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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Tuesday, February 22, 2000
The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): I declare this meeting open. I would like to welcome the honourable gentlemen we have today. I was hoping to get more members, but the reason I'm starting now is that we want to squeeze every bit of knowledge we can out of you.
I understand that each of you gentlemen is going to make his own presentation. We try to limit it to 10 minutes, but I'm a very lenient judge. I'm adaptable. So whoever would like to start....
Hon. Chief Justice Heino Lilles (Chief Judge, Territorial Court of Yukon; Individual Presentation): Thank you very much. I'm not going to speak for Judge Allard, because he's going to speak for himself. But certainly, speaking for the three of us—we had a chance to get together just before we came here today—we're very pleased to be here. We very much appreciate the invitation to come and talk to you.
My name is Heino Lilles. I'm from Whitehorse, Yukon. I could spend some time describing the demographics of the Yukon to you, but perhaps I can be very brief and say that we have a first nations population of 20%, but they occupy approximately 75% of the jails. That same ratio applies to young people in the youth justice system.
Let me say something about my own background. I've been a judge in the Yukon for 13 years. Prior to that time, I was an academic at Queen's University. I taught at the faculty of law for 15 years and was somewhat involved in the Young Offenders Act and the work surrounding the Young Offenders Act and explaining it to the profession.
Let me also say that I have a perspective that is sometimes different from that of other judges. That is, I'm involved as a youth court judge, but I do child welfare and adult criminal as well. So I get a very good picture of kids in the child welfare system graduating to the young offender system, and it's usually just a matter of time before they graduate further into the adult system.
I do circuit court. It is not a peculiar or unusual situation to be dealing with a child welfare matter, a spousal assault, and a young offender all belonging to the same family during the same circuit court sitting. That drives home to me the connections that exist between those court appearances.
I think we're here today, however, to talk about the new youth justice act that has had second reading.
Let me start off by saying that I think there are some very good things in that legislation. I'm particularly interested in the front end, as I call it, the extrajudicial measures, which includes police cautioning and conferencing but also the judicial conferencing components of that legislation, and I think it has great potential.
The opportunity to involve members of the public, victims, in the process of conferencing can certainly reduce the anxiety that the victims often feel when the crime is not fully explained to them and they don't have an opportunity to participate in the resolution of the offence. By including members of the public in this process, we can educate the public as to what really happens in the youth justice process and what the real issues are, rather than relying on what Herb Allard calls an uninformed or misinformed consensus that often drives decision-making in this area.
While that particular section, that front end, is very good, let me be specific and say as well that I think there are some potential problems of great concern with respect to subclause 10(2).
Subclause 10(2) provides that:
(2) An extrajudicial sanction may be used only if
(a) it is part of a program of sanctions that may be
authorized by the Attorney General or authorized by a
I read that as suggesting very strongly that only programs authorized by the provincial or territorial attorney general can be used as an extrajudicial sanction. That misunderstands and misstates the very important development of extrajudicial initiatives across this country over the last number of decades, in particular in the area of conferencing.
There are very forward-looking community-based conferencing initiatives throughout British Columbia, the city of Edmonton, and other centres that were developed in the community, by the community, working together with the police. The provincial attorneys general wanted no part of it. They were afraid to put their sanction on it because they were afraid of possible political consequences. In my view, this very important front end to this legislation is potentially jeopardized, really to the point of being almost useless, if we require all those programs to have provincial-territorial AG approval before they can be used as extrajudicial sanctions.
Five years ago I spent a sabbatical in Australia. The Australian states were just adopting the conferencing in a big way. They were able to divert 30% to 80%—depending on the state and what they were doing in that state—of young offender cases away from the formal court system. The ones that were left in the formal court system were then the more serious ones, the ones that required resources, programming, and often incarceration. The others were dealt with in the community.
One of the concerns I have is that if only approved programs go forward, we may end up with Quebec approving many programs, sanctioning the principle and the concept, diverting 50% to 80% of the kids out of the formal system, and Ontario not, with the resulting disparity.
Even if no prior approval is required, these programs will not exist without some support. They will not flourish without some support, financial and otherwise. Even then we can end up with significant disparities between the provinces.
I recently read an article by Patrick Healy, “Differential Application of Criminal Law”, and it's pretty clear to me that when we get into those kinds of discrepancies, we're raising the spectre of an unlawful delegation—the sections 91 and 92 BNA Act problem—of federal criminal law to the provinces. If those kinds of significant, substantive variations do surface across the country, I'm very certain those kinds of challenges will come forward.
I very much like subclause 37(2), which provides that punishment must not be greater than what would be appropriate for an adult. It is an excellent statement, a strong statement, and it's stronger than the corresponding statement in the Young Offenders Act, which referred to maximum adult sentences being the upper limit for young offenders. The problem, though, will be in trying to meet that standard. It suggests that young people should not be sentenced more severely than adults, but the legislation does not provide us with the same tools that are available under the adult system.
For example, not all of the recent sentencing amendments that were put in place three or four years ago in the Criminal Code are reflected in the Youth Criminal Justice Act. For example, there is no reference to aboriginal offenders and the special treatment for aboriginals, although it exists in the adult scheme. I think we're asking for an equality challenge on that point. Certainly it's not easy to see how the Gladue Supreme Court of Canada decision and subsequent decisions referring to Gladue will be incorporated into the Youth Criminal Justice Act.
I like the fact that the deferred custody and supervision order is a sentence that's made available in the new legislation. It's the equivalent of the adult conditional sentence of imprisonment. It's a very important tool, if used properly. The difficulty is that the youth justice legislation would limit the use of this tool to property offences, whereas in the adult scheme they're available, according to the Supreme Court of Canada and the Parliament of Canada, for all offences except those where a minimum sentence of incarceration is provided for.
So the point I'm making is that as we look at this legislation, we have some equality principles in both the legislation and the charter, but we haven't provided the tools to make sure that happens, and I think we may run into some difficulty. In fact I'm sure those difficulties will be raised in the courtroom, so I'm hoping that in committee you might be able to address some of these issues.
Let me speak about another concern that all of us in the youth custody area have. Subclause 38(5) says we are not to use custody as a “substitute for appropriate child protection, mental health or other social measures”. There's a similar provision in the Young Offenders Act.
I'll confess to you now that I violate that provision all the time. I use custody in lieu of child welfare, mental health, and other social measures because I don't have those services available to me.
Let me give you an example. I recently dealt with a 13-year-old girl who was found in a snowbank behind her school, unconscious from alcohol consumption. Her pants were pulled down to her ankles. She had no idea what had happened to her.
She was brought into custody under a liquor ticket, actually, for underage consumption. She may also have been on probation.
I didn't release her. This is a girl, a child, who should have been in the child welfare system. Too often, however, if these kids are difficult to handle, difficult to manage, and require more than the average resources, the child welfare system is very quick to push them over into the criminal justice system when they turn 12.
So subclause 38(5) is a wonderful principle, and we all agree with it, but without the resources on the other side, there are no—or there are very few, or they're not available when you want them—“appropriate child welfare, mental health or other social measures”. All of us, as youth court judges, find ourselves violating that section all the time. We don't have any choice.
