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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 15, 2000
The Chair (Hon. Andy Scott (Fredericton, Lib.)): Ladies and gentlemen, I'd like to call this meeting to order. We are here to hear witnesses on Bill C-3, an act in respect of criminal justice for young persons and to amend and repeal other acts.
Before we start, I would remind everyone that we may have some little trips down the hall to exercise our franchise in the House. Please bear with us, but that means we should get started right away.
The witnesses today are, from the Church Council on Justice and Corrections, Rick Prashaw, communications coordinator, and Rita Scott, board member; and, from the law firm of Arnold, Pizzo and McKiggan, Josh Arnold, defence lawyer.
To tell you the way it works here, each witness will be given approximately ten minutes to make a presentation, and then we'll have a round of questions so that we engage in some kind of dialogue.
Without further ado, I would call upon our first witnesses from the Church Council on Justice and Corrections. Thank you very much.
Ms. Rita Scott (Board Member, Church Council on Justice and Corrections): Thank you, Mr. Scott.
Just for the record and for those of you who wonder about what the Church Council is and what we're up to, I want to introduce my colleague, Rick Prashaw, who looks after communications for the Church Council. I'm Rita Scott—no relation to Andy Scott—and I'm a board member from Vancouver.
The Chair: You felt compelled to say that.
Ms. Rita Scott: I don't know whether it's good or bad, frankly, so we'll cover off everything and just say that.
You might wonder what the heck the Church Council is. I'd just like to tell you that we're a national organization. We represent 11 national churches and 14,000 congregations—God knows how many individual souls that may be when we're all at it—and, for all intents and purposes, we have a very wide mandate across the country. We care very much about what's going on with the new transition into a Youth Criminal Justice Act from the Young Offenders Act, mostly because we have a very committed interest in the way justice carries itself out in this country and what it really means for everyone, especially for our young people.
It's our position that in the past there has been a real focus on punishment and retribution, which has tended to isolate people who are accused and convicted and who are processed as “criminals”. For that reason, what results is a real distance between those who have had difficulties with making bad judgments in committing acts that could be codified as crimes and their relationship with their communities. It is our intention to speak about those issues that tend to bring communities and offenders back together, to heal the hurts to people who have been harmed, and to not worsen that situation any further by making further isolation a fact. At the heart of the matter, of course, is the fact that we want to close the distance between those who would offend and the communities they come from, because ultimately that's where all of us belong.
Because the criminal justice system has tended to undertake the retributive and punitive kind of behaviour, it overlooks a lot of the social reasons for why crime occurs with young people. It's our very committed belief that in order to keep kids plugged into communities, develop empathy for them, and help them to understand what the consequences are of their behaviour, we need to have opportunities for kids to know about these things and to participate in the process, while also giving the people who have been harmed an opportunity to face the people they have been hurt by and to understand something about what the heck went on.
One of the things I particularly want to speak about is that terrible fear of crime that exists throughout the country today, particularly in regard to young people, even though there's a very tiny proportion of young people who get seriously into trouble. However, people, and especially vulnerable groups like the elderly, tend to think about young people these days as hordes of marauding criminals who are just waiting to come and murder them in their beds and burn their houses down or whatever. It takes some really good work to bring together the kid who might have done something really frightening to a member of his community and that person who has been harmed and have the harmed person understand that there was probably nothing like that going on, that the person who has been harmed was in the wrong place at the wrong time, that they left their door or their garage open, that there was stuff lying around, or whatever, but that they were not targeted. Those are the kinds of things that really need to be heard.
I'm going to turn things over to Rick, who will give you some more specifics about what it is we're up to today.
Mr. Rick Prashaw (Coordinator, Communications, Church Council on Justice and Corrections): We tell in our brief a number of justice stories. I want to highlight parts of two of them for you, because they speak about specific issues that are before the bill, but also with respect to the values and attitudes that we believe should be enshrined with respect to these issues of youth justice, youth crime, and the youth who are caught up in conflict with the law.
You had a witness recently sit here and testify. He was part of our workshop out in Prince Albert, Saskatchewan. This exchange happened between him and a citizen at a healthy communities workshop. The citizen was exasperated with the YOA and shared his exasperation, particularly with the name publication ban. He basically said this:
I can't understand why someone does something like
they do but they don't have their name made public. I'm
proud of my name. It's who I am. They should be proud
of their name too.
The young man who was in the circle had a history with corrections and in custody. He looked across at the man and said he'd like to speak to this gentleman. He said this:
I'm proud of my name too. It's my grandfather's
name. But I am not proud of everything I have done.
The truth is, in my small town, everybody did know my
name, at school, on my street, they knew what I had
done. But in moving to another community, had everyone
known my name, I would not have got the job that I got
at the convenience store that helped turned things
around for me. I would not have got back in the school
and got the education that also made a difference. And
my parents who already were suffering enough grief may
well have been at risk, in terms of what others would
say and actually do to them. So, sir, I have to ask
you, `why do you want to know my
name? Is it to show me your care, your compassion, your
help? Or is it to make me move away, or never get a
job, or ever get a fresh start in my life. Why do you
want to know my name?'
I pose that question to the legislators and to all Canadians today: why do we want to know the names, and what will we have as our fundamental attitude toward these youth? Are we here to help them or are we here to further harm them? Do they remain, after their crimes, members of our community or not?
In our Judeo-Christian tradition, the prophet Isaiah, quoting God, says, “I have called you by name. You are mine.” This, we believe, is our ultimate dignity and the ground for how we relate to and are called to respect one another. God did not say “I have called you by name. You are young offender.”
We have the opportunity to turn away from labels or scapegoating that further harm and alienate youth and do not really deliver on any genuine, ultimate community safety. Perhaps in trying to be righteous—and we're not sure about this—it seems that we do greater harm to each other. We need someone to blame so we can feel better, and we particularly do this in history to those who are weak, different from us, or people we don't know or don't need.
A second justice story. Just to paraphrase, you know the horrible high school shooting tragedy in Taber, Alberta, involving Reverend Dale Lang, the Anglican priest, and his family. He and others have been crisscrossing the country, speaking to our broken society and our need for healing.
After that crime, Jason's mother and the mother of the youth responsible for the shooting started to meet, walking their own path of healing. The BC Report magazine quoted Mrs. Lang as saying “When we met”—the moms that is—“we hugged. What else can you do?” The mother of the youth said:
“Tears are for letting go of
heartache. The wonderful outreach [Mrs. Lang] and her
husband did made it possible for us to continue
on with our lives. Without [that example] there would
have been a lynch mob at our door or rocks through our
picture window. As it was, I was able to go back to
work. I couldn't have if there had been a revengeful
The crown prosecutor in Taber, Alberta, told the Langs that every time a young person kills someone in Canada the government gets calls and letters to tighten the YOA. They have not received one call to that effect in this community because of the example they have shown all of us.
