JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 23, 2000

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[English]

The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): We have quorum and I'd like to declare this meeting open.

I do apologize to the witnesses. We had some House work to do before the meeting, which is why we are tardy opening the meeting, but we'll be happy to listen to you.

I'll entertain motions. I am told there will be at least one.

Mr. Peter Mancini (Sydney—Victoria, NDP): There will be at least one, Mr. Chairman, if you're recognizing me.

Mr. Chairman, we're fortunate today to have before us representatives from the Province of Manitoba, the Deputy Minister of Justice and the new Minister of Justice from that province. I understand there is a policy before this committee that we not hear from elected officials. That policy, I think, was affirmed back in November. I was not present to speak to that motion.

That being said, we have with us the Minister of Justice, who's travelled from Manitoba. I understand I will probably need unanimous consent for this motion to pass, but I expect that we would have unanimous consent. I know my colleague... who's here from the Reform Party.

We know that elected officials are the ones who are the spokespersons of the people. We always hear that neither the judges nor the bureaucrats are accountable, but the elected officials are. Members of the government are here.

We know this act will require a partnership between the federal government and the provincial governments, most importantly the ministers of justice and attorneys general.

I move, Mr. Chairman, that we make time today to hear from the Minister of Justice from the Province of Manitoba, who's travelled here to speak to us to address his concerns. I should say at the outset that I don't necessarily agree with all his concerns, but I think it's important for us to hear his concerns today on behalf of the people he represents.

So that's my motion, that we hear from the Minister of Justice.

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The Vice-Chair (Mr. Ivan Grose): I entertain your placing the motion, but I also remind you of the fact that a substantive motion must have 24 hours' notice. Have you provided us with 24 hours' notice?

Mr. Peter Mancini: No, Mr. Chairman, we have not. I think the matter was discussed between my office and officials, but nothing written was filed. However, I think if we have unanimous consent of the committee we can override the requirement for the 24 hours' notice.

The Vice-Chair (Mr. Ivan Grose): Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Ref.): Thank you, Chair.

I respect... and I was party to it. I understand why we don't have elected officials up here at this committee, and I understand and support it.

I am prepared to support this motion only if we extend the same invitation to all the other attorneys general. That's the only way, because that's the only fair way to do it. If we're going to hear from one, then I suggest we have to give all the others the ability to at least decide whether they want to come and speak with us or not.

So I would support that motion on that condition.

The Vice-Chair (Mr. Ivan Grose): As I understand it, you were the originator of the original motion to—

Mr. Chuck Cadman: No, I wasn't even in Parliament when this was originally done. This was carried on from the last Parliament.

The Vice-Chair (Mr. Ivan Grose): It seems to me there was a motion last November that we would not hear from provincial attorneys general.

Mr. Chuck Cadman: I respect that. As I say, I was party to it. I certainly respect it and I agree with it, but I would entertain this motion and support it on that condition. I've had it said to me, and I understand it, that once this bill passes, it will be up to the individual attorneys general to carry the can in their own legislatures and with their own people.

Again, I understand the nature of why we don't have political representatives here, but in this case, if we waived it on this particular piece of legislation and it was extended to all attorneys general, I would support it. If not, I wouldn't.

The Vice-Chair (Mr. Ivan Grose): Oh, absolutely. There would be no question about that.

Quite frankly, I'm going to rule on the fact that we have not been given the required 24 hours' notice. I, of course, can be overruled by a unanimous vote of the committee.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Before you rule, it would be good to hear from all the members, Mr. Chairman.

The Vice-Chair (Mr. Ivan Grose): On a rule of order, I don't think I have to hear from the members.

Mr. John McKay: Whether it's in order or not, I suppose, is the problem.

I wanted to express my support for the motion while realizing that in November we did pass a motion that said we wouldn't hear from elected officials, in part because we didn't think there was any testimony they could give that we couldn't obtain through other officials. But over the course of the testimony we've heard over the past number of months, it's become perfectly obvious that we really have 13 principalities in this country; that this is partnership legislation; and that there is differential treatment among provinces and territories on similar sets of facts.

It's also perfectly clear that various provincial legislatures have the ability to basically sabotage anything the federal government would wish to do in this area.

As a consequence, as a point of principle, I think we are in a situation where we cannot move forward in this legislation unless we do in fact have substantive consent on the part of the legislatures. That is, I think, an arguably regrettable situation, because I think there is a growing consensus as to which way this legislation should go. The more I hear, the more I like the legislation. But that's my own bias at this point.

Having said all of that, I appreciate that the committee is in a difficult situation. We are faced here with a new Minister of Justice, whom I believe would have good things to say to this committee. If the issue was simply the giving of unanimous consent, then I certainly would support that, but I recognize Mr. Cadman's point as well, that once it's opened up for one it's opened up for all.

I think that is probably where the committee should ultimately go, but if the motion is simply to accommodate this particular Minister of Justice, then I support that.

For my part, then, I would give consent to this motion.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. McKay.

Mr. Maloney.

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Mr. John Maloney (Erie—Lincoln, Lib.): Mr. Chair, I'll be honest; I cannot give unanimous consent. I will oppose it.

With no disrespect intended to Mr. Mackintosh, I have some difficulties with this. He was well advised of the position of this committee before he appeared here today. Notwithstanding that, he chose to appear.

The request was made by Mr. Bellehumeur early on, when we started hearing this bill, that the justice minister from Quebec appear. This was when, to my recollection, Mr. Cadman passed his motion reaffirming the policy of this committee not to hear from elected officials. We are in this situation again today. It's not fair to the minister from Quebec.

We've also taken the same position with the minister, the attorney general, the solicitor general, and the corrections minister for Ontario.

So I'm not about to make exceptions. We have a schedule of witnesses to hear. To open it up again is going to delay the implementation of this legislation. I appreciate that the Minister of Justice has an avenue. It's my understanding that our own minister has met with the provincial and territorial ministers on this on at least three different occasions. There is an avenue they can take, and they have done so.

It's not a policy dealing just with this bill. We had the policy on our impaired driving legislation. You may recall that Minister Clement from Ontario also made the same request, also appeared here, and made also a request at the committee level, although there wasn't a motion brought.

What do we do with that? How can we... It's equality of treatment.

I've read the brief. It's a very good brief. I'm sure his officials who are present here will make an excellent presentation and respond to our questions in due course.

Again, I wish to affirm that this is not meant as a personal affront to Mr. Mackintosh. It's just that we control our own destiny, and I think we've taken a position that it's inappropriate at this time, for all those reasons given.

Thank you.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Maloney.

In the interests of hearing from everyone, Mr. Saada.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you, Mr. Chairman.

[Translation]

My colleague, Mr. Maloney, made some arguments that I find important. As far as the content is concerned, it's difficult to see a difference between the views of an official of the department and those of the minister himself. There are other fora for the ministers to express their views. I think it would be ill-advised for us to create a precedent on the basis of a «fait accompli». Such a decision had already been made in the past in similar circumstances, where this committee had to review a bill or some amendments to the Criminal Code involving federal-provincial relations.

I do think that the cooperation which must exist between federal and provincial governments cannot be subject to the fact that we are in the position of being compelled to accept a presentation by the minister himself. I welcome the minister and I thank him for being here today, but, unfortunately, I will have to join my colleague Maloney and be against the minister's participation.

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Saada.

I'm going to reaffirm my previous decision, that inasmuch as we do not have the 24-hour notice—

Mr. Peter Mancini: On a point of clarification—

The Vice-Chair (Mr. Ivan Grose): Just a moment, Mr. Mancini.

I am going to rule the motion out of order. Of course, I can be overruled by the committee. Isn't democracy wonderful?

One more.

Mr. Peter Mancini: On a point of clarification—and I know my colleague, Mr. Maloney, meant no harm by this—I think there was a statement made that the minister was well advised of our policy. I would indicate for the record that he did write to the chair of the committee, I think February 17, and he received a response February 22.

So in the sense that there was no 24-hour motion, I think the minister from Manitoba did in fact advise the committee that he hoped to come and make this submission. I just wanted to clarify that.

The Vice-Chair (Mr. Ivan Grose): I would remind Mr. Mancini that the minister is not in a position to make a motion of this committee.

Mr. Peter Mancini: No, and that's what I'm saying. That's why I spoke on his behalf, to make that clarification.

The Vice-Chair (Mr. Ivan Grose): My ruling stays the same. I rule the motion out of order. Unless the committee wants to overrule the decision of the chair, we'll proceed with business.

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I would like to welcome our guests. I'm sorry you were exposed to this bit of housekeeping. Most of you have heard this kind of thing before, I assume. It's not unusual. That's how a democracy runs—or doesn't run, sometimes.