It would very helpful to me—and I know I'm speaking for the two colleagues beside me, because I've raised this issue with them—if you could arrange for this new legislation to specifically permit a youth court judge to refer a youth on bail, at the bail hearing or on sentencing, to the child welfare agency for assessment as to whether the child is in need of protection. I know there is a section 91 and 92 boundary there that I can't cross over. I know I can't throw the child over there, but I don't think I'm violating any section 91 or 92 principles by having the power to refer the child for assessment and having them provide a report back.
The legislation, as you know, says I'm supposed to consider every alternative other than custody. Surely that's one of the alternatives if the child really belongs in the child welfare system, but I can't put her there. It would be very helpful if I could make that referral and have them report back.
I know we're short of time, but I want to say something about what I call the “mandatory sentencing” provisions of the new legislation. It's really a form of “three strikes and you're out”, an adoption of the American system. You may or may not know that Western Australia and Northern Territory in Australia have also adopted similar arrangements. Both those jurisdictions have high aborigine populations.
The mandatory sentencing provisions in this legislation—that is, three strikes and you're out—depend on, as a benchmark, the definition of “serious violent offence”, which is found in clause 2.
The Vice-Chair (Mr. Ivan Grose): I'm wondering if you could finish as soon as possible. I ask that because we're going to be limited in our questioning, and we want to get answers.
Chief Justice Heino Lilles: I'll do that. Absolutely right. I'm just going to deal with this, sir.
Let me just tell you, this definition is imprecise and possibly constitutionally vague. I don't know what it means. I've looked at it. I've read the legislation. I've worked through the legislation. If you asked me today whether a particular offence met this definition, I probably couldn't tell you, and yet it's the benchmark definition in the whole legislation on which the catapulting to presumptive transfers to adult sentences is built.
As I think my colleagues would agree, it triggers the adult sentences. I should tell you, there is a lot of discretion in the crown to also determine whether or not this provision will be triggered.
I can also tell you that we now have good research from the U.S. and Australia that demonstrates very clearly that the “three strikes and you're out” approaches accentuate and exaggerate systemic discrimination within the justice system.
I'm sure it will come as no surprise to this committee to hear that mandatory sentencing has a drastic and disproportionate effect on blacks ending up in jail in the U.S. and on aborigines in both Western Australia and the Northern Territory being overrepresented in their jail system. When we look at our aboriginal population, which is already overrepresented in the jail system, I'm very concerned that this particular approach will be less than constructive and will accentuate the movement of kids into the jail system sooner.
The Vice-Chair (Mr. Ivan Grose): Thank you, Judge Lilles.
Who would like to be next?
Judge Jasmin, please.
Mr. Justice Michel Jasmin (Associate Chief Justice of the Youth Division of the Court of Quebec and Chairman of the Task Force on the Administration of the Quebec Young Offenders Act): I will briefly outline my curriculum vitae and tell you that my personal opinion is based on a 20-year career as a youth court judge. I was chief justice of the Chambre de la jeunesse and I created a task force.
I believe that the problem lies basically in the administration of the act. You can amend the legislation, but as long as this problem has not been solved, nothing will be done for youth.
This is the example that I often use. The federal government supplies the car and the provinces are the drivers. Whenever the act is faulty, the federal government is asked to supply a new car. I think that it would be time to talk to the driver and ask the provinces what they did with the act that the federal government gave them. Before amending the act, we should ask them about their policies in implementing the act for young people. I think that is basic.
For three years, I spoke to police officers, young people in drop-in centres, victims, parents, and ordinary people. The Quebec Department of Justice and the Social Affairs department have travelled throughout the province for the last three years. We concluded that the problem resided in the implementation of the act. I walked the beat with police officers. I went on the street with policemen on a Friday night in Montreal, in June, to see where young people hung out. I went in the field.
We have noted an absence of a youth policy. We asked police forces how they approached a young person when he was being arrested. For police officers, young people aren't in the major leagues; they're in the minor leagues. Whenever the Crown, the judges, or the lawyers are faced with the implementation of the act, they discover that when one is dealing with young people, there does not seem to be a youth policy. It doesn't matter how the new act will be amended, if the fundamental problem has not been solved, in three or four years, there will no longer be a Young Offenders Act. We will simply say that the Criminal Code applies to 16, 17 and 18-year olds.
I have with me a summary of our report. Unfortunately, being from Quebec, I forgot the French version in my office and I only have the English version in my briefcase.
Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Things aren't going too well.
Mr. Justice Michel Jasmin: You are right, things are not going too well. I must admit that I have a bad back and I was in a hurry to close my briefcase.
I would first like to point out how complex this bill is. I have never seen a piece of legislation that is as complex as this one for young people or parents to understand. We need only look at the beginning of the bill. The declaration of principles and the objectives are set out in six clauses that are subdivided into 16 paragraphs, 34 clauses and 4 subclauses, if we don't count the preamble, I would say that the act that most closely resembles this one is the Income Tax Act. You need only read clause 42 to understand:
42. Subject to subsection 41(13), if a young person who is subject
to a youth sentence imposed under paragraph 41(2)(n), (p) or (q)
that has not expired receives an additional youth sentence under
one of those paragraphs, the young person is, for the purposes of
the Corrections and Conditional Release Act, the Criminal Code, the
Prisons and Reformatories Act and this act, deemed to have been
sentenced to one youth sentence commencing at the beginning of the
first of those youth sentences to be served and ending on the
expiry of the last of them to be served.
Do you know what the federal government did for the criminal court judges? It had its specialists, accountants, send us a book to teach us how to calculate the sentences. Can you imagine how we will manage to explain the provisions of this new act to parents or to young people? This exercise of calculating sentences is for grown ups. We, the judges, can't do on our own. We have to take a course. It's a very complex act.
I asked a professor at the law faculty at l'Université du Québec à Montréal to explain the act to me. She said that such a complex piece of legislation was first and foremost a denial of justice for youth. So, from the outset, this complex law represents a denial of justice for young people.
I think you should go back to the drawing board and try to reword this act. We are moving from 70 clauses in the present act to 164 clauses in the bill. There is no way that anyone will be able to find their way through it.
Regardless of the amendments you might make to the bill, you must include the concept of time in the declaration of principles. Time is something that is of utmost importance to young people. I don't know if all of you are parents, but if you were to allow your 16-year old to take the car out on a Saturday evening as long as he promised to be home by midnight and not to drink, and if he were to come in at 2 a.m., smelling of beer, I don't think that on Sunday morning, at breakfast, you would tell him that you were going to wait three weeks before deciding what to do about it. No, as parents, you would make up your mind immediately. For the young person, it would be a punishment, but if you were to wait three weeks, it would be considered spiteful. I believe this is a principle that must be invoked if we want to work with youth. The concept of time as it relates to any intervention involving a young person must be included, otherwise, the exercise will be a failure.
The concept of time is universal. While we were preparing our report, we asked police officers how long it took them to draft a complaint. They said that it took them three weeks. How long does it take a Crown prosecutor to table a complaint? Four weeks. How long must one wait before appearing in court? Four, five or six weeks. It can sometimes take eight to twelve months from the time the young person is arrested until his case is disposed of. And what does the youth do during that time? He tells himself that adults are not taking the matter seriously and that he will re-offend. I know that if you include time in the declaration of principles, you will be able to exert more pressure on the provinces.
I would like to tell you about an article dealing with 27 American States that have included the concept of time in their legislation, something that I feel is paramount. Time is always on the young person's side.