These challenges, these calls for a change of heart, are never easy, nor should they be demanded or exacted from anyone. We are learning that we all have the opportunity to deal painfully and honestly with the truth in our lives, be sensitive to others, and to treat one another fairly. Some choose to forgive, experiencing its freedom. But forgiveness should never minimize, never excuse, or ever forget what happened, and it should never be forced on anyone. Communities that are helped to heal and offered other paths than simply an adversarial legal battle may indeed ask for a different outcome.
This is where we wanted to close our presentation. Rita has some experiences with some of these restorative justice processes.
Ms. Rita Scott: I just want to tell you two or three things about my experience with restorative justice in the form of family group conferencing. Just to preface that, I'll tell you that I lived in Fort St. John in British Columbia for a couple of years. While I was there I decided I wanted to see if this would be the right-sized community and the most receptive community... if they would be willing to entertain the notion of dealing with young offenders in a more holistic way than what we had been used to in the court system. The reason for that is that like all other provincial courts in the country, I imagine, but certainly in British Columbia, when you start off the process with a young offender before the court, you're going to be there for probably about a year and maybe more. I can tell you that after about the eighth appearance, if you ask that kid when he comes out of court what happened today, he's going to say “Somebody did some talking and stuff. I don't know. I've got to go back.” That's about it.
I met with the RCMP. We formed a group. We got some input from the community. We did a gig all over town with everybody who would put up with us. We had open-line radio shows, lots of press, the whole thing. It was obvious that the community was hugely in favour of having this process of family group conferencing.
We trained some facilitators and we began. When a young person had committed an offence and the police wanted to refer this to the program, we brought that kid into the circle at the table with the victim and all the family, friends, whoever that victim wanted to have for support, and we went through a process of what happened.
I want to tell you specifically about one incident that happened when a young girl in the high school phoned in bomb threats to the school. It was a joke. She was hanging out with a bunch of her friends. They were taking the afternoon off school. They thought this would be funny. What they didn't realize is that the principal of the secondary school where this happened had a four-month-old child in the day care centre in that school. He was, needless to say, freaked by what was going on, torn between “What do I do about the safety of my child, when I want to pick up my baby and run out of here with that kid” and “How do I discharge my obligations for the safety of everybody in the school?”
The matter went on and was investigated. The accused kid was identified. A process unfolded. The high school principal was very keen that we should use this process of family group conferencing. We brought together the kid, her family, the others who had been with her that day, the secretary who answered the phone, some of the teachers who had been present at the time and evacuated the school, the police officer who dealt with it, and the principal. We all sat around in a circle. We talked about it in an organized and sensitive way and in a very honest way.
When that young woman saw the high school principal in tears talking about this terrible dilemma that he had been in and what that process was like, it was the biggest shock in the world to her. But it was a process that would never have happened in the court system. She would never have had to say a word. Nobody would have understood what was going on. She would probably have never known what that had been like for the person she really most seriously affected.
There was a terrific outcome from it. I could go on about the work she did in the day care centre, the stuff she did to convince others that those kinds of foolish, mindless things that you do on the spur of the moment can have long-lasting effects, etc., but obviously that was a defining moment for that young woman, and also for the high school principal, who got a better sense of how things like that could occur than he ever had before. They had an incredible opportunity for resolution and healing that never would have happened in the court system.
I want to tell you about one other thing that happened when I was in Mackenzie, which is just north of Prince George. I seem to have spent my entire life in the northern wilderness, but not quite.
When I was in Mackenzie there was a party that went on one weekend when a parent was away. Her 14-year-old daughter was at home, just checking into a neighbour for supervision. A couple of her young friends decided to come over with their friends and have a party in the house. You've all heard this kind of scenario a million times before.
Two 14-year-olds and the younger 12-year-old sister of one of the 14-year-olds were the instigators. They all went over. A bunch of other kids came. There were about 30 kids there. Everybody got very drunk. The 12-year-old fell during the course of this party and landed on a plate glass coffee table and cut herself seriously; it could have been fatal. She was bleeding extensively. Somebody called 911. The police arrived. The child was taken to the hospital. The police attempted to deal with the rest of the group. These two 14-year-old girls came barrelling out of the door of this place and attacked a police officer, leaped on him, took him down to the ground, called him things and described him in ways that would make you blush.
They were taken to the police detachment and put in cells. The parents were called on their cell phone. They had been down in Prince George doing Christmas shopping. They took this call on their cell phone from the front desk of the RCMP detachment and in the background they could hear their 14-year-old daughter screaming obscenities from the cell.
They arrived back. They went first to the hospital where they had to hold down their 12-year-old, who was irate and screaming and drunk out of her mind, while they stitched her up and saved her life. Then they went to the detachment to deal with their 14-year-old. They heard things from her that they could not believe were coming out of her mouth.
We conferenced that matter at the suggestion of the sitting judge. The father of that 14-year-old girl and her 12-year-old sister was a logger. He worked out in the bush for days at a time—home for a few days, back out. He had a grade six education. He made a lot of money. He had a good home. He bought lots of good things. He treated his family really well. He was a tough, hard-working guy.
We went around that circle. We talked about all the things that had happened, and when we got to Dad and asked him what he would like to say, he broke down. He said “I can't believe that this is happening to me”, and he talked about how frightened he was about what was going on with his child. The younger siblings of the other 14-year-old girl were asked to speak, and one of them, her younger sister, said, “You know, when you go out on Friday nights, I don't know if I'm ever going to see you again. You do such crazy things, I never know if you're going to die.”
Those are the kinds of things that you get to tell each other around the table. The outcome of that conference was that those two 14-year-old girls formed a little task force in their high school and opened a kids' teenage drop-in centre for the weekends, to get the kids away from buying booze at the liquor store and having parties, either out in the bush or in people's empty houses.
There was a huge effort made to move against that kind of behaviour, and those two kids were really instrumental in it. They were very bright, energetic kids, and they turned it around. The person whose house they had been in was asked how she felt about all of this, and all she said was “I want these kids to get some alcohol counselling, and I want them to be safe. I want all the kids in our community to be safe.” That was what she wanted.
The thing I've heard over and over again from victims in these conferences is “Why did I get picked on? Why was it me?” They have to hear from the accused about how that happened, and as I tell you, more than often, it's a pure coincidence. For example, there is the kid who goes out to a cabin in the woods and sprays it with the fire extinguisher and does damage, and the judge says to him on sentencing “You're going to sit down with the victim and with the probation officer and explain yourself to the owner of that cabin”—who hadn't even been back to it since this thing happened, she was so frightened by what had gone on.
That was a 14-year-old boy with a single mother who worked in a 7-Eleven store on the midnight shift. He ended up going out and cleaning up the cabin with that older woman. He and his mother became part of her and her husband's family. They go out there for holidays. They've built a relationship. There was healing in a way that couldn't ever happen in the criminal justice system.