In any case, I would ask Mr. Bruce MacFarlane, Deputy Minister and Deputy Attorney General for the Province of Manitoba, to make his opening submission.

Hon. Gord Mackintosh (Minister of Justice and Attorney General of Manitoba): I'm just wondering if the committee could grant me leave to address just this narrow point, very briefly, of the ability of attorneys general to make presentations to the committee on this particular bill.

I wonder if there might be leave. I would be very brief.

The Vice-Chair (Mr. Ivan Grose): And who are you, sir?

Mr. Gord Mackintosh: Gord Mackintosh, Attorney General for Manitoba.

The Vice-Chair (Mr. Ivan Grose): I think that has already been addressed, Mr. Mackintosh. The committee will not hear from you.

Mr. MacFarlane.

Mr. Bruce A. MacFarlane (Deputy Minister of Justice and Deputy Attorney General, Province of Manitoba): Thank you, Mr. Chair.

I have a presentation on behalf of the Province of Manitoba. It will be about ten minutes. After that I would ask for the leave of the committee to have two officials join me, the assistant deputy minister from Manitoba in charge of corrections, and the assistant deputy minister in charge of prosecutions. At the appropriate time I will introduce them, asking leave that they might join me at the table.

The Vice-Chair (Mr. Ivan Grose): Pardon me for interrupting, Mr. MacFarlane.

Mr. Mackintosh, I do not wish you to sit at the witness table. You're not a witness, and I would ask you to retire to the audience, please.

Mr. Gord Mackintosh: It's to make a point.

The Vice-Chair (Mr. Ivan Grose): Mr. Maloney.

Mr. John Maloney: Mr. Chair, I see no problem with the additional witnesses appearing at the table now. We want to hear from everyone.

I don't think you have to ask for leave.

Mr. MacFarlane asked about the possibility of the other witnesses joining him—

The Vice-Chair (Mr. Ivan Grose): That permission has already been granted.

Mr. Bruce MacFarlane: Thank you.

I will introduce my colleagues for the benefit of the members of the committee: Robin Finlayson, assistant deputy attorney general in charge of prosecutions for the Province of Manitoba; and Gregory Graceffo, assistant deputy minister in charge of corrections for the Province of Manitoba.

Members of the committee, Mr. Chair, criminal law in Canada is a partnership between the federal government with its law-making powers and the provincial Attorney General with the responsibility for the administration of justice. It's the province that assumes responsibility for crime prevention, prosecutions, policing, and correctional programming in youth facilities and in the community.

This unique partnership must respect the limits to which the federal government can intrude into provincial areas of jurisdiction and recognize that the accountability for the implementation of legislation of this type falls to the provincial Attorney General, not the federal Minister of Justice.

In addition, federal law that places a financial burden on a province without an equal sharing of those expenses must be carefully considered.

The proposed Youth Criminal Justice Act fails to respect this relationship and therefore requires significant amendments to restore the appropriate balance for the administration of the youth criminal justice system.

Manitoba's submission identifies general problems or themes with the Youth Criminal Justice Act; points out particularly serious examples that illustrate those themes; and suggests possible approaches or amendments to address these specific concerns. So it's our hope to present not only the problems we see but also potential solutions to those problems.

The most serious areas or thematic concerns I would like to address today are the following: first, public confidence issues; second, complexity in proceedings and drafting; third, the negative impact that we feel certain aspects of the legislation will have on victims of crime; fourth, offenders under the age of 12 years; and finally, some comments with respect to the management of sentences under this legislative scheme.

The first area I would like to canvass is the question of public confidence issues. Rather than inspiring confidence, the Youth Criminal Justice Act will inevitably cause the public to become even more critical of the youth justice system. This is because the problems that first led to criticism of the Young Offenders Act are not cured in this bill.

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There are two major areas in particular where public confidence issues are particularly serious.

First of all, the bill provides that an offender who is serving a custody sentence under the Young Offenders Act will, as soon as the legislation comes into place, be entitled to be released on supervision in accordance with the new two-thirds/one-third formula described in the legislation. Just where each individual will be released in the remnant of their sentence will of course depend on the facts of each individual case. But the point is, with the new legislation, the release of many youths across Canada will be hastened significantly.

This fact alone is unlikely to inspire confidence in the new act. For many Canadians, this will be the first they hear of the operation of the new legislation, and I submit to you that there will be considerable public concern as a result of that.

We recommend, as a result of that concern, that those young offenders who are in custody at the time of proclamation be required to complete their sentences subject to the Young Offenders Act, not the new legislation. In that sense, they would be serving out their sentence as was originally contemplated by the court and the legislation in place at the time.

The second issue that raises public confidence concerns is with regard to custody and supervision sentences. The bill provides for a maximum youth sentence of three years in cases where an adult could receive a sentence of life. For a crime for which an adult would be liable to less than a life sentence, a youth can be sentenced for up to two years. The three-year and two-year maximums are the same maximum penalties that currently exist in the Young Offenders Act. There is, in addition to that, a scheme with respect to those accused of murder, but I am speaking of those youths who are accused of crimes aside from murder.

The Youth Criminal Justice Act further provides that a final one-third of a custody and supervision sentence is to be served in the community, under supervision. The result—and this is really the point I want to make on this point—is that a three-year sentence really means a two-year custody sentence. The maximum custody time that can be imposed under the act for these types of offences is therefore actually less than under the Young Offenders Act.

The sentencing provisions I have just described have the potential to undermine confidence in the court system because they do not afford adequate protection to the public from dangerous young offenders and give a misleading impression of the length of a custody sentence that is to be served.

The statutory release of young offenders after two-thirds of the sentence is completely arbitrary, since it's not linked with the offender's progress through rehabilitation programs or a reduction in the risk the offender presents to the community. Manitoba believes the early release of an offender, if there is to be an early release, should be dependent on the offender's behaviour while in custody; risk reduction strategies that have been implemented; and the capacity of communities to reintegrate young offenders and to manage their risk in the community.

As a result of these two concerns with respect to public confidence, we recommend the following. First of all, we recommend that the bill contain a declaration of principles that would include the denunciation of criminal behaviour, as a clearly articulated principle. Secondly, for those offences where an adult could be sentenced to life in prison, the maximum youth sentence should be increased to five years less a day. Thirdly, the mandatory statutory release of offenders after two-thirds of the sentence is served should be removed from the legislation.

I'd like to move on to the second main area we will be discussing, and that is complexity in proceedings and drafting. The complexity of the Youth Criminal Justice Act is perhaps the first thing that strikes anyone who takes a look at it. Its complexity is virtually overwhelming and has two undesirable consequences—that is, it makes the act exceedingly difficult to understand and it creates delay in court backlogs.

With respect to the complexity in proceedings part, I would say as follows. Proximity of consequences to behaviour is a fundamental principle of child development, and one that must also be reflected in youth criminal justice legislation. Unfortunately, this bill establishes an elaborate array of police warnings, cautions, referrals, crown cautions, and extrajudicial sanctions. Justice committees can be consulted to obtain information regarding the appropriate action, conferences can be called, and the offender is entitled to be represented by counsel through each process.

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The bill permits any person to call a conference at any time for the purpose of making any decision required under the bill. The concept of conferencing is well understood in the youth justice system in many of the provinces, but as conceived in this bill, it will add substantially to delay. On its face, this bill seems to even permit that individuals unconnected to the proceedings could call for a conference when there is an objective that is sought by that third party.

The bill also introduces preliminary hearings to youth court proceedings. The result is to further complicate the court process by adding yet another round of litigation. The need for preliminary hearings in youth court is highly questionable in light of the increased disclosure obligations placed on the crown in recent years. With regard to the fact that the Young Offenders Act and the Juvenile Delinquents Act operated for decades without any identified need for the introduction of preliminary hearings, along with the recent trend in adult court to move towards restricting the circumstances in which preliminary hearings are necessary, this bill seems to be going in a different direction, or moving backwards.

The numerous “off-ramps”, as I'll refer to them, of the sort I described earlier, of conferencing and cautions and so on, for a variety of processes, procedures, hearings, appeals, and reviews are all counterproductive to the act's principles. As a result of this, we recommend a few things.

First of all, the timely resolution matter should be a clearly articulated principle guiding the act and the youth criminal justice system.

Secondly, the Youth Criminal Justice Act should be amended to remove preliminary hearings from youth court proceedings. We see no justifiable need for preliminary hearings. As I'll point out in a moment, this has a dramatic effect when it comes to victims of crime.

Thirdly, the conference provisions should either be removed from the Youth Criminal Justice Act, or, at the very least, their scope and frequency considerably narrowed.