I was a hockey coach for 10 years and I can tell you that when a 12-year old boy returns the following year, he has grown considerably. He might have been a good player the previous year, but he is now unbalanced and tends to fall down because he is taller and his centre of gravity has changed. He is growing. And since this act affects youth, it must include concepts that apply to young people. Otherwise, it will be a failure.
I have a number of things to tell you, but I would like to, as a final point, deal with the definition of a young person. In the act, it should not be enough to simply stipulate that it means a young person between the ages of 12 and 17. A young person should be defined as a person in progress, someone who is developing. The act should define what a young person does and specify that he or she is developing. A number of factors relating to the person should be taken into account.
In reading this bill, I reached the following conclusion: the current Young Offenders Act deals with a young person who commits an offence, while the new legislation would deal with the offence committed by a young person.
I apologize if I have taken too much time.
The Vice-Chair (Mr. Ivan Grose): Thank you, Judge Jasmin. As a matter of fact, you didn't take all your time.
I'd also like to tell you that you made me feel better, because I'm not a lawyer, and some of this I don't understand either. It's nice to hear that you don't understand it.
Mr. Justice Michel Jasmin: Imagine the kids.
The Vice-Chair (Mr. Ivan Grose): That's right.
Who would like to be next? Judge Kirkland?
Hon. Mr. Justice Kent Kirkland (Judge, Ontario Court of Justice, East Division; Individual Presentation): Yes, I will finish for the group of three who have discussed some of these matters together. I'm not going to add a lot of new things, but I just wanted to highlight two items.
First, like my colleague Judge Lilles, I preside in youth court, child protection court, and in adult court. My experience is the same as his. That is, I see the same families and I see graduates from one level of court to another. I've been on the bench for 21 years, so I've seen a good deal of progress through the justice system for people who started out as young people but became adults in the justice system as well.
I want to make a comment that condenses one of the items mentioned by Judge Lilles and another by Judge Jasmin. Judge Lilles and Judge Jasmin both talked about the time factor and the complexity factor. Judge Jasmin spoke about it just now. We have tried ourselves, in some cases, to go through this statute to dissect it—perhaps that's not a good word—to examine it to get the meaning and the substance from a number of the sections or a number of the specific issues. The more we go into it, it seems, the more complex it becomes.
Judge Lilles had an opportunity to go through the statute and has found that in the new Youth Criminal Justice Act, this bill that's before you now, there are now 13 hearings before a judge that don't exist in the present law. If we're talking about complexity, we're certainly adding to complexity by adding new hearings that are along the line of going from being charged with an offence to being dealt with in a sentencing procedure. I'm not going to list all 13 for you. If anyone wants that information, I have it available, but I'm not going to take the committee's time to tell you which clauses and so forth. These are adding to the complexity of the statute, but even more so, I believe they add to the timeframe that is going to be necessary to proceed from prosecution to the completion of the disposition.
I agree very strongly with Judge Jasmin's comment that young people's conception of time is much different from that of an adult. If my child does something wrong today, I don't tell him about it two weeks later. It's as Judge Jasmin said in his analogy to your son taking the car for the evening. In the same way, if a young person appears before me in this month of February and I ultimately deal with him in a final phase in July, it's much less meaningful. It's even more difficult for me to have the same impact in dealing with him as I had at the time, because it becomes stale. That's the reality of life. There's a wearing off of the impact of an offence or the events of an offence. I would agree strongly with Judge Jasmin that some direction in the principles section or somewhere must be given so that the courts, the prosecution, etc., must respect certain time limits.
I don't know that we can build the time limits into the section because I think we're just building in problems. They're going to be violated. That happens particularly in child welfare legislation. There are very strict time limits, and they are violated. I violate them, so I know what happens. But if there at least is a direction there, as Judge Jasmin has said, it will enable a realization that we are dealing with young people.
The only other issue that I will highlight was raised by my colleague Judge Lilles. That is with respect to his statement that custody as an alternative to child protection proceedings happens all too often. It is happening now. I also plead mea culpa with respect to sending young people into custody situations, because I don't have an alternative.
I appreciate that the provinces are saddled principally with providing the resources for either non-custodial dispositions or even in the custodial and in the unravelling of the custodial dispositions.
There are so many young people who appear before our courts, and you heard one example that Judge Lilles gave you. I'm going to give you one more—and I'm going to finish on this—because I think it will enable you to see what it is that we deal with as judges. You watch television and you see people who are prosecuted, convicted and sentenced. It looks like that's the way it happens in court, and it does sometimes. But you heard Judge Lilles tell us about an experience that didn't quite happen that way. I'll tell you another one that happened in our most eastern province of Newfoundland.
One of my colleagues was sitting in court and saw Johnny—we'll call him that—for about the eighth time for committing a mischief-type offence in his community. He's not a big offender, he's not going to be a serial killer, he's not going to do anything wrong in his adult life except probably continue to do mischief-type offences. My colleague, in some state of frustration, finally asked Johnny what he had to do to get him to stop coming back to his court. Johnny, whose head was bowed, finally lifted it and said to tell his dad to stop shoving his, Johnny's, head in the toilet.
Who's the victim in the case? Is Johnny a victim? Is society a victim? I think there are a lot of victims here, and it isn't going to help Johnny to go into a custody facility where somebody is going to teach him how to pick a lock, how to steal a car, how to hotwire a car. This issue of custody as an alternative to child protection proceedings or non-custodial resources is a serious issue. I agree with the suggestion made that you need to at least give us the ability to invite the child protection people to come in by way of an assessment, to participate in the proper care and administration for young people.
The Vice-Chair (Mr. Ivan Grose): Thank you, Judge Kirkland. I noted your reference to the gang of three. It seems to me that I've heard that in some other context.
Mr. Justice Kent Kirkland: I didn't think I said “gang”.
The Vice-Chair (Mr. Ivan Grose): I played with it.
Judge Allard, please.
Hon. Herbert Allard (Chief Judge (retired), Calgary Youth Court; Individual Presentation): First of all, I'm wondering how many of you have a copy of the material I sent to the clerk of this committee for distribution and translation. I prepared some material in advance, but I take it that you don't have it at hand.
Ms. Pierrette Venne: No, we don't have it.
Mr. Herbert Allard: That's regrettable, but in any event, I will try to quickly deal with some of the issues that I had sent out in advance.
Each one of us has, in a sense, given our credibility record—
The Vice-Chair (Mr. Ivan Grose): Judge Allard, I'd like to inform you that it was distributed previously to our offices. I know it became part of my midnight reading. I don't know about the rest of them, but I assume it's the same thing.
Mr. Herbert Allard: Thank you.
I guess it helps to claim some kind of expertise when you appear on some very controversial subjects, on some very emotional subjects. I have been involved in the youth justice system all my life. I was part of it as a child, I was formally employed in it for 48 years, and I was an administrative judge in the youth court and family court system for 37. I was an assistant director of a city's social services. I ran a child welfare program. I pioneered aboriginal child welfare, family court services, and family violence programs that we have all now rediscovered, by the way. If you live long enough, you'll find that the wheel will be rediscovered.
I was on a national study that some of you are familiar with, on the sexual offences against children program, and we're now rediscovering that. We debated the age of consent. As you know, we used to criminalize adolescent sexual behaviour, as we criminalized vagrancy, and now we're rediscovering that. We have gone on this wheel.
I did the first national study of youth court judges in Canada in 1967, on behalf of the Canadian Association of Juvenile Court Judges, and we dealt with many of the same things we're dealing with today.
