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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, February 22, 2000

• 0910

[English]

The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): Order. Now that we have enough members, I'd like to welcome the witnesses. I'm sorry for the delay.

In any case, our witnesses today are Mr. Peter Dudding from the Child Welfare League of Canada; Martha MacKinnon and Mary Birdsell from the Canadian Foundation for Children, Youth and the Law; and Marlene Viau.

The rule is that you have ten minutes for your initial presentation per group, however you want to split it up. We'll start according to the way we have witnesses listed on this piece of paper—and for no other reason—which means Mr. Dudding will lead off.

Mr. Peter Dudding (Executive Director, Child Welfare League of Canada): Thank you very much, Mr. Chair, and good morning, ladies and gentlemen.

My name is Peter Dudding. I'm executive director of the Child Welfare League of Canada. We are a national voluntary social services organization, with 87 members across the country. Our membership is made up of a variety of children-serving organizations, again across the country. Our primary concern is children at risk and their families. These of course are the children who are involved with the child welfare system in this country, the children's mental health system, and the young offenders system.

Our presentation to you this morning is based upon a survey of our members conducted during the summer of last year and upon our own experience as an organization where, during 1999, we were involved in two interesting studies that bear on this area.

The first study looked at the unique experience of young women and their involvement in the young offenders area. The second study looked at the needs of the population of children six to twelve, who of course are not part of this legislative thrust but are nevertheless a concern in terms of what is the level of service and what is the nature of what's going on with these young people across the country.

Some of the thinking has translated into the document you have before you today. With ten minutes, I'm not going to go through our brief in its entirely, but I thought I would stick to the general comments and then a review of the summary in terms of the strengths and weaknesses of the current legislation that's before you.

The Child Welfare League of Canada believes the new legislation is not necessary, as the current Young Offenders Act, when fully implemented, as in the case of some provincial jurisdictions, has been very effective. We do question overall the thrust in terms of whether this legislation is really required in view of what has been a fairly successful track record in provinces that have taken on the full implementation. I'll expand on that thought later.

The proposed Youth Criminal Justice Act actually contains proposals that would lessen compliance with the UN Convention on the Rights of the Child. In particular, I would draw your attention to the lowering of the age to 14 for charges under presumptive offences. The issue with regard to the publication ban is a particular problem. I'll speak to that in terms of Canada's current reservation on article 37(c) of the UN convention, which in our opinion should be withdrawn. The practice of placing young offenders with adults should be eliminated.

The Youth Criminal Justice Act should require that the best interests of the child be of primary consideration in regard to any actions concerning children. Although we can applaud some sections of the preamble in terms of its clarity, it nevertheless does fail to put that principle as the first principle in this legislation.

Related to that, then, is the use of the terminology “criminal” in relation to children. In our opinion, that is both inappropriate and offensive. Children are not criminals.

• 0915

Finally, we believe there should be a prohibition against corporal punishment or other cruel and unusual treatment in children's facilities. This should be incorporated into the legislation itself.

I'm now going to look at the legislation. We've broken it out in terms of strengths and weaknesses and one questionable area.

In terms of the strengths, or where we believe it improves upon the Young Offenders Act, the addition of the preamble to the legislation is helpful, particularly as it relates to the acknowledgement that incarceration in this country is at much too high a level, particularly as it relates to non-violent offences.

As I am sure you are aware, some researchers in this area have indicated that Canada is probably heading the pack, if not leading the way, in terms of its incarceration of youth per capita. Surprisingly enough, we're even leading the United States. So certainly the thrust of the legislation in terms of moving us away from incarceration is quite laudable.

The principle of the bill and its clauses are more comprehensive and coherent. The extrajudicial measures are more broadly defined. Certainly you'll find in our document itself that the emphasis in the Young Offenders Act and now in this legislation with regard to alternative measures, extrajudicial measures to keep children out of the youth justice system, are extremely important, in our view.

The criteria for the use of extrajudicial measures are substantial. The authorization of formal warnings, cautions, youth justice committees, and conferencing approaches are approaches that we are well aware of in terms of being very successful in jurisdictions that they're being used in. We support the proposals for their expansion under this legislation.

The restrictions on the use of detention prior to trial are both appropriate and necessary. In this area, we also acknowledge the fact that in terms of the child welfare system, there are difficulties from time to time with respect to youth who are having so many difficulties that, in a system where the use of closed custody is not an option, extraordinary measures are required in order for those children to be safe and cared for. That is a problem within the current child welfare system that is going to require more resources and more planning in view of this prohibition. Nevertheless, we support this prohibition.

With regard to the abolition of pretrial transfer hearings in favour of post-trial adult sentence hearings, although we have grave concerns with respect to the transfer provisions we think it is a better process, as are the restrictions on the use of detention prior to trial.

The test for adult sentences is more substantive than under the current YOA transfer provisions. The principles of sentencing show restraint and focus on rehabilitation. We support that. The restrictions on the use of custody are appropriate. The inclusion of a broad range of sentencing options, including reprimand, we also support.

The flexibility regarding placement for those given adult sentences where these children can be maintained in children's settings is appropriate. With regard to the purpose and principle behind custody and supervision orders, again, we found the expansion there to be useful. The expanded provisions for leaves from custody is also an area of improvement.

The introduction of conditional supervision as part of all custody sentences without lengthening the sentence is, we believe, a significant improvement in the legislation. It will enhance the ability to meet the goal of reintegration of children into their communities.

• 0920

Now, as for the weaknesses in the legislation, the lack of definition for many of the extrajudicial measures is a problem. We see it as needing further work.

The issue of optionality is a big one as far as we're concerned. The ability of the provinces to opt out of many of the important provisions with regard to extrajudicial measures perpetuates, in our opinion, what has been the same problem, which was referred to earlier, in terms of the uneven implementation of the Young Offenders Act in Canada. In fact, we're setting up a situation that will continue to allow, in the first instance, the unequal treatment of children across this country and a cafeteria approach to youth justice issues.

For instance, in one province the “ordre du jour” may well be that of incarceration, whereas in another province that does earnestly implement extrajudicial measures we're going to see a very different style of youth justice. We think that's a major shortcoming that needs to be addressed in the legislation.

With regard to the presumptive adult sentences for specified offences and the lowering of the age to 14, we believe there is no research that really supports doing that. We know violent offences amongst youth to be a rare phenomenon, and we would really challenge what the thinking is with regard to that.

As well, serious violent offences are too broadly defined, and with regard to the publication of names allowed for those given adult sentences, again, we don't see any rationale or reason with respect to the publication of names under any circumstances. It does defeat the entire principle of the bill with respect to rehabilitation and reintegration by what would really be called, I think, public shaming of people. Again, I'll just draw it to your attention that in terms of the provisions of the UN convention, this does create problems in that regard. The one exception that we would see with respect to this has to do with the provision for children who have fled and are at risk.

The weak requirements for the destruction of children's records are very problematic from our point of view, as is the lack of definition for required levels of security, and the fact that placement decisions in open or closed custody cannot be reviewed by the court and have now been passed over to the provincial directors. We believe that is a concern.

Similarly, we believe the weakening of provisions related to taking of statements by police is a real problem when we consider the population with whom we're concerned.

Finally, I'll just mention the questionable area that we still are concerned about—that is, the placement by security level becoming now the responsibility of provincial correctional officials. Again, this leads to very different approaches across this country, which concerns us.

With those comments, Mr. Chair, I'll close. Thank you very much.

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

I forgot to mention initially that there will be questions following the three presentations. I'm sure we'll cover anything that you left out there.

Mr. Peter Dudding: Thank you.

The Chair: I might also warn the witnesses of the possibility that we may have our favourite happening around here—that is, the bells may ring, and like Pavlov's dog we'll all react and rush out the door. I'm sorry about that, but it's something over which we have no control.

We'll now hear from the Canadian Foundation for Children, Youth and the Law. Whichever one would like to start off, please do so.

Ms. Martha MacKinnon (Acting Executive Director, Justice for Children and Youth; Canadian Foundation for Children, Youth and the Law): Thank you very much, Mr. Chair.

I'm Martha MacKinnon, acting executive director of Justice for Children and Youth. With me is Mary Birdsell, a staff outreach lawyer and community development lawyer at Justice for Children and Youth.

For more than 20 years Justice for Children and Youth has been Canada's only legal clinic for kids under the age of 18. Our work is in the areas of income maintenance, education, criminal law, family law, mental health law, health law, constitutional law, and human rights. As Canada's only clinic that represents young people directly, advocates for them, and prepares policy briefs relating to their issues, we hope we can bring a unique perspective, and we thank you for the opportunity.