The second part of the presentation with respect to complexity deals with complexity in drafting. The Youth Criminal Justice Act is written in a manner that makes it very difficult to follow. Throughout the bill the terminology is difficult, the sections are too long, and there are too many clauses and subclauses. One of the basic principles of plain-language writing is to try to keep the sentences short. This has not occurred in this legislation.

In this respect, members of the committee, I would draw to your attention to clause 60 of the Youth Criminal Justice Act. It is, in my respectful submission—and I've been around the court system for about 25 years—almost incomprehensible. There are so many references and cross-references, you're just left with your breath gone.

We recommend two things in connection with the drafting. First of all, the difficulties created by the faulty definitions could be avoided either by making a schedule of non-violent offences, violent offences, or serious violent offences, or by adopting a definition of “serious violent offence”, similar to that found in section 752 of the Criminal Code.

Secondly, the bill should be redrafted, with its length reduced by half, if at all possible; with simpler wording; with more meaningful cross-references; and with parenthetical references where there's a need for cross-referencing.

I would like to move to the position of victims and the negative impact on victims that this bill will have. This is an area of great concern to Manitoba and ought to be of great concern to the Parliament of Canada, I submit, given the role that victims play, and must play, in our criminal justice system.

One of the main points that victims of crime make to me on a regular basis is the need for dispatch when it comes to legal proceedings. They see criminal cases as just lingering in the system, on and on and on. Victims are interested in having legal processes move along expeditiously so they can get on with their lives. The bill contains many provisions that will result in significant delay. These provide, in our view, an extreme disservice to victims.

While the principles speak to victim treatment, minimum degree of inconvenience, and respect for dignity and privacy, the bill, as presently structured, does not support those principles. So while the principles are there, the proposed legislation doesn't respect those principles.

Delay and increased court backlogs, accompanied by multiple court appearances, will be the norm. We foresee situations where victims will have to come back, over and over again, to testify in a multiplicity of proceedings, making them extremely frustrated with that process.

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We recommend a couple of things. First, the Youth Criminal Justice Act should permit co-accused to be dealt with together in adult court, where that occurs, because that's one of the situations where victims will have multiple proceedings.

Secondly, the Youth Criminal Justice Act should require that all proceedings against the single accused relating to offences both before and after the eighteenth birthday take place in adult court. If the offender is eventually convicted on the charges, the court can then decide whether an adult or a youth sentence should be imposed on those youth charges.

That would go a long way, we think, toward minimizing the number of hearings that victims will have to participate in.

I'd like to—

The Vice-Chair (Mr. Ivan Grose): Perhaps I can interrupt, Mr. MacFarlane. I did not warn you about our ten-minute limit on presentations, so please carry on, but if you could... as quickly as possible. We like to ask questions.

Mr. Bruce MacFarlane: Thank you, Mr. Chair.

What I'll do is summarize the next two areas rather than proceed on the basis of the crafted words I have.

The next area deals with offenders under the age of 12. We would like to say the following in connection with that class of offender. First of all, serious criminal conduct by those under 12 is often a symptom of a serious situation that needs to be dealt with, and we say needs to be dealt with in the criminal justice system—nipping it in the bud, so to speak. That's the first concern we have.

The second is that in the case of very serious offences, accusations will be made publicly against youths that they were involved in crimes, and they will have no ability through a normal process to demonstrate their innocence.

For both of those reasons, we feel that in exceptional circumstances, where the crimes are serious, there is a need to bring a youth into the criminal justice system. It ought to be judicially screened, and on application by either the defence or the crown, the test being the nature of the offence, the maturity of the offender, and whether it's in the long-term interests of the offender.

Finally, with respect to the issue of management of sentences, our point in summary here is that traditionally the management of sentences has fallen to the person closest to the youth, the provincial director of corrections. They can take into account risk assessment, they can take into account institutional behaviour, and they can take into account a lot of things.

This legislation has the effect of pulling all that responsibility away from the people who were closest to it. In essence, it has a series of statutory steps, statutory control, over the process, which at the same time is judicially managed. We are greatly concerned that those who are in the best position to manage the sentence of young offenders to ensure that there's the maximum prospect of rehabilitation... It's being wrenched away from those who are closest and being placed into the hands of the judiciary, being placed into the hands of the Parliament of Canada, at Ottawa, through this legislative scheme.

We recommend that the bill be amended by removing the need to establish facilities with different levels of custody, and simply sentence a youth to custody, as in the adult system.

Secondly, the bill should be amended to permit the provincial director rather than the judiciary to administer sentences.

Manitoba requests that the parliamentary committee here take the necessary steps to address the serious deficiencies, as identified in our submission, concerning this bill. We would like to work with the federal government to ensure that the renewed youth justice system will be able to provide effective, timely, sensitive, and uncomplicated approaches to deal with offending behaviour by young people.

These improvements are necessary to improve public confidence in our justice systems, hold offenders accountable in meaningful ways, ensure that victims have a meaningful role in the resolution of criminal cases, and improve public safety.

That, Mr. Chair, is the submission on behalf of the Province of Manitoba. Thank you very much.

The Vice-Chair (Mr. Ivan Grose): Thank you very much, Mr. MacFarlane. I appreciate your brevity. I'm sorry I forgot to warn you beforehand.

Moving a little further west, we have, from Saskatchewan, Mr. John Whyte, Deputy Minister of Justice and Deputy Attorney General for Saskatchewan, and Betty Ann Pottruff, director of policy, planning and evaluation.

If you want to divide your time, that's fine. You'll have as much time as Mr. MacFarlane had.

Mr. John Whyte (Deputy Minister of Justice and Deputy Attorney General, Province of Saskatchewan): Thank you, Mr. Chair.

On behalf of the Attorney General for Saskatchewan, I want to express our appreciation for being given the opportunity to speak to this committee on the issue of youth crime and on the proposed Youth Criminal Justice Act.

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First a word about youth crime. An oft-expressed aphorism is that how well a society treats its vulnerable members along with its unpopular and reviled members is a mark of its civility. With respect to children, it's even more. The nation's treatment of them, even those who are offenders and are offensive, is not only a mark of civility but also a sign of a nation's commitment to its own future and a commitment to the quality of its citizenry.

We believe, then, it is incumbent upon the state to treat offending youth constructively and humanely, and yet I know we often feel impelled not to. There are many theories. We take less care of children's development when we cannot see them fulfilling a valued role. It is too true that when we look at young offenders we don't see a promising future for them.

While we are frightened by the cynicism and violence of our youth and by their sense of alienation, and indeed it is frightening; while perhaps we are reaping the ravages of widespread family instability and dissolution, and indeed I think we're only beginning to grasp the social costs of the psychic wounds generated within warring families; and while we are bitter about the sliding economic well-being of many families in this country and our uncertain economic future, the destruction of order by children only adds to this anger.

So our anxiety over child deviance comes from a deep social anxiety. For that reason, we do thoroughly welcome Minister McLellan's attempt to get Canadians to address the problem of child offending and to put before Parliament and before the governments of Canada this opportunity to debate how we can construct a system that meets needs better.

We know that youth offending comes from someplace. In fact, in a social services survey of those in custody in Regina in May of 1997, we know the personal narrative of everyone in custody on that date was a narrative of neglect or radical instability or abuse. So we know that offending comes from the deprivation of social care and that we need to approach offending with this realization.

But there is, of course, another side to youth offending, the side of legitimate social anxiety. We experience that in spades, I think, in Saskatchewan. While the rest of Canada's aggregate youth crime is declining, in Saskatchewan it is increasing, and increasing reasonably dramatically. Our rate of youth crime is now 53% higher than that of the rest of the country.

I have in our paper some comments about where that comes from and why that is. Of course, it comes from the widespread social dysfunction that has arisen from the radical dislocation that is a result of our colonializing policies. But rather than go into that now, I just want to say there is genuine public concern in Saskatchewan as well as elsewhere about whether the youth criminal justice system can keep society safe, whether our property is safe, whether our persons are safe, or whether our homes are secure. It is in this context of rising crime and rising anxiety that youth criminal justice is also called for.

There are four precepts that I think should guide us. The response to youth crime should be sympathetic and constructive. The response to youth crime must effectively speak to legitimate concerns about public safety. The response to youth crime must be efficient in the sense that the regimes we put in place must deliver what they purport to deliver. As well, we must create regimes that are trusted and understood, for legal regimes, when not trusted and understood, defeat the very foundations of the rule of law.

The federal proposal fails at least in some respect on all of these grounds, but most particularly, I think, on the last. The proposals do not describe a system that is efficient, workable, consistent, reliable, or understood. It will cause confusion and will prove to be virtually unadministrable, if not completely unadministrable, by lawyers, judges, victims, and offenders, and will not generate confidence in the justice system.

