or in some cases rehabilitating some young people. Is that not correct?
Ms Bennett: Absolutely.
Ms Torsney: In your experience with the kids who are stealing cars and the kids who are doing serious personal injury crimes, is it the first time they've ever acted inappropriately?
Ms Bennett: No. I think you may not have been here when I said that in my experience the kindergarten teachers are the best capable of identifying children who will be problems.
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Two years ago I was involved in an appeal case in which I was crown and sustained a sentence of 22 years for a very young man. He'd been expelled from kindergarten for assaulting his teacher.
Ms Torsney: Does it make you frustrated...? I apologize for not being here for more of your presentation -
Ms Bennett: I'm sorry. I didn't mean to be critical.
Ms Torsney: - but I'll make sure I read it.
The Chair: She had problems in kindergarten with attendance, too.
Ms Torsney: No, but I got sent into the hallway in grade one, and it was devastating. It wasn't necessarily fair. I was trying to tell the other kid to be quiet.
One of the things that's been so frustrating, particularly having come to B.C. and meeting with people, is that everyone has identified that there's a lack of resources earlier on and that there's a lack of resources for the kids who have been given custody to deal with them outside. Correct behaviour within an institution is different from correct behaviour in a community. It's that much harder. They're disturbed by the recidivism, particularly in those cases in which there just weren't any resources for some of these children.
Doesn't it frustrate you sometimes that there should be other responses earlier - with your kindergarten example - and other ways to deal with our young people outside of the legal system?
Ms Bennett: Absolutely. In my view, once they're into the legal system, you're looking at, by and large, recidivists. Prevention has to be the focus, and there are all sorts of ways to deal with that. I have 900 hockey players in my association. I have a waiting list with the names of 400 children who would like to play hockey. We don't have any ice. That's inconceivable, I know, to those of you from eastern Canada.
Ms Torsney: It's a problem in my community, too, believe it or not.
The Chair: I'm sure it is.
Ms Bennett: That's a very simple example of prevention.
One of the government documents that was circulated a couple of years ago identified a correlation between quality preschool and the lack of children's participating in delinquent behaviour. The B.C. government responded in my community. It built a top-notch parent participation preschool. I discovered the other night that my children went through it, and we're long gone out of that now.
The enrolment in all of these programs is dropping. There's a need for the preschool in the community, and there are lots of children around, but enrolment is dropping because the parents do not, cannot, or will not make the time to be involved in the participation element. Maybe this is due to the need for more support in the community because two parents are working and so on. But these are the initiatives that can be supported. I appreciate that they're not federal government initiatives, but the federal government can work with the provinces and municipalities to provide these kinds of things for youth.
I stressed earlier also the serious lack of facilities for children with mental health problems. It's a serious problem.
Ms Torsney: I think it is curious that everyone's identified your hockey support, but one of the things in my community that I often say when I'm at the hockey games or dealing with the associations is that they're doing a good job in keeping kids out of the criminal justice system and that keeping children busy is very important. Of course, in light of some of the stuff that's been in the media lately about what's happening with some of our adult hockey players -
Ms Bennett: I hope they didn't watch The Fifth Estate the other night.
Ms Torsney: - I'm not sure that all the lessons learned in hockey are necessarily appropriate. There's a real opportunity for those involved in the sport, certainly as it relates to the attitudes of some of the young males towards women.... This really needs to be addressed by those involved in the sport as an association. But that's another issue.
Ms Bennett: I watched that program the other night. Having grown up in Sault Ste. Marie, I was bit horrified that it focused on the Sault Greyhounds. I can speak only for our association and British Columbia. We don't have enough female hockey, so we have female hockey players in our association. They have not, to my knowledge, ever been treated or mistreated by their co-players. That may be because they're still playing at the younger age level, but I hope that exposure to these young girls and women will follow through as they get older. We have women coaches, and we have women actively involved in minor hockey. I think that's one aspect that will help.
Ms Torsney: The last thing I wanted to mention - and it has been raised in my community - is that sometimes families of wealthy children perhaps should be accountable for the legal defence that's often provided by legal aid. This might focus their attention on some of the issues for their children. Do you think this would be an appropriate parental message, or does it again focus on some children not being accountable? I think there are some mixed messages in the whole parental accountability area, but I wonder what your comments on this would be.
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Ms Bennett: My experience is that the young offender comes to court and is given counsel only if he or she does not have counsel. I guess it goes two ways. When I acted for a daughter of a wealth family, it was not on legal aid. I think many parents probably go that route. The difficulty you have, of course, is that some parents refuse to pay for a lawyer for their child.
