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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Tuesday, February 8, 2000
The Chair (Hon. Andy Scott (Fredericton, Lib.)): I now call the meeting to order. We are hearing witnesses this afternoon on Bill C-3, an act in respect of criminal justice for young persons and to amend and repeal other acts.
Your agenda will show that we were expecting to hear witnesses from the Ontario Contract Custody Observation and Detention Homes Association and the Ontario Association of Community Correctional Residences. Both of those presenters are unable to be here today.
We do have, as is well known to this committee, the Institut Philippe-Pinel de Montréal. We also have Dr. Doob, who was here this morning. We ran out of time in terms of some very interesting discussion, and our scheduled witnesses have courteously agreed to invite Dr. Doob to join us at the table. He made his presentation this morning and doesn't feel the need to repeat it. So we'll hear the witnesses before us, and then perhaps when we have our dialogue following that he will be able to participate.
Dr. Doob, thank you very much. I know this wasn't planned. We appreciate very much your lending your time.
I also appreciate very much the witnesses giving us some of their time in terms of his participation.
I will call upon the witnesses to introduce themselves. I know you're well known to the committee and to me, but perhaps you could do that for the record.
Ms. Cécile Toutant (Criminologist, Youth Program, Institut Philippe-Pinel de Montréal): I'm not sure in which language I should speak. Maybe I'll go from one to the other. I have the feeling sometimes that I get the attention of people when I speak their own language, so although I feel that a lot of English-speaking people are here, I might go from one language to the other.
To begin with, do you have a summary of the presentation? Okay. You don't have it, but you will.
As a means of telling you who we are, I will speak first for myself, and Dr. Morrissette can explain his own experience. We are here to discuss with you the concerns we have on certain articles of the law that touch much more the possibility of rehabilitation for the juvenile.
In 1972, at the Philippe-Pinel Institute, which is a maximum security hospital, we developed a program for violent juvenile offenders who were not necessarily mentally ill but had psychological problems that had brought them to the crimes they committed.
Since 1972 we have seen about 600 juveniles, some of them in evaluation only, some of them in evaluation and treatment. They all had in common being implicated in violent offences.
Today we want to discuss with you the experience we got from working with them and with their families, and very often working with their victims, because working with the aggressor doesn't mean we don't deal with the victims and that it's not possible.
I would like to make clear, do we have a limit of ten minutes or twelve minutes in which to talk?
The Chair: Generally we have about ten minutes, but given the fact that we really only have one presenter, I'm going to be somewhat liberal in that application.
Ms. Cécile Toutant: That's well put.
The Chair: But there's a limit to my liberalness.
Ms. Cécile Toutant: Okay.
Dr. Louis Morrissette (Psychiatrist, Youth Program, Institut Philippe-Pinel de Montréal): I'm Louis Morrissette. I'm a psychiatrist. I've been working at Pinel half my time, with the adolescent unit, violent young offenders, since 1982. As for the other half of my time, I think it's important to say I've worked in courts, at dangerous offenders' hearings, murderers who want to get out before 25 years—they have special editions for that—cases for mental state at the time of the offence. Essentially, almost my whole practice is working with people who are considered dangerous, be they adolescents or adults.
I've also worked, less now, but for many years, for the Parole Board, the Correctional Service Canada. So for almost 18 years now I've been working in the problems we are going to discuss.
About treatment for young offenders, what do we know? There are a lot of things we do not know, but there are things we do know. What we know are simple things, but I think they must be repeated.
First, the sooner you begin working with a kid who has behaviour problems, be it sometimes kindergarten, sometimes fifth grade, or sometimes eighth grade, the earlier you begin, the better the results. Secondly, the longer you stay with the family and the kid, the better it is. These are the two essential ingredients you need.
I think you have to add proper evaluation to that, because when I see the kids in the unit at Pinel, most of them have been known to the system, be it youth protection or the young offenders system, for many years, and when you look at the charts, sadly, many things are lacking. A kid will be known by youth protection at eight, nine, or ten years of age and then the file will be closed. Then it will be opened again at eleven. At twelve he will steal a chocolate bar, and then that's a new file, a young offender file. It closes after three months, and then it opens again after seven months, because there is no long-term intervention.
That's sad to see, because for many kids, murderers or other violent crimes that I see, sometimes we get the feeling that if there had been a continuum with mental health services or youth protection services and young offender services, if these people would talk to each other, things would be better off in the end.
Specifically about mental health problems, you probably all see things written on attention deficit disorders and Ritalin. Are our kids drugged up with Ritalin or Dexedrine or amphetamines? Do kids have mental problems? Yes, some kids have mental problems that bring them to have behaviour problems.
Attention deficit disorder is a problem that is well known and well discussed, but not well treated, especially with young people who have behaviour problems. I've written that, and it will be given to you if you wish. Essentially, I talk about those things in there, but what I want to say is that they are behaviour problems that are clearly related to mental disorder problems, be it attention deficit disorder, manic disorder, Tourette's syndrome, or other things, young offenders who have been sexually abused who become abusers themselves. But if you look at the services—and I'll come to the new law eventually—they are not well integrated and not well adapted to people with behaviour problems.
I've been working in New Brunswick for a while. I've been to P.E.I. for evaluations, and I've been in Ontario discussing with different people.... In Quebec it's a bit the same. If you have a kid with a behaviour problem and you send him to the mental health clinic, they won't take care of him. They'll say “Behaviour problems? Not mental illness? We're not equipped for this problem; the other system takes care of it.”
Clearly there are things we don't know. We cannot clearly cure or help all these children, but is that a reason not to try for many of them? For example, if we look at the AIDS epidemic, if doctors in the late seventies and early eighties had said to people coming to the hospital with cancers and infections “Look, you're going to die in three or six months. We do not have any treatment for you”—which was true at the time—“go home and you'll die peacefully with your family”.... It did not happen that way. There was research. Treatments were tried. Some succeeded; some did not.
Now we are in a situation, 20 years later, where the illness can be controlled—not cured, but it can be controlled. People are dying a lot less from that disease now than they were 20 years ago.
We know a lot more about violent behaviour in young people. We know a lot more today about these young people and how to intervene than we did 25 years ago, and most probably 10 years from now we'll know a bit more, hopefully.
Having said that, am I someone who will say we must try with every kid? Is it possible that we cannot help some kids at this moment? I have written reports in that direction. There are some kids who cannot be helped with the system we have now, with the law we have now, and with the knowledge we have now. I'm not saying that no kids should go to the provincial prison or penitentiary. With some adolescents we don't have a better thing to offer them. In my experience it's always exceptional. It does happen. In 1997-98, in Canada, there were about 80 or 90 young kids who were referred to the adult system out of 110,000 young offenders. So it's possible. It has to be exceptional.
With the new law what I find sad as a condition is that, first of all, it continues the misperception that kids are becoming more violent. In the paper I wrote I used some of Dr. Doob's paper, saying serious violent crimes have not increased. Since 1972 until now there have been between 40 and 60 young offenders accused of homicide every year. It has not changed. It has not changed significantly. The rate of other serious crimes, violent crimes, has not increased. The perception of the public is clearly that it has increased. One violent crime is too many, but it has not increased in the last few years. Having a new law says to the public, here is a big problem and we have to deal with it. Yes, it's a big problem. It's not getting worse, so do we need a new law for that? That's the first step.
Will the new law improve things? When I try to read it—I'm not a lawyer so I have a difficult time reading these things, but there is some kind of miracle view of the adult system. By sending an adolescent to the adult system, either when he's 18 or 20 years old, eventually the public will be better protected. What you have to know, because I think most of you are not in that field, is that a lot of kids that are now sent to adult court ask for it. They ask for it because they know they'll get a shorter sentence; they'll be on the street sooner. If you don't talk about murderers, because they will get automatic sentences and they'll stay longer in adult prisons, but you talk about other violent crimes, most of these kids will stay in prison or detention shorter than if they were treated with the law we have now. In the law we have now there's no automatic probation. There's no automatic parole. If it takes six months to settle the case, the six months spent in detention does not count.