Let me speak to each of the three goals.

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First, is it a sympathetic and constructive response to offenders? No, it isn't, to the extent that the rigidity in responding to offences, conditioned by the categorization of non-violent, violent, and seriously violent offences, creates classifications based on the offence and not on offender characteristics. Robbery, say, for food or for money would be violent, and possibly seriously violent, excluding extrajudicial measures, while drug-dealing, school vandalism, criminal harassment, arson, or indecent exposure in most cases would not be violent, and regardless of consequences or context, non-available for custody. Furthermore, multiple offending, if there isn't a pattern, as the bill requires, would also exclude custody.

So we are in a situation in which there's a problem that the classification, in its attachment to bodily harm only and its detachment from the seriousness of the offence in its social and personal context and in the context of the offender's own needs and dysfunctions and the victim's context, creates unworkable results.

The classification creates rigidities, and in spades, it creates judicial administrative unevenness. The goals of rehabilitation will be held hostage to the uneven application. There needs to be clearer identification of serious offences so that the process for triggering adult processes can be triggered properly. Otherwise, the classification should be abandoned. It will generate inappropriate responses and phenomenal unevenness in application.

Does the bill reflect concern over public safety? Our major concern here—and here I echo the presentation of Mr. MacFarlane—is not the uncertain but the absent position of denunciation and deterrence. We know that is an issue about youth criminal justice, because when people talk about youth crime, almost immediately they say, “And you know they just laugh at us.”

Everybody says that. It's an urban myth. It may not be true, but everybody says it. It's a top-of-mind concern about youth justice.

Is it effective? Does it provide public safety? Our view is that the bill has a considerable problem on that score because of the lack of clarity about purposes around sentencing. The Young Offenders Act also had a lack of clarity around sentencing.

After ten years, the Supreme Court of Canada intervened in the case of R v. J.J.M. and reminded Canadians that one of the functions of any criminal justice system, even though this applied to youth, was deterrence. It said, “A fortiori”...

Forgive the Latin. It brings John back to days in law school.

Even more so, we know that for youths the tendency for group behaviour and group offending is strong, and the deterrence function of criminal justice has an even stronger role to play in youth crime. To remove it entirely from the calculation is a serious omission.

This is not a law and order submission. This is simply a request that we create an environment for rehabilitation and restoration, recognizing that in appropriate cases we should not be hesitant to let all youth know that there are social limits, that the social contract we all hope to live in requires acts of protection.

I don't want to overemphasize the deterrence condition, which is absent and I believe should be put in, and I don't wish to be too heavy about it, but its absence leaves the legislation unattached to the necessary social balance between offender and victim, offender and society.

Again, does the bill reflect concern over public safety? We submit that the presumptive release is a problem in this way. Already there's a very high standard for custody—the need for people to be a violent or repeat offender, to present serious risk factors, and have serious needs.

• 1625

Even of those categories, release is automatic unless the director of youth corrections can prove in a youth court that the offender is likely to commit a serious violent offence, which is where there's a problem: We don't know what a serious violent offence is.

The Criminal Code talks about, for instance, sexual assault with bodily harm. It can be pretty serious, but it uses the words “bodily harm”. This bill uses “serious violent offence”. It seems to be ratcheting up the test. Maybe it's not sexual assault with bodily harm. Maybe it's sexual assault that actually imposes maiming. We don't know what it includes. It certainly doesn't seem to include such things as car chases or a series of break-and-enters, for instance, to support addictions.

Whatever it is, it will present for the provincial director an immensely high standard of demonstration that serious violence is about to occur.

These are youth who, by the way, we can expect to reoffend, and yet the risk cannot be contained because of the provisions in paragraph 97(3)(a).

Furthermore, it's a situation in which, if the evidence is that the youth has spurned every attempt for needs assessment and programming to meet the dysfunctions and has failed to try to achieve any of the standards of rehabilitation, the provincial director has no case to make. There is no incentive for a youth offender to gain a stronger capacity to live in society or for him to avoid the continuation of incarceration.

This point was made much more forcefully than I am making it by the Institut Philippe Pinel de Montréal on February 8. I urge you to go back to that institute's submission, where this point, as I say, was made immensely strongly. Paragraph 97(3)(a) is a mistake. It does not promote public confidence in its security because the bill, at this point, is not responsive to actual risk.

Third, will this act be effective in meeting the goals it sets itself? Is it complex? Yes. Is it confusing? Yes. Is it workable and understandable? No. Can it be administered? I'm tempted to say “I doubt it”, but I'm very sensitive to the claim that is sometimes made—and I understand it might have been made by Judge Heino Lilles yesterday—that provinces have a capacity to undermine federal law.

We don't. We are totally law-abiding. If Parliament passes a law, we will administer it with every scrupulous ounce we have. We have encouraged and will continue to encourage citizens to obey the federal law on gun registration. You've never heard Saskatchewan argue that gun registration is a discretionary law. We've argued it's an unconstitutional law, but...

Voices: Oh, oh!

Mr. John Whyte: I don't want to overemphasize the unadministrativeness of the law, because it does give rise to Lille's concern, and it's not our intention to frustrate this law. It's our intention to administer what we're required to administer, to do it in good faith, and to do it efficiently.

But let's talk just for a minute about sentencing. The trouble with the sentencing system is that it is premised and based on the federal sentencing system, which, as you know, involves prisoners who are sentenced for more than two years.

In our provinces, 63.5% of young offenders who are sentenced to custody are sentenced to less than three months, with 20% sentenced to about a month. The federal government has a national system—not 13 provincial systems—which has a national information network. It administers this ministratively, not through courts. These are the differences.

Our system, by the way, has 9,000 offenders a year, of which 6,000 are sentenced. The federal system has 3,000 people enter it a year. So the volume is up for an immensely complex system, the time in which we can deal with this is down, and the process is to use courts. In using courts, we are dealing with delayed court dates. For instance, in La Loche, the next court dates are December 2000.

• 1630

The problems of delay in legal representation, the immense problems of data entry, which this province I represent has no capacity to overcome—the data pipes don't even exist province-wide—and...

Your signal is to quit.

Let me give you one anecdote. At at one point in my life I was the titular executive director of the correctional law centre at Queen's University. There was a real person who was running it. This was an ex officio post.

That agency, that clinic, was immensely busy, constantly busy, and the vast bulk of its work was federal sentencing calculations. It was so complex that no student could be trusted to handle a case without supervision. Finally the faculty had to mount, at some expense, seminars in sentence calculation.

Sentence calculation is Canada's single most complex legislative regime—but I'm worried about being refuted by those who know something about tax.

Voices: Oh, oh!

Mr. John Whyte: It is not possible to impose that system on 6,000 young offenders who go through our system in our province. We will not get consistency. We will not have fairness. I suggest strongly that there is a strong need for this committee to address critically and to challenge the federal Department of Justice about the workability of the sentencing system.

Finally, we know that legislative reform won't resolve youth crime. In fact, it's amazing how little in life can be cured by legislative reform. What does cure things, I think, is common purpose and common commitment. I repeat what I said earlier, that we have a common commitment to enforce the law of Canada, whatever it turns out to be.

We hope that, with some changes to this law, we will have a bill that will work well; that we will feel we can meet the spirit of in our administration of it; that we are fully committed to; and that we will be able to make every effort to meet Parliament's strongest wishes in this pressing social problem.

Thank you.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Whyte.

If the witnesses are wondering why they see all the members starting to salivate, it's because we hear the bells and we desperately want to go and vote.

We have enough time left for a short five-minute round by Mr. Cadman, and then, I'm sorry, we must excuse ourselves. But we'll be back. While we're gone you can talk about us.

Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair.

I thank you all for coming and for your good presentations.

I'd just like to get your views and comments on the presumptive offence provisions. How do you feel about the four presumptive offences, and the fifth category?

Anybody.

Mr. John Whyte: We agree with those five categories of offences that could trigger adult treatment. They meet our sense of public safety.

Mr. Rob A. Finlayson (Assistant Deputy Attorney General, Public Prosecutions Division, Ministry of Justice, Province of Manitoba): I think Manitoba also agrees with the fact that the most serious are captured by the presumptive provision. The concern remains, though, with the definition of serious violent crime and the fact that we should either go to a schedule of offences for those or adopt language consistent with section 752 of the Criminal Code.

Mr. Chuck Cadman: Okay.

Again, for everybody, how do see the impact—or do you see an impact—of the post-adjudication transfer provision on the way your systems are running now? What's the impact of having the transfer at the end as opposed to the front end?