Now, I'm not saying that every single crime is going to end up like that. But a huge proportion of what goes on in the youth courts of this country could be dealt with like that. I don't say we should do it because it's cheaper—which it is, by a country mile. I'm saying we should do it because it's the right thing to do. It makes our communities safer. If older people can walk through a mall and smile at and say hello to young people, they obviously aren't afraid of them. They can't do that the way things are right now with this distance we have between people. So I want us to do things that bring us together and make us safer.
Thanks very much.
The Chair: Thank you very much.
You went a little bit over your time—perhaps we are related. I would go now to Mr. Arnold.
Mr. Josh Arnold (Defence Lawyer, Arnold, Pizzo and McKiggan): Thank you. I am a practising defence lawyer in Halifax. I was a crown prosecutor, and I prosecuted both adults and young offenders for all crimes under the Criminal Code. Now I defend both adults and young people for all crimes under the Criminal Code, from shoplifting to murder. I have argued cases in all levels of court in Canada.
I don't have a lot of academic or esoteric things that I want to say. I do want to discuss a couple of what I would call, from a defence lawyer's or practising lawyer's point of view, pragmatic problems, and some good things that I see about the proposed act.
Specifically, the first thing I wanted to mention was clause 145 of the bill. Clause 145 deals with statements, and with the exception of subclause 145(6), clause 145 seems to be a very good provision. The difficulty comes under subclause 145(6).
Within the current Young Offenders Act, there was a minimum safeguard provided to bring young persons up to the level of adults with regard to statement taking. The thing to be remembered is that in the statement-giving process, when an individual is arrested, there is a huge power difference between the individual who is brought into the police station and the police who are trying to take a statement. And that's in the situation of an adult and the police. The difference between a young person and the police is obviously much greater.
There were mandatory rights given to a young person under clause 145, and subclause 145(6), I would say, erodes those rights by allowing the statement to be admissible even if the rights are not properly given. I can't understand why in the world we would possibly need this type of provision.
Police officers are trained at obtaining statements from people, whether they be young persons or adults. And no matter what television might portray, the vast majority of young persons who come into conflict with the law are vulnerable, easily coerced, easily intimidated, easily impressed, and in many cases starving for attention. It isn't generally very hard to get them to give a statement, even if all the provisions are properly gone through. Usually, it's just having somebody listen to them and try to obtain a statement. That's enough. Why not ensure that the rights that clause 145 says are mandatory are covered?
There are complaints from police—I deal with them every day—that the rights under the Young Offenders Act are too complicated or too difficult to comply with. Generally, my comment is that if the police put their focus on ensuring the rights are properly given at the outset instead of trying to get the statement from the person, there wouldn't be a problem.
What is so complicated for the police?
They have to ensure the young person has been told that they can consult with a parent. That's not very complicated. They have to ensure they have a right to counsel. That's not very complicated. They have to ensure that if they're given this right to counsel or a parent, they have an opportunity to consult with that person before they decide to give a statement. That's not very complicated. They have to ensure that the lawyer or parent could be present when the statement is being given. That's not very complicated. And they have to ensure they tell the young person that they don't have to say anything before they give a statement.
They also have to ensure they explain all this in a language that is appropriate to the young person's age. So they don't just read it off a card and hope for the best. They have to make sure it's understood. They have to ensure the statement is voluntary, and by doing this, if they want to waive those rights, they have to do it on video or in writing. That's not very complicated.
If the focus is on the young person's rights and not solely on ways to get a statement out of the person, none of this would be very difficult. If providing rights gets in the way of giving the statement, that's a problem for the police. It shouldn't be a problem for the accused.
There's a huge power of the state once a person is arrested or comes into conflict with the state. There's this young person, there's all the money and power of the police and the state against that young person, and there are certain mandatory rights that should be in place before a statement should be deemed admissible.
Why not ensure that this is in writing or on video or audio tape?
Subclause 145(6) shifts the focus from whether the young person actually received their rights to whether the police acted in good faith or whether the offence was serious. If the offence is considered to be really bad or if no bad faith is shown, then, from my reading of subclause 145(6), the statement would automatically be admitted. So as a young person, an individual charged with assault may have fewer rights than an individual charged with shoplifting. It's not the same for an adult.
If the police receive proper training on giving the rights and they have the proper resources, then there shouldn't be a problem.
The Young Offenders Act recognized the vulnerable position of young persons when dealing with authority figures, and subclause 145(6) does not.
The second aspect of the proposed act that I wanted to discuss is the proposal regarding custody and supervision under clause 41. Clause 41 orders two-thirds in custody and one-third in the community, as far as sentencing goes. I see that as a very positive step for this act. If individuals are complaining about this particular section or subsections, I think they misunderstand what happens with adults and that young persons are treated very differently.
I deal with young persons and their parents on a very regular basis. When young persons come in, it's time to face the music and discuss the possibility of what a sentence might be and what kind of time they might be spending in custody. It's explained to them that if they are sentenced to two years, they will be serving two years, as opposed to adults, who may be serving two-thirds of the time or one-third of the time or something of that nature. It's very surprising both for the young person and their parents, and sometimes even for the police, who don't understand that, and certainly for members of the community.
Under the Young Offenders Act there was no integration time with support and supervision, and this provision allows for that upon release. A lot of young persons end up before the courts and in fact end up serving time in custody. If they come out of what I would call a crummy kind of environment with not a lot of parental supervision or support, they are sentenced to a period of custody. When they get out, unlike adults, they don't go to a halfway house. They're not out on parole; they're immediately released back into the same environment they were in when they got into trouble in the first place.
If this mandatory supervision upon release actually comes into place, I think it would be a very positive step. Individuals who came out and weren't following exactly their release conditions would go back into custody until such time as they could be released again to see if they were going to follow those provisions.
Currently there's no such provision in place. If an individual gets out and they're on probation, people say probation would handle that, maybe make a mandatory probation order. If they get out and they're on probation and they screw up or they don't follow exactly their probationary conditions, they don't go right back into custody. They get charged with another offence, so the cycle continues. They might have to wait six months or a year before they go back to court again. If they're going to be sentenced a period of custody in relation to that probation breach, that's maybe a year after they originally did it. If they're on this mandatory supervision, they would go right back into custody if there were breaches.
I think that's a very positive step and I hope it stays within the act.
On the subject of presumptive offences, in the definition section of the act there's what I read as being a “three strikes and you're out” provision, or three strikes and you're presumed to be tried as an adult. That causes me a great deal of concern. It seems to be a rule that is based on a sport, baseball, as opposed to anything that would have to do with common sense. Why did they pick baseball? It's an American idea, not a Canadian one. We could have had four downs or five fouls or something else.