I don't want to sound like the angry old man from over the hill, because I've also been a victim. I've had one of my children nearly killed. I've had children threatened and windows broken, invariably by men who didn't want to support their wives, by the way, which I find fascinating. I didn't have much trouble from the young people. I can remember asking one young fellow what he expected I should do, and he said that's what I was paid to know. I never asked that question again.
But there are themes that run through all of this. When the Young Offenders Act, the current act, was passed, it was a get-tough piece of legislation, according to the media. We now have another get-tough piece of legislation. How tough do we have to get before we feel satisfied that we've pilloried enough kids in our community to make us feel good, to make us feel like we're safe?
I read in this a little criminal court based on a false notion, the notion being that youth crime is out of control, that nothing now happens but a slap on the wrist. You've heard it all. All of these are gross distortions of the reality of our predicament with children in this country.
I agree, and I would like to add to this the time factor. For example, when I look at these sentencing things, I think they're the most barbaric things I've ever read about children in my life. As I say, I've been employed in many ways—I still lecture at the university on this subject—for over fifty years. Two months for a child is forever when it comes to the loss of freedom or going somewhere. Kids going even to the poshest residential schools or to Switzerland cry when they go for seven or eight months. It's forever. They lose their friends. To fail, to be out of your grade for a year, is forever. Yet we glibly talk about giving 14-year-olds a life term with no parole. At 14?
I find this the most incredible exercise in the belief that if we lock up more people for longer and hire more policemen, we'll have the safest country in the world. Well, you know that isn't true. The United States should be the safest country in the world if that's the case.
Without getting into a too emotional response, let me pick up one or two nice things. I am pleased that at least the honourable members have maintained the 12- and 18-year limits. At one point, I thought we would maybe send more young people to jail earlier. It seemed like it was going to happen. So generally speaking, at least we've maintained what I think are sensible limits.
We used to deal with children as young as seven as offenders. You may know the European Court condemned England for its handling of the Bulger case for the 10-year-olds. Little kids just don't understand criminal process. They do know right and wrong, but criminal process they do not understand, in my judgment.
By the way, ask a 14-year-old to read this statute if we think we're writing it for kids who are in trouble. I read it 15 times and I still can't decide what are the real sentencing limits. I'm not quite sure whether, for example, young persons treated as adults and sentenced as adults can get the same parole provisions as adults can get. Currently, on average, young people are serving more time in custody than adults for similar crimes in most provinces because there is no mandatory parole. I'm not knocking parole. I think it's a valid thing. But if you can give a young person with no hope of parole three years, it often would be nine for an adult. I think there's something wrong with that sort of notion.
It all goes back to our whole community concern. We're looking for cheap, simple solutions. We are still caught up in the treatment versus punishment debate. We can't make up our minds. We call out for presumptive sentencing, dealing with them in the same way as adults, for minimum penalties for certain crimes, for example. We're calling for consecutive sentencing with adults, and we're really embarking on consecutive sentencing for children.
Even on the notion of taking statements from children, we know from experience as adults that it's a foolish thing to say to a young child that they have a right to silence at 12, 13 or 14. With persons in authority, children often think that if they tell a certain kind of truth, they'll be treated gently, that somehow good things will happen to them if they tell the truth. That's why we raise our children in that moral way. But we confuse moral with legal, and we don't really know what to do about it.
It's like the transfer provisions. We really don't know. We've been struggling with transfers since 1908. If you read the cases, they are the notorious cases in law, and they're the delayed cases. I first read this and thought this was great, that we were going to do the transfer argument after the guilt or innocence and that sort of thing came out. The current practice, by the way, encourages police overcharging, because overcharging creates the reverse onus. And then I thought that was not a bad thing because it's going to speed up the process. But as I say, when I look at the consequences being life imprisonment and no parole at 14, I don't think that's a good trade-off.
If you think about it, you might even be aware of the precedents in Canada of those wrongfully convicted as adults. They were 16 and 17 when they were first charged: Marshall, Morin, Milgaard, and now the boy in Newfoundland. I think it's an interesting view of how we see children and children in trouble with the law.
The dialogue we've had in Canada about these issues at the moment has been driven by persons who do not have information. For example, why would we want to emulate the adult system? Everybody says it has notoriously failed, so why should we now be embarking upon bringing more adult measures to children? Surely we can do better than that for children of this country.
Surely we can do better than thinking of punishing parents. The parents I knew in my career were desperate and impoverished, generally. There's also a very practical problem—which parent? Maybe it's the grandparent. You know, everybody forgets that the loving grandmother is also a mother-in-law. You can think about that. Some of you are old enough.
On boot camps, we know they don't work, yet they're applauded all over the nation. I find it fascinating that in Alberta our boot camp is kind of a nice place, and I hope the government doesn't find out because we have good staff and it isn't run like a boot camp. They are caring people who are trying to change lives.
If you look at the mandate for persons who work in close settings, there's not one word in their hiring philosophy or job qualifications about changing lives. They all deal with guarding, carrying keys, and caging. In my belief, that doesn't change children. It may protect society in the short run, but in the long run, unless lives are changed, it's a futile exercise.
So with those temperate comments, I'll stop. Hopefully we might have some questions about my more intemperate views about what's happened.
The Vice-Chair (Mr. Ivan Grose): Thank you, Judge Allard.
I'd like to assure you, distinguished gentlemen, that we've been having hearings for quite a while now, and believe me, you've plowed new ground. I expect the questioning to be very spirited.
We'll start with Mr. Cadman, for seven minutes.
Mr. Chuck Cadman (Surrey North, Ref.): Thank you, Mr. Chair, and thank you all for coming today.
Judge Lilles, you mentioned subclause 10(2), the element of control for extrajudicial measures residing with the Attorney General. I would assume it's there so there is some kind of consistency from program to program. How do we take that approval away from the Attorney General and make sure programs that go from community to community are consistent and good? How do you have some kind of control over the types of programs that are put into place? I'd ask that of all of you.
Chief Justice Heino Lilles: My reaction is that you don't want that kind of control and you don't want that kind of uniformity. If you look at some of the extrajudicial programs that have developed across the country, many of them have quite different philosophies, but they're community-driven; there's community ownership.
Many of them learn from the others. In other words, if everything is uniform and identical, it's usually a guarantee of mediocrity. You get new initiatives, somebody discovers something else and moves forward, they copy it and learn about it, and things move forward. I would not want that uniformity, and I think the presupposition that it's a good thing may not be the right supposition.
That's my view, but some of the gentlemen here might—
Mr. Chuck Cadman: If I could just interject, maybe control was the wrong word I chose there—some kind of standardization. I'm concerned that you may have 10, 15 or 20 good programs operating on different principles, but then the odd one may come along that just doesn't work and it's allowed to continue. How do you get that kind of quality control, not necessarily uniformity?
Chief Justice Heino Lilles: If you're saying we may want to stimulate things forward or backward around the edges to get things on the right stream, there are a couple of things you can do. Governments currently produce manuals as guidelines for communities, to inform them. They can provide some funding for communities, if they meet certain standards. I think there are ways of supporting the moving forward without, at the same time, squashing them or discouraging their development.
How many Attorney General-authorized programs are in existence at the current time in Canada that are doing conferencing and some of those things? I'm not aware of any. I'm aware of about 20 conferencing programs in communities in British Columbia. None of them have Attorney General approval.