Mr. John Whyte: I think it's positive to be making those decisions after there has been a full trial and the full context is known.

Mr. Rob Finlayson: I think we would agree, although I believe the position we have taken is that there should be some jurisdiction in the court to order a transfer hearing at the end of a hearing.

• 1635

That's simply because of the fact that there may be circumstances that come out, or the matter may get delayed for some particular reason, such as litigation, where, at the end of the day, it would appear to the court that the best way of dealing with the matter would be to order transfer.

So I think our position is, yes, it's best to leave it till the end, but at the same time, you should have the ability to be able to order transfer even though the crown has not indicated at the very beginning that we intend to seek an adult sentence.

Mr. Chuck Cadman: Okay.

My last question is with regard to the role of the parents. We had some comments from the judges yesterday about the parents' involvement in the process, in the courts. Do you see this legislation impacting that in a negative or a positive way, or do you see it impacting it at all, having more parental involvement in the system?

Mr. John Whyte: As I recall the bill, there are some provisions that allow the court to order parental involvement. There's also a provision that allows parents to be assigned responsibility for some of the legal costs. We agree with both of those. I think the underlying principle of restoring community, which has been damaged by the harm of a crime, starts with connecting positively, one hopes, with one's family, helping you connect positively to the community we're trying to restore.

In general, we always are a little nervous about mandatory, strict parental accountability, because studies show that it sometimes gets in the way of reconnecting offender and family. But my sense of the bill is that it's expressed sensitively enough to be a positive contribution to the law.

Mr. Bruce MacFarlane: One of the concerns I have is that under previous legislation of a simpler nature, parents were very much involved in the proceedings. They had to be there, to watch the proceedings and so on. The current highly regulated scheme, with so many off-ramps and the emphasis on process, may, in our view, tend to leave parents a little bit off to the side and not be as involved or plugged in as they were before. That arises primarily from the highly detailed labyrinth that's created here.

So while it does require a little bit of a forecaster's gaze into the crystal ball, our concern is that parents might not feel they're as involved as they should be, despite their best efforts.

Mr. Chuck Cadman: Okay.

Thank you, Mr. Chair.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Cadman. You have two minutes in the bank.

Mr. MacKay, we have about enough time for one of your long “quick” questions.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I have to defer to Mr. Mancini.

Mr. Peter Mancini: And I'll get in about four of my short quick questions.

The Vice-Chair (Mr. Ivan Grose): There's not that much time.

Mr. Peter Mancini: All right.

In terms of the financial resources that will be provided to the provinces to administer the legislation, am I correct in thinking that what I'm hearing today is that the complexity of the legislation will make it very difficult, given the current funding provided by the federal government, to administer the program, for the record?

Mr. John Whyte: I think we'd rather answer that after you vote.

Voices: Oh, oh!

Mr. John Whyte: It's a long, long story.

Mr. Peter Mancini: Okay. I'll try again, and come back to that.

I am a little bit concerned on two counts.

To the Deputy Minister from Manitoba, when you talk about young people under the age of 12 being accused of a crime and not being able to answer that, and people thinking they're guilty because there's no provision to bring them to court, to me, that talks to the presumption of innocence. To me, what you're really saying is that the presumption of innocence no longer has any teeth, that in fact the accusation is enough to carry the stigma.

Surely the answer to that is not to bring the young person to court but to provide public education on what the presumption of innocence really means, is it not?

Mr. Bruce MacFarlane: Public education, I think, would go a long way and would be helpful, but the presumption of innocence has been a part of our system for 300 or 400 years. I'm think in particular of that terribly tragic case in England, where two youths killed another youth. There was attention not only in the community and throughout the country but also around the world.

• 1640

If there had not been some ability to have an orderly, regulated, carefully crafted hearing that would look out for society but also would protect individual rights, those two children would have gone into a type of never-never land, where you don't know if they're responsible and don't know if they're not responsible of a particularly heinous crime.

We're speaking of confining it to a very small class of crimes, not a broad sweep to bring all under-12s into the system.

Mr. Peter Mancini: But then the reason for doing that is to bring those young people who are guilty into the system—and it may have been the wording—not to ensure that those who are not guilty carry a stigma with them.

Mr. Bruce MacFarlane: Perhaps I wasn't as clear as I should have been. What I was saying was that there is a certain class of offences that should be brought into the criminal justice system by virtue of their very serious nature and by virtue of the fact that the youth had a certain degree of maturity. There should be an assessment as to whether or not the individual is culpable.

Mr. Peter Mancini: Okay.

This is my last short one.

There have been witnesses before this committee who suggest that if we were to allow children under the age of 12 to be dealt with in the criminal justice system, we would be breaching our obligations under the United Nations rights of the children, to which we are a signatory, and that this bill, by allowing a weakening of the rights in terms of statements and allowing statements to be admitted into court, violates Canada's commitment under the international law.

Any thoughts on that?

Mr. Bruce MacFarlane: Perhaps we could defer that until after the vote.

Mr. Peter Mancini: Sure.

The Vice-Chair (Mr. Ivan Grose): Thank you.

We shall return as soon as possible. We will be a little bit fitter than we are now, because we have a long walk.

• 1642

• 1713

The Vice-Chair (Mr. Ivan Grose): I'll bring this meeting back to order.

Mr. Saada, you're next up. Are you ready? You haven't lost your questions?

Mr. Jacques Saada: No, no, I haven't lost my questions. I do have actually quite a number of questions. You will stop me, I'm sure, when I'm through my time.

The Vice-Chair (Mr. Ivan Grose): I'll do my best to stop you. I don't have much luck, usually.

Incidentally, I started with Mr. Saada because you weren't here. You're going to get your time right after him.

Mr. Peter Mancini: I am looking forward to the answers.

Mr. Jacques Saada: My first question is to Mr. MacFarlane, if I may.

Thank you for your presentation. I listened to it very carefully. I heard you speak about sentence, process, victims, court backlogs, and the management of sentences. Why is it you have only used once the word “rehabilitation”?

Mr. Bruce MacFarlane: We feel that the bill in many respects, particularly as regards rehabilitation, is acceptable, is fine. Our submission was focusing on specific areas that we thought needed fundamental change.

• 1715

I'm not disregarding or minimizing the importance of rehabilitation, but we were focusing on several specific points that were of concern to us.

Mr. Greg Graceffo (Assistant Deputy Minister, Corrections Division, Ministry of Justice, Province of Manitoba): If I may, I think the other thing that needs to be considered here is that those broad themes do carry an impact in terms of rehabilitation.

For instance, if you consider the impact of delay in the management of a case—in other words, from point of charge to point of conviction and from point of conviction to point of release—all of the time that gets built up pretrial is time when you're not doing any rehabilitative work. You're not doing any programming. The youth is entitled to the presumption of innocence. The longer that period of time goes, the shorter the disposition on the other end, which means the time for doing meaningful, integrative, rehabilitative work is shortened.

There's also, I think, an argument to be made that things like presumptive release have potentially an adverse impact on rehabilitation. For instance, in Manitoba, when you take into account the fact that the average number of days served is 90 days, you really have a 60-day window to deal with the issues that bring youth into conflict with the law from a programming perspective. The difficulty is that if a youth knows that in 30 days they are going to be able to leave irrespective of efforts they've made to address risk-offending behaviour, they won't.

From our perspective, there are issues inherent in the themes we raised that create difficulties for how correctional administrators or youth justice administrators work with youth. The themes, then, weren't intended to exclude rehabilitative issues as much as they were intended to point out that in these broad themes, issues of rehabilitation do emerge.

Mr. Jacques Saada: Thank you.

You talked about the time span and actually the time wasted before you have the sentence actually given. When you started to talk about that, I felt good about the argument until I got the impression—and I'm sure it's because I misunderstood you—that you did consider extrajudicial measures as being in the way of achieving quick custody.

Mr. Greg Graceffo: No.

Mr. Jacques Saada: Did I misunderstand you?

Mr. Greg Graceffo: Yes. Manitoba last year did almost 2,300 extrajudicial measures where we diverted youth out of the system. We firmly believe in the idea that youths involved in less serious offences should be diverted out of the system, and extrajudicial measures is a good way of doing it.

The problem has more to do with, from our perspective, the idea that if you are using conferencing in other areas the bill has talked about—pretrial, to seek advice on issues—this can create delay if you are going to trial on a serious matter. But insofar as extrajudicial measures are concerned, it's an area of the legislation that we're comfortable with.

Mr. Jacques Saada: Okay.

I have a question in terms of something you said on page 12 of your brief. I didn't have time to read it, and I'm sorry, but I did glance through it. I'll put this question to you but I'll also look at the same time at the concept.