I don't know where the three strikes comes from, but if an individual is on the schoolground and they bump a kid and steal the kid's hat, they could be charged with robbery with violence. They have used force to take something away from another child. The kid comes into court and the judge wants to scare this child and so they say this is a very serious offence, it's an offence of violence, it's an offence that, if you were an adult, could be punished by life imprisonment. With this bumping and stealing the hat, you get your first strike. If you do it three more times and you get a judge who wants to set an example, all of a sudden you have your three strikes and you're out.
If you consider it, it's something that could go downhill very quickly depending on the environment. It just doesn't seem to be based in logic; it seems to be based as following an American model that maybe we shouldn't necessarily be following.
I think I'm getting close to my time. I have one other comment.
There are some discussions about lowering the age at which an individual would come into contact with the criminal justice system. I think this would be a horrible thing, at least from a pragmatic point of view.
It's difficult enough to try to explain the defence of self-defence, which is very complicated to an individual who is 12 or 13 or 14 who comes into your office playing with toys or toy soldiers. You're trying to explain the very complicated defence of self-defence. It would be a nightmare and I think unrealistic to consider that a child at the age of 8 or 9 would even understand what process was going on or what process they were involved in.
The Chair: Thank you very much.
Now we go to colleagues. Mr. Cadman has seven minutes.
Mr. Chuck Cadman (Surrey North, Ref.): Thank you, Mr. Chair.
I'd like to thank you all for coming today. It's the start of a long day for all of us, I think.
I have a question on the naming, to deal with identification as opposed to publication. Is there any time that you feel—and I open this to all of you—there should be publication, or at least identification, or should it never be allowed?
Ms. Rita Scott: If I could speak to that, the current Young Offenders Act allows for the publication of names under some very specific certain conditions. Certainly this was thought of in terms of not just trying to apprehend someone who has committed a serious crime, but it also has to do with some concern for the safety and well-being of that young person who may have committed the crime. I think there's some sense in that.
But just as we heard from the young person who was talking to the committee, who says “In my community everybody around me knew who I was and what had happened”, I think there's generally enough information available in a community already about a young person that if somebody is trying to find him, the process that goes on within the system itself can take care of the kind of publication that's needed.
You can let border people know that you're looking for a particular person if he's crossing through international boundaries. There are other police investigation agencies that can be notified, without having to splash this stuff around in the papers. And there's always that issue of the presumption of innocence—that if there's any kind of mistake, you've committed an irrevocable harm to this kid.
I think we already have everything we need.
Mr. Chuck Cadman: Mr. Arnold.
Mr. Josh Arnold: It's always a dicey issue. Certainly when public safety is involved, such as if there's a warrant issued and nobody can find this person, there has to be a way to try to locate somebody who is supposed to be brought before the courts. However, as for whether names of individuals should be published if they are convicted of certain crimes, I don't think they ever should be, because somebody who does something at age 14 or 15 will never get out from under the stigma attached to that. And people may say that perhaps they shouldn't, but I think we all know that the person we are at age 14 or 15 is certainly not the person we are at age 35 or 40. Should the stigma follow you throughout your whole life? I don't think so.
Mr. Chuck Cadman: Okay. What about identification, as opposed to publication? There's a big difference here.
I can talk to Ms. Scott. I'm sure you're aware of the case seven and a half years ago in Courtenay, where we had a young offender who was convicted of a sexual offence and not identified, and a six-year-old girl wound up dying as a result.
Ms. Rita Scott: No, Mr. Cadman. At the risk of saying something you might not want to hear, I don't want to diminish in any way—
Mr. Chuck Cadman: I'm willing to hear anything.
Ms. Rita Scott: —the tragedy that occurred in that particular case, but I just lean on the notion that hard cases make bad law. Just as my colleague here has said, the things that follow you forever can do so much harm by comparison to what you might have done had you known about that issue. Frankly, I think the harm you would do would far outweigh the benefit you would accrue if you were to start identifying.
Mr. Chuck Cadman: Okay. Thank you, Mr. Chair.
The Chair: Thank you very much.
I welcome my good friend from Portneuf, the place that has the second-best maple sugar in the world, Monsieur de Savoye.
Mr. Pierre de Savoye (Portneuf, BQ): Thank you, Mr. Chairman, but let me correct one thing you said: you have the second-best maple syrup in the world.
I would like to thank our witnesses for appearing before us this morning to express their views.
The issue of young offenders is one that has taken on a great deal of importance in our discussions for some time now. In some ways, this does not seem to take into account the fact that youth crime in Canada is at its lowest level in many years. That is particularly true in Quebec, where the rate is even lower than in the rest of Canada.
I am going to express my view, and I would like you to tell me what you think of it from your standpoint. When young people do something wrong, generally they don't think about the legal consequences. In fact, very often they don't even think about the human consequences. That is why I think it is incorrect to think that tougher young offender legislation would reduce youth crime.
We all know that lawyers are very familiar with the law, but do they abide by it more than average people, who know it much less well? I know, Mr. Arnold, that you know the law well and that you abide by it. But would it not be much preferable to invest in prevention and rehabilitation rather than toughening our laws? Quebec's position on this bill has been to retain the current legislation, which is producing good results, and to keep improving our investment in prevention and rehabilitation. What do you think about this?
Mr. Rick Prashaw: I could start with a first response by saying that you make a very valid point in pointing out current-day crime statistics. I think we need to pay attention to those, to get that proper perspective and spread that education around the country. That's a piece of it. Would that they start to soar, as in periods of our history they have, although not ever really soaring, we have to pay attention to see if the present-day tools are responding to crime.
I think we have to ask fundamental questions that I think you're touching on with prevention and rehabilitation. The law becomes but one tool of many with respect to making our communities healthy and connecting each other to one another. We would like the law to be this instrument of education. We would like these youth to think twice. Sometimes they're not thinking once, the way we never thought once, the way I never thought once—I won't speak for you, but the way I never thought once, or I was thinking of other things than the law. We're trying to get messages through the law.
I think it was Ross Hastings of the University of Ottawa who was very helpful to me. He said we're hooked on this single dimensional deterrence and denunciation theory. We want to educate people, so we want them to be held accountable. We want them to be responsible. We want them to get all the lessons of the Criminal Code. But we're using all the wrong means of doing it, and they're not able to receive these messages, for all kinds of reasons, including their age and circumstances. Therefore, the lesson doesn't happen.
That's why I think what Rita is referring to, some of these restorative processes that close the distance, that allow for human interaction... When people just start to get worked up about being a victim, as they should get worked up about being a victim, and they want to say what they feel, we call a recess in court. The first approach to being a human being is “Well, we'll have a recess now so we can all get back together again.” That's where a restorative process opens a door to let that person be human and for these youth to hear. “Oh, I thought so-and-so had insurance. No big deal.” They explain about the loss of days and the loss of income. They begin to hear, and “Why my house?”
I think I like a lot of what I observed in Quebec with your approach. I like the social, the preventative, the rehabilitative. I hope we cannot look at this law you're studying as the be-all and end-all for making and producing healthy and safe communities.