I think having 20 in B.C., for something that is just being invented in this bill that has not yet passed, is pretty good. In fact it's in this bill because of what happened in those communities in British Columbia. The Sparwood model was very much the model for what is in this legislation.
Mr. Chuck Cadman: I think the Maple Ridge program does have Attorney General approval, but that's the only one.
Mr. Herbert Allard: I think that's an important question, because we currently have what we call youth justice committees under the present statute. They are mandated by the provincial attorneys general, and they set the guidelines on who gets to these committees.
On item 12 in the material I sent, I would simply read what I said about.... By the way, I should back up. I ran such a program from 1949 to 1952 or 1953 in Calgary. We used to call it an informal settlement. We had police cautions and those sorts of things. We stopped doing it partly for the very question you raised: because we found disparity within the community.
If you had short hair over here and said “sir”, you didn't get charged. If you had long hair and were a visible minority and said “f.u.” over here, you got charged. You would be charged not so much on the crime but on whether you appeared to be contrite and repentant.
Only a fool isn't contrite and repentant. I learned that early in court. You stand up and say “sir” and suck up. In fact that's one of the problems with apologies to victims. Only a fool doesn't get religion either. It's good for early release. The Salvation Army has traded on that for 50 years. I'm not disparaging; I'm simply saying it's reality.
I think disparities are a concern. We're concerned about disparities in sentencing, let alone pretrial process. We're concerned about, for example, disparities in transfer process across Canada. Some provinces transfer everyone they can, others transfer hardly anybody. I can tell you which provinces are tough on transfer, and those are Attorney General or police discretion issues. So we have an additional thing—we have not only Attorney General discretion but police discretion in a lot of this. So it's not a new debate; it's not a new thing.
I'm rather sanguine about the whole notion of informal justice, because it has hazards. I describe our youth justice committees as benevolent vigilantes. Without guidelines and leadership, they can be really very intrusive. In fact some of them I've met with believe their reason for existence is to be tougher than the courts. They think, “The courts haven't done a good job, so we in our community will do a better job. Mrs. Smith down the street really does know what we should do with these bad kids.”
I'm a little old-fashioned about the notion of justice in that. Alternative measures we now have used to be called compounding a felony. It is called “Lets make a deal you can't refuse” in the new system. But if you did something to avoid prosecution under the old law, it was a crime. If you paid somebody money or did service, it was believed to be the danger, as it was coerced. We had to remove that compounding-a-felony legislation when we embarked on some of the alternative measures programs.
There's a history of worrying about how far you invite victims. As a judge, for example, do I sentence a young person differently because the victim is unforgiving and angry? Or say they're forgiving, say they're simply indifferent. Do I treat...? We haven't thought it out. We glibly think that if we somehow involve victims in a dialogue, there's magic in it. I think it's a very difficult process.
I've run these programs, and I think the quality of leadership, discretion, and all that is very important. Some of them are really very dangerous. I've had victims say to kids in court, “I want you to rot in hell forever”, and I've had to say, “I don't have jurisdiction there.”
Some hon. members: Oh, oh!
Mr. Herbert Allard: What do you say and how do you handle this? It's nice to write long pages of descriptive things, but Judge Lilles and I have sort of different views, even about trusting the “community”. I think “community” is the worst abused word I know right now. Unless you have resources, how do you do treatment in the community?
One of the saddest things in my whole career was that I've had all sorts of sentencing powers, but how could I sentence—as has been said here—if I had no place to send the person? We've transferred kids to adult court because we haven't had proper places in the youth court. I think that's inherently wrong in law and inherently unjust to the young person.
Some people in some communities, where there are committees, get committees. Some other kid gets court and a record. He might even get his name published under the new legislation. His parents are bankrupted paying for his legal aid. I could go down the list of what we've done.
I think it's a very good question. How much disparity can we stand in sentencing and still have a sense of justice? If you speak to offenders, it's really interesting. They all want individualized sentencing, as long as they get less than somebody else, but they will never accept the notion that they should get more.
The Vice-Chair (Mr. Ivan Grose): Mr. Cadman, that's all your time. But I think you got answers to questions you didn't ask.
Mr. Chuck Cadman: Don't hold that against me.
The Vice-Chair (Mr. Ivan Grose): Ms. Venne.
Ms. Pierrette Venne: I wonder whether Mr. Justice Jasmin would like to add to what he said earlier. No?
We have been hearing witnesses, one after the other, for some time now, and we have come to realize that the proposed legislation was designed to please those who feel that young people are treated too leniently and who think that we should make them accountable by sending them to jail.
Obviously, we have to remember all the publicity surrounding cases like the one in Chambly, which you must surely be familiar with, where five youth beat an elderly, 80-year-old woman to death with baseball bats, if I remember correctly. This tragic incident took place just recently. I believe that two of the five youth were sent to the Philippe-Pinel Institute. And then we wonder why the public is not in favour of clemency. It is very obvious that such a savage murder does not draw anyone's sympathy.
We also know, because it is being said everywhere, that the Minister has no intention of withdrawing her bill. Do you not fear that we will increasingly find ourselves with judges like Judge Ruffo who, basically, was doing everything possible to prove that the existing system does not work? I wonder if this is what the future holds in store for us if we go forward with this legislation. I would like your opinion on this.
Mr. Justice Michel Jasmin: I believe that the existing legislation is not fair to anyone in Canada. It does not matter whether the young person is from Edmonton, Quebec or anywhere else. I believe that the legislation is complex and that it is complex for every one. I think that the law is harsh and that it is harsh for every one. The idea of harshness comes into play when a young person commits a crime in a community. The whole community signs a petition to ensure that this young people will be shut up for a long time.
The same thing happens with the people who are in charge of aircraft safety, when three airplanes plunge into the ocean in the space of six months and the nightly news reports show us pieces of equipment being fished out of the water. Nevertheless, statistics indicate that it has never been safer to travel by plane. Although the number of flights and hours of flying time have increased since 1980, we still have the impression that it is not safe to travel by plane.
Every time a young person commits a crime, we hear about what is not working, rather than about what is working well. We never hear the success stories. In 1985, a study was done in Quebec of 24 young people who had committed homicide between 1970 and 1983. They had been sent to Boscoville and gone through the system for young delinquents and offenders that existed at the time. It was found that only one of them had been convicted for another offence (fraud) and that the other 23 had become normal citizens with jobs. But no one wants to hear about these success stories. There is good news, but it doesn't make the headlines. People want to make sure that if something is not working somewhere, we are able to impose very tough sentences.
With regard to imprisoning young people, we must impose the right measure at the right time, while protecting society. If it is necessary to sentence a young offender to custody, this sentence must be fair, in accordance with the young person's age and needs. That is the real challenge of justice for young people.
Under this bill, young people may finish serving their sentence in an adult penitentiary. I think this is absolute nonsense. You work with young people for three years in the youth system and then send them to an adult penitentiary where they will learn to steal, blow up safes, deactivate alarm systems, hot-wire cars, and hang around with nice friends and a nice gang when they get out of prison. I believe that it makes absolutely no sense to think in this way. In this case, it would be better to send a young person straight to the adult system. We should not invest in them if we intend to have them finish serving their sentence in an adult penitentiary. These are the aberrations to which this bill would give rise, and I feel defenceless against them.
Have I answered your question?
Ms. Pierrette Venne: Yes.