On page 12, talking about the public notification of the names of young persons, you say that:

This provision should be expanded to situations where the young person has not yet been convicted but has been released on bail.

My first reaction would be this. I'm thinking of books and films we see where people are called to the gallows to see how an execution is being conducted. Surely you must have other motives to propose this kind of enlargement.

Could you explain to me how you're going to better serve public safety by having the names not only published but published even before conviction? How are you going to ensure public safety by having the family of the young offender ostracized or isolated? Could you explain to me how this is going to ensure better public safety?

• 1720

Mr. Rob Finlayson: I think, sir, the issue we want to address here is really one of balance—that is, to ensure, when we're looking at the publication issue, that one interest does not outweigh the other, and that where in fact it's in the public interest, and the public interest outweighs the interest of the individual, let the public know that this be allowed to take place.

Mr. Jacques Saada: What is this “public interest”?

Mr. Rob Finlayson: Public interest would mean public safety. It's in the public interest that there be publication to ensure that public safety takes place as opposed to the privacy of the individual. So it is a balancing, from that standpoint, that we feel needs to be addressed.

It can be addressed by the court, in our view. The court can look at those issues and say, in particular situations, that the need to protect the public outweighs the individual right.

Mr. Bruce MacFarlane: Perhaps I could just add to that, sir.

We agree that the general rule ought to be that publication doesn't take place, for a whole bunch of reasons. You've mentioned some of them—the presumption of innocence, the effect on the family, and so on. At some point, though, that value, that principle, that need is counterbalanced by other values.

It's our view, as we've suggested, that the balance is tipped where there's a public safety issue at stake. Where that can be demonstrated to the satisfaction of the court, that's when we say the value in non-publication is outweighed by the public safety issue.

Mr. Jacques Saada: Mr. Whyte or Ms. Pottruff, perhaps I can have your views on the issue of publication of names. We understand here that we make a very fundamental difference between publication of names, public notice of names, and the sharing of information of names for specific professional purposes.

Ms. Betty Ann Pottruff (Director, Policy, Planning and Evaluation, Ministry of Justice, Province of Saskatchewan): Generally we're satisfied with the changes that have been made in the legislation in terms of clarification of what publication is, etc.

There was some suggestion earlier from Saskatchewan, from our minister, that in fact there might be a need to look at whether in fact, post-conviction, there was still a need for some public notification system, similar to what we have for adults, when in fact there is a very rare but extremely dangerous individual.

By and large, though, we're generally satisfied with the publication rules as they're in there now.

Mr. John Whyte: To pick up on Mr. Mancini's point with respect to international standards of human rights, this also is a challenge to publication, as is the age issue—not that we don't think a nation should define for itself the public security regime it needs. We are in fact very sensitive to the extent that it's responsible to have one that does accord with those standards. That is a factor in this calculation, which is somewhat restraining in what the nation should do.

Perhaps I can also make one comment on your point on extrajudicial measures. I certainly don't want to appear overly defensive, but sometimes when we look at this bill we think the federal government believes we haven't moved the approach to offending a lot. In fact, we have a very aggressive alternative measures diversion system for young offenders.

Where we have been able to fund it, we have charge screening already in place so that charges aren't brought against people if there are more constructive ways to deal with them. The province is thoroughly committed to constructive responses to offending by way of the restoration of community health where it has been harmed by offending.

We have some technical objections to the provisions in clause 4 in the sense that they do interfere with the provincial Attorney General's guidelines around extrajudicial measures. I guess we believe, or I know we believe, at least speaking for the Government of Saskatchewan, that the extrajudicial measures, the diversionary alternative measures and policies we have in place are aggressive, are responsible, and don't need to be defined and redefined for us within this bill.

On the other hand, it's anything but offensive to us that this is a thrust of the bill. In fact, it matches policies we've been actively pursuing.

So I'm always interested in begging federal parliamentarians not to believe they have any kind of unique lock on enlightenment.

Mr. Jacques Saada: I'm glad you made this statement.

Actually, the question was addressed to many people for one very simple reason.

I'm going to switch to French because my charts are in French.

[Translation]

In terms of the number of transfers to an adult court in Canada, we can see that in 1997-1998, there was one such transfer in Saskatchewan, and 23 in Manitoba.

• 1725

As for the rates of recourse to custody for violent and non violent offences, Saskatchewan's rate was around 10 to 12 per cent, while in Manitoba, it was 22 per cent. Only Ontario has a higher rate. Therefore, we can hardly compare things that are... I understand very well the differences.

I am concerned by the tone of the presentation. It's not a personal issue here, but an issue of basic philosophy.

[English]

I have one last question—because of time constraints, not for lack of questions.

Mr. MacFarlane, you mentioned the fact that early release should depend on behaviour of youths while in custody. I thought the whole pattern, in your own approach, whether custodial or non-custodial, was to ensure public safety, which I understand.

Could you tell me how punishing a youth for not achieving a sentence, which is already a punishment, is going to help public safety?

Mr. Bruce MacFarlane: I'll make a few comments on that and then I'll look to Mr. Graceffo for some additional comments.

The reference to institutional behaviour was simply one of the factors that we thought ought to be taken into account on the issue of release. Additionally, there is the risk management assessment, which we do all the time. That's a very important part. There's the past criminal behaviour, or track record, in other words.

There's a range of issues that we feel ought to be taken into account as opposed to simply saying, as an arbitrary matter, at this point you go out regardless of circumstances, regardless of your background, regardless of what you've done in the institution, and regardless of our own risk assessment.

I'll look to Mr. Graceffo for further comments on that.

Mr. Greg Graceffo: I think that's the essence of the issue from our perspective. The idea is that if you want to effectively reintegrate youth, part of what you need to be looking at is, first, what are those things that the youth is doing to deal with the issues that bring him into conflict with the law? What kinds of programming have they been involved in? How are they doing from an educational perspective? What is going on in their own community? Is their own community ready to receive them back? Have we done the necessary work in the community to build up the infrastructure to support a youth coming back into a community?

We don't serve a youth well if those things aren't attended to and we simply take an approach that says, at this point in time, “You're going.”

So from our perspective, the idea is that we let the folks who are closest to these cases, the juvenile counsellors who work with these kids every day of the week, in consultation with psychologists and psychiatrists who work in our youth facilities, along with family members, to come to a consensus about how we're going to release somebody as opposed as fixing it at a particular point in time. I think from our perspective, that's an approach that is intended to achieve the same thing but takes other variables into account.

The Vice-Chair (Mr. Ivan Grose): Thank you.

Mr. Mancini, in all fairness, we're going to go back to seven minutes. I know your train of thought was interrupted.

Mr. Peter Mancini: Thank you. I thought I'd get half an hour for the time we were at the votes, but I'll take the seven minutes.

The Vice-Chair (Mr. Ivan Grose): Take what you can get.

Mr. Peter Mancini: I do.

I'll go back to the two questions I'd asked earlier. One's already been addressed by Saskatchewan, and that is on the international covenant in the United Nations regarding children. You will recall the question. The second question was on resources and whether or not the funding from the federal government is sufficient for implementation.

I have two more quick questions in the time that's been allotted to me. The Criminal Code provides for, in adult sentencing, special consideration for aboriginal offenders. It's been recommended to us by the Canadian Bar Society that such a provision ought to be contained in the new act for young people.

I am cognizant of inner-city problems in Winnipeg, for example, where a number of off-reserve native people are living in substantial poverty and with serious problems.

In your opinion, should the new Young Offenders Act make that provision in sentencing for aboriginal youth?

That's in addition to my questions about the resources and the United Nations covenant.

Secondly, Mr. Whyte, going by my notes here, I think when you began your presentation you were critical of the classification based on an offence. You said that needed to be scrapped, or you're suggesting it be replaced with judicial discretion to determine the issues in that regard.

Those are the four questions.

• 1730

Mr. John Whyte: I'm going to ask Ms. Pottruff to speak to the fiscal implications question.

Let me just say first, though, with regard to paragraph 718.2(e) of the Criminal Code, yes, unequivocally, the bill should be amended. One way is to include that same provision.

We are attempting to create, within usual fiscal restraints, a Gladue-based program following the Supreme Court of Canada decision. There is no earthly reason why everything we do there wouldn't be equally available to young offenders. It will be available to young offenders whether you change the law or not, but you might as well change the law.

As for the classification-based offence, there is need for classification-based offences under the fifth category of presumptive offences. Even there the serious violent offence is going to be a problem, since, as I said many times, we have no idea what that is. At the end of every conviction, prosecutors are going to have to see if they can get this labelled as a serious violent offence so that, in case there is a multiplicity of offences, they can trigger the fifth category of presumption for later use, in adult...