I don't know the answer, but I think if the parents have the funds, they should be paying for the lawyer. I don't understand why legal aid should be paying for it, given the current legal aid crisis. But I'm not sure what the answer is if the parent refuses to pay. I'd rather see the child represented at the cost of legal aid then unrepresented.
Ms Torsney: I'm not sure what the time is. Well, it is over. It is just that we had a number of examples where the system was confusing for young people. They knew they were responsible for acts and then were told to plead not guilty because it may have been to a different charge. Appropriate information for young people is really something for the bar to deal with as well.
The Chair: I want to address a couple of things, because we have the Canadian Bar Association here and because what you have said flies in the face of what one of our colleagues said about the self-perpetuation of the justice industry. If we followed everything you said here and if it all went well, we'd put you guys out of business.
Having said that, has the Bar Association addressed the problem we've heard about from treatment centres and from centres for young offenders? The problem is this. Very often the sentences aren't long enough to allow professionals to intervene. I should tell you I was both a prosecutor and defence lawyer in my former life. This was frequently a frustration for me on both sides of the fence. If you were defending kids who had big problems and you got them into the system where they were finally going to get some help, they only got a two- or three-month hit. By the time they were placed and in the system, it was all over.
So do we need to change the paradigm? It hurts my little legal soul to say it, but is there some way we can say to the courts it is okay to give a longer sentence? Can we say to the courts it is okay to tie this kid up for a longer period of time if he or she needs the help?
Ms Bennett: I've been around long enough that I actually practised law when the Juvenile Delinquents Act was in force.
The Chair: So did I.
Ms Bennett: But we both look so....
The Chair: I know. We look great.
Ms Bennett: When the Parole Act was first introduced in the 1950s, judges began responding by giving much longer sentences in order for the treatment to kick in, if I can put it this way. So instead of a two-year sentence, they would give a five-year sentence so the person would be on parole. As I'm sure you know, the courts repeatedly said you cannot sentence someone outside the appropriate range of sentencing solely for treatment. It is not right. You must heed the principles of proportional sentencing, retribution, and the punishment fitting the crime. Now, that is the adult model.
My experience in British Columbia - it is solely based on when appeals are taken to the Court of Appeal for sentences that are viewed by the young offenders as being too long - is that if there has been a recommendation that the sentence be of a certain length for treatment purposes, the court tends to uphold the sentence providing it is not grossly excessive. Because of the review provision built into the Young Offenders Act, they can go back before the youth court judge on a review, and if appropriate or sufficient progress has been made, the sentence can be shortened.
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Perhaps if you were going build in something like that, this would be the way to do it - that is, build in some kind of system for a lengthier sentence for treatment purposes on the understanding that a very easy review process would also be built in. So if treatment is effective, then the young offender can be brought back for review.
The difficulty, of course, is that if treatment is not effective or the young offender refuses to participate in treatment and he or she is not necessarily in danger to society but a nuisance, you suddenly have someone sentenced to three years for a car theft, which may not be particularly appropriate.
The other thing is to build in some type of parole or.... There's no facility for parole or remission or anything in the Young Offenders Act. That may be a another way to address the treatment aspect of things.
The Chair: Because you have so much experience with the Crown, doing appellate work, I'd like to ask you to address two other issues that float around us but we don't very often get a chance to talk to someone about. One is the use of the breach, particularly breaches of probation.
In terms of aboriginal kids - and they are, it's my guess, of particular concern to all members of the committee, and others - we hear that you frequently will be in a situation where you'll have one or two substantive offences and ten or fifteen breaches. The other day, when we were with some aboriginal kids in Whitehorse, I asked the question...and I can't remember the context, other than that we were at a young offenders facility.
We were talking about it, and the kids said, well, if the choice is between going into town at 10 p.m. to have some fun and getting breached, they'd run the risk of getting breached without worrying about going back to jail. What their immature minds are worrying about is whether they can get into town and get some beer, or have fun with their friends.
That's been my experience in practice as well. Is there some way we can deal with that quickly and effectively? Is there an administrative procedure? Is there some way we can leave the criminal law paradigm and still be fair?
Ms Bennett: Putting them on very strict probation orders at a time when rebellion is what they're primarily focusing on right now - it seems a breach in probation is in many respects almost a normal response. That in itself is difficult. Perhaps we shouldn't be putting so many conditions on them. Let's see what conditions they can try to live with, first of all. So that's one end.