I think that it's in clause 18 that the bill mentions committees of citizens, or youth justice committees. In paragraph 18(2)(d), we read that the functions of these committees will include:
(d) providing information to the public in respect of this Act and
the youth criminal justice system;
If it is any consolation to you, one of the roles of these justice committees will be to provide information to the public on this legislation, if someone manages to understand it correctly. I simply wanted to mention it in passing.
That's all I have to say. Thank you.
The Vice-Chair (Mr. Ivan Grose): Ms. Carroll, please.
Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.
I'm not surprised at what you're telling me. I anticipated and hoped for some of the things you have mentioned to the committee, and I thank you all for making the trip to do so.
I'm a member of Parliament in Ontario, and the political agenda there drives in a direction that is very difficult to offset. We can speak of educating the public, but we have to speak through a press that seems sympathetic to the other political agenda.
We have sat here as members of this committee and listened to countless testimony. I recall one group in particular. I can't remember exactly what their official title was, but they were doing the pilot projects. They had done four and they produced the results of their research for us. In so doing, they described the profile of a family from which the average.... You'll forgive me for calling it average, but many of the young offenders come from such families.
In the family, it was a story of poverty. It was a story of health problems, because if you're poor you have health problems. It produced a concept of a young person for whom of course a boot camp would just be the antithesis of what would help change his or her direction. Yet in my home province we are moving constantly against that.... It's not pedagogy, but the jurisprudential counterpart of that.
If you judges agree with the other people who are coming forward and if you don't see a boot camp or the philosophy that creates boot camps as the appropriate way to deal with young people, I'm asking for your advice on just how we get that across. How do we deal with...?
I don't want to use up my time with me, but we have the new chief of police in Toronto addressing the Conservative Party convention. This contravenes anybody's sense of appropriate behaviour, of appropriate venue. Even the papers who are sympathetic with that agenda threw up their hands at that point. It was too far.
We're having a game of statistics. We know the statistics of youth crime have decreased. Statistics Canada shows that. Yet again you have a media frenzy telling the opposite story. To come forward with a law that can reach over all of that is no small task. I'm more than delighted to hear any advice you want to table here.
Thank you, Mr. Chair.
Chief Justice Heino Lilles: Let me just say a word. That is part of the dilemma.
Ms. Aileen Carroll: It is. It's huge.
Chief Justice Heino Lilles: It's clearly part of the dilemma, but I think we've all been to blame for creating the current state of affairs, politicians included, because at the last federal election, every single party, with the exception of the Bloc Québécois, said that there's a terrible youth violence problem, elect us and we're going to solve it, we're going to get rid of the Young Offenders Act. We've created this terrible expectation—and you're going to wear it and I'm going to wear it—that when this new legislation comes into force, we're going to solve that problem.
We're not going to solve that problem with this legislation, nor are we going to solve it with anything that is that short term. I predict that you're going to be amending this legislation within a couple of years, because the public are going to say that you said you were going to solve the problem and nothing's changed.
This is not going to change it, so the other side of it is that we do need to develop strategies to communicate the information. There's a lot of information out there, lots of research literature and longitudinal studies that tell us exactly what works and what doesn't work.
This doesn't work, but we do know what works. It is things like prenatal care, enrichment programs for zero to five years, home visiting programs, parenting programs, targeting high-risk situations, and bringing specific and limited resources to target the criminogenic factors. This does work, and it's reasonably cost-effective.
We need judges to speak out more. We need other people in the system to speak out more. I should tell you that these are pretty exceptional judges who are sitting here. Herb has never hesitated to speak out. Many of our colleagues—and I would say most of our colleagues—would criticize us for speaking to you here today—
Mr. Herbert Allard: Even retired, I fear to speak up.
Chief Justice Heino Lilles: —let alone speak to the media, but we have a responsibility as judges. We have to encourage other judges and you to speak out. It takes courage, because you know what the response is. And as for other players in the justice system, we do have get them to speak.
Mr. Justice Michel Jasmin: Let me quote Winston Churchill: “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.”
I've seen that for 20 years. The people don't go out and defend the law. You're the legislators and we're the ones who apply the law, but to say the law is so good, the law of the country is good, no. We get pushed around by the intervention of the American society that is just next door with all the.... Judge Judy is an example. Last night was the first time I saw Judge Judy on TV.
Ms. Aileen Carroll: Judge who?
Mr. Justice Michel Jasmin: Judge Judy.
This is a mockery of justice and it's pouring down. We're right next door. I've travelled everywhere in the world with the Young Offenders Act. I went to Germany to an international convention. People were looking at us Canadians; we're just right in the middle between Europe and the United States. We have visitors who come from Brazil and Chile to see us and to see how we work our system, but inside our own country we don't feel that it's a good system.
In Montreal I've received a lot of visitors who came to me. I've never had one province come to see me. I have an open door policy, I speak English and I speak French, and nobody comes to see me. As a matter of fact, I would invite all of you from the committee to come and see it in Montreal. I'd be glad to discuss it with you so you can see what we're doing.
We have to believe in our own institutions. We let the newspapers run and
we manage on the basis of surveys,
and that is a very unfair test too.
Just to finish, I have a document over here, in both French and English. It's a summary of incomes and child well-being by the Canadian Council on Social Development. It shows you that people with an income of $20,000 or less and people with an income of $80,000 and more are in a very different ballgame.
You can see that people with incomes of $20,000 or less have problems with family functioning, parental depression, childhood trauma, chronic stress, adult smokers, changing schools, poor housing, and home computers. They have problems in the neighbourhood, with unsafe neighbourhoods, unfriendly neighbours, aggression, and all those factors.
The people with $20,000 and less are the people who are going to come under our laws. Those are the people who are going to be clients. The smart kids with a family with $80,000 and more are going to get a good lawyer to understand the law, to go through the law. It's going to be a law that's addressed to aboriginals, black people, ethnics, and poor people. That's my personal point of view, but I do that very privately here before you. I wouldn't say that on TV, because I am a judge and I must apply the law of the country.
I have a copy of this here for you.
Ms. Aileen Carroll: Thank you.
Thank you very much.
Mr. Justice Kent Kirkland: Mr. Chairman—
The Vice-Chair (Mr. Ivan Grose): Oh, I'm sorry, Mr. Kirkland.
Mr. Justice Kent Kirkland: —may I answer with a final comment?
I'm from southern Ontario. I am a person who believes that education doesn't have to be lost. I think we've educated people that you can't drink and drive, we've educated a lot of people about the hazards of smoking and about reporting child abuse, and I don't think we have to give up on the concept of educating people in the area of youth justice. I think we have to educate them in the right way and at the right time.
When I was involved in some policy-making, going back a way in the youth justice legislation, I heard talk about going into high schools and talking to kids. I said that you have to go into elementary schools, that problems are beginning when children are eight and nine and ten years old. Why not start then with an education process?
I know you still have to deal with adults, but I do believe there is no simple answer to your question—and I'm not trying to make it sound simple. If there were a simple answer, we wouldn't even be dealing with the issue. I do believe, and it has been shown, that people can be persuaded by proper education if it's done in the right way.
As far as the media are concerned, we all—legislators, the judiciary, other aspects of law enforcement—have to deal with the media. Again, I think there's an education process there too. I have recommended to my colleagues to invite the media to come and share with us some of their concerns about the way the judiciary handles certain matters. We'll talk about it.
Ms. Aileen Carroll: Mr. Chair, I think that would be excellent.