The Chair: Do either Mr. Arnold or Ms. Scott have anything to add? We have about a minute.
Ms. Rita Scott: I just want to say this. Unfortunately what we do sometimes in young offender legislation is we deal with things after the fact. That's just the way it is. But I honestly believe—and I'm a lawyer too, and I've been a probation officer and a social worker, and I'm a mother. I've been around the block, and I can tell you that if we had even a fraction of the drug and alcohol resources we need for treatment and detox in this country, we would have a fraction of the youth crime we have. That's a really big issue.
The Chair: Mr. Arnold.
Mr. Josh Arnold: I can say for certain that the majority of young persons have no idea what the legal consequences are of their actions. There is a small group of young persons whom I would say grew up in families that had to do with crime—maybe their father has been in and out of jail on numerous occasions—and they might have a clue about what they're getting themselves into when they walk into somebody's house when they're not home. But the majority of young persons do not have any idea, and the first time they ever hear it is not when they're arrested and not when they go into court through arraignment, but when they actually sit down with a lawyer and finally have it explained to them what kind of trouble they've gotten themselves into.
If there was some kind of education in place, in the schools or somewhere, to explain what kinds of problems they could run into, it might make a big difference.
The Chairman: I would like to thank both you and Mr. de Savoye.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Scott, and thank you all for your presentation. Mr. Prashaw has been here on a number of occasions and always gives us a terrific perspective, I think, and a good overview of what's happening, particularly with the restorative justice model.
Whenever we get into this issue of how to deal with young people who are involved with the justice system—and I think this act draws a very distinct line between violent and non-violent offences. The two words that always seem to ring in my ears whenever I hear “restorative justice” are resilience and resources—the resilience of the victims in their ability to go through this process, because, as you would all acknowledge, most victims are not there willingly; they don't want to be in this position. And resources seems to be the other, perhaps the most important, element that would allow this restorative justice model to really take hold.
I certainly agree that the sterile courtroom approach, in many instances, doesn't work in terms of the human side of the healing and the rehabilitation, not only of the victim but of the accused, because they're not really facing consequences in a lot of cases, particularly in youth court.
With respect, do you not feel that even for relatively minor offences of a property nature there is an element of deterrence that has to be addressed in our justice system? There has to be a degree of accountability. I honestly get the opinion, from talking to both young people and probation officers and youth court workers—Ms. Scott, you've covered the whole gamut, particularly the mother aspect of dealing with young people. The sense that I am forever left with is individuals either leaving court or leaving a lawyer's office and this sense under the old act that this act is all about protecting me, not holding me accountable but protecting me. Rightly or wrongly, that was the impression of the old act in this country. I would just like your comments on that.
Ms. Rita Scott: Mr. MacKay, I think I can genuinely say that I know of absolutely no evidence anywhere that says the harder you slam the kid, the better the results you get. When you say accountability, my immediate thought is accountable to whom? If that kid has to talk to the person he harmed, there is no better accountability anywhere, including in the court system.
Mr. Peter MacKay: Do you have the same feeling for violent offences, offences of home invasion that involve beating of the homeowners, or individuals who have become involved in sexual offences? Do you feel there is no... I don't know what you mean by “slam”. I guess the inference is you mean longer jail sentences. If it takes a longer period of time to protect society and rehabilitate that person, you feel this is not the road we should be going down?
Ms. Rita Scott: What are we doing with them when we have them in custody? That's really the issue. If you're just going to isolate them from their peers and their community, tell them that they are now labelled as a criminal and that they have all these odious characteristics about them, it makes their reintegration that much harder.
As we heard from Josh, at the moment many kids come out of jail right back into situations where they've not learned how to cope with that and do something different. Again, it's a question of resources. If we're going to have kids taken out of the mainstream in order to do something with them to help them learn how to go back into it better, that's one thing, but to simply isolate kids doesn't work. We know that.
Mr. Peter MacKay: So in your reading of the legislation... What I find somewhat perverse about it is we're moving towards the restorative justice model, which I think is the appropriate direction, but at the end of the day some of these sections do slam kids; they toughen it. Without the resources under the current legislation and without any commitment from the federal government under this proposed legislation, are we really setting ourselves up for failure?
Mr. Rick Prashaw: I have a couple of comments. I worry about this line that the legislation clearly draws between non-violent and violent. As we listen in town halls and church basements, clearly from a Criminal Code point of view, without any bit of thinking, there are more serious and less serious offences—we know that—when people we love are harmed. But all offences are serious. If my home is broken into, that's serious. It has an effect on my life. It has an effect in terms of my feelings of safety and how I relate and move in the community. If my kid is accused of shoplifting or has his bike stolen, that's serious.
So in terms of less serious/more serious, I think we have to at least keep in mind—and I know you have to keep the other issue of the Criminal Code—that all offences are serious. What we're saying is that there can be doublespeak to Canadians. I think Canadians by and large pretty well get it when they hear on the one hand that there's this new thing called “restorative justice”, and it's really good and it'll deliver on denunciation and accountability and safety, and it'll give you healing, it'll give you an active role, but by the way, it's only for less serious, minor, first-time offenders and there's no money for it. I think clearly Canadians will put two and two together and say, it doesn't cut it.
So one of the things you have to decide is whether it is serious or not. Is it the way to go? Watch carefully what lines you draw in the sand about what restorative justice should be for and what it should not be for.
Clearly there are safety issues, as Rita said, for the individual and also for the community. We're not talking about letting people walk off without any responsibility, but we are concerned that some would send out the message, whether intentionally or not, that these restorative processes don't cut it for violent offences. I think Rita has experienced, and others in the country have experienced, that within violence there is a wide spectrum. There are so many different circumstances, and these restorative processes let people get at that, get at the social, get at the human contact, and can really allow for some serious consequences and messages of accountability. We're for accountability. The question is how?
The Chair: Thank you very much, Mr. MacKay.
Mr. Arnold, is there anything you want to add? I want to make sure you get in here.
Mr. Josh Arnold: Yes, there is. As far as resources go, I can talk about Nova Scotia and say that there's one facility in Nova Scotia for young persons. It's a closed-custody facility. There isn't any open custody and there aren't any halfway-house-type places in Nova Scotia. I think this was a problem under the Young Offenders Act, and if this act continues on in the same light, that is no resources for release or those kinds of things, then there's going to be a similar problem to the one under the Young Offenders Act.
With regard to the types of penalties that should be meted out, in Nova Scotia we are in the process of a big controversy about compensation for individuals who as young persons were sentenced to a place called the Shelburne School for Boys. While they were there, they received physical and sexual abuse. My law firm has a number of individuals who went through that particular facility, and for what in a lot of cases were very trivial crimes—shoplifting or truancy—or in some cases were more serious crimes, such as assault, they received the kind of punishment that I would say victims of crime might fantasize about as a sentence for those individuals who perpetrated those crimes. That is, when they went into custody they were hit, they were sexually abused, and it was sort of a free rein in a lot of cases.