So if you add that up, the kids stay longer in detention now. If you send them to adult court, let's say, for a serious sexual assault, they'll get out sooner in the adult system and they will have had access to no programs. Going to the penitentiary and sometimes provincial prisons, there are no—well, people can say yes, there are programs, but there are no effective programs. There are some people who, when they get out, are better and will not recidivate, but it's not because of a program. It is because they decided to be different.
I'll finish with this. If I look at people who ask for programs, who ask for parole, who ask to be released from prison before the 25 years for murderers, most people I see in that group who ask for and go to the programs are people who are well organized, with an anti-social personality disorder. They are anti-social and they know how to use the system.
So to believe that sending adolescents to the federal prisons essentially will help with rehabilitation, will help with better protection of the public...it's false. They'll get out sooner without programming. The supervision...a lot of times probation officers and all that don't have the time to do anything.
So clearly there are things that could be improved in the law that is there now. Maybe we could have more than three years detention and two years probation. Now, except for homicide, children or adolescents can be sentenced to detention for a maximum of only three years. That could be longer for offences that are not homicides. There are too many automatismes in the new law—for example, as I said, counting the time before decisions and then automatic parole at two-thirds.
In some provinces I have heard that some people are saying “Well, the new law will encourage people to get the kids on the street with supervision and proper preparation”. You have to look at what is done with adults in a system like this. Many adults, after they get out of prison—let's say they are liberated from a prison that is 20 miles from Montreal—are given $50 and a bus ticket. That's how they are prepared.
So we must be very careful to think that having in the law something that will say these adolescents will have to be eligible for parole at two-thirds, so you must prepare them and follow them from two-thirds of their time to full-time...it's not done in the adult system and the law is the same. Why do we think it will be done in the juvenile system?
When I look at what was said by the Minister of Justice when the law was presented, there was an emphasis on prevention. Good. There was an emphasis on probation and follow-up in the community. Very good. There was an emphasis on mental health services to the violent offenders. Very good. But do we need a new law for that? It can be given with the law we have now.
The Chair: Merci beaucoup.
We'll begin with Mr. Cadman for seven minutes.
Mr. Chuck Cadman (Surrey North, Ref.): I won't need seven. I just have one quick question. It's a little bit off topic, but it's something that has occurred to me.
I was familiar with a case a few years ago—this is in British Columbia—where there was a young offender who was eventually tried as an adult for a murder. Some of the testimony that came from the psychiatrist said that he had been brought to the attention of the system earlier for some minor stuff and he had been evaluated then but there wasn't a full evaluation done. Later on, within a few months, he committed the murder. When they went and re-evaluated he basically said that if they had done the full evaluation back a few months ago they would have seen this coming; they would have seen serious violence coming.
Is that common? Does that normally happen? I would say that when they first come to the attention of the system, that's when you want to do a full evaluation to see what's coming down the road.
Dr. Louis Morrissette: I think we cannot see in advance on this side. I think we cannot see that. But the serious violence, yes, that can be seen when you look. If you do a complete evaluation it means talking with the parents, teachers, and all these evaluations. You can have a good idea. If you don't do anything serious enough at this point, you can have a good idea that it will continue. And when they get older, bigger, more organized, violence usually can become worse. So yes, I would agree with you that sometimes it's sad to see.
I see murderers, and before we look at the chart, why was he not taken in charge before? Why was there no intervention or long-term intervention? It's sad to see. That's why evaluation at first offence is very important, even if it's for a chocolate bar or stealing a bicycle. It may sound a bit foolish, but one research we did was with murderers, a follow-up for ten years, adolescent murderers compared to a group of young offenders arrested for crimes against property, not violent crimes. When you look after ten years, the worst behaviour and arrests for more violent offences was the group that was first arrested for property offences.
So you have to be careful about these offences. They are important, and you have to deal with them. But often we don't have the resources and we don't take the time.
Mr. Chuck Cadman: Essentially, that's what I was getting at. It comes down to resources where the real complicated—
Dr. Louis Morrissette: Resources and a change of mind. It's not only stealing a bike, but what it means and what happened before. We caught him this time for a bike, but what did he do before that we didn't catch him for? We have to look for that.
The Chair: Madame Toutant.
Ms. Cecile Toutant: I just wanted to add something to answer your question.
We very often meet parents who asked for help before it ended up in a horrible crime. Sometimes they knocked at doors where they didn't get the proper services. People can make mistakes. I don't say that everyone who's going to be violent in the future is going to necessarily be identified, but sometimes they didn't get the services.
I think we have to realize now in Canada that when we talk about the legislation, that doesn't bring on services. Legislation can force somebody to make social reintegration at two-thirds. Of course we can force people to take them out, but reintegration means it's following rehabilitation. If you don't have or if we don't have in our institution an infrastructure for rehabilitation, we're not going to be able to legislate any kind of proper rehabilitation. We don't legislate those things.
I'm sure you heard that Quebec is very much against this law. Well, not everybody. I heard also. I would say many of the workers who work with juveniles are against the law, because we realize that we are very lucky in a way, since in the 1950s we got a place called Boscoville. In Boscoville a tradition of rehabilitation and working with kids and considering them different from adults was developed through people like Père Mailloux and the people who built Boscoville. Boscoville was a centre for juveniles with what we call psyco-education type of training. Not only did they create that resource, but they also created a university training that the people would receive to go and work with juveniles.
So what I say is that when you want to work with juveniles, and you want to try to work properly, you don't legislate that. You just give the money, bring in the services, bring in the training, bring in the philosophy. It's a whole philosophy.
If I come in a prison today and I say to somebody that at two-thirds you're going to bring this kid out and you're going to make social reintegration with him, they're not going to know what to do. So they're going to do like this law does. I find, personally, it's going to give about fifty conditions of control. Control has to be there; you don't do rehabilitation if you don't control first. But it has to be accompanied by support, teaching, a little bit like we do when we're parents. I always say re-education is like education: you have control, but you need support; you need to be there with a kind of affectionate authority.
If you don't have that infrastructure, you can make all the laws in the world and it's not going to work.
I think there are a few places in the law where we feel bad when we want to treat. We always feel bad with automatism, and I'll tell you why.
Let's say we have a kid we treat. We've had a few of them, so when we talk we think of some of them. We treat them, and whenever they're ready to go out, when we feel they're well implicated in their treatment and they're doing much better, because we deal with them every day, we say we're going to open up the program, and they go out. They go out by groups, and then they go out accompanied by an educator, and then they go out alone.
If at one time he starts working, let's say, and we feel it's not going right, because we know he is not dealing the same way he used to, we say “You're not going out tomorrow morning because we feel there is something wrong that you're not sharing with us. We feel that you're nervous, you're impulsive. Something is not going okay.” We stop him. Sometimes it will take a week, sometimes two weeks, and then we get to know what was happening. We deal with the problem, we put him back out, we continue.
Treatment is accompanying somebody in learning who he is and changing. Accompanying is not controlling and just saying no to this and that.
That law says that at two-thirds they go out on intensive conditional supervision. You have so many conditions. I mentioned that before. I don't like that. I think we should put the conditions that suit the kid, not conditions that are already in a law. But when he's out, we should have the suppleness of saying “Come back here”. With this law, if we want to keep him more than 48 hours, we have to go back in front on the court and deal with the judge and say “We would like to bring him back, and we don't know for how long.”
I find procedures are going to stop people from taking the proper measure at the proper time. So if we talk about treatment, these articles have to be looked at.
The Chair: Thank you.