• 0925

I agree with Mr. Dudding that the Young Offenders Act, had it been properly implemented, could have accomplished many of the goals of the current bill. Our difficulty is that the implementation, as he has suggested, has been extremely uneven across the country and has been implemented reluctantly, if at all, in some provinces. As a result, it's our submission that the Young Offenders Act could be made workable, but it would require amendments to do so, and therefore, since neither the carrot nor the stick worked on that legislation, I'll turn my attention to the proposals in the Youth Criminal Justice Act.

It's a submission of Justice for Children and Youth that the legislation is almost like a sandwich in which the bread is terrific, but the filling needs work. On one slice of bread, the front end, there are several positive aspects of the bill. Its goal to reduce custody is laudable and admirable, and I hope it works.

Canada, as everyone on this committee will know, leads the world in its incarceration of young people. That has not led to a lower crime rate than countries that incarcerate to a much lower degree, such as the United States. New Zealand, as you may know, diverts 61% of its young offender cases, Canada only 25%. They have reduced their reliance on custody by 89%, and have not seen an increase in youth crime. Custody is an expensive, severely interventionist approach that doesn't work for routine low-end offences.

So I laud this bill for its attempt to reduce the reliance on custody, but there are some cautions with that. The first is that the presumption against custody in our submission should not apply only to violent offences, but also to serious violent offences. The presumption should be that there is no incarceration except for serious violent offences.

Part of the reason for that is that crimes are often characterized as violent or serious violent offences, or as assault or aggravated assault, and yet the range of behaviour within that definition is extreme. One of my first, very touching clients on that front was a 12-year-old boy—and I'm now going to assault Mary, because she won't do anything back to me—who, on a school test had been accused, sitting as we are, of cheating. With a pencil in his hand, he said, “I am not”, and was charged with aggravated assault with a weapon. That's an extremely violent and serious offence.

Now, eventually that was pleaded down to assault, but there's no reason there should be a presumption for custody in that kind of situation. So in our view, it's extremely important that the presumption for custody be reserved for the most violent, most serious of offences.

Secondly, we laud you for resisting the pressures to lower the age for criminal responsibility. The directors of child welfare agencies across the country have indicated that they are totally satisfied with their powers to intervene in the lives of children under the age of 12.

A second problem, however, once you get into what happens to kids once they have been charged, is (a) whether they will get custody, and (b) what happens at the more minor end. We praise this bill for its increase in the range of sentencing options; in particular, the reprimand is an excellent option. We submit there should be further options. We suggest that if you wish to encourage diversion and discourage custody, it ought to be mandatory for the crown to explain to the court why diversion was not appropriate. If that explanation is mandatory, then crowns will do more of their job to divert cases from the courts.

However, where they don't do that, in our submission, judges should be able to say this case should have been diverted. Therefore, judges should have the authority to impose reprimands or alternative measures. In the absence of a finding of guilt, the judge should have the power to say “It is not worth finding someone guilty here. They should have been diverted.”

• 0930

In our submission, a third power judges should have—and Mr. Dudding has referred to this indirectly—is the power to say when records must be destroyed. The existence of records is a very troubling thing for kids, particularly as they approach the age of 18 and seek employment. The growth of employers requiring record checks or asking kids to give permission to seek their records is enormous. A lot of these kids haven't been in trouble in five years and want to grow up to be police officers. So the existence of the records being left in the hands of the police is for us a troubling aspect.

The other side of the sandwich, the exit side, we also praise in this bill. The notion of reintegration leads, supervised integration in the community at the end of the sentence, and discharge planning are all excellent and laudable. We have had experience with kids who have left secure custody with a bus ticket home in their pockets and absolutely no other support once they leave. It is not a surprise if they reoffend. Attention to that aspect is extremely praiseworthy and ought to be implemented immediately, if that were a possibility.

There are, however, elements in the meat—or the cheese, if you're a vegetarian—in the sandwich. We have concerns, as does Mr. Dudding, about presumptive transfers. As I've tried to indicate to you, the nature of the offence and the definition of the offence do not always correspond with the activity or the behaviour itself.

We've had a client, who has both learning problems and mental health problems, who had been going to the same corner store every day for months and buying whatever was available to her for her income that day. One day she showed up with a note—in printing that most six-year-olds could do a little better—saying, “Gimme your money or else.” The store owner laughed. He knew her. He'd seen her every day. He knows she isn't a problem child. She went back to the group home where she was living. They found the note and called the police. She was charged with robbery. She spent three months in custody, because there was no place for her to live.

Robbery, again, is an extremely serious offence. But there was nothing so frightening about her behaviour, even to the very person she had allegedly robbed and who was not at all concerned or threatened by her behaviour. So it's important to avoid a categorization-of-offences approach to transfers and to sentences, as I mentioned earlier.

Another area of difficulty for Justice for Children and Youth is the taking-of-statements provisions. Mr. Dudding has referred to it. Our brief is fairly extensive on that point. We submitted a brief on section 56 of the Young Offenders Act. In our view, it's extremely important that young people understand their rights and that they are truly giving a statement, if they do, voluntarily.

Usually, the imbalance of power and the knowledge level of children means that they don't understand whether they actually have a choice. I won't go through the research data; it's pretty rock solid. But the other suggestion I would make to you is that there is no evidence that section 56 of the Young Offenders Act was a problem. Police forces have lengthy statement things that they go through with young people. In fact it's a plus for police forces and crowns to have a clear, slow routine as they take a statement, because then there are no arguments. You don't waste days in court arguing about the admissibility of a statement, which is both a less certain and more cumbersome and expensive way of going about it.

There are also problems, as Mr. Dudding said, with respect to the implementation of dispositions. In our submission, it is critical that all sentences be available in all provinces and territories of Canada, that sentencing is an intrinsic part of the criminal law, and that the Parliament of Canada ensure there is equality of sentencing and equality of availability of sentences across the country.

• 0935

In addition, Mr. Dudding has referred to who makes the decision of where a custodial disposition will be served. In the submission of Justice for Children and Youth, it's critical that this decision be made by a judge. Judges are the people who've actually seen the offender, the offence, and the victim, at the time the disposition is made. In our view, it is a mistake to transfer that power to the provincial directors of the provinces.

However, if that change is made, then it becomes critical that the decision is made in the same kind of fair process that is available in the courts. That is to say, before a provincial director makes a decision, the child should have representation. There should be an opportunity to know the reasons why someone might make a particular recommendation for placement and an opportunity to say something about it, and representation by counsel is critical. It is always easier to make the decision correctly at the beginning than it is to try to correct it later if you've made a mistake on the initial placement.

I couldn't support more strongly Mr. Dudding's comments about the UN Convention on the Rights of the Child and the placement of young people with adults. We have attached to our brief the recommendations of the inquest into the death of James L., a young person who died tragically in an adult facility. Video remands had not been available for him and therefore he was transferred to a facility when a transfer really wasn't necessary. Much of our brief actually reflects some of the things that are in those inquest recommendations. I find them compelling and tragic and hope you will find them the same.

There are missed opportunities. I've referred to the opportunity to make video remands more widely available. I've referred to the fact that this was your opportunity to absolutely prohibit young people from being housed with adults.

I would also say that there is an opportunity in this bill to strengthen privacy provisions. There is a case before the Supreme Court right now that concerns whether court dockets are included as a record. They certainly reveal a young person's name. There is a court in Newfoundland that routinely discloses them to school boards, with adverse consequences for the students.

Finally, I'd make one plea. The language and structure of this bill are very difficult. The Young Offenders Act could at least be explained to most young people. I found this bill a difficult one to read; when you get to a clause, it refers you to seven others. Much work is needed in terms of making clear and comprehensible a piece of legislation that so directly affects young people.

As a very final comment, referring to what I experienced this morning on the radio, I understand that Mr. Wamback is going be before you tomorrow morning. I was at a law and order forum in Newmarket on Saturday, at which Mr. MacKay was in attendance, and so were the Wambacks. It was a highly educational process. There were tables discussing issues.

When people arrived, many were saying to have instant incarceration for that, to lower the age for this, to have conditional sentences, and to put them straight in jail. Through the round-table process, the woman to my right, who had three children with Tourette's syndrome said “No, they can't help it, not my kids”, although she was the person who had said there should be instant incarceration for violent offences. The woman at the other end of the table, who actually had a child who'd been in trouble under the Young Offenders Act for stealing cassettes or CD-ROMs, thought of that as part of the growing-up process: not good, but not a thing—although he had repeated it—that should have put him in custody.