If you follow along with what happened to those people as they progressed through that kind of punishment, invariably all of these individuals reoffended. All of these individuals went through the youth system, then they went into the adult system, and then they went into the penitentiary system.
So that kind of punishment obviously is no deterrent to an individual continuing on in committing crimes. There has to be a different kind of answer, and restorative justice seems to be the way to go.
The Chair: Thank you very much.
Mr. McKay, and then Mr. Saada.
Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman, and thank you for your presentation, witnesses.
I was intrigued by two of the examples. The first example, of course, is Taber, Alberta. You might be interested to know that Reverend Lang is coming to the national prayer breakfast in April to make a presentation. Probably we would be well advised, Mr. Chairman, if all members of the justice committee went to the national prayer breakfast, because it's an interesting issue given the timeliness of the issue.
The other example you used—and I hadn't realized this—was the church in Streetsville, which was Harold Percy's church. I know Harold and consider him to be one of the more articulate men of the cloth.
I wanted to explore this disjunction between, if you will, the foundational faith issues you speak of and our current justice system as it exists. Frankly, Mr. Prashaw, you hit on it quite eloquently when you said that at certain points in the trial, when somebody is about to become human, the trial gets shut down while we restore ourselves to some level of respectability.
Mr. Rick Prashaw: That's a different kind of restorative justice.
Mr. John McKay: Yes, we're restoring the wrong way, and frankly it's on good legal advice. Frankly, no lawyer wants his or her client blurting out what they actually feel or think.
I'm interested in how you see those almost irreconcilable philosophical streams reconciling themselves in a bill such as this. To use Mr. MacKay's analogy, it seems to me we're going down two separate pathways here, and I don't know that the bill actually addresses this issue very well. I would be interested in your general observations on that.
Mr. Rick Prashaw: As a comment on that story in Streetsville first, for integrity, I had to put in the last line of the story, which is the invitation that we all have a way to go on our journey. All of us do. Some could not attend the service that Sunday because they knew the youth was going to stand in front of them and apologize. They quite clearly told their pastor they would not be there that Sunday, and I think that's just affirming what you say about the apparent irreconcilability of this issue. That's the challenge.
It has to be done through long-term education, yet it's not going to be with any tool slamming the doors on the possibility of these things happening. It's not with this bill, Bill C-3, slamming the door on restorative justice or sending out double messages that will not allow communities and individuals who are hurting to use these processes.
I was out in Regina at a healthy community workshop. Donald Worme is a really fine lawyer out there in Saskatchewan, and he was talking about aboriginal justice, about how hurting the communities are and how they're on a healing path. They're learning once again some of their ancient traditions.
Very aware of some of the issues with Christianity and some of our contributions toward some of that hurt, I stood up and asked him a question. I said I felt like someone in that movie When Harry Met Sally, someone at the other table in the restaurant who sees what they're having and wants what they have. I made that comment and asked if I could have what they had. He said, order from the menu, by all means.
I think that was a message to me and a message perhaps to more, in that we can learn from one another. The law is one part of it, but the law at least should not impede or prevent communities from taking some ownership, some active role in participating in justice. We need the professionals. We need the code. We're not throwing those out, but we need to create spaces for this distance to be shortened.
So from a faith perspective, we welcome the challenge of things that appear to be irreconcilable. We don't think they are, yet we wouldn't be naive enough to think these are not immense challenges in our communities.
Ms. Rita Scott: From a process perspective, perhaps we need to be more creative about this. I would particularly challenge youth court judges to be more creative with their own innate common-law discretions and stuff.
These restorative methods can be used at any point in the criminal justice system. Instead of standing down so that everybody can get their decorum muscles back into shape, maybe we should be standing down so that people can sit down at a table somewhere and can keep on talking in the way they would have started to in the courtroom. We can then come back with “We have something to work with, something that's more wholesome”.
I'd be interested in what Josh would have to say about that.
The Chair: I gather that Mr. Arnold sees this as a sort of naive rumbling of faith communities.
Mr. Josh Arnold: Yes. I certainly would never encourage a client of mine to get in touch with his or her emotions during the course of the trial process.
Ms. Rita Scott: Maybe not during the process, but what about standing down to do that?
Mr. Josh Arnold: No, not for a second.
Mr. John McKay: Therein lies the central dilemma.
Ms. Rita Scott: I think, though, that there are numbers of legal professionals who are considering those kinds of issues. This is the beginning of a dialogue; it's not the end.
The Chair: Thank you very much.
Mr. Cadman for three minutes, and then we'll go back to Mr. Saada.
Mr. Chuck Cadman: Just on an anecdotal note, Mr. Chair, I'm aware of one of your colleagues in British Columbia, Mr. Arnold—I won't name names—who suggested that victims should not even be allowed in courtrooms because they cry and might upset a jury or influence a jury. Thankfully you're not all like that. You don't all have those views.
We had a previous witness, one who was here last week, who suggested that no young offender, no youth, should ever be subjected to any kind of an adult sentence, regardless of what the offence was. I would like to know your feelings on that.
Mr. Josh Arnold: When you're talking about a life sentence for a young person and you have that young person sitting in front of you and have to discuss with them what it actually means—how long it's going to be in terms of their life—it's a pretty difficult thing. But I would say that in relation to certain kinds of crimes—first-degree murder or second-degree murder—depending on the situation, having supervision over a young person for their whole life is not an outrageous request. I think it really depends on the circumstances. So I don't have a big problem with that.
Mr. Chuck Cadman: Ms. Scott or Mr. Prashaw.
Ms. Rita Scott: I don't believe young people should ever be sentenced to adult sentences.
You mentioned things like first-degree murder. Of all the crimes that I can think of in the Criminal Code that are least likely to be committed again, that's probably the one that would jump to my mind. First-degree murder is usually committed over a certain thing at a certain time and in a certain manner, and those circumstances hardly ever repeat themselves. I don't think that's the way to go, particularly because of the developmental stages of youth, the fact that they can be taught, that there are things that can be done about this that are unique to that time in the person's life. It doesn't make sense to me.
Mr. Chuck Cadman: Mr. Prashaw.
Mr. Rick Prashaw: That's fine.
The Chair: Thank you, Mr. Cadman.
Mr. Chuck Cadman: Thank you.
The Chairman: Mr. Saada.
Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you, Mr. Chairman.
Once again, I would like to begin by making a comment to my colleague, Mr. de Savoye.
I am not making a value judgment about the position on this bill, but we often hear that Quebec disagrees and that there is a divergence between Quebec and the rest of the country. First of all, some witnesses from Quebec have come to tell us that they did not fully agree with the so-called consensus and, moreover, outside Quebec there are people who think exactly the same way as most people in Quebec. We had proof of that today. So I think the dichotomy between Quebec and the rest of Canada is not that useful a point under the circumstances.