Mr. Michel Bellehumeur (Berthier—Montcalm): Ms. Toutant and Dr. Morrissette, first of all, I want to thank you for making such a lucid presentation. I invite members to read your submission. It contains some details which were not included in the presentations, particularly that of Dr. Morrissette. You state your position clearly, right down to the conclusion. Enough said for the moment, although I may come back to this during the clause-by-clause study phase.
Either one of you can feel free to answer my question. One of the oft-stated reasons given by the Justice Department for amending the Young Offenders Act is that the legislation lacks clarity and vision, that its stated principles are contradictory, that the various stages in the judicial process are not based on any clear standards, and so on.
Ms. Toutant, since you monitor the way in which the legislation is applied more closely than Dr. Morrissette, is the Youth Criminal Justice Act, in your opinion, that much clearer than the YOA? Is it based on broader principles and is it a better vehicle for achieving the goal of protecting society than the YOA which has been in force for a number of years now?
Ms. Cécile Toutant: I think I can answer that question in short order.
The Juvenile Delinquents Act, the act we had from 1908 until 1984, was a very protective law. It was a little bit like a paternalistic law. You would deal with a child as a good father would deal with his child.
When the lawyers—and I don't disagree with the lawyers—looked at that, they said the kids have no rights; they're not protected enough. The society evolved. Finally we came with the Young Offenders Act. The Young Offenders Act gave the kids more rights and more responsibilities in a way. They were seen as being kids, but kids more responsible than the other law would have said.
I think that the Young Offenders Act, if we're talking about the principle, made a very delicate equilibrium with the principle, but we liked it. And I say we liked it in the sense that it brought at the same level not only protection of the public but the needs of the kids as being non-contradictory. I believe it was very good. I don't believe it's easy in application all the time, but I don't think a law should be easy, that it should be so automatic that you say right away that protection of the public means that.
I know that in the new law it is mentioned that we're going to take into account the needs of the young person or the young offender. But I think we must never forget that we liked the other law in the way it was described because it really differed from the adult system. I think a juvenile system has to always keep in mind that kids are not our enemies, they're not adults; they're people who are growing up in the maturation process and they have special needs.
Special needs doesn't mean they get away with murder. It doesn't mean that. It means if you are a kid with neurological defects, we're going to take that into account and try to give you the proper services. And if we don't, no protection of the public is going to come out of that. I would say that sometimes protection of the public seems to be contrary to specific needs and rehabilitation. And I would say that protection of the public is the consequence of that.
If you don't rehabilitate people, if you send them to adult facilities where it's the law of the strongest, the law of the....
I was going to say “gros bras”.
I don't know how to say it in English.
Mr. Jacques Saada (Brossard—La Prairie, Lib.): Say it in French.
Ms. Cécile Toutant: La loi des gros bras, or the law of the jungle.
If you send them there, you're going to have the result of a place like that, which doesn't take into account who the people are.
I don't think we should, this afternoon, talk to you more about the adult system. I think you should just get to know a little bit more how it works.
Dr. Louis Morrissette: What I could add, I think, is that I'm a bit surprised that we put so much emphasis in the new law about protection of the public. Because in the actual law now, the first principles, since 1995, clearly stated that the first one is protection of the public, which I agree with. But as Madame Toutant said, if you want protection of the public, yes, you can control these kids by probation or detention, but the best protection is eventually to give them what they need, if we can, and then eventually protection will be assured.
But the first goal of the law now, as it is, is protection of the public. That was not true in 1984, but it changed in 1992 and then in 1995. The first principle of the law now is the protection of the public, so it's nothing new saying the protection of the public should be first. It is already this in the law as it is now.
The Chair: Monsieur Bellehumeur.
Mr. Michel Bellehumeur: Following up on what you just said, I'd like to focus for a moment on the first statement you made in your submission. You said that you find the legislation disquieting because it makes the youth justice system dangerously similar to the adult justice system. You go on to give a series of examples. You seem to be telling us that in terms of release and follow-up measures, the bill now under consideration will ensure that young offenders are dealt with more and more as adults.
Ms. Cécile Toutant: I gave a few examples and I could probably give you several more. You know as I do that in Canada, an effort is almost always made to tie concern for the public's safety to the length of the sentence. As the researcher who is here with us today can confirm, no research findings have proven that the length of a sentence improves chances of not re-offending.
We hear talk about the need to protect the public and to better address the needs of young persons. I have to wonder then why we have a provision whereby 14-year olds can be charged with presumptive offences for violent offences. I gave a number of examples in my brief. Over the years, we have been most successful dealing with youths—and lord knows we have dealt with some extreme cases where we haven't had much success—where, although they had committed a very serious offence, this happened to be their first offence. They had no previous criminal record. Often, they had committed a terrible offence, one so horrible that if we described it to you right now, it would be beyond your comprehension. I have to say that confused adolescents often commit crimes that are far more horrible, were we to describe them, than those perpetrated by adults. Adults take a gun and commit a murder that may appear neat and clean to the public. Youths, on the other hand, often commit crimes that make people's hair stand on end.
If the young offender has no prior criminal record, then the prognosis is excellent. We mustn't automatically impose an adult sentence in the case of a violent offence. In short, we must look further than the offence itself.
Secondly, I have to wonder in what way adult sentences are an improvement. The current legislation makes provisions for harsher sentences in the case of very serious offences. In my opinion, the penalties in place for first and second-degree murder are adequate. It's important to look at the work that has been done with young persons and to see how we have managed to work with them over the years.
Another issue that concerns me—and this goes directly to what we're discussing—is the possibility that young offenders can be sent to an adult correctional facility to finish serving their sentence after commencing their rehabilitation in a youth facility. I think we can rule this out as an option. Although the legislation says that this is possible, I would have to disagree for two reasons. The youths we treat in our facility have committed serious offences and are not easy to handle. Don't imagine that when they enter this facility, they address us as sir, madam or doctor. They are not very polite and rehabilitating them is not an easy process. No young offender would be willing to start this process if he or she knew that ultimately he or she would be moved to an adult facility. I think we can forget that. The legislation would have to provide for the resources to care for 17 year olds up until the ages of 22 or 23. These resources would overlap both systems and on the youth side, would have to be assigned to treatment, not to detention, services.
A popular misconception in Canada today, and I heard this again recently, is that young offenders in custody are segregated from the adult prison population. Where's the problem here? Let me tell you that young offenders segregated from the adult prison population are housed in institutions where there is no specific program in place for young offenders. They watch television and play video games, marking time until they turn eighteen and are transferred to the general population.
I don't know everything about young persons, but you, the members of this committee, need to ask yourselves what is happening to young offenders held in adult facilities. You need to ask what kinds of programs are available to them and how they are being rehabilitated.
In conclusion, Mr. Chairman, in a youth facility, full-time staff are involved in rehabilitation efforts 24 hours a day. In an adult correctional facility, inmates do take classes, but once they return to their unit, the law of the jungle prevails. That's life on the inside. Therefore, rehabilitation and an adult correctional facility are not a good mix.
The Chair: Thank you.
Mrs. Carolyn Bennett (St. Paul's, Lib.): Thank you.
Because I wasn't able to be here this morning, if any of you would be able to answer any of the questions.... I have three or four tiny questions, Mr. Chair.
I just need a little bit of background. As a lowly family physician, I did look after some of the Youthdale kids, and I certainly then found that some of the Youthdale kids become Youthdale workers. So I come with a bias that I've watched these kids turn around pretty impressively in the twenty years I've practised family medicine.
I would just like to know the background regarding the percentage who actually have an undiagnosed learning disability and once it's picked up the kid is suddenly able to do school. I would like to know the percentage of fetal alcohol effect, the percentage of previous child abuse or previous sexual abuse, and literacy rates. When we look at young offenders, I'd like to know if there is any gender difference, particularly, obviously, in sex trade workers and drugs and alcohol.