The other end is what has recently been introduced by Parliament, the conditional sentence for adults. A conditional sentence operates in such a way that an adult normally would go to jail, but because the offence is not one where the community is going to be at risk, instead of going to prison, a conditional sentence is imposed. In a conditional sentence, if there's a breach of the terms of the conditional sentence, the person doesn't have a hearing. They're not charged with breach of probation. They're brought back immediately to court and sent off to finish the rest of their sentence.
No one knows how this is going to work in practice. It came in September 3. But there you have a very swift response to when the person's been given a break and you have a breach.
I'm not suggesting that we send them all back to jail - not for an instant. But there must be some way of developing supervision, particularly if you're dealing with aboriginal communities. Often the people doing the supervision there are the elders themselves. Perhaps the community can figure out a way of quickly punishing the young offender for the breach within the community.
For example, if you had a family conferencing circumstance, one of the things that could be agreed to is that the young offender could say, fine, if I breach, you are entitled to automatically give me another 200 hours of community work service, and I'll be cleaning toilets somewhere, or something like that.
So I think there are a number of ways to deal with this, particularly in a diversion system. It doesn't necessarily have to be a court order. It could be an agreed-to probation term where the young offender has participated in developing the terms he or she has to obey. This may be a way of addressing the problem at one end and then figuring out the consequences at the other.
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I don't know if this helps.
The Chair: Because of your experience as a criminal lawyer, I'd like to ask you about section 56 of the Young Offenders Act. It gives certain protection to young people with respect to the giving of statements. We've heard very little about this section. But we did hear from one or two other police departments, or maybe it was the chiefs of police - I can't recall offhand - that section 56 is too onerous for police to deal with.
I'll tell you my experience and I'd like to know yours. In nine years of active practice under the Young Offenders Act, I only ever had one case where section 56 was violated and the case was thrown out on this technicality. It was a case where for 20 minutes while he was detained a kid asked an RCMP officer if he could speak to his father. The RCMP officer said no and then lied to the court about it. He was caught because his partner testified in contradiction of him. That's the only time.
Have you had cases thrown out under section 56? Do you see section 56 as a problem? Would you agree with me - I know I'm being a little aggressive here - that a good cop can deal with section 56 with a checklist?
Ms Bennett: Let me give you two perspectives. As to whether I've ever had a case thrown out, on November 22 I go to the Court of Appeal on this very issue, on a statement made by the defence alleging there was a violation of section 56. If the statement goes out, the child will be acquitted of a serious offence.
There are obviously two perspectives, and I can't speak for the bar as a whole right now. I can only tell you from my own experience. The crowns in my province rarely lead a statement because of the concern with section 56. I think perhaps you're going to be hearing from the Attorney General's department tomorrow. They can give you a better idea of how it is working. My understanding is they simply don't bother leading the statement.
The Chair: Do they still get the convictions?
Ms Bennett: If they can't lead the statement, they don't lay the charge. So, yes, they still get convictions without the statement, but there may be cases where the statement is the only evidence. If it is obviously a very serious offence, you have to proceed.
Having said this, there is the other side. You stated it rather eloquently. Section 56 is a very important section to protect the rights of the young offender. With education and care, police officers should by and large be able to comply with it. The difficulty in the large centres, of course, is that you never know who is going to apprehend the young offender. If you have 1,000 police officers, the person who apprehends him may never have had to deal with section 56 before. But this is a training issue. It is not a substantive issue.
Yes, there are problems with it, but I'm not sure the legislation is the source of the problem.
The Chair: Thank you for this. I know you are going to present a more formal written brief. I would just ask you, if you have the opportunity, to address section 56. If the Bar Association would do this, it would be helpful. But I appreciate that you have time constraints too.
Ms Bennett: My only concern is that the brief may have already gone to the table officer.
The Chair: Oh, okay.
Ms Bennett: If it has not, we can bring it back, but we've also been told we have to have it in by November 8.
The Chair: Deadlines, deadlines.
Ms Bennett: It has to go to the table officer for translation and so on. If November 8 is hard and fast, it might be too late. I'll do what I can.
The Chair: Okay, thanks. It is just that you're a good source of information on this section. I fear that although people aren't asking questions about it, somebody is going to try to raise it.
Ms Bennett: Thank you very much.
The Chair: The meeting is adjourned. We'll rise now until 1:30 p.m.