So it's relatively simple to educate people and to help them to understand that they don't actually want what they sometimes say they do in terms of being punitive. I would ask you to take the same, more complex approach.

Thank you.

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

As a point of interest, you mentioned the case of young people who want to join the police force and have a minor record. I had a case such as that. The police were so anxious to have this individual join the police force that they waited while we expedited a pardon, so I know whereof you speak.

Ms. Martha MacKinnon: You're right, it certainly can happen that way. At the moment, we have a kid who's now trying his fifth force. Again, it depends on the force, but you're right. Thank you.

• 0940

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

Ms. Viau, your 10 minutes.

Ms. Marlene Viau (Individual Presentation): I'm pleased to sit before you today to present my views about the youth justice system. At this moment, I am proud to be a Canadian and I am grateful to live in a country where the government allows a citizen the privilege to participate in a forum such as this one.

My reasons for addressing this committee are twofold. I am a victim who wishes to express my views about a system that enabled young offenders to steal a van and kill my brother, Sergeant Richard McDonald.

Rick was killed on July 28, 1999, as a result of a police pursuit. A young offender, 16 years old, stole a van and struck my brother after he had laid down a spike belt. Two other young offenders, ages 15 and 17, were involved in this incident. One died as a result of the accident and the other fled the scene with the driver of the vehicle. They led police on a exhaustive 36-hour search before they were apprehended.

Secondly, I am also here because I am a surrogate mother and caretaker for an 11-year-old boy that is a crown ward. I have him on weekends. The Children's Aid Society removed him from his home when he was four years old because he suffered from neglect and from physical, sexual, and psychological abuse. He has taught us a lot about delinquency, pain, and unconditional love. I constantly worry about him and what his future entails, because he has all the personality traits that could lead to criminal behaviour. Hopefully our love, support, and guidance will lead him on another path and his actions will not cause another family to feel the pain my family has had to endure.

Both of these experiences have given me the ability to view the youth justice court system from two very different perspectives. During the last six months, I have been researching and reviewing young offender law with these two perspectives in mind. After thoroughly reviewing and comparing the current system, the Young Offenders Act, to the proposed Youth Criminal Justice Act, I have told the justice minister that I support Bill C-3. Its preamble and declaration of principles balance the needs of these youths with the need to protect society.

In a 1994 report, the National Crime Prevention Council recognized that crime prevention through social development is the most effective long-term method of reducing levels of crime in Canada. I support this philosophy, and I believe this bill will reduce crime levels in Canada because it adopts this approach.

However, I do have some concerns. If this government does not address certain issues, the YCJA will have the same inequities as the YOA and therefore will lose credibility with the Canadian public.

The first of these is funding and implementation. The government must provide adequate and sustained funding for the provinces to implement these community-based programs.

I am also concerned about the provincial reluctance to comply with the spirit of the law—for example, the Province of Ontario.

I also question whether the failure with the current system was with the application of the law rather than the law itself. In its agreement with the provinces, the federal government should build in monetary incentives for provinces who comply with the implementation of alternate programs—for example, the Province of Quebec. The government must ensure that the extra resources allocated for alternative measures be directed only to community-based crime prevention efforts.

Second is educational and training requirements for all professionals who work in this field. In a 1988 university study, youth court judges said they were frustrated because the lawyers in youth court failed to be actively involved in the disposition process. There are two other studies that come to the same conclusion, one by the Quebec bar committee, done in 1996, and the other by a 1997 Ontario legal aid review.

My question to you is this: how can we be assured that youth are getting rehabilitated in a system where lawyers fail to put together a plan that is tailored to a youth's needs and offending behaviour? My recommendation is that all lawyers go through an accreditation program.

• 0945

Preventive measures: The government must establish a national program to identify, intervene, and rehabilitate children who have antisocial behaviour, such as aggressiveness, and those who have learning difficulties. It is known that 75% of young offenders have learning difficulties. As a preventive measure, the government must also intervene with young offenders under the age of 12 by directing them to a youth justice committee or holding a conference to effectively deal with the offending behaviour. I'm not recommending jail. I don't believe in that.

The current youth justice system addresses the needs of first-time offenders, which is the fourth category, by diverting them to community-based programs. It also deals with youths who commit serious and violent crimes, but it does not address the needs of youths who are chronic or repeat offenders in the non-violent category. Bill C-3 has the same failures. These are the youths who repeatedly commit property offences and repeatedly bog down our youth court systems by breaching probation and court orders. They are the ones who come before the courts time and time again. Our justice system is not rehabilitating them; it is enabling them.

These are the kids who have killed my brother. My brother had charged the driver of the vehicle on March 23, 1999, with the same type of incident. He led police on a pursuit, he had a stolen vehicle, he was driving recklessly. He stopped the vehicle and fled on foot. My brother caught him, and he was out on bail when he committed this offence. He has a long history of property offences and a drug habit. Custody officials tell me that 90% of these kids have a drug habit.

As for the passenger of the vehicle, at his trial we heard that he had four prior convictions for theft, reckless driving, and stealing vehicles. Remember, he's only 15. He doesn't even have a driver's licence. His last sentence for a fourth conviction was six weeks in a group home. He was released in June, and my brother's death occurred on July 28. The judge said that every other time this boy had been the driver of the stolen vehicle. He received a 14-month custodial sentence.

These kids are caught in a system that lacks funding and cannot enforce court orders and community supervision requirements. Failure to attend court has increased by 129%. Nicholas Bala, a well-known scholar and one of Canada's foremost experts in the area of youth justice, remarked that a quarter of all young offenders in custody are there for failing to attend court or to comply with a prior court order, such as probation. This indicates that many youths are placed in custody because of society's failure to provide adequate community supervision rather than because their offending behaviour represents a direct threat to society.

These are the kids I am concerned about, because these breaches indicate children who lack parental supervision and control. They lack respect for authority and the judicial system and they are morally culpable because they have learned to play the game.

Nicholas Bala also states that one-fifth of all charges against young persons arise out of a breach of probation terms or failure to attend court. In other words, a substantial number of youths are involved in the youth justice system not because of any immediate danger to the public, but because of this failure to respond appropriately through earlier judicial interventions concerning another offence.

“Not because of any immediate danger to the public.” These words reverberate in my mind. Every time a young offender steals a car, there is immediate danger to the public. These petty thefts and joyrides can escalate and turn into a tragedy. Our family knows this all too well. My brother's colleagues tell me that almost half of the vehicles involved in pursuits are driven by young offenders. Every time a young offender breaks into a home, there is immediate danger if the home is occupied.

These youths tie up our court system and yet they recurrently receive light sentences. In a report, S. Moyer indicates that the average sentence for youths in Canada is 84 days for open custody and 107 days for secure custody. More than half of the sentences are less than six months, and less than one in ten is longer than one year. I know longer sentences are not a deterrent and not the solution, but the National Crime Prevention Council also indicated that crime prevention also meant measures aimed at the apprehension and punishment of individual offenders, the goal being to prevent future crime either by deterring people from committing offences or, if incarceration results, by incapacitation of likely offenders.

• 0950

That is what I propose. If we cannot rehabilitate these young people, we must incapacitate them. I mean this category of children. I recommend that when a person has had a record of five previous convictions, he be liable to an adult sentence. At this point this child is following a dangerous path. He has obviously made his way through the youth justice system, has received extrajudicial sanctions, and has been diverted to alternative measures.

I am also pleased to see that the minister has suggested that community-based programs involve programs to carry out attendance orders. Programs must also be developed to target and rehabilitate this section of the population. If not, we have failed to help these young children.

I also recommend that all youth be diverted to alternative measures on a post-charge basis. That way the courts will have the advantage of having a hearing commence in case the youth doesn't comply with the diversion program.

I recommend that there be a two-tier judicial system, something like the one in the province of Quebec, where you go to door A or door B. One would be court proceedings, and the other one would be community-based justice committees or tied into the child mental health system or the child welfare system. I think Quebec has a lot to show us about this.

I believe that on a long-term basis, the government's approach in instituting crime prevention programs and alternative measures programs will reduce offending in this cross-section of the population. But I also believe that for some recurring offenders, court is the only appropriate response and a custodial disposition or residential treatment is necessary to protect the public.