That certainly will be cumbersome. As I said before, it will be remarkably uneven across the country, remarkably uneven across the province. One would worry about that. But it is a step we will have to take unless we create a list, which perhaps is the way to get evenness, of offences that trigger the fifth presumption.

Otherwise, with respect to the non-violent and violent, which is what you asked, I do believe it can be spoken to by the prosecutor and defence counsel. I do think it's important in sentencing for there to be a full review of the context of the crime for the victim, the context of the crime for the offenders' needs and situations, and the context of the crime for the social harm it actually created, not just bodily harm—certainly not just bodily harm—and that the right place to do that is in the context of sentencing.

The downside of it, I recognize, is that it means every offence is at least eligible for a custody sentence, whereas we're trying to remove a lot of sentences from attracting custody, with which we agree. I guess we think that statement of policy preference in the act would be taken totally seriously by judges, and we would get actual, contextual analysis that captured properly all the appropriate factors.

So the answer, in a long-winded way, is judges, yes.

Ms. Betty Ann Pottruff: On the resource issue, I know this committee has heard previously that the resourcing, which was 50-50, was capped in 1989. Since that time the federal share of support for provincial youth corrections has been decreasing. Their share now in Saskatchewan is approximately 29% of the actual youth corrections dollars.

That, unfortunately, is not the end of the story. While there is increasing concern about our ability to be able to appropriately resource youth corrections, and a continuous call for restoration of 50-50 federal funding for youth correction, there are also the new costs associated with implementing this legislation. Continuing on with the multiplicity of new processes under this legislation, it should be recognized that the federal cost sharing has never dealt with policing prosecution courts' costs, and that the legal aid cost sharing that's available was also capped in 1989, and now is woefully inadequate as well.

In terms of cost sharing and the resource issue, the real concern is that implementing this legislation is going to require us taking resources away from the meagre and strained resources we have for programming and putting it towards process implementation. This does not meet the needs of the youth and it is not the preferred approach.

• 1735

We have developed with other jurisdictions a national costing framework to try to come to grips with what the provisions in the legislation actually mean in terms of cost. We're disappointed that it doesn't appear that the federal government did any costing itself before developing the legislation. Our estimate is that we're at $2 million, at least, in terms of implementation. That's probably low on the systems side. Probably about $6 million in ongoing annual costs will be added to the current costs to implement this legislation.

Now, these are always subject to debate, obviously, because we have to make some assumptions based on what we do know about the system as to how things will play out in the courts. If you change one aspect of the bill, it clearly can have either increasing negative problems in terms of costs and resources or beneficial implications. One of those areas clearly would be presumptive release. That whole scheme, which plays throughout the legislation, is a costly aspect.

Mr. Bruce MacFarlane: There are three outstanding issues I'd like to address—the funding issue, the question of under-12s, and the aboriginal point. I'll go with them in that order.

With respect to the funding issue, our comments and views are very similar to Saskatchewan's, so I'll just add on a few additional points. At consecutive meetings of ministers of justice, there has been discussion and a belief that major federal initiatives ought to be costed out in some fashion in order to give the provinces an opportunity to understand what lies down the road. It wasn't done in this particular case. Our best estimate for Manitoba is that the new additional costs in connection with this legislation will be roughly $5 million per year. That is a significant amount for our treasury.

Having said that, we don't know what the final product will be. For instance, if preliminary hearings were eliminated, that would have an effect. If other changes were made, then there might be a different type of effect. So we don't have the final product yet, but our best assessment at this point, based on the bill, is that the additional cost would be roughly $5 million for Manitoba.

We do seek a return to a 50-50 cost share, as was previously the case. We see no reason in principle why we shouldn't return to that original level. That's our position on that.

On the question of children under 12 and the issue of international agreements or United Nations instruments, we do certainly respect the situation under international law, but as is always the case when it comes to legal issues, balance is so important. Developing the right balance is critically important.

With respect to under-12s, our belief is that if you confine the ability to draw a young person into very serious offences, in egregious circumstances—so there's an offence-based test and an offender-based test—with the judicial screening—and obviously a very small number will come into this category—then that does strike the right balance between respecting principles that are broader than simply our criminal law and protecting the public at the same time. So we believe all those factors do strike the right balance.

Finally, with respect to the aboriginal point that's been raised, we see no rationale, in principle, to have a different approach between the adult scheme and the young offender scheme. We see no reason to have a distinction.

I would simply observe that the courts are really struggling with the interpretation in the adult system. In a recent decision, the Supreme Court has signalled that with respect to serious offences, they don't see a strong rationale for drawing a distinction between aboriginal and non-aboriginal.

But that's a question of interpretation. On the level of principle, we see no rationale.

Mr. Peter Mancini: I think your report said it wouldn't automatically invoke that section.

Mr. Bruce MacFarlane: That's right.

Mr. Peter Mancini: Thank you.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Mancini.

Mr. MacKay, seven minutes.

Mr. Peter MacKay: Thank you, Mr. Chairman.

I thank all of you for a very well-put-together, succinct presentation. You've taken us on an incredible journey in terms of your assessment of this legislation.

I want to go back to this issue of transfers, if we could, and the elements you have laid out in rationalizing why we would bring about a system that would incorporate some mechanism to get 10- or 11-year-olds...

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Statistics show, I think it's fair to say, that we're talking about a relative few who would ever encounter this type of system, but what I am suggesting to you and asking you to comment on is a system that would envision a transfer provision, similar to what we have now, to bring a youth into an adult court system.

I believe, Mr. MacFarlane, you alluded to that in your comments, that you would have the onus on the crown or the defence, obviously, to justify this based on circumstances of the offender and the offence—the type of crime itself, the impact, the availability within the system to deal with that youth. It's not to put a 10-year-old in an adult penitentiary but to avail themselves of what we are led to believe this new youth criminal justice system is going to do.

Early intervention, alternative measures, all of the upside that we're told of in this bill is currently unavailable to youth in this category of 10 and 11. There are those who would perpetrate the big lie that this is an attempt by the far right to somehow hammer a 10-year-old. But that's just the usual rhetoric.

I'd be very interested to hear your comments with regard to a system that would allow for a transfer with an obvious level of scrutiny and a great deal of judicial discretion.

Mr. Bruce MacFarlane: I'd start out by saying that there's a great deal of public frustration with the notion of an arbitrary cut-off, where all of a sudden, below a certain point, there is no criminal liability. The roots for that go back 400 years, where there were arbitrary cut-off points in the common law.

I emphasize that we're not interested one bit in drawing a whole bunch of young people who have committed offences. That's not our point. We are looking at perhaps a tenth of 1% of serious situations that could arise. We are, however, urging consideration of a carefully crafted scheme that does involve checks and balances to ensure that only the right types of children, right types of offences—in other words, serious in both situations—with a judicial screen to ensure, once again, the right balance is struck...

In other words, it's to ensure that you're not protecting a class of individuals who are violating the law and at the same time you're not, in a wholesale way, going after a lot of youngsters. You're going after the truly serious young criminals, in part because our information is that the commission of those sorts of serious, serious offences at an early stage is indicative of a much broader problem that we're going to have to deal with downstream in the health system, in the social services area. To be able to identify it and deal with it at that early stage as an early intervention approach is important.

Plus, as I mentioned, in those types of highly visible, highly serious types of crimes, where an accusation has been made, there is an element of due process built into this if there's an ability to demonstrate either non-culpability or culpability. I simply add that on as an additional factor for consideration.

Mr. Peter MacKay: With respect—and we could go further with the funding issue—it seems to me that much of both of your presentations dealt with the aspect of public confidence. There is certainly a heightened expectation and degree of “false hope”, as I would describe it, that this legislation is going to be the be-all, end-all, and cure-all of youth crime in the country.

The statistics as well indicate that, in fact, according to Juristat, youth crime is not on the decline. We're going to hear a presentation when you're through that suggests quite the opposite. Not only in your provinces but across the country youth crime is increasing marginally every year. Since 1993-94, it's gone up almost 10% across the country.

The public confidence element is very important, and with this aspect of a new system that basically asks all of the stakeholders to do more with less and to do it better with less, and additional responsibilities, with this cumbersome, unworkable system that everyone is going to have to somehow come to grips with, are we really at a point in time—and I would ask you to consider this—where we should be asking whether we should improve the existing system rather than foist this entirely new and incredibly complicated, incredibly expensive, and underfunded system on the unsuspecting public only to have cynicism grow or expectations dashed?

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Mr. John Whyte: I didn't know, although I should have, that Juristat-based evidence will come in saying that youth crime is increasing across the nation, but I'm not surprised that the developmental challenges faced by Canada's youth are getting more serious and more pervasive. In my submission, I talked about perhaps some of the factors. I don't think we are providing the social care within communities and families for young people that we need to, and I expect deviance to be the result.