I would then like to know our responsibilities in the medical profession in terms of actually being able to sort out personality disorders and borderline personalities, which we tend to be a little bit less good at turning around—psychopaths and sociopaths—and whether we can actually make those diagnoses or not, or what the success rate is on those.
Then I would like to know what the international examples have been and why we now hear that boot camps in the States are being closed and that they don't work.
Dr. Louis Morrissette: The last question is the easiest. They don't work because there is no follow-up. The boot camps are effective. Whatever treatment is effective if there is follow-up. If you have cancer of the breast, you may have surgery, but if you don't have follow-up with proper treatment, be it radiation or chemotherapy, it won't be effective. Boot camps are the same. If you put someone for three months, six months, nine months, or fifteen months in a place where there is discipline, education, social treatment, whatever you put in that box, when they come out into the community, if there is no intense follow-up, if you don't follow the family, school and all that, whatever you may have gained in the fifteen months you lose.
So the programs with boot camps that were effective were the ones with proper follow-up. That's why they are closing them, because it's not the same agency that takes of that program inside and the programs that will be needed for follow-up. So since there was no coordination, that's why it did not work.
So that's the easiest.
I'll talk about Pinel. It's the end of the line, if you wish, for Quebec, six million people, fifteen beds for boys only. I don't have data for girls. I see girls in other centres, but not in Pinel.
More than two-thirds are three, four, or five years behind in their schooling. They come in at fourteen, fifteen, or sixteen and they are between fourth grade and eighth grade, when they should be at grade ten, eleven, or twelve. So most have problems with learning, be it attention deficit disorder, a specific learning disability, reading, or whatever.
As for fetal alcohol syndrome, myself, in Quebec, I see it rarely. But if you go to Winnipeg and look at the people working in the centres over there, you'll see a lot. When you look at the literature and when you talk to people, it's clear. Myself, I see one every three or four years. It's exceptional, because I work in Montreal. If I worked in Sept-Îles, up north, that would be different.
When you talk about borderline and antisocial personality disorder, I'm very, very anxious about making these diagnoses when they are 14 or 15. You have to be very careful. When somebody is a sociopath at 19 or 25 years old, throw away the key. But if you have a boy with behaviour problems at 14 that may be heading the way of a sociopathy or antisocial personality disorder, there are things we know may be effective, if you have the resources and the time.
As for doctors and family physicians or specialists, you said you saw many in your practice. Good. But not many doctors in Montreal have these kids in their practice. They don't see doctors. Their parents don't bring them. And when they do, they are sent away from the hospital or the clinic saying, “behaviour problems”, and youth protection or.... We as doctors do not deal with these kids. When I see them at 15 or 16 in the unit, more than half I will give a psychiatric diagnosis, and many will accept eventually medication. They were seen sometimes by doctors, but I'm not too proud of what we as a group offer them.
Mrs. Carolyn Bennett: I have heard a statistic that perhaps up to 70% of youth offenders might have a learning disability. Would you concur?
Dr. Louis Morrissette: Learning disability, attention deficit disorder, impulsive disorder, organic brain syndrome—if you put all that together, it's 70%.
The Chair: Dr. Doob, would you like to respond as well?
Dr. Anthony N. Doob (Professor, Department of Psychology, Centre of Criminology, University of Toronto): It may be useful to try to divide up the large group of kids who we consider to be young offenders into two not terribly distinct, but it maybe useful to think of them as distinct, groups.
Some of the researchers have talked about an early-onset group, early onset also meaning they're going to be continuing. All of the factors that are typically in the field referred to as risk factors are the kinds of things you've just listed: low birthweight, difficulty early on in their childhood, low financial resources, family resources, and so on throughout. The interesting thing is that by the age of 10 or 11, it's not that you can identify them perfectly, but they're a fairly identifiable group in that they're the most difficult kids.
Some research that comes out of a big Statistics Canada survey suggests that these kids are very difficult, they're hard to handle, and they're also rejected by their parents, by schools. On many measures, they look really sad and depressed and rejected. Those are the kids one would want to do the interventions on.
It turns out that if you're going to do interventions, not the Statistics Canada survey yet, but other data would suggest that one of the institutions that has a real opportunity to intervene is the school. So those same children who are very much at risk at age 10 or 11, with positive school experiences, can really be changed.
The interesting thing I find, as a criminologist looking at all of this, is I'm really in the wrong field. If we're talking about doing prevention and trying to deal seriously with kids who are potentially going to be seriously violent, you shouldn't look to the field I study, which is the criminal justice system or the youth justice system. What we should be doing is in fact focusing, as our two doctors here say, on prevention and on those kinds of services, because that's really where the action is.
The point of it is, yes, it's true you can intervene early and maybe not see benefits for some period of time. You're going to see immediate benefits in the lives of those children, which may not translate into crime benefits immediately. But the data from a variety of studies suggests that if you intervene with the 10- and 11-year-olds, the ones who are already difficult, and take the institution where we have the most control, which is the school, rather than the family, because families are much harder to intervene with, some very positive things can be done if we are seriously interested.
The Chair: Thank you very much.
I now turn to Mr. Cadman for three minutes.
Mr. Chuck Cadman: I'll pass on this one.
The Chair: We'll go back to Mr. Saada.
Mr. Jacques Saada: Thank you.
First of all, I'd like to take this opportunity to make a brief comment, because I don't think I'll have the chance to do so otherwise. I had the good fortune of working not long ago with the Philippe-Pinel Institute on some extremely important administrative cases and I have to say that I was greatly impressed by the quality of what I saw and heard. I don't know if you are the right persons to be telling this to, but I wanted this put on the record.
My question, which is directed to you as well as to Dr. Doob, is a rather basic one and it concerns harmonization.
Witnesses from Ontario, British Columbia, Alberta and Quebec have stressed to us the importance of prevention and rehabilitation and have argued that diversion is more effective that custody and so forth. I'm mindful of this fundamental way of thinking and I understand and support this position.
Yet, people seem to arrive at radically different conclusions. Some point to certain principles and objectives to argue against this bill. At the same time, others invoke the very same reasons to maintain that this legislation is absolutely vital.
Could someone explain that to me?
Ms. Cécile Toutant: I've listened to Justice Department officials who are behind the bill... I'm sorry, perhaps someone else was getting reading to respond. When I hear someone say that the legislation was brought in to provide better services to young people, I'm truly at a loss for words. I can't believe that's the case. That may have been the government's original intention, but the bill's provisions fail on that score.
I mentioned earlier that going the legislative route was not the solution. Take Ontario, for example. I've heard people from Ontario say that young people are rotting in jail and that with this new legislation, they will have to be released after serving two thirds of their sentence. Consequently, young offenders will be better off with this new legislation. If that's the case, I can understand why Ontarians are reacting this way. If that's why they support the new law, then fine. However, they're not here, so I can't ask them in person. Maybe someone else can tell me if I'm right about this.
However, when we look at what's being done in terms of rehabilitation and when we take a close look at the legislation, it's possible that it could do more harm than good. As I was saying earlier, legislation is not the answer. Resources are needed. I couldn't agree more with Mr. Doob that a great deal could be done in the schools.
I'm not certain that you realize one thing: at the same time as the National Crime Prevention Centre is investing in crime prevention, classroom size is increasing and intervention expert positions are being cut in our schools. The right hand giveth, but the left hand taketh away. I can speak for the province that I'm familiar with, while others can discuss what's happening in their own province. The prevailing impression people have is that when a sector receives funding from a new source, other sources are cut off. Ultimately, resources disappear.
Mr. Jacques Saada: I understand. Everyone agrees that resources are extremely important. No one is denying that. However, let me list for you the reasons given this morning by the witnesses from Sparrow Lake for believing that the bill has some merit.