I'll send you a brief in the next few weeks. Thank you.

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

Incidentally, I'm also proud to be a citizen of a country that allows its citizens to bring their presentations to their representatives. I wish more of them would take advantage of it. Thank you again.

We'll now start the questioning with Mr. Reynolds.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): Thank you, Mr. Chairman.

Thank you to the three groups. Your presentations were excellent. I only have a couple of questions.

Looking at your recommendation 3, you say the act should specifically prohibit the use of penitentiaries for youth sentences. The first presentation had said all children up to 18 should serve their sentence in a youth facility. But what do you do with the...

I know in my part of the country a growing number of young people are involved in the drug business, which is very violent. Murders are taking place in increasing numbers. There are fights. Marlene was talking about young people driving cars and causing problems with the chases that are taking place.

A lot of these kids were in trouble when they were 13, 14, 15. They get to 16 and 17 years of age and they are involved in this and they commit a violent crime. You say they should be in the same youth facility. Well, I'm not so sure in my own mind that I want that 17-year-old in the same facility with the 13- or 14-year-old who's probably in for something minor. I'm wondering how you solve that problem.

Somebody said violent offences among youth are rare. You may say that, but it's not the impression I get at home right now and in the drug industry.

Ms. Mary Birdsell (Barrister and Solicitor, Community Development, Justice for Children and Youth; Canadian Foundation for Children, Youth and the Law): I think it is true that there are serious offences committed by young people, and it is true that on occasion there are murders and those kinds of things arise.

I would like to refocus our attention about the seriousness of crime from some speculation that things are on the rise to the notion that any time a crime occurs it's serious. We can look at the youth justice system and say youth crime doesn't have to be on the rise for us to take it seriously. It doesn't have to be the case, and statistics don't bear it out, that there are more murders and there are more violent offences by young people than there have been in the last 10 to 20 years.

Having said that, I would then say that I think your question really gets at a level of custody issue. One of the reasons it's important that we keep a clear distinction between open custody and secure custody is that we then have facilities where open custody is an appropriate disposition for more minor but still serious offences. I would continue to maintain that custody is not an appropriate option except in serious situations. Secure custody is then used for youthful offenders in the most serious of situations.

• 0955

The majority even of 17-year-old offenders who have been sentenced to adult sentences for serious crimes like murder or the top five serious crimes are still young people. They're still 17, and the penitentiary system is an extremely violent, extremely devastating place even for adults to be.

You are trying to find some kind of middle line. Even a 17-year-old who you think is particularly sophisticated, particularly aggressive and particularly violent, and who is able to cope with the terrible stresses of an adult system, would be better off in a provincial centre than in a penitentiary. The penitentiaries are terribly violent places, and I don't think we should put our children there even when our children have done terribly violent acts that aren't consistent with most youthful behaviour.

Mr. John Reynolds: I didn't want to get into a statistics argument, but if you talk to police at the street level, the reason some of those statistics are low is that a lot of crimes aren't reported any more. I have a situation in my constituency in which police won't even show up for a break-in until the next day because of a lack of policing.

We can all make statistics look good, but if you go out to talk to people in small towns, or take it up the Sunshine Coast to talk about the level of crime, Powell River is up 45% this year over last year because of one thing, and that's a lack of police. They've lost a lot of numbers, and that's unfortunate. There's high unemployment, a lack of police, and some of these things.

I have just one final question. We've talked about light sentencing in this case. I just heard of one individual who has done about 17 or 18 break-ins in a row, and his last sentence was two weeks in custody. The people in my area are up in arms about it. How can this young guy, who's 17 now, keep getting off? Their opinion is that it's because nothing's happening to him.

These kids may be nice young kids, but they're not really that nice when a senior citizen is in their home and they're breaking into that home. It's very scary on that side, and there's not a lot of sympathy for them. What do we do to solve that problem? What do we do to that individual?

Ms. Martha MacKinnon: If I could just say so, there are aberrations in adult sentencing as well. There are always going to be aberrations and there are always going to be sentences that our community thinks are too harsh or too soft.

Your responsibility is to write a law that works in the best way possible for most people in most circumstances. While no one can address the individual case, you can look at how we really want to treat our young people, and what the best way is for turning them into productive adults. It's not to put them in with adults in a penitentiary.

Mr. John Reynolds: I wouldn't disagree with that. I agree with you. I'm just trying to find out what we should be doing with them. I don't see anything in the bill that's going to solve that problem.

Ms. Martha MacKinnon: I don't know. There are certainly attempts, and in terms of intensive rehabilitation, we won't know whether there are the appropriate programs or whether enough money is devoted to it. We don't know whether or not we will in fact get better-educated youth workers in youth facilities instead of transferred adult corrections officers whose bent is more toward guarding than it is toward rehabilitation.

Mr. John Reynolds: But does money solve the problem? Quebec has a better program than British Columbia has. I'd be quite happy to admit that. Does Quebec spend more money per capita than British Columbia does?

Ms. Martha MacKinnon: Oh yes, it certainly does. And money is never an answer, but programs may be part of an answer.

Mr. John Reynolds: Well, programs cost money.

Ms. Martha MacKinnon: The one comment I'd make about Quebec is that to a certain extent some of its excellent programs could be programs under its child welfare legislation. They don't need to be programs that criminalize kids. In a lot of the treatment work that they do, they have the power to apprehend a child up to the age of 18 under their child welfare legislation too. They have the same population, and they can treat them that way if they prefer to do so.

Ms. Marlene Viau: I think the reason Quebec is having such success with the Young Offenders Act is that it provincially funds programs—and I don't know if I'm correct about this, but it's what I've read. It's not the federal government's money, it's the provincial government's money, and that's why these programs are working.

I think that's the problem with the current act. Some of the provinces aren't doing that, but Quebec has done that. I think those provinces that do so should be compensated by the federal government.

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Mr. Peter Dudding: Just as one other quick comment, by the time you've reached 17 or 18 and you're talking about programming, you're talking about very expensive programming. Of course, in terms of the prevention and early intervention activities, the sooner you can get at addressing those problems, the more effective the outcome and probably the less costly the program.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Reynolds. You were right on seven minutes, incidentally.

Madame Venne, for seven minutes.

[Translation]

Mrs. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Ladies and gentlemen, if I understood correctly, at least for the Child Welfare League of Canada, this new act is not warranted and the Young Offenders Act would really have been enough. You are not the first to say so and I hope the minister will take heed.

Mr. Dudding, I'd like you to explain what you mean in the second paragraph of your general comments in your submission. You say that the new legislation, the title of which is fairly simple, Youth Criminal Justice Act, "contains proposals that would lessen compliance with the UN Convention on the Rights of the Child." I'd like to know what you mean by this paragraph.

My other question has to do with your last statement in those general comments. You say that "there should be a prohibition against corporal punishment or other cruel or unusual treatment in children's facilities." I must tell you that I was surprised to read this. I would like you to give me some examples, if any, of places where that kind of punishment is still inflicted on children, as well as examples of the punishments you are referring to.

[English]

Mr. Peter Dudding: With respect to the first question around the UN convention, there are really three areas of concern in the legislation. The first one is with regard to the publication ban or the alternative in terms of the publication of names. That does raise a concern. The second issue is with regard to the lowering of the age to 14 for presumptive offences. In essence, for a piece of legislation that deals with children 12 to 18, 66.67% of that age group will potentially be impacted by adult sentences, and that again runs contrary to the spirit and the intent of the UN convention. The third area, of course, is the reservation on the mixing of children and adult populations. Those three areas of the law create problems with regard to the UN convention.

With regard to the question around the prohibition of the use of corporal punishment or other cruel and unusual treatments, I think the concern really has been one in terms of what goes on in violent... Incarceration, by definition, can be a fairly violent act in many regards. Great care needs to be taken to ensure that the experience is both corrective and appropriate in terms of that child's experience. As we know, many of the children we're talking about have had experiences in their lives of neglect, abuse, and other forms of maltreatment.

For example, I'd cite our study of young women and their experiences with the Young Offenders Act. I was also quite surprised to find out that a young woman who is now residing in a secure custody facility had her own history in terms of sexual abuse. There she was, with one other young woman, amidst a population of something like 45 or 50 pretty difficult young men. In fact, that experience for her was more terrorizing than it would have been if she had been out on the street perhaps.