As for the present act, and improving it, I agree with you that the declaration of a new regime that gets to the heart of the problem, especially when it has the contours of this one, is misleading and will be embittering for Canadians. It will not produce confidence in the justice system.

Whether we should take the act we have, with many of its laudable presuppositions, including the one... Although we speak harshly against presumptive release, we're not at all disconcerted—in fact, we quite support it—by the idea that there be no inside time without some integration time. We're certainly not opposed to the presumption in favour of alternatives and diversion being used as widely as possibly.

Whether we take these positive, underlying tenets and construct them in a system that returns authority and capacity to places where it has been exercised, I believe, with compassion and imagination in province after province—and most successfully, I believe, in the province of Quebec, with its strong therapy model for youth offending—or whether we take this act and revise it to leave discretion and authority and room for the administration of justice in the province, the administration of corrections in the province, the administration of child protection in the province, or whether we tinker with the Young Offenders Act, I don't know; I don't think it makes a lot of difference. I do agree, though, that representing this act in this form as producing a positive difference for Canada will be embittering for Canadians.

Mr. Bruce MacFarlane: Perhaps I could briefly add to that. Our thinking is very similar to Mr. Whyte's, so we'll add just a few points.

It strikes me that in the last five or six years there's been a tremendous sense of frustration amongst the public with the Young Offenders Act. So whether it's a wholesale change of existing legislation or whether a new scheme comes in, I think that's less the point. The main point is that fundamental change is required.

We think many aspects of the bill are laudable, and we support them. But one of the main concerns we have is whether or not, in bringing in a new scheme that promises a whole different approach—for instance, to sentencing—I think the public is going to be surprised once they learn that three years means two. That is going to potentially signal an even more dramatic loss in confidence on the part of the public. There is an expectation that this bill is going to cure the situation, and it doesn't.

Mr. Peter MacKay: Thank you.

The Vice-Chair (Mr. Ivan Grose): Now, as you realize, we're already into overtime. We had a whole half-hour—in which we were going to do nothing, I guess—

Voices: Oh, oh!

The Vice-Chair (Mr. Ivan Grose): —where, inasmuch as we wasted it running back and forth to the Centre Block, I'm sure the committee will go along with the fact that we're using that time to get as much evidence as we can from the witnesses.

Mr. Cadman, if you could be as brief as possible, I can get a couple of new people in.

Mr. Chuck Cadman: Yes. I have only one and I won't have another one.

I'd like to hear your views on some of the concerns we've heard expressed by some people about the potential for a revolving door set-up on extrajudicial measures.

As a case in point, a policeman cautions a young offender, and three weeks later another cop in another part of town does the same thing with the same person, or possibly between Winnipeg and Portage La Prairie. The young offender relocates—extrajudicial measures again, because nobody knows he's already been cautioned or gone through it before.

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Do you see a problem here? I assume it's going to come down to resources, and making sure that the different jurisdictions keep in touch with each other. What kind of an impact do you see there?

Mr. Rob Finlayson: I think it's certainly an issue, sir, that we've identified as a concern. In order to ensure a proper keeping of records, local police departments and the RCMP have to ensure that an elaborate scheme, an administrative scheme, is set up to ensure that all of those extrajudicial interventions have been caught and have been recorded. That means, in effect, they have to ensure that they keep proper privacy records as well, to ensure that those aren't released to the public.

Again, it really does boil down to an issue of resources and ensuring that we have the resources and that police departments have the resources to ensure that those are caught. At the end of the day, we're the ones who have to justify that we're referring something to an extrajudicial proceeding because it's justified. If the public were to find out that it's actually the fifth time, and we're doing it thinking it's the first or second, then again public confidence is hit hard.

Ms. Betty Ann Pottruff: I think there is an issue for the jurisdictions in terms of how do we set up record-keeping systems with the police and with CPIC or whatever method we use to be able to track the incidents so that in fact the problems don't occur in terms of a revolving door syndrome.

I think another problem with the legislation is caught in clause 9, where there's a restriction on using information or revealing information on the use of extrajudicial measures in later judicial proceedings. That's going to create difficulties in terms of the police and the crown speaking to sentence where in fact extrajudicial measures have been used and have not been successful in the past. That's the basis for asking for various conditions in a probation order or something, because you know the history of this young person. So I think it's an inconsistency in the legislation that needs to be addressed.

Mr. Chuck Cadman: You see a problem with clause 9, then, do you?

Ms. Betty Ann Pottruff: Yes.

Mr. Chuck Cadman: Thank you, Mr. Chair.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Cadman.

Mr. McKay.

Mr. John McKay: How much time do I have?

The Vice-Chair (Mr. Ivan Grose): Three minutes.

Mr. John McKay: I'll ask two questions in three minutes.

Subclause 10(2) of the bill reads in part:

(2) An extrajudicial sanction may be used only if

(a) it is part of a program of sanctions that may be authorized by the Attorney General or authorized by a person, or a member of a class of persons

First, what is your view with respect to whether this is or is not a “downloading”, for want of a better term, of constitutional authority for criminal law? Is it your view that this may well be a transference of criminal law authority to a provincial Attorney General? That's question one.

Two is more of a generic question, and that is with respect to how you would recommend to your respective attorneys general a program of sanctions given your, as you said, “budget restraints”.

The second question—that was (a) and (b) of one—

Voices: Oh, oh.

Mr. John McKay: —is with respect to the interaction of the child welfare system in your respective provinces. With the current young offenders legislation, of course, it revolves around age 12. Is there any reason in principle as to why children under the age of 12 cannot be treated under the child welfare legislation? Is there any reason in principle why children could not be diverted into the child welfare system, much like they are in Quebec, which would presumably reduce your use of the young offenders legislation or this legislation?

The Vice-Chair (Mr. Ivan Grose): This was a three-minute question and answer, not a three-minute question.

Mr. John McKay: Oh, is that how it works? You don't say. Well, we'll talk about questioning in a minute.

Mr. John Whyte: First, apart from federal jurisdiction over the criminal law, of course, there is provincial jurisdiction over the administration of justice in the province, including the criminal law. That does include federal prosecutions and prosecutorial authority, including prosecutorial discretion. I guess we believe that within the realm of prosecutorial discretion is the discretion not to charge when certain other processes are available within the province for meeting the same need.

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So it is indeed taking that prosecutorial-discretion jurisdiction and using it widely to construct a system that we think is a constructive response to offending. I do think it is within the intention of federal-provincial coordination anticipated within clauses 91 and 92 to be doing that. I don't think it's a problem. I think it's the case right across the board for criminal law.

It's especially the case, going to question 1(b), when one is dealing with children and the province's jurisdiction to take responsibility for child welfare. With respect to 1(b), we agree with you that our child protection legislation gives capacity to intervene in children's lives when they have committed what would be offences if they were older and to provide child protection for them.

Actually, there was another question.

Ms. Betty Ann Pottruff: Just as a clarification, I don't have it in both official languages, and I know the committee requires that, but I will just leave with you a copy of Saskatchewan's alternative measures policy so you can see how it applies to young offenders.

As well, with regard to the child protection issue, our legislation specifically recognizes that when children under 12 are involved in criminal offences, it is the ground of child protection.

Mr. John McKay: Does Manitoba have a different view on that?

Mr. Rob Finlayson: To deal with the first question, sir, I think a similar scheme has been set up to deal with adults. We agree with Saskatchewan with respect to the fact, in terms of the administration of criminal law, that the province does have that responsibility, and we don't see any difficulty in carrying this out. Again, it becomes a resource issue and building in the appropriate sanctions to deal with young people as well as adults.

With respect, again, to the under-12 issue, we agree, quite frankly, that social services does have a very important role to play, and should be playing that role with respect to the majority, if not almost all, of those under 12. I think it's critical that they do. Again, with respect to the under-12s, in our presentation this afternoon we have tried to stress that the application to bring them into the youth criminal justice system would be very limited. It would be restricted to those very high-risk young people who commit very serious, heinous offences in situations where, in our view, due process requires that they should be dealt with in the youth criminal justice system, but again, only after an application, either by the crown or defence, and only after the court has ruled that, yes, that should take place.

So we agree with you, social services has an important role to play. Our submission with respect to the under-12s is that it should be very restrictive.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Finlayson.

I'm afraid at this time I have to call an end to our half-hour of leisure, which I think we've used very productively.

To the witnesses, thank you very, very much for indulging us in our running off with the flashing lights and bells. I'm sorry, but again, thank you for the information you brought to us.

This meeting is adjourned for five minutes.