The bill provides for more frequent recourse to alternative measures. It aims to impose restrictions on committal to custody. Section 38(2) is very clear on that score. The bill also places a great deal of importance on social reintegration and case management.
Naturally, there are those who harbour reservations about some of the bill's provisions. However, for the reasons and principles just stated, we support this legislation.
On that basis, I think we can agree that we're all on the same wavelength. It all depends on where we're coming from, and on where we're going. Wouldn't you agree?
Dr. Louis Morrissette: With your permission, I think it really depends on where people are coming from. Why have people reacted so differently to the bill? I'm not a politician or a historian, but based on my limited understanding of this, the reactions stem from the situation that existed prior to 1984. At the time, two provinces considered 18 year olds to be adults. I'm talking about Quebec and one other... I don't wish to make a mistake, but in any event, I do know that there was one other province.
The provinces that objected the most to the current Young Offenders Act, and that, as I see it, are very much in favour of the new legislation are those that did not have a long-standing history of rehabilitation initiatives geared to 15, 16 and 17 year olds.
I was fortunate because in Quebec, when I began practising in the field of youth psychiatry, there was Boscoville and a long- standing tradition of providing rehabilitative services. The facilities were in place and trained personnel were on staff. When I went to New Brunswick, I observed that no such facilities were in place. A centre had just opened in 1998 when I went to Prince Edward Island. A similar facility opened only very recently in Miramichi, New Brunswick. There is no such system in Ontario. The province oversees the provincial correctional system. Young offenders aged 16 and 17 are held in prison and when the reach the age of 18, they are transferred to the adult prison population.
Therefore, the issue here is whether it's really even possible to legislate a tradition of rehabilitation. Can we accomplish this with a piece of legislation? I'm prepared to go along with this if someone can assure me that resources will be specifically targeted to 16 and 17 year olds, the most difficult cases, that steps will be taken to rehabilitate them until the ages of 18 or 19. If someone can assure me that the new legislation will result in new resources being made available in a number of provinces, then I will view this as a positive initiative.
As for diversion, the existing legislation does make provision for alternative measures. Why aren't the other provinces willing to adopt this approach? It's a question of philosophy and tradition. Legislation isn't about to change anything on this front.
Will a new piece of legislation alter training and education methods? The existing legislation already affords them this opportunity. Will new legislation change people's way of thinking? Admittedly, young offenders will have to be released after serving two thirds of their sentence, but that is equally true for inmates held in penitentiaries. The law as it applies to adults had to be amended because some offenders had to serve their full sentence because they were considered too violent. I'm convinced that an amendment to the new legislation will be moved in a few years' time, or maybe four or five years down the road, because it will prove impossible to release some offenders after they have served two thirds of their sentence. Some will have to serve out their full sentence before they are released.
I don't know if legislation can change any of this. Philosophical beliefs and tradition play a big part in the equation.
Mr. Jacques Saada: I'll come back to this when I have more time.
The Chair: Mr. Bellehumeur.
Mr. Michel Bellehumeur: We could discuss this matter at greater length, but right now, I do hope that we can keep this in mind when we do our clause-by-clause study.
I have no doubt that you object to publishing the names of young offenders. However, for the record, I would like to hear your views on the subject.
Ms. Cécile Toutant: Naturally, we object to this practice. You must see it in our faces. Earlier, as we were making our way here, we were discussing the families of young persons with whom were are acquainted and with whom we are working closely. People would be wrong to assume that these young offenders all come from dysfunctional families. These youths may come from a very decent family and still have learning problems and get into trouble. Parents find themselves at a loss as to what they should do, the situation deteriorates and at some point, the parent-child relationship breaks down. The parents are not always to blame. Publishing the young offender's name would be devastating to the parents and they and they family would be hurt unnecessarily. Already they feel responsibility for their child's actions. Some parents never recover from their child's actions.
As for parents who don't care, they wouldn't care anyway. Very delinquent youth who don't care would be proud. We know that in some gangs in Montreal—there are policemen who could come here and confirm this—there are young people who give themselves points or stars whenever their name is published in the newspapers or mentioned in the media. I really fail to see in what way publishing their names would be useful; I don't think it would be, in any way.
Dr. Louis Morrissette: Look what happened in Columbine. Two students killed several others in their school and then killed themselves. Seven or ten days later, in the Canadian West, a student shot someone in his school. This tragedy was handled in a very different way. In the United States, the law allows for the publication of names, photographs and so on. In the eyes of certain people, those youngsters became glamorous. We fail to realize that some young people have such low self-esteem that it is important for them to have their names and pictures published. In Montreal this is known as the Journal de Montréal syndrome, while in Toronto I believe they refer to it as the Toronto Sun syndrome. The tabloid press.
Some young men arrive at the Philippe-Pinel Institute with the press clippings about the crimes they have committed. Even though they object and tell us that they have the right to keep them, we take them away from them. I don't know if we are breaking on their rights, but we take these clippings away from them. They don't have the right to keep them because this would be important external reinforcement for them.
Mr. Michel Bellehumeur: According to you, publication has the opposite effect.
Dr. Louis Morrissette: There are no positive effects; there are only negative ones.
Mr. Michel Bellehumeur: I see. Do you feel the same way, Dr. Doob?
Dr. Anthony Doob: I think you'd be hard-pressed to find a single professional who has worked in this area who would be in favour of the publication of names. From the very beginning when this was proposed in May 1998, I'd never heard anybody give a single reasoned, principled argument for doing it.
Now, there are some other arguments for doing it having to do essentially with vindictiveness, but in terms of actually trying to be constructive in any way, as I said, I would certainly find it very difficult to find anybody who has done any research on this kind of issue who would support it. It just seems to me to be a gratuitous meanness. And not only that, but as I suggested also in my remarks this morning, in the bill as it's presently before you, when a decision is made to do that and that decision is appealable, the newspapers can publish right away. There isn't even a stay of that publication ability, which seems to me to be adding real insult to very real injury.
Mr. Michel Bellehumeur: Earlier, we talked about harmonizing sentences. In Bill C-3, an Act in respect of criminal justice for young persons, a principle is active, one which does not exist in the current Young Offenders Act, i.e. the matter of proportional sentences. The concept of the harmonization of sentences is also present: the sentence must be similar to that which would be imposed on other adolescents who have committed the same offence in similar circumstances.
You are in a position to see how the law is being applied. Do you think this harmonization, with what is happening in the west, represents a danger and may undermine the work you are doing currently? How do you interpret this article, Dr. Morrissette?
Ms. Cécile Toutant: You probably know that Quebec considered opting out from the new law and continuing to apply the existing one.
Mr. Michel Bellehumeur: That remains a possibility.
Ms. Cécile Toutant: Perhaps it is still being considered.
When we became aware of this article on harmonization, we decided to reject opting out for Quebec. We live in a country called Canada which has adopted a Charter of Rights and Freedoms for all Canadians. We did not come here today to defend the interests of the children of Quebec; we want to defend the interests of the children of Canada as a whole.
I believe I understood that this harmonization means that a sentence handed down in Quebec should in principle very closely resemble a sentence handed down in other provinces. This harmonization would run counter to the individualization principle we apply when we act with regard to the particular needs of a young person. It is not because we are clinicians that we think that a young person who commits a minor offence and has many problems should be sentenced to five years in prison.
There will always be a certain proportionality. It is not because we are clinicians that we will demand that a youngster who has stolen a chocolate bar and seems to have a lot of problems be subjected to an assessment, because an offence is a signature. We recognize that he has committed a small offence and that he may have a lot of problems, but we don't recommend that he be institutionalized. There may be a lot of people in society who have a great deal of problems and who don't commit offences, and they have never been analyzed.