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The other issue that does concern us really relates to a comment that was made just a few moments ago, with regard to the sort of training and the mindset, if you will, of the care providers within the facilities. Whether it's a correctional mindset or whether it's a rehabilitative mindset really depends upon the province and the type of facility that you're in.

You may be familiar with the example in Ontario, where there is split jurisdiction. The Ministry of Correctional Services provides services to 16- and 17-year-olds, whereas the Ministry of Community and Social Services provides the programming for the 12- to 15-year-old group. Certainly I've had personal experiences in talking to children who have been through that system and can articulate very clearly that when they were in the child facility, there was a sense that there were people there who cared about them and who genuinely wanted to help them on the path to rehabilitation. That was very much a major factor in their rehabilitation, as opposed to their experience in a more correctionally oriented setting, where people did not care about them. They were seen as a number or just as a criminal. As a result, their treatment in terms of being locked away or placed in isolation rooms and that sort of thing did cause them problems.

[Translation]

Mrs. Pierrette Venne: I will have another question to ask you on the Justice Committees. You say that you support them. If I remember correctly, you wrote that the Youth Justice Committees and Conferences are important aspects for improving and decriminalizing the youth justice system. Their establishment is mentioned in section 18 of the Bill.

Another group who appeared before us seemed to have some concerns with that section. Its members feared that we would breach the confidentiality of the youth's records. You don't seem to have the same worry and I wonder whether you see any problem with it. This is what I can see when I compare you with the other group and I find this a little odd.

[English]

Ms. Martha MacKinnon: It's not that there's no problem. It is a difficulty, but Justice for Children and Youth has been involved in peer mediation and other alternative projects for several years now, and with schools and other communities has worked out protocols that help to protect all the various interests. In fact Mary could probably tell you more about it. You can't just do it automatically. There are difficulties, but it can be done.

Ms. Mary Birdsell: It is actually one of our concerns, and something we think it might be helpful to include would be a specific provision requiring confidentiality in the context of all extrajudical measures. In fact it has been a relatively simple process in our peer mediation programs to negotiate with the crown attorneys confidentiality provisions and contracts that everybody signs, such that participation in the extrajudical measure, if you will, doesn't compromise your legal status in the courts if you were to go back there. That encourages people to participate freely, and may encourage some young people to take responsibility where they might not otherwise do so. It enables them to participate quickly in a process in the community that can be very effective, and one that is oftentimes more meaningful to them than waiting six to eight months to have effected some ethereal process in the courts.

For example, if there's a fight between two kids, in most school boards in Ontario they have some things akin to zero tolerance policies. The police are called immediately even for a push in the hallway. The young person gets charged with assault, which is a violent offence. They're taken to court, and it will of course be four months anyway before they might get a trial. The earliest they could plead guilty would probably be a month or maybe a month and a half or two months after they were first arrested.

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At a peer mediation program in the school, they get called in, they're joined up with the person who's been offended against, if they agree, and a mediator and perhaps a school official talk to them, ask what the cause of this is. They may find out that in fact they've been taunted or harassed in some way by the other person. They work out an arrangement together that everybody thinks is fair and meaningful, and they have an opportunity to apologize and possibly even repair the relationship, if not protect the individuals and the larger community.

So we think these extrajudicial measures can be very powerful tools for catching young people before they get into a pattern of misbehaviour or criminal behaviour, and they can be very effective in terms of making it meaningful within a community for young people. And the confidentiality, in those contexts, is crucial.

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

Thank you, Madame Venne.

Mr. Peter MacKay, you have seven minutes.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you very much, Mr. Chair, and thank you all, panellists, particularly Ms. Viau. I must say your testimony is extremely powerful. I think your reasons for being here are particularly noble, and we sure appreciate hearing what you have to say.

Much of what you have said, I think, has—as has been pointed out by my colleague from the Bloc—been presented to us in the past, particularly the major problem that although this act makes significant efforts to improve the current approach we take to youth criminal justice, without the resources we are raising expectations that aren't going to be met.

Two things in particular that came out of your presentation that struck me quite powerfully were statements and transfer provisions, which I think this act attempts to somehow formulate in a more appropriate way. I also agree with your overall assessment of this being a very complicated and cumbersome piece of legislation.

I've prosecuted and defended youth under the old Young Offenders Act. This system is tailor-made for lawyers, not youth, not the general public. With that said, I think it also is a genuine attempt to please everyone and every stakeholder in the entire system, which inevitably leads to what we have before us.

But with respect to transfers, under the old Young Offenders Act it was extremely difficult to effect a transfer. Then of course the presumption switched, and it was then incumbent upon the defence to try to prove that the youth shouldn't be transferred. Doesn't much of this exercise of justice come down to the human frailties—if I can put it that way—of the prosecutor, the defence lawyer, the police, and of course the judge, in the final analysis?

I found it was a bit of a mixed message coming from you, Ms. MacKinnon, in particular, that on the one hand we should give judges more authority, particularly in terms of their placement in whatever institution they wind up in, when at the same time I also got the sense that we wanted to somehow spell it out for judges as to when they could use the last possible measure of incarceration. We wanted to further define what a serious offence was.

We wanted to somehow limit a judge's ability to say—at the end of the day, after having heard the evidence, having had the young person present before them and having had the opportunity to have witnesses called—“Look, the last possible option before me is to isolate this young person from the rest of society. Further to that, with respect to a transfer, the last possible thing that I see before me is to take this young person and transfer them, because”—and I hate to use this expression—“they're a rotten apple in the barrel. If I put them in with other youth...”

And I've seen it. I've seen kids who were in there for murder. They were 17 or 18 years old, and at the end of the day, what happened was they were completely isolated from everyone and had no contact with any inmate, or very little, even with a guard. So if that's the least desirable but only option available, why shouldn't we allow for transfers to an adult facility, and why should we limit judges' discretion even further?

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Ms. Martha MacKinnon: There are already transfers to adult facilities for kids who turn 18 within the system. Those often occur now, because the particular young person has outgrown that facility, has used whatever programs they have and doesn't belong there any more. It's usually very consensual. It can be highly disruptive if it interferes with any program they're in the middle of. It can be disruptive if it stops them from getting education, which it may well do.

I may have misunderstood your question a little bit, Mr. MacKay, but we don't object to the current transfer provisions. Kids can be transferred now. What we object to is a presumption. A presumption at 14 years old is lowering the age for a presumption. The 14-year-olds are not 17. They are different kids. They don't have very much in common with anyone in an adult facility. So it's the lowering of the age for presumptions that we object to, and we object to the broadening of the grounds for presumption, that's the repeat offence, without going more carefully into it. But crowns can already ask for that transfer. I think what you're suggesting is that crowns are in the best position to know whether their community requires a transfer for that case.

Mr. Peter MacKay: I think that's a fair comment.

Ms. Birdsell, both you and Ms. MacKinnon referred to the classic case of something that went awry, that should never have been in the justice system in the first place—a push in the schoolyard. Every case that I was involved in had eight sides to the story. From somebody else's perception, a kid who hit another kid with a pencil in his hand may have been attempting to stab the kid with the pencil. However, again, we're left with a system that's not perfect. But as has often been inferred, it's the best system we have when compared to all the others.

Can we tinker with the system so much that we'd ever be able to compensate for bad judgment on the part of anybody in the system, the human frailty element? Are we ever going to be able to perfect it to such a degree that we're going to be able to avoid an instance like you've described, where a kid wound up in the system but shouldn't have been there in the first place? It occurs to me that this system is very much geared at the front end, and to try to sort those things out...

Ms. Martha MacKinnon: Okay. We can't make it perfect. There will always be bad decisions. But I'd like to say I don't share your notion that this is an aberration. Zero tolerance policies in school boards, at least in Ontario, mean the police are always called for a push or a shove. Zero tolerance means that with the encouragement of the police, the school boards and police work out together a protocol of encouraging school board reliance on the police.

While there may be fewer reporting in some pockets in the country, I can assure you that overreporting is the bulk of what we face every day. The number of times that kids are charged for something that occurred at school, where there would never have been charges when I was a kid—there wouldn't have been charges even when younger Mary was a kid—is extraordinary, and it's growing. So we need legal constraints.

The Vice-Chair (Mr. Ivan Grose): One of your usual short questions will be all right.

Mr. Peter MacKay: Okay, I have a very short question.

With respect to the tracking of extrajudicial matters, I have a concern and I'd be interested in your reaction, all of you. We are putting in place a system that gives police greater discretion for cautions, for example, marching the kid home by the scruff of the neck... Well, he can't lay his hands on him, but he can march him home and say “Let's sit down in the living room and have a discussion about what took place and why you broke the neighbour's window.” That's fine, and I think that's happening to a large degree now.