I just give this as an example. What frequently happens in Ontario—and it may well with colleagues from other provinces—is that municipal councils pass motions and send those motions off to other municipal councillors asking them to pass the motions as well.
In Niagara Falls, a motion was passed that was very critical of the Young Offenders Act and demanded that it be made more stringent, more draconian. That goes to a municipal council in my riding and they say, yes, we agree, let's tell the MP that we agree with what Niagara Falls said.
So what I do is sit down and take the time to try to write to them and say you're wrong and here's why you're wrong: you're having buttons pushed and you're responding to those buttons without taking the time to do your homework.
I just recently did a TV program with the chief of police of South Simcoe, who has a lot of acumen, is very clear, saw all the good things happening, and was making again and again the point that the statistics are not valid, that they are not what's happening in his community, that we're getting spun around here with about 5% of the youth population and nobody's realizing what good things are happening with the other 95%. This is the chief of police.
But still, it starts spinning and the multiplier effect gets a life of its own, so I think they would benefit from hearing from Your Worships as well as from me.
Mr. Herbert Allard: Mr. Chairman, could I respond a little more to this?
Again, this is one of those fascinating issues about the complexity of our society, because there would be those who argue that the voice of the city council is the community speaking, you see.
Ms. Aileen Carroll: Yes, and it isn't.
Mr. Herbert Allard: Now, I've spoken in public on this. I made my first speech on this when I was very young and at the youth program in Calgary. Let's see now...it's now nearly 60 years ago. What was fascinating was that I was involved with this downtown group, but nobody believed what I said. I then became a probation officer and made speeches and nobody believed me. I was the first adult probation officer in southern Alberta, and nobody believed me. Then I became a judge and nobody believed me. But if Officer Smith is on the panel with me and he believes that this “get tough” deterrent thing works, they believe him.
That is because there is no constituency out there that is informed or has a mandate to talk about these issues in their broadest sense. I find that the academicians that teach criminology in the universities.... I don't know where they are. They were never in my court. They were never even observers. And all the other critical people—most of them—have never been in court or read the statute. Yet they are held up as experts. I don't think judges are free to run around saying too much about some very contentious, debatable issues.
I helped create a research project in Edmonton in which they talked about deterrents, and big surprise, we found out that young adults who had nothing to lose weren't deterred by anything. The kids said simply, “I have no reputation, I have no family. In fact, to go to the big house gives me status amongst my buddies.” Big surprise. But guess what? Nobody would take the next step and ask what we have do to do, not for them but with them, so they have something to lose.
In other words, good people are deterred; people with nothing to lose are not deterred. By the way, it's also true in homicides: people aren't deterred either, because they have other kinds of phenomena. That's how complicated it is, though, because those are different kinds of crimes.
But nobody's mentioned, by the way, an issue that I think has to be looked at, and that is repeat offenders. I say the answer isn't so much to get tougher, and maybe I obliquely said it before. If our system doesn't change the lives, then we should condemn what we're doing in the caging, rather than simply recondemn the young person. And it's true with the adult system in the same way. I think that makes such good sense. I helped run a detention program. I said, if you'd quit sending me bad kids, I'd give you a better outcome, and in fact if you'd send me kids who don't belong here at all, I'd give you 100% success rate.
So I'm sympathetic to the trouble, the problem it is to redirect lives, but until we do that, we're wasting our time and our money.
Mr. Justice Michel Jasmin: When I did the workshop, or le groupe de travail, the report, I had parents who were complaining that the life's too soft. I met them one night, a group of parents, and I gave them homework. I brought one of my cases, and I gave them the report. I changed the name, and I said, “You render a decision.” The toughest guy was me. They were the ones complaining that the system was lenient; the toughest guy was me. And I explained my decision to the parents.
The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Carroll.
Would you please copy your letters to me? They sound better than mine.
Mr. Cadman, please.
Mr. Chuck Cadman: I agree that Judge Judy is a mockery. And the ones that have spawned out of her show are even worse.
About people's perceptions of the youth courts, I'll just give you an example. In my first experience in a youth court—just over seven years ago now—I was sitting in there, and there was a young man of about 13 or 14 years old being sentenced. His lawyer was making his presentation to the judge. He was being sentenced. The young man was sitting there with his chair leaned way back and his feet up on the table, playing with a hacky sack, chewing gum, waving to all his friends. Now, I'm not suggesting for a moment that your courts are run like that—
Mr. Herbert Allard: Not my court.
Mr. Chuck Cadman: —but my father-in-law was with me. He had just finished 23 years as a career man in the army. He stomped out in disgust.
That is a problem. When people see that kind of thing going on, it translates into their condemning the whole system. And I can certainly understand it. Certainly not every court I've been in has been like that, but once in a while people see things like that and they just trash the whole system because of it.
But that wasn't my question, that was just an observation. My question was around the role of parents in your court in cases where young people have to be dealt with formally before the courts.
I've heard a number of complaints from parents—in fact I know we're going to be hearing from one later this week—who felt they do not have enough input into the system in dealing with their own kids. The lawyers completely usurp everything. The parents are demanding.... They know the kid is guilty—and I believe in due process, I don't have a problem here—the kid has admitted it at home, said, “Yes, I did it”, and the parent says, “Own up to it, take your lumps, and let's deal with it.” Then the lawyer walks in and says, “Never mind, we can get you off.” Parents complain like hell about that to me. I just wonder what your feeling is about the role of parents in the formal system.
Mr. Justice Michel Jasmin: That is a problem of application of the law. You're absolutely right that when we deal with parents, we just take them away from the system. When a kid commits a crime, the parents get mobilized, they get around the kid, and they go to the police station. The kid will sign a statement—to get it off his chest—and say he's guilty. He walks into the court and meets a lawyer. The lawyer is from legal aid, he's got this many files, he doesn't see him very often, and he tells the kid, “Look, you plead not guilty, and we'll just go to court. Here's my card. We'll plead not guilty.”
The parents take a day off because they're ashamed of what happened to their family; it's a failure for the family. Those who come to court walk along the side of the corridors. They don't walk in the middle of the corridor, because they have their heads down. They walk into the court, and the first thing you know, they spend the whole morning in court to hear a lawyer stand up and say “Not guilty, fix another date.” They walk out of the court and say “I'm not going to come back here any more, because I'm losing my time. I thought my son was guilty, and I'm not going to get involved with it whatsoever.”
So it's true that we don't interest parents, and when we sit in court, I always make sure that if the parents are there, I say “Good morning, Mr. and Mrs. So-and-so.” When I sign a probation order as a judge, it's just a question of application. I ask the parents to stand up, to come forward with their child, and I tell them that section 33 of this act right now—not the new act—makes them the first responsible for their kids, and I proceed to the official signature of the probation act—which takes me about three or four minutes. I tell the parents that they have the first response.
This is a question of application. You don't find that in the statute. You can't impose that and say it's the way to do it, it's the way to apply it. We still have the same problem of application of the act.
Now, it's also a question of time for parents. If we get mobilized and have a quick hearing, then the parents will stay with us through the system. If we delay the system and it takes two or three months, they'll just drop away.
When I was a hockey coach, I had a kid come and ask me how much a kid gets for breaking and entering. I told him he should talk to his father. He went to see his father. The father came to the arena to see me three months after that, and he said “My kid came to see me and told me he was breaking and entering.” I asked him what he did, and he said he drove to the police station, sat down with the police, and told them his son had a story to tell them. He put a curfew on him, and he went to see the person he'd robbed.