Mr. Prashaw, you answered one of Mr. Cadman's last questions by referring to the time factor. We cannot cover this issue adequately in three minutes, but we must absolutely keep it in mind. Time does not have the same meaning for young people and for adults. For young people, two years is not the same thing as for adults. We will develop this concept of time later on.
I agree with your position regarding the publication of names. I really don't understand how it would be useful to have very broad publication authority.
Mr. Prashaw and Madam Scott, you have talked at great length about family youth conferencing, about restorative justice, and so on. In the Young Offenders Act, which we have now, I don't recall any specific reference to restorative justice. It's introduced here. I also read subparagraph 3(c)(iii) in the bill and I read subclauses 38(2) and 38(5), and all kinds of other things, and I conclude, therefore, that you are supporting this part of the bill, where actually the bill would allow for restorative justice to take place or to be used as one of the tools available. Did I listen properly?
Mr. Rick Prashaw: Yes.
Ms. Rita Scott: Yes, that's it.
Mr. Jacques Saada: There is also a brand-new thing in this bill that we didn't have in the Young Offenders Act, and that has to do with the victim's rights. I suppose you also agree with this. Do you think these two fundamental things could be added to the Young Offenders Act, instead of having a new bill on that? That's very often what we hear: we don't need to have a new bill but we could add a mandate. I'd like to understand better the definition of your position with regard to the bill.
Ms. Rita Scott: Personally, I didn't have a lot of trouble with the Young Offenders Act. I think the difficulties arose in the way it was used. And I agree. I think taking the act as it was and incorporating some of those restorative justice issues changes, for instance, would be beneficial. Also, again, we did have provision for victims to be heard. In many jurisdictions, victim impact statements can either be entered or they can be read, victims can give evidence at sentencing hearings—there are all manner of ways to get at that. Some places do it; some places don't. To have it in the act I think is a good idea. I don't want to go through every section of the Young Offenders Act in terms of whether we could tinker with it, but I wasn't unhappy with the Young Offenders Act as a basic document to begin with.
Mr. Jacques Saada: I have one last question, if I may.
I listened very carefully to your presentation, Mr. Arnold, and to yours as well, and I was particularly interested in your reference to the "three strikes and you're out" concept. I listened very carefully, but I must confess that I did not understand what you meant. Could you explain it for me?
From my reading of subclause 145(6), I fail to see how you can conclude that it is similar to the "three strikes and you're out" American model.
Mr. Josh Arnold: The subclause 145(6) issue was in relation to statement taking. The three strikes and you're out that I was referring to comes in the definition section. That's clause 2 under the definition of “presumptive offence”, paragraph (b). I think it might be page 4 at the top left-hand corner. The definition of a “presumptive offence” can include a serious offence if there have been two judicial determinations previously made under subsection 41(8) that the young person has committed a serious violent offence. So on your third judicial determination that you have committed a serious violent offence, you can be presumptively transferred to adult court.
Mr. Jacques Saada: You're referring specifically to the increase in the designated offences for which you could be tried under adult procedures.
Mr. Josh Arnold: That's right, and it gives the judge the ability to say there's one, then there's two, and now there's three.
Mr. Jacques Saada: Thank you.
The Chair: Thank you very much.
Mr. de Savoye, for three minutes.
Mr. Pierre de Savoye: Thank you, Mr. Chairman. With all due respect to my colleague, Mr. Saada, I don't think he should talk about a dichotomy, when I was merely referring to Quebec's experience to find out what our witnesses thought about it. I'm well aware that in the rest of Canada, some good things have happened that were based on Quebec's approach. I have been sitting on the Justice Committee for all the hearings on amendments to the Young Offenders Act during the 35th Parliament. So I'm familiar with the subject. You must have thought I meant something other than the fundamental issue I was raising. But I don't want to get into a debate with you, Mr. Saada.
If we have a house built and then find that it has a number of problems, we go back to the builder and ask him to make the necessary repairs. When we buy a car and then find that it is not in good condition, we go back to the dealer or to the manufacturer and ask that the necessary repairs be done.
When a child does something wrong, it is probably because somewhere, the parent, the caregivers, the social workers have failed, perhaps not in their duty, but at least in their obligation to get certain results. We don't bring our car to court; we don't bring our house to court; so why are we bringing children to court? Are they the main ones responsible for their poor behaviour? Don't parents, uncles, aunts, older brothers, caregivers, teachers and social workers also have to share their responsibility?
I go back to what Mr. McKay was mentioning to Mr. Arnold. How can we reconcile steps taken by the court with the rehabilitation of the child? Would we ask the same question in the case of a child with pneumonia? In other words, is the court the right place to intervene? Is it not an inappropriate tool, rather than the appropriate tool? That is my question.
The Chair: The man is the master of the three-minute question.
Mr. Rick Prashaw: I suppose we would do well with more homes on a street and more cars on the lot than the one we seem to be hooked on in our country and with our criminal justice system. There's nothing quite like buying the home and living in it, or getting the car, and no matter the good work you've done to study it, driving it, to find out about that car or to find out about the home and what works well and what doesn't work well. We're just hearing from an increasing number of Canadians who are trying different cars in different homes of justice, and they're liking the experience.
Victims, offenders, and people in the community who were harmed are telling stories that we're trying to chronicle. They say: “We like this. We are more satisfied with this experience. We have participated. We have had a say. We've been able to ask direct questions. We've been heard. I may not have got everything I want. There are some things I can never have. But I'll take this.” Yet the difficulty is that often we don't give these opportunities, and that's the danger.
I'm aware of a couple of members of Parliament who have gone to some circles and who have gone to conferences. I invite you to go. There comes a point when there's no more point in talking about it. To experience the circle, to experience the family conference...
I have talked to some hardened police officers who have changed dramatically. They were disgusted or frustrated with the experience of the revolving door of the courthouse and had just written off family group conferencing as some naive rumblings. Then they experienced it, and they said this is the way we have to go. We have their names; we know their stories.
So I invite you, as part of this ongoing work, to experience that. We can put you in touch with people so that you can experience that.
The Chair: Thank you very much.
I don't see anyone on this side. I want to, if I may, ask a question myself.
At the end of the day, we could be back here in ten years, looking back on the youth criminal justice bill the way Ms. Scott referred to the young offenders legislation. I have no problem with the young offenders legislation, but the things it intended to happen or anticipated happening didn't happen. At the end of the day, this will be measured not by the law but by the reaction to the law, I think, if that's a fair comment.
Ultimately, when we get to that point, we start talking about resources every time. We've had a number of witnesses, and at the end of the day, whether this works or not, it seems to be a question of resources—some level of will, but resources.
There are infrastructures in place. Mr. Arnold mentioned Nova Scotia and the facility in existence in Nova Scotia. We have a new large young offender facility in New Brunswick that has eighty or ninety people in it most of the time.