But again, they're raising expectations that the police are going to have the time to do this. And how do we track the numerous occasions that this may happen? As we know in Canada, kids are a highly mobile population, so how do we track a kid who has had 13 cautions? You can't use them in court. They're not admissible even at a bail hearing.

Ms. Martha MacKinnon: I thought you were going to be asking about alternative measures and tracking in the more formal sense than just a caution. In the more formal sense, if we ask a young person to do something, there's no reason the fact that the young person has done that, has worked in a nursing home or has done whatever, can't be... The nursing home produces a report and that can be filed. So there's no problem in tracking that, I think.

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The tracking of police cautions troubles me less. Police have the ability to caution now. They caution speeders all the time. As far as I know, they don't keep records of it. They do, though, if they think I'm a problem person. To a certain extent, we hope to make the requirements such that we have the best and most educated police force we can get, and then the law gives them, and always will give them, a tonne of discretion. And so, to a certain extent, we have to trust them. And I haven't detected any failure of police officers to record troublesome kids, so I think we can trust their discretion.

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

Mr. John McKay, seven minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman.

I wanted to question Mr. Dudding about this statement about compliance with the UN convention, because that was a concern to Ms. Venne as well.

You indicate that it would lessen compliance with the UN convention, you talk about lowering the age, the mixing of adult and youth population, and potential publication of names. Is your statement in the category of a legal opinion, or is it simply a sense of what the UN convention says? Can you point the committee to specific sections, because this is a fairly serious and significant statement on your part and I don't think any of us would want to inadvertently create law that does in fact breach UN convention protocols. That would be an issue close to sovereignty.

Mr. Peter Dudding: To make a short answer to that question, no, it's not a legal opinion. And you must appreciate that I think even amongst lawyers in looking at the UN convention, which is written in a very broad manner, it is possible to lend all kinds of interpretations to it. And that must be acknowledged. However, our view of it is much more thematic. If you read the convention in terms of its broad intention about protecting childhood for children, certainly these concerns can be read to be in contravention of the convention.

Mr. John McKay: Thank you.

The second question is directed to Ms. MacKinnon. I wasn't clear on your comment about a discretion to a justice with respect to diversion of an individual. If I follow the sense of what you said correctly, I would see that a justice would have four choices: guilty; not guilty; this kid's guilty, but you never should have brought him here in the first place; or this kid's not guilty, but he's such a bad apple we should do something with him anyway. The latter two fly in the face of any precise law-making. Am I characterizing your views correctly?

Ms. Martha MacKinnon: I'm not sure about number four. If I said that, I didn't mean to say it quite that way. Certainly there are findings of guilty and findings of not guilty. Once you get to the guilt stage, then there are, and should be, a range of sentencing options. All I've said there is that the sentencing option that is custody should be reserved for the most serious of offences.

But at the other end, what Justice for Children and Youth is submitting is that there ought to be a way of dealing with a matter without getting to the guilty finding, without saying you're going to have a record, you're going to be found guilty. For adults, sometimes it would be called de minimis; this is so minor it ought not to have been brought to court. But it's both the right answer perhaps legally for some young people and some offences, and it's also an educative tool for crowns to encourage them to use the system that I think the Youth Criminal Justice Act is aiming at, which is to reduce the reliance on custody and to encourage the consideration of alternative dispositions.

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Mr. John McKay: So is de minimis non curat lex a legitimate consideration for a youth bill? You gave an example of a child pushing someone else with a pencil and being charged with aggravated assault, pleading down to assault, and questioning whether that should have ever even hit the system. Is there a way to think about or to write that into a bill that is meaningful?

Ms. Martha MacKinnon: Our submission is that crowns ought to be required to explain to a court why alternative measures are not appropriate in that case. Just as police under the bill already would be required to consider diversion, we would submit that crowns ought to be required to consider diversion, and in the provinces or areas where they don't, judges ought to have the final power to say “No, you're really misusing the system; I won't make a finding of guilt.”

Mr. John McKay: We really have 10 judicial systems in this country.

Ms. Martha MacKinnon: Or 13.

Mr. John McKay: Or 13, I suppose now. There are days you sit at this side of the table and you wonder whether there's anything realistic you can do about that, since we have 13 independent principalities masquerading as a country.

The issue from the government side of things is always that we're beaten up on resources. My understanding of it is that the federal government negotiates basically the Canada health and social transfer and that's where all the money goes, and basically you spend as you see fit. Are there any other resources the federal government puts toward youth justice that are direct funding?

Ms. Martha MacKinnon: Intermittent programs. There are pilots and—

Mr. John McKay: Those are stand-alone. You have pilots, yes.

Ms. Martha MacKinnon: To go back to first principles, whether the federal government now does it or not, sentencing to me is clearly an intrinsic portion of criminal law and it's within the federal government's power. If inequality of access to dispositions, inequality of treatment depending on where you poke someone with a pencil, is a troubling enough issue, I certainly think the federal government and Parliament have the power to deal with it—not 100%, because some portion of it ends up being simply administration of justice. But on sentencing and the mandating of the availability of sentencing, that's within federal power, in my submission.

Mr. John McKay: Have I any time?

The Vice-Chair (Mr. Ivan Grose): One last one.

Mr. John McKay: I want to pursue the resources question because, you've raised another issue in the context of answering the question.

Absent these pilot projects, which seem to be one-off projects, we are stuck with basically the deal negotiated with the provinces, which is the Canada health and social transfer. All provinces say all the time that they need more money. This is just a litany that continues. Yet in Ontario, where a number of us are from and where you're from, the diversion of those resources seems to be strange, to say the least. I'm perplexed when the code language of “we need more resources” comes before this federal element. That means more money. What can we possibly do with that, absent renegotiating the entire terms of the union?

Ms. Martha MacKinnon: In terms of health powers, you have a budget of the child coming up. You've had Mr. Dudding talk to you about early intervention, and actually Ms. Viau as well. This is all part of producing healthy adults by working on healthy children. I'm sure you have creative people who know how to do it.

Mr. John McKay: You have a great deal more confidence than I do.

Mr. Peter Dudding: If I could quickly comment as well, the results of the negotiations are taking place under the Social Union Framework Agreement that I think are very important to understand in this context around the money and the way the money gets spent. I would also make the point, and again you've observed the curious way that the dollars under the health and social transfer seem to be spent... I don't know whether it's a question of more resources or a question of the way the resources are being spent. Incarceration is very expensive.

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

Madame Venne.

[Translation]

Mrs. Pierrette Venne: Not for the moment. Thank you.

[English]

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

Mr. Peter MacKay: I'd like to go back to this concept that crowns should somehow defend themselves, and perhaps I'm too personally attached to that perspective. They do have to explain themselves. Number one, they have to present a case that meets the criteria.

I've taken an ear-bashing from a judge before, who, at the end of the day said, “Look, I don't believe the witnesses you brought here. So, I'm sorry, not guilty.” I don't see practically how it could be put in place. Are you saying there should be almost something like a pretrial bail hearing where you have to show cause as to why a charge was ever laid?

This is part of the discretion. The police have to have these reasonable and probable grounds to lay the charge. They bring it to a crown. The crown then sometimes decides to vet it right there and put it into the diversion program... or not at all, there isn't enough evidence. So I don't know how we could inject this extra step of a crown somehow now being required to say this is why they didn't go to diversion, this is why they're not proceeding in the routine course.

Ms. Martha MacKinnon: The problem is that most crowns, at least in Ontario, work from presumptions. There's a presumption that diversion is not available for a violent offence, hence, 14 court appearances later, I am still trying to deal with the pencil thing, because they have a rule, without knowing anything about that particular offence or that child.

Most crowns have a rule about offences that occur within 500 metres of school property. Because there are general rules, it isn't always really a full exercise of discretion, it's a simple application of policies that make their jobs more defensible, more consistent, and faster and more efficient, but they don't in fact look at individual cases.

So that's the first point, and Mary was going to add a story for you.

Ms. Mary Birdsell: I just wanted to use an example of a case I had where a 15-year-old girl and her single father were not getting along. He had a new girlfriend, etc. She stole $20 out of his wallet, he phoned the police, she confessed the crime to the police, they charged her with the theft, and we brought it to court. He also kicked her out of the house, so that she didn't have a place to live after that. The crown attorney would not divert the matter, because the father was a middle-class university professor who wanted this to proceed to court. The father, the victim, was insistent, and so the crown attorney would not do it and we wound up in court.