We know that we have to be very careful. There is always this type of double vision that applies: the offence and its meaning and, on the other side, the particular needs of the young person. That is the individualization concept. The harmonization principle can only be applied on the basis of the actual offence.
Dr. Louis Morrissette: The same thing applies to adults, where that is the rule.
Mr. Michel Bellehumeur: Yes, that is so.
Dr. Louis Morrissette: Take the example of an adult who commits a serious sexual assault with a knife, without penetration, but with a serious, direct touching of the victim, who sequesters her, etc.. Even if the evidence makes for a strong case, the defence and the Crown come to an agreement, and agree not to go to court if the accused pleads guilty to simple sexual assault. If he pleads guilty, a six-month sentence will be recommended, in spite of the fact that this fellow is a rapist. Since those involved prefer not to go to court and not having the victim testify, they prefer to come to an agreement and to plea bargain.
As we were saying earlier, it is important to intervene as early as possible with youngsters who commit offences. It goes without saying, as Ms. Toutant indicated, that the theft of a chocolate bar should not make the offender liable to a three-year sentence. This would be grotesque. You have to take into account the fact that it could be a first offence and that things are going well in the youngster's family and in school. But the situation is quite different when another youngster commits the same offence and we realize that he has been having serious problems at school, has dropped out, that his parents have just separated, that his father is no longer present in his life and that he has drug problems. Perhaps that particular youngster should go to a centre for six months or be under intensive probation in his community.
If we applied the current provisions of section 37, we would have to condemn any youngster who has stolen a chocolate bar to three months' probation without any particular follow-up. That would be a mistake.
Mr. Michel Bellehumeur: I see. That would be one of the automatic mechanisms you have been referring to from the beginning. This would be another type of automatic provision.
The Chair: Thank you very much, Mr. Bellehumeur.
Mr. John McKay (Scarborough East, Lib.): I want to go over your page 5, where you say “The new law wants its first goal to be the protection of the public.” I thought that was somewhat strange, because the way I read clause 3 is that the principal goal of the system is “preventing crime”, “ensuring that a young person is subject to meaningful consequences”, and “rehabilitating young persons”. So I don't understand why you would say that the first goal is the protection of the public. I read subparagraphs 3(1)(a)(i), (ii) and (iii) as one goal, that the principal goal is all three things.
Then you go on in your paper to quote a case, JJM (1993), and you appear to be afraid that the “difficulties and needs of the adolescent would not be taken into account and without these considerations, protection of the public through rehabilitation and reintegratation cannot be successful”.
So I can't quite understand your point here. Is it that you don't want protection of the public as a goal of the act?
Dr. Louis Morrissette: No, I think it should be the first goal of the act.
Mr. John McKay: It should be.
Dr. Louis Morrissette: It is now and it will be with the new law. I was saying earlier that the goal to protect the public seems to be the first goal of the new law, but it is already the first goal of the law that is—
Mr. John McKay: It is not articulated at this point, I don't think, in the current young offenders legislation.
Dr. Louis Morrissette: Well, I'm not a lawyer, so I can't argue specifically. But what I read, what I heard, and what I saw was, yes, in 1995 it was.... In 1984, at the start, rehabilitation was on top of protection, in 1992 it became equal, and in 1995 protection came first. You need to protect, and if you can rehabilitate kids, that's good. But if you can't conciliate both, then protection takes preference.
Mr. John McKay: You see, I'm not convinced that protection is the principal goal. As I read it, it's all three together: preventing crime, ensuring that they're subject to meaningful consequences, and rehabilitating. Now, I understand from your testimony that sometimes those are contradictory goals, but they are the principal goal of the youth justice system. What I'm concerned about is whether you would rephrase how this is drafted.
Ms. Cécile Toutant: Do you mean rephrase the principle?
Mr. John McKay: Yes.
Ms. Cécile Toutant: Maybe we don't share the same opinion, but I would.
Mr. John McKay: Yes.
Ms. Cécile Toutant: I would put, I would say, as much weight on the specific needs of the kids as the protection of the public to make sure we take into account the fact that they have specific needs. I know this is mentioned in other paragraphs following the principle, but I would surely like them to see at par the fact that the specific needs of children have to be taken into account.
I'm going to make a remark to answer you. It's difficult to give you all the examples in that law that sound like an adult law. I would have had to sit and reread the law, and believe me, it's terrible to read that law. I don't know if you have all read it from page one to a hundred and something, but it's very difficult. And the tone of the law, I find, is getting closer and closer to that for a law for adults. Yes, in a law for adults we talk about rehabilitation. It's not the fact that the word is there that makes it a law for juveniles or a law for young people. I find it scary that this law sounds more and more like adult penalties, supervision that looks like parole. If they are in juvenile institutions, we're going to have to deal with the parole board if they have adult sentences.
Mr. John McKay: Let me quibble with you for a few minutes here, because I don't recollect any part of the Criminal Code that talks about extrajudicial measures or diversions or things of that nature, and yet your argument is that the tone—
Ms. Cécile Toutant: Mesures de rechange. There is one. They are changing it now. Do you have the words, Tony?
Dr. Anthony Doob: C-41, yes.
Ms. Cécile Toutant: Oh yes. Sometimes it's a question of words, but I can tell you that mesures extrajudiciares or mesures de rechange are different words to say the same thing. Instead of going through the courts, you take some other path.
Mr. John McKay: What we deal with on a daily basis here are the words that are to go into the legislation, so in order to be able to respond to the concerns you raise, we need a little more precision than feeling. I've been listening to what you've been saying for an hour now and I can't quite find where it is in these 160 clauses that you feel change needs to be made.
Ms. Cécile Toutant: I will be very rapid this time and say that in the brief I made very precise recommendations. Others could be made, but it would mean that I look at the law again. But I think you have the main comments that we wanted to make.
The Chair: Thank you.
Mr. Chuck Cadman: Going back to the issue of identification and publication, I understand the concerns you have with the full publication, where it's printed in the newspaper and blasted out. But if we're dealing with identification and certain people's right to know, again I draw on the experience of one particular case, where we had a young offender put on probation who was convicted of molesting a young child at three years old. The conditions were not being lived up to, were totally disregarded. The counsellor, the therapist, knew the person was sliding and didn't do anything about it, and as a result a six-year-old girl was murdered—mostly because the parents, the people in the housing complex, knew nothing about this young person.
At what point does the protection of the public become paramount to people's right to know who they have living next door to them, especially when you're dealing with pedophiles or sex offenders?
Dr. Louis Morrissette: There have been experiments with adults putting posters on telephone poles—
Mr. Chuck Cadman: Not a good idea.
Dr. Louis Morrissette: But there have been different experiments, such as giving names to police in their neighbourhoods. When a pedophile or sex offender came out of prison, he would go into a neighbourhood and the police wouldn't know about him. There have been experiments with that, and until now—maybe I'm wrong—it has not been shown that it has prevented.... The rate of reoffence of these persons compared to the rate of reoffence of people whose names were not known to the police is the same. It has not changed. But maybe that has changed.
Ms. Cécile Toutant: I may be wrong, but I have the feeling that this law permitted us to share the information with let's say the principal of a school. I have that feeling. I could be wrong. I think that if you target people with whom you can share information, I wouldn't have any problem with that at all. Let's say we let out a kid who was with us for pedophilia and he's going back to a public school. I wouldn't mind at all sharing the information with the principal so that they could have a look at the kid, but without ostracizing the kid.
Mr. Chuck Cadman: But how does that translate into the community? A school is one thing, but in the case I was talking about, we were dealing with an order not to be left alone with children under 12, and yet this person was allowed to play with children under 12, and as a result a horrendous crime took place. But nobody knew about it. How are people supposed to know about it? How would the little girl's parents—
Ms. Cécile Toutant: I would say the parents—
Dr. Louis Morrissette: [Inaudible—Editor]...they didn't do anything about it.