If this legislation comes forward, I understand the federal government has committed some amount of resource to surround this exercise, but at the end of the day, if we're going to bring to bear the resources that this legislation would require and anticipates, we're going to have to move some of that money—the back-end money that is in some cases in warehousing and in some cases in something better than warehousing, but nevertheless back-end funding in the system. We'll have to move it to the front end, I suspect—move it to communities, move it to alternative approaches.
These infrastructures that exist will not, dollar for dollar... If there are fewer people in the Miramichi city facility in New Brunswick by half than there are now, that doesn't necessarily mean we'll have half that money to put into the system.
In your experience dealing with the provinces—and I presume you do... This isn't a matter of federal-provincial stuff. It's just that I think this is going to make it work or not. Do you see the interest or the will to respond to what we are talking about here in this legislation that would make it work, in terms of the resources currently committed to the back end of the system?
Ms. Rita Scott: Well, Mr. Scott, I can tell you there are over forty restorative justice programs in British Columbia, and I know that at least in the initial stages, many of them operated with no funding at all. Many of them operate on very little funding. Indeed I would venture to say it is incredibly cheaper to do restorative types of programs than it is to go on to the big, high-asset kinds of capital expenditures we do now. But that's not really the issue.
If we have to come back in ten years and re-evaluate where we're at, so be it. That's what we should be doing. The first Juvenile Delinquents Act, if I'm not mistaken, came in before 1910 and stayed in place until 1985. But the changes in society between 1985 and 2000 are probably vastly different from and more all consuming than the things that happened back in those early days of the Juvenile Delinquents Act.
The Chair: Mr. Arnold.
Mr. Josh Arnold: I think the biggest issue is obviously that people immediately think if somebody does something bad, then they have to be punished and go to jail. There's a continuous resistance to change that philosophy. I think the biggest problem in obtaining resources is changing people's philosophy about how we deal with people who have breached society's rules.
So I can't talk to you about how funds are divided up or how they may be reallocated, but I can say that no matter who you talk to, unless they've really sat down and thought seriously about how that other system hasn't really worked very well to date, there's always resistance to talking about something different.
The Chair: Rick.
Mr. Rick Prashaw: I would put a plea in for education to go with legislation and for money to go toward education.
We go into parish basements and town halls and do a young offenders night, and we always get a big draw. What happens is, right away—I call the first part of the evening “lamentation”—we let people say what they wish at the microphone and give their piece. Then for the next hour and a half we talk about their youth, when they were young. Some of them don't like that part very much. They say “What's this got to do with the YOA? I'm here for the YOA.” We take them on a journey of reflection of who was there for them in their life, what resources were there, what the critical crossroads were in their life, what good services they had, and what their family experience was.
Then we get back to present-day reality and talk about youth, their reality and circumstances. We put a professional panel over in the corner so that they can answer questions during the night. We get a judge and a lawyer. I think that education, hand in hand with good legislation and money for both, can make a difference.
The Chair: Thank you very much.
The last question goes to Mr. MacKay.
Mr. Peter MacKay: Thank you, Mr. Scott.
I think one of the most important things I've heard today in the presentations was from Mr. Arnold with respect to the lack of follow-up. Although there is an emphasis to have incarceration for the more violent offences, I think the sentiment was expressed very much by Ms. Scott as well that just putting somebody in jail is not going to fix them. There aren't sufficient programs in open-custody facilities, and there is this lack of follow-up.
I also think it was very important to hear about this presumptive offence anomaly.
My question to you, Mr. Arnold, with respect to transfers and admissibility of statements, the effect of this restorative justice model, is this. Do you feel—and I can ask this generally to all the panel—that we are, in some instances, limiting judicial discretion?
I know there's a big sentiment out there in the general public about judicial activism, and in instances we are seeing judges strike down legislation. But, for example, with the section that you refer to, Mr. Arnold, about the admissibility of statements—and they've basically mirrored the language to match the charter—do you feel there is some concern about removal of judicial discretion when we try to limit the judge's interpretation of the law?
You gave an example about the kid in the school yard getting bumped and having his hat stolen. I know there are some judges out there whom you and I have both appeared in front of and whose judgment we might question, but surely, between the police, the crown, and the judge himself or herself, there is going to be a vetting of this type of anomaly where a kid is going to wind up going to jail for the type of situation that you described.
Mr. Josh Arnold: You'd hope so.
I think that even practising in different areas of a province—if you practise in a city versus going to a rural area—you see that individuals who are doing the exact same things in different locations are being dealt with very differently, and public pressure seems to come much more into play in more rural communities than it does necessarily in an urban setting. I would say that my concerns are legitimate in that if there's a lot of public pressure in relation to one particular matter, then an individual could be dealt with differently. That's the concern.
Mr. Peter MacKay: I think—
The Chair: Peter, there are others waiting.
Mr. Peter MacKay: Okay. With respect to transfers or to the ability to expand this definition, we have transfers from youth court into adult court. You referred in your presentation to being completely opposed to any element of lowering the age of accountability. If this entire act is expanding the parameters and using restorative justice and alternative measures that are outside of the normal court procedures, would you envision a system that could in fact transfer a child who would be outside the normal age restriction of 12 years, say a 10- or 11-year-old, into the system—not to take them into court, but to get them into an alternative measures program, to have a triggering mechanism, because of the lack of resources?
It's written right in the act that the criminal justice system is not to be used as a substitute, and that was in the old Young Offenders Act as well. But there are instances, sadly, where a 10- or 11-year-old is being used by an older child. If the whole system is geared to preventive and alternative measures, don't you see a transfer provision to get a kid into that system so that we can start helping them sooner as a good thing? Just like DNA evidence isn't always just to convict; it's sometimes to exonerate.
Mr. Josh Arnold: I think bringing anybody younger than the age of 12 years into anything close to the criminal justice system is a very bad idea. I know that I've read where individuals have said that older kids are using younger kids below the young offenders' age to commit crime. I have yet to see that in existence, at least in my practice. Nor have I ever heard of it occurring other than on American television shows. Maybe it's happening in other areas of Canada that I'm not familiar with. If you lower the age to 10 years, and people were really doing that, then they would just get 8-year-olds or 6-year-olds. I don't think that's something that would require a change in the law, and I don't think kids of that age should be brought up in the criminal justice system at all.
Ms. Rita Scott: In fact, there are all kinds of opportunities in other systems, like the child welfare system, the mental health system, the school system, and other kinds of places where restorative justice processes can take place without having to regard the Young Offenders Act or the Youth Criminal Justice Act as being the mechanism to get at that. People can be creative with these things, and have been, in all kinds of situations that I'm aware of.
The Chair: Thank you very much.
Thank you, colleagues, and in particular thank you to our expert witnesses for your testimony. You'll certainly be helpful as we continue our own journey.
Once again, thank you very much.