The child didn't have a defence and she admitted she had done it. The judge gave the crown an earful and wanted to know how this came before his court. He was sure that $20 would get you through a movie night and he didn't understand what we were all doing here. It didn't help this young person with the fact that she had a record now. She was given an absolute discharge, so she received the least restrictive sentence available.

Those kinds of things come up, and I think something in the bill that would require the crown attorney to turn their legal mind to the issue would be a very helpful measure for these low-end kinds of sentences.

Mr. Peter MacKay: So the insertion of a section that says crown attorneys exercise greater discretion, something like that...

Ms. Martha MacKinnon: Are mandated to consider alternative measures.

Mr. Peter MacKay: Okay.

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

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you very much for your presentation. There is one thing that really strikes me. In fact, you are all very articulate and you reminded us that the justice system we are talking about should not deal only with extreme cases, but also with the great majority of cases which are between those extremes. This is where we have more difficulties and where we should show more flexibility.

[English]

I have a great deal of problem with the zero tolerance policies that we find in a number of places, including school boards. I don't see how they resolve the problems; they're simply deferred to someone else, or nobody else.

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Do you think that the provisions in the bill having to do with the extrajudicial measures might deter some school boards, some organizations from having this zero tolerance policy? If not, what should we do to try to deter them from doing this?

Ms. Martha MacKinnon: Unfortunately, if there is a hunk of the Constitution Act that's fairly clearly provincial, it's education, and I wish I could say there was something you could do in this bill. Trustees and local school board officials are more locally responsive than most elected officials. I'm going to exaggerate, but it takes only about 10 votes to get someone elected or unelected at that level, and they tend often to be too responsive to the superficial fears that are out there.

As I've tried to suggest, I don't think it takes too much education to encourage people to moderate their views and to have a slightly more sophisticated approach to the issues. At that very superficial level, it's easy. We all want safe schools, so it's very easy to say the way to make them safe is zero tolerance.

I'm deeply troubled by the fact that if you expel a kid at 15 or 16 or 17... how he's going to be less of a danger on the sidewalks than he is in the schools. So I would rather he were breaking into lockers than breaking into homes, although I'd prefer that he doesn't break into anything.

So I empathize with you, and I wish I had a good answer.

Mr. Peter Dudding: Just to pick up on that, we do have a tremendous problem within our schools as well, inasmuch as part of what has been going on in terms of the narrowing of the range of resources they have to bring to bear to deal with the needs of children and youth is a great concern in terms of what's going on in the classroom and what kind of resources teachers have. So I have some sympathy in terms of their reality.

I couldn't agree with you more in terms of the solution to the problem. It is not simply to put people out of the system, but I think there is a challenge. As my colleague has mentioned, a challenge at the provincial level in terms of how we do a better job at integrating what goes on within the school with what's going on in the community... certainly, the issues around how we use extrajudicial measures in bringing school board officials, social service people, and others together in terms of creative solutions around those things.

One of the areas where the federal government is particularly to be commended is through the National Crime Prevention Centre, which has funded a lot of very interesting kinds of projects around how community services can work together more effectively to be responding to these things. That is certainly a very important set of initiatives in this area.

My sense is that overall the situation has got worse rather than better with respect to the role of the school in relation to the community, and we have a tremendous amount of work there.

A final sort of tag-end to it is that I am concerned with respect to the confidentiality provisions, because in the somewhat hostile environment of zero tolerance, the disclosure of a young offender's record has in many instances resulted in that youth being out of school rather than involved in some kind of productive program to normalize and rehabilitate him.

[Translation]

Mr. Jacques Saada: I fully understand that. In reality, you conclude, as we do, that even the best legislation possible—and I think that this bill is very promising—cannot solve all the problems for they go well beyond federal responsibilities and warrant a philosophy and consequential measures at the provincial level.

The second question I would like to ask has to do with publication.

[English]

Ms. MacKinnon, you referred to the Newfoundland case where so many records were routinely passed on to school boards. As much as I oppose the concept of publication of names because I don't think it resolves anything and it creates more problems than it solves, I have difficulty understanding what you say. Are you against the publication of names, or are you against the sharing of information concerning some specific cases with some professionals at the school board level, for instance?

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Ms. Martha MacKinnon: I would hedge that distinction. On a case-by-case basis, there may always be individual cases in which it is a good thing to share information.

What was going on in Newfoundland, and still is, is a routine disclosing of dockets. That is to say, those school boards are receiving a list of every single young person who has a court appearance, whether they will ever be convicted of anything or not, whether they go to that school or not, attend that school board or not, and whether the offence has anything to do with the school system.

Maybe a kid did something bad one Saturday night. Maybe it was a fight and it will turn out to be consensual and there won't be any criminal liability. His name comes to the attention of the school, where there have never been any problems, and he gets transferred away from that school or expelled. Those are cases in the school board's own records.

Non-publication as a principle is critical. The notion of getting enough information to share so that the helpers can help properly and put in the appropriate supports can be done through the administration of justice authorization for information sharing. There is authorization for case-by-case applications to a judge. In the case of people who are escaped or at large or a danger, there can be communication, but there may be other individual cases where publication is important. With information sharing, you need checks and balances to make sure it's part of supportive programming.

Mr. Jacques Saada: Let me be very practical about it. My wife is a school principal. Someone does something wrong near a school. She's not going to ask—you know, just guess, first of all, that it might not be the first case for a student and ask for this kind of publication. If the information is available to her and the professional staff who have some professional responsibilities right away, it's not the same concept. You want to have the system faster and better, but at the same time, if I may say so, it seems to me you want to make things more difficult in this regard.

Ms. Martha MacKinnon: I don't always want it faster and better, because I don't always think schools need to know the information. I'm a former teacher myself. Sometimes the kid needs a fresh start in school. That's the place where the kid is complying, is doing fine, and doesn't need anyone looking at her to see if she's going to do something wrong.

Teachers are wonderful. I was probably better when I was only a teacher, not a lawyer, probably a much nicer and better human being.

Mr. Jacques Saada: The same goes with me. I became a politician.

Voices: Oh, oh!

Ms. Martha MacKinnon: But the research is also very clear that if you tell a teacher you have a group of bluebirds or slow learners, even if they aren't, by the end of the year the teachers will know that they taught slow learners or bluebirds. With the best of intentions, we all make assumptions about people based on labels. To label someone as a young offender—

Mr. John McKay: Mr. Chair, what are bluebirds? It's legal terminology. What are bluebirds?

Ms. Martha MacKinnon: It was bluebirds and robins when I was a kid. You know, I can't help this. That kind of labelling can do as much harm as good, and therefore it is critical to have checks and balances in place.

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

Mr. Peter MacKay.

Mr. Peter MacKay: It's tough to be labelled both a politician and a lawyer, so I wish I could wind back the clock.

I think everyone around this table completely agrees that what we want to do is produce healthy adults. If we can gear this system somehow so that it's going to work better on the early intervention side and on differentiating between violent and non-violent offences...

I want to go to a really fundamental aspect of all this that I think we skip over. Ms. Viau touched on it a bit. That's the role of parents and the involvement of parents somehow in this system. She's working as a surrogate mother in this instance.

So many times I've encountered situations where the parents didn't even show up to court with the kid. They completely washed their hands of it, or worse, they portrayed themselves as being the real victims here. You know, “I can't deal with this kid any more and I'd rather see them go off.” There are instances where it's the thing that this act specifically says we shouldn't do. It was being used as a substitute for parenting and a substitute for child welfare.

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How do we somehow involve parents in a more effective way? I don't think we should necessarily be writing in sections that say we're going to charge parents if they don't do their work, but there has to be a mechanism somehow where we can try to effectively involve them more: have their appearance in court, have them answerable to a judge as to why they're not filling that role.

Ms. Martha MacKinnon: I'd just say I agree with you. I'd also say that if a parent has to miss 14 days of work to go to appearances, that can not only be frustrating but they can lose their jobs. In fact, the mother of the pencil kid lost her job over showing up.

Mary.

Ms. Mary Birdsell: I was just going to say that I don't think you can legislate good parenting through a piece of youth justice legislation. I don't think it's actually appropriate on another level, because there are parents who do work hard and do try and don't have the personal resources to do the right thing or just don't know what to do.