Mr. Chuck Cadman: Yes. Again, I'm not saying to blast it all over the neighbourhood on telephone poles and things like that. Unfortunately that happens. I don't agree with that. But somewhere a balance has to be drawn. If a person has children and they're living next door to somebody who is a convicted pedophile, most people would say those people have some kind of right to know so that they can protect their own children.
A voice: How?
Ms. Cécile Toutant: It's very delicate.
The Chair: Dr. Doob.
Dr. Anthony Doob: I'm going out on a limb, because this is not an area I know well, but I think your point, Mr. Cadman, a minute ago, was that this obviously is completely different from the issue of publication of names.
Mr. Chuck Cadman: Absolutely.
Dr. Anthony Doob: Clause 126 in the Youth Criminal Justice Act says you can go before a court and share that information with specified people, among other conditions, where the disclosure of information is relevant to the avoidance of that risk. It seems to me that kind of safeguard is really important. In that sense we do share information, we do have names that can in fact be publicized quite broadly at the moment, where one is trying to apprehend somebody and so on.
What one has to do is try to say, look, here's somebody. We have to do this for a variety of different, very specific purposes and put those controls. I have no difficulty with that general principle.
The Chair: Thank you very much.
Mr. John Maloney (Erie—Lincoln, Lib.): Dr. Morrissette, you indicated that you have 15 beds for male youths.
Dr. Louis Morrissette: Yes, in the whole hospital, in our unit, we have 15 beds for males.
Mr. John Maloney: I would assume that a number or most of those youths have been with you for several years or a long time.
Dr. Louis Morrissette: There are two parts of the unit. Six beds are for evaluation, two or three months, and for treatment it could be from one year to sometimes four or five years.
Mr. John Maloney: Are any of those youths over 17?
Dr. Louis Morrissette: Yes. We just had one leave the unit to go into a kind of transition unit, who was 21. Many are 19, a few are 20, and a few are 21.
Mr. John Maloney: So as soon as they reach their eighteenth birthday, you don't throw them into the adult population?
Dr. Louis Morrissette: No, but from what I understand of the law now, it would be a very big temptation, me included, because if I have a very difficult kid at 18—I have one, Eric, who is very difficult—if I had the possibility of sending him to the penitentiary right now to finish his sentence, which is three months or six months from now, I don't know if I would do it, because he's tough, you know.
Mr. John Maloney: I would think it would be quite the opposite—you'd try to keep him there.
Dr. Louis Morrissette: When we feel we're working on something and we feel we can finish something, yes, we will keep them. But with the system now, let's say you do a serious violent crime at 17 years and 11 months, and you're sentenced at 18 years and three months to a three-year detention. That brings you to 21 years old. It was decided in 1972 that we would keep these adolescents, if we could, until 21. Sometimes it's not possible; we have to transfer them to adult court or adult units, because they are too aggressive or whatever.
Mr. John Maloney: In your facility, would you just go across the hall, as Madame Toutant said?
Dr. Louis Morrissette: Some of them. With the mental health law, I can do that. But some I send back to youth court, and they put them elsewhere. But it's exceptional; it's not very often.
Mr. John Maloney: Are the numbers you're dealing with very small then? Are you dealing with a very limited number of individuals over a given period of time?
Dr. Louis Morrissette: We have about 22 admissions a year.
Mr. John Maloney: That many?
Dr. Louis Morrissette: We don't see, as you say, many, many, many young offenders. We see...I would not say the worst, but many of the worst, because we are a last-resort unit, and we serve all the province. They come from up north, they come—
Mr. John Maloney: I just want to clarify this. We've been tossing back and forth the youth and adult systems. We do appreciate that under the new law all youth will be tried in youth court, and then for some of the most serious offences, even those from 14 to 17 would perhaps be given an adult sentence. But there are options whereby that would not happen; we understand that. Is that not an improvement on the existing system, where 16- and 17-year-olds who are up for murder are automatically tried in adult court?
Dr. Louis Morrissette: No, I don't see that as an improvement at all, because people are what they are and it would be automatically.... We said a few times that you should be against automatic reasoning. You should be allowed to think and to make evaluations, to have time for that. Automatic reasoning will not help. We see that in the adult system. I see it when I work in the adult system: he's getting to his two-thirds, so he must go out. No, don't. He must go two-thirds, he must go three-thirds; at the end of his sentence he must go.
Automatic reasoning is not good; it does not permit evaluation. Things being what they are, you have less money and less time, so you go to the fastest and the easiest. So it's not an improvement at all, because people will use this automatic reasoning and stop thinking. If you want to think in terms of rehabilitation, you need to think and evaluate, and you'll lose a lot of that with automatic reasoning.
Mr. John Maloney: You seem to be negative—
The Chair: I want to go to Mr. Bellehumeur.
Mr. Michel Bellehumeur: Ms. Toutant, here in this committee, even when we speak the same language as the members, we are not always well understood. For my part, I believe I understood quite clearly your remarks about what you were seeking and the reasons why you feel we should not adopt this bill, even if you made these remarks in English.
The declaration of principles of the current Young Offenders Act is to be found in section 3. I invite my colleague Mr. McKay to read paragraphs 3(1)(a) and the following, where the principles are very clearly expressed. The adolescent comes first. It states that in all cases, he must not be considered in the same light as an adult as to the degree of responsibility, that measures must be adapted to his situation, etc.. When the young person is handled in the right way, well integrated and so on, the protection of society follows automatically. In the declaration of principle to be found in the bill, the first consideration is the protection of the public, and the young person's his reintegration into society and rehabilitation come in second place. Ms. Toutant, is this where your concerns about the new philosophy in the law lie? The protection of society and the needs of young offenders are now being placed on an equal footing. In fact, they are not being placed on an equal footing since the protection of society comes before the young offender. We will try to save the youngster if that is a possibility. Under the current Young Offenders Act, the first thing to be considered was the young offenders' need for reintegration and rehabilitation in order to allow him to become an anonymous citizen, as you put it.
Ms. Cécile Toutant: I was going to say honest, but that's a tall order.
Mr. Michel Bellehumeur: I think you referred to an anonymous citizen.
Ms. Cécile Toutant: ThatÂs right.
Mr. Michel Bellehumeur: That's right.
Ms. Cécile Toutant: I think I'm repeating myself. What we mentioned is illustrated in the declaration of principles, but I would say that everywhere in the bill one gets the feeling that we are heading for a system that resembles the system for adults. It's in the way in which decisions are made. I don't have the section number, but if you look at the list of conditions imposed on someone who is on parole, you will note that those conditions aim to control him just as is done in the case of adult parole. That is what I was mentioning earlier.
Earlier, listening to Mr. Maloney's question, I wondered whether adult sentences in the juvenile system were preferable to what was being done before that, which was to send the youngster into a system designed for adults. When I read the bill, my first reaction was this one: when we can no longer offer anything to a youngster in the juvenile system, I prefer that he be sent to the adult system rather than have us import large parts of the adult system into the juvenile system. That is what is being done currently.
Having had to do this in a particular case, I find it very difficult to envisage us working in a juvenile system with the federal Parole Board, which is very rigid, where you work with lawyers and where the law is the only thing that is talked about. This has nothing to do with rehabilitation. Forget it.
My first reaction, which in fact has not changed, was to ask myself whether this was progress or whether I did not prefer the completely different system we had previously. I must admit that this is a totally personal reaction.
Mr. Michel Bellehumeur: And what is your answer?
Ms. Cécile Toutant: I prefer the old system.
Dr. Louis Morrissette: I must say that there is that interpretation of the principles you have read, but there is also case-law to be considered. If you look at the case-law concerning transfers from youth court to adult court, you will note that the precedents currently emphasize the protection of society. So that already exists in the law and in practice.