I think the provision about not using the justice system to replace the child welfare system is crucial. Lots of kids wind up in custody because there isn't somewhere else for them to go. That's also troublesome, and we have some recommendations about that piece. When the parent kicks the child out so they have nowhere else to go because the parent won't allow them home, there's nothing the criminal law can do unless you criminalize bad parenting, and then that's an adult justice system question.

I'm not sure there is a solution in that realm.

Ms. Marlene Viau: I think one of the things you could do is give the judge judicial discretion to make it mandatory that this family attend counselling.

With regard to what I said before, property offences account for 51% of the crimes in this country. I'm not saying we can't rehabilitate those kids. In my brother's case we have two kids who are going to court. One was dealt with in youth court. He said he wanted to change his life, and I believed him. The other child is going to be transferred to adult court. I don't think he feels any remorse for what he's done and I don't think this kind of child can be rehabilitated.

We have to make two distinctions under this category. I'm not saying throw them all in jail. I'm just saying that for the ones we can't rehabilitate, the ones who have been before the courts 12, 13, 14, 15 times and have had police cautions and have been dealt extra judicial measures, we need something there to address that portion of the youth population. We also need some programs that are aimed at the other portion of youth, the ones we can rehabilitate.

I've actually surveyed custodial officials, I've talked to crown attorneys, I've talked to lawyers and police. These officials have told me that these kids are frustrated. They're caught in a system that's not helping them. They have drug habits. They can't get the help they need. We need to address that. It doesn't matter which law you're going to impose; if you don't address this section of the population, it's going to fail.

Mr. Peter MacKay: Thank you.

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

Mr. Maloney, three minutes.

Mr. John Maloney (Erie—Lincoln, Lib.): You made a comment I found rather interesting on the education and training requirements and the difficulties. I think you commented by asking how you can have rehabilitation when you have a lawyer there?

This act is increasing diversion and extrajudicial measures. I'm just wondering, as a broad stroke, whether we should be moving back to a more paternalistic system. Shouldn't we—we being lawyers—be vacating the youth justice system, at least for low-end offences, in favour of social workers or highly trained and educated youth court judges, crowns trained in sensitivity to youths, and also highly trained police in youth court?

Ms. Marlene Viau: I think we should do that. There should be a two-tier system, one for diversion to alternative measures and another one for court proceedings. I think that would work. We need to get the lawyers educated, because the judges were frustrated about this.

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Also, when I talk to police—I talk to a lot of my brother's colleagues—they're not aware of the young offenders law. When I point out to them things I studied in the law, they're not aware of it. So another one of my recommendations that will be in the brief—and I'm going to expand on all these issues—is to get a youth crime unit, or a group of people or one person in every police department, that is educated in youth crime, because they don't know the laws.

Even last night I was talking to one of my brother's friends who is the president of the police association in Sudbury—I'm going to speak to them in two days about the young offenders law—and a lot of what I said he didn't even know.

I talked to Dave Griffin, the president of the Canadian Police Association, and pointed out that there was parole eligibility for these kids who were transferred to adult court. When these kids are transferred to adult court, sometimes they get a lesser sentence than they would get in youth court. In youth court very rarely do they get released on parole, whereas in adult court you have a five- to seven-year parole eligibility sentence... or not a sentence, but the judge can actually instruct the jury and tell them that this kid could be paroled in five to seven years. He asks them to set that term. This is for kids who are 14 to 16 years of age, and above that, they have seven to ten years where they can be eligible for parole.

So I even looked at the system and said, why transfer them anyway? Obviously they're not going to get life imprisonment; they're going to get these lesser sentences, especially when judges instruct them. That's in the Criminal Code, section 743.1, where the judge instructs the jury. The police didn't know that. Dave Griffin didn't know that, and I showed it to him.

Mr. John Maloney: Does anyone else have a comment?

Mr. Peter Dudding: I want to comment. I think the approach in terms of community-based youth justice committees and that sort of thing is really a very promising kind of approach. It's like all things, though; we're going to have to exercise great care in terms of how it is implemented.

Oftentimes the children we are talking about are presenting with a complex set of problems—a pretty intractable set of problems, or else they probably wouldn't be there in the first place. It's not just the work of a group of well-intentioned people within the community. And that's not to say they can't play a very important role in guiding those things and providing the kind of level of community involvement that we would hope for, but it requires more than that in terms of ensuring that appropriate kinds of resources and services are brought to bear on things that can be pretty complex, pretty difficult to work your way through.

Ms. Marlene Viau: One thing I found remarkable too about this bill was that the government is really looking at diversion programs, but if you look at clause 156, there are three paragraphs on diversion programs, what kind of programs the provinces can implement. I think this clause should be expanded, because the whole idea of this new act is to divert kids to extrajudicial measures, yet there are only three paragraphs in that clause.

The Vice-Chair (Mr. Ivan Grose): Mr. Maloney, have you any further questions?

Mr. John Maloney: No, thank you.

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

Mr. Reynolds, please. You will be the last questioner.

Mr. John Reynolds: I want to discuss something briefly.

I had a high school class in my constituency office a few weeks ago to do a video for the class on politics in general. After they were finished asking their questions, I reversed the role and started asking them some questions. One question I asked them was, do you think 16- and 17-year-olds should automatically be moved to adult court, no matter what their crime—in other words, take them right out of the Young Offenders Act when they're 16? Also, do you think obviously they should be named if they're going to be adults?

All of them agreed, said yes to those questions. They said if kids knew they were going to be named, knew they were going to adult court, it would reduce youth crime considerably. They said a lot of their friends do things knowing full well it's just really a slap on the wrist at that age.

That wasn't prompted; I just came out of the blue with it when I was sitting there talking to them. I was quite amazed. I thought I'd get just the opposite.

Mr. Peter Dudding: I guess the further question I would ask is how many of those young people in that high school classroom had had a personal experience with the youth justice system?

I think that's an important question to ask, because it was referred to earlier in terms of all our perceptions and perhaps our misperceptions about what should or shouldn't happen and the educative process we go through in terms of really sitting down and thinking about the specifics of who these people are and what their experiences are.

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Mr. John Reynolds: It's a little tough to ask them that in a class—

Mr. Peter Dudding: I understand that. Sometimes these things sound better in theory than in practice.

It really takes me to the point, which is that when we look at the kinds of factors that precipitate offending behaviour, they don't generally have to do with the sense of, hey, this is great, I'm going to be able to get away with it. They have to do with a lot more profound set of issues in terms of this person and their self-image and the values they've grown up with and how they see themselves in relation to society, whether they have a stake in society or are marginalized, the whole set of those factors.

Ms. Martha MacKinnon: If I could add to this, if you ask the same young people a million other questions about the Young Offenders Act, they'd probably have the view, obtained from the media and elsewhere, that it's way too soft. On every front they would tend to believe that for the same incident being committed by a 17-year-old, an 18-year-old, or a 19-year-old, the 17-year-old will get the lightest sentence. In our experience it's often the opposite, except at the very serious end.

They're not very different from the groups of adults at the law and order forum. Their understanding of the system is based on perceptions, as Mr. Dudding says. Unless they've experienced it, they don't know how difficult and harsh it can be. They certainly don't know how it interferes with their life and what constraints can be put on them. They don't experience what a 5 p.m. curfew can do to them. If instead of asking them whether at the age of 16 they know right from wrong—because I assume they do think a 16-year-old knows right from wrong—you ask them whether a 16-year-old has more in common with a 6-year-old or a 26-year-old or with an 11-year-old or a 21-year-old, you might get a different answer. They do understand the notion of emerging development and responsibilities, and they know that they're not adults at 16. They can't drive, and they can't even vote on the law that affects them so dearly.

Ms. Marlene Viau: If I can add, too, with reference to lowering the age to 16, Nicholas Bala, who is a law professor, has a chapter in one of his books, which is called Young Offenders Law, and he discusses the young offenders law in the context of the application of the UN convention. One of the things he says is that if we lower the age to 16, that is a direct violation of the convention.

So when I speak with the police, I tell them that's not going to happen. Apparently Canada takes it very seriously. There was a court case where Canada asked for a certain section to be changed, because they were afraid they were going to violate that part of the agreement. I can add to my brief the section where all of that is.

The Vice-Chair (Mr. Ivan Grose): I'd like to tell the witnesses that at this point in the hearings it's very difficult to plow new ground, but you managed to do it. Thank you very much for coming here today, and we appreciate your testimony.

The meeting is adjourned.