As for adult sentences in the juvenile system, that is, to a certain extent, a misrepresentation. As I was reading that, the term “misrepresentation” came to mind. We tell the public that we are becoming more serious and stricter with young offenders and that we will be imposing adult sentences on them. It's as though through some miracle adult sentences were going to improve the situation. I was explaining earlier that if we impose adult sentences on young offenders there will be mandatory parole, time served before sentencing that will count double, etc. And a good number of them will be released earlier than if they had had juvenile system sentences imposed on them. The public is being led to believe that it will automatically be better protected because the law will allow the system to impose adult sentences on young offenders. That is not true. It will be true in the case of those who will have committed homicides, but there are already exceptions in that regard in the law. But it will not be the case for other offences. Under the current system when someone commits a first serious sexual assault at the age of 16, he can be sentenced to two years in a centre and he will spend those two years in that institution. Under the parole system, if you have to wait six months before someone is sentenced and if the offender is released after serving two thirds of his sentence, he may be released immediately after the court's decision is handed down. The young offender may be back on the street after four or five months, whereas the youngster who goes to youth court will only be released after two years. So as far as protection is concerned, this is an illusion that is being put forward and it is misrepresentation to lead the public to believe that it will be better protected and that young offenders will be in jail for longer periods. That is false. For a large number of them, the reverse will be true: they will back on the streets sooner.
The Chair: Thank you very much.
Mr. Jacques Saada: I'm going to ask you a fairly delicate question. Please forgive me for oversimplifying.
You say that in Quebec, a number of things are being done that are not done elsewhere, which means that you are satisfied with what is currently being done. Things can always be improved, but the Young Offenders Act is sufficient. If that is not the case elsewhere, well that is not our fault, you say. Why should you have a new bill imposed upon you under which, especially through sentence harmonization, you will have to look to sentences handed down elsewhere and transplant them into your system? In other words, why should you be forced to change your way of doing things in Quebec?
I have to admit that I listened to what you said with great attention and I am sensitive to what you describe, because I am also a Quebecker, but, on the other hand, that is not how I understand what I read in here. I would like some explanations.
(2) A youth justice court shall not impose a custodial sentence
[...] unless the court has considered all alternatives to custody
And subsection 38(5) says:
(5) A youth justice court shall not use custody as a substitute for
appropriate child protection, mental health or other social
Subsection 38(9) says:
(9) If a youth justice court imposes a youth sentence that includes
a custodial portion, the court shall state the reasons why it has
determined that a non-custodial sentence is not adequate to achieve
the purpose set out in subsection 37(1).
There is a whole slew of measures that direct the judge toward measures other than custody. If you are concerned about what might happen, I can't fight that. But if there are concrete arguments to prove to me that I am not interpreting what I read here correctly, I'm willing to listen to them, but as I read the French text, I can only wonder to what extent there are substantial arguments that lead you to systematically reject this bill and to what extent these are matters of perception. I say this with great respect. I'm thinking out loud, along with you.
To take my argument to its logical conclusion, I would add that it is often said that this bill was introduced because the general public perceived that its security was not assured and that this bill gave the impression that it would improve that security. However, I feel that the arguments against the bill are suffering from the same problem: we want to deal with perceptions. People perceive that the system that will be set up in other provinces in Canada will be stronger than the one developed in Quebec and that Quebec will be forced to distance itself from the measures and the philosophy it has adopted, which I basically support. I have a problem. Please explain things to me.
Ms. Cécile Toutant: As I listened to you, I had the impression that we were not talking about the same clauses.
Mr. Jacques Saada: I hope not, because things are not clear.
Ms. Cécile Toutant: We aren't talking about the same clauses. You say that the bill will change things so that young people will not be placed in custody if they don't need to be and that there will be other measures or extra-judicial means that can be used when that is possible. I think that we agree on that entirely. What is very clear is that this type of insistence on other measures was already present in the other act, but in Ontario, these other measures were not put in place.
There is nevertheless a Supreme Court judgment to that effect, the number of which escapes me. At one point, one young offender said that he was being treated unfairly because if he had been arrested in Quebec, he would have benefitted from other measures whereas in his province, those measures were not available. The Supreme Court deemed that he was not being treated unfairly because such measures were not available.
In the other act, the devising of other measures was also suggested. In this bill, they talk about extrajudicial measures. We aren't against that, absolutely not, but we must avoid automatic mechanisms. We must choose that type of measure for young persons who will react well to them.
Mr. Jacques Saada: I understand very well, Ms. Toutant.
Ms. Cécile Toutant: We agree completely on that.
Mr. Jacques Saada: Correct me if I'm wrong, but in reading the Young Offenders Act, and Bill C-3, which I now have in hand, I get the impression that some things are expressed much more clearly in the clauses of the bill than they were in the Young Offenders Act. In the Young Offenders Act, correct me if I'm wrong, we never asked a judge to explain why he was remanding a young person into custody and why there were no other means of doing things. And this is what he is being asked to do here. So, it is much more coercive for the judge, who must as a priority turn to other measures than custody.
I'm having trouble understanding a dichotomy that I perceive in the text. I am not saying that because I disagree with what you said to me, but because I want to understand better. On the one hand, you say that there are too many incentives to turn to other measures, and on the other hand, you say that there must be greater leeway to allow for other measures. I don't understand this apparent contradiction.
The Chair: Dr. Morrissette.
Dr. Louis Morrissette: Perhaps Dr. Doob will be more specific. If you look at the decisions taken by youth courts, not only in Quebec but in all of Canada, you see that a third of the young persons found guilty of an offence are remanded into custody, 50% are placed under probation and 6 or 8% are fined, while the rest must do community work. Those are the figures, approximately.
We are not saying that the judges are abusing such measures at this time. In Canada as a whole I don't think there are abuses with regard to custodial placement. Only a third of those who have been found guilty are remanded into custody, open or closed, and we realize that 90% of the custodial orders are for less than six months. A young person is placed under custody because people feel that he has some serious behaviour problems or is violent, but most of the time, in 90% of the case, the custodial placements last less than six months; in 72% of cases, they last less than three months. This type of custody does not serve any useful purpose. No act will change the way in which judges... You say that judges don't explain why they impose custody on young people. That is possible, because they may not be obliged to do so, but they must often debate the rationale behind placing a young person into custody or not.
So, will a new act change the habits and traditions? Our reply is that it will not. The current act allows for extrajudicial measures; the current act allows for other measures than custody; the current act should lead people to prefer other forms of intervention rather than custody. That possibility exists, and judges use it. Will a new law change things in some magical way? We think not.
Mr. Jacques Saada: Others have already said yes. So we are between a rock and a hard place.
The Chair: Thank you, Mr. Saada.
I anticipate the bells momentarily. We do have a little business to do.
I think we've had a very thoughtful discussion.
You mentioned the stars that people were getting for being on the front page of the paper. I've been there, and it's not that pleasant.
Voices: Oh, oh!
The Chair: Thank you very much for what you've contributed to this exercise.
Ms. Cécile Toutant: Thank you for the time, Mr. Chair.
The Chair: Thank you again, Dr. Doob.
To the members who are here, the only point I would like to make—we obviously don't have time to have the discussion this afternoon—is that we are going to have to speak about our budget.
We also have to speak about a letter I've received from Mr. MacKay, Pictou—Antigonish—Guysborough, in terms of organized crime.
Third, we have to dispense with the question of additional witnesses. We had intended to put it to the end of the exercise, but I'm informed by the clerk that if we do that, ultimately we won't give them the time we would like to give them. So I think it's a decision we may wish to dispense with now. I give you notice that it's going to come up tomorrow or Thursday at the latest.
Thank you very much.