Then the legal system got involved, and we went to alternative measures, but it was so long, the parents had to go back in three months. He came out after three months and said he was sick enough with the justice system. You know, if we don't respond quickly, we'll fail.
The only place I see a time factor in here is in paragraph 4(b). It's very timid, and it's about extrajudicial measures. Why not put it in clause 3, and put it clearly that the time factor is very important. Everybody who deals with young offenders should deal with a notion of time. To me, that's a very timid way of addressing the problem. Don't forget that time is very important.
Chief Justice Heino Lilles: I'd like to quickly respond, if I can, Mr. Chairman.
I think Mr. Cadman raised a very good point, and it made me think about what we do in our courtrooms. While we try to be very sensitive to kids and to aboriginal families, I think of our docket courts for kids, and they're like a zoo. The halls are a zoo, with all these kids all over the place. It's a terrible picture we convey. So I think it's a very, very good point.
The other point is how to engage the parents in the process. It's a big concern to me. This legislation does not allow us to do that.
As a matter of form, I do many of the things Michel does. I try to engage them in conversation, and have them come up and sit with their kid. But you know, half the time they don't even come to court with their kids, and I have to make orders directing them to appear. The idea of a 12-, 13-, or 14-year-old kid showing up on a first appearance alone blows me away. It happens all the time. How do we engage the parents?
Finally, let me say that in my jurisdiction—it's clearly not true of others—it's not uncommon for me to encounter parents who are more dysfunctional than the kids and are truly part of the problem rather than part of the solution.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Lilles.
Mr. Cadman, you didn't say much, but you used up more than twice your time. I don't know how.
Mr. Saada, please.
Mr. Jacques Saada (Brossard—La Prairies, Lib.): Thank you very much, Mr. Chairman.
Judge Allard, I want to reassure you, if nobody wanted to believe you, that we politicians don't count on much support in this regard either.
There is something here that fascinates me. It is not directly related to the administration of the proposed legislation or the current Act; it perhaps goes deeper than that.
You alluded several times to the lack of resources, and this, moreover, led you a few times to make decisions which were, for all practical purposes, illegal. You spoke of problems with regard to public perception. You spoke of problems with regard to the political decisions made by the provinces, regarding both the police and social welfare. We could also have touched on the issue of zero tolerance, which is being adopted in many places, in schools and so on. We spoke of the role of the media. We spoke of populist policies.
Has it occurred to you that you may be asking a lot to do something that neither the current act nor the proposed legislation is able to do? As we argue the merits and the flaws of the proposed bill, are we not putting on trial something other than the law itself?
Mr. Justice Michel Jasmin: You are not focussing on the real problem now. If I were a federal lawmaker, I would suspend my bill for the time being and I would ask the provinces how they apply the existing legislation and what youth policies they have in their jurisdictions.
What our working group did was to consult with the government of Quebec and ask it about its youth policies. We asked it how it dealt with young people.
We asked the police how it dealt with young people and what their youth policies were.
We asked the Quebec Bar how its lawyers dealt with young people and whether or not it had youth policies. It did not have any youth policies at that time, but it does now. A lawyer representing a young person now must follow ethical guidelines, for example, with regard to plea bargaining. Young people learn that justice involves bargaining. We have tried to raise people's awareness. Crown prosecutors now have a greater awareness of the needs of young people. In their arguments, they think in terms of the Young Offenders Act, rather than the Criminal Code.
If there is no youth policy in place, it won't work, no matter what the law says.
Mr. Jacques Saada: One of the witnesses we heard from before the committee a few days ago said that Ontario had decided to spend 80% of federal transfers for youth justice on the construction of incarceration and custodial facilities. However, I have not double checked that figure.
If Ontario was asked about its policy, what I just said would be confirmed, but that does not help us bring about change through legal means.
Mr. Justice Michel Jasmin: I realize you have a problem. In the United States, Vermont, New Hampshire and Maine have similar policies to those of New Brunswick, Quebec and Nova Scotia. In Maine, I was at a trial which dealt with a motion of referral. I felt at home with this kind of legal procedure. However, there is a difference between Vermont and Florida. In Florida, it is possible to sentence a child of 14 years or older to death. That's the kind of gap which exists between various countries. The New England States have similar policies, but in Florida, you can condemn children aged 14 years or older to death. People have to talk to each other. There is no communication, so there is no progress. No one is talking to one another. They're all stuck in their own province, managing their own business, convinced they're doing the right thing. I think that's the nub of the problem.
The new bill contains extrajudicial measures. They are optional, not mandatory. Every province may do it, but not shall do it.
What will happen? These people will take the system...
I apologize. I think I went over my time.
The Vice-Chair (Mr. Ivan Grose): Mr. Saada, I'm sorry, but your time is up. We only have 20 minutes left and I'm trying to get everyone on.
Mr. Jacques Saada: I have one quick question just to have the complement—
The Vice-Chair (Mr. Ivan Grose): I've heard your quick questions before, but I'll take another chance. Go ahead.
Mr. Jacques Saada: Mr. Jasmin, I want to make sure I understood what you said, since it is crucial for me. It says specifically in subsection 38(2):
(2) A youth justice court shall not impose a custodial sentence
It is clear, clean and precise. I don't understand why you are alluding to discretion or why you're saying that alternative measures, or extrajudicial ones, as they're called, are optional. I don't understand.
Mr. Justice Michel Jasmin: It's jail. If no alternative sentence is imposed as a last resort, you can impose probation or something else. A fine, for instance. Or something else. Detention...
Mr. Jacques Saada: Detention is the last resort.
Mr. Justice Michel Jasmin: Detention is the last resort, but in the meantime, you can impose other sentences, but which are not necessarily alternative measures.
The Vice-Chair (Mr. Ivan Grose): I would ask the questioners and answerers to be brief. We are restricted. We have bells coming up. You know how we respond to bells; we salivate.
Mr. Herbert Allard: I beg your indulgence, Mr. Chairman, to answer a bit about this. It is not what you read. There are sections in here that are presumptive and mandatory. It is a contradictory statute.
How can you say jail, minimum penalty, is the same penalty as for an adult? The penalty for an adult is minimum life with no parole. How can you talk about...? That's where the act is so confusing. You read it one way in one place, and if you read it another way, you get another conclusion. I agree with you when you say the statute won't change things of the world, but if this makes the system worse, surely then we haven't done a service with regard to protecting the community or giving justice to young people.
I think there are lots of things in here that make it worse. It makes it confusing. I'm serious. I've read this so many times that I end up by saying this is like Alice in Wonderland. Do as I say but not as I do; or yes, you can, but on the other hand you can't—or something like that. Even the words “presumptive” and “transfer” and all this sort of thing.... And there's “sentenced like an adult”. Well, they're not adults. How can you say you're sentencing a 14-year-old like an adult? He's not an adult.
The Vice-Chair (Mr. Ivan Grose): Mr. Allard, that's why we asked you here. We wanted your opinion. Thank you.
Ms. Pierrette Venne: My question is for Mr. Justice Lilles. Next week, the committee will hear from Native groups. I'm not quite sure where they are from, but I believe, as it has often been the case, the Native groups will ask us to set them apart. They will tell us that they are not being treated any differently under the legislation, as is the case under the Criminal Code.
I would like to know what you think of this. Should they be treated differently? Should they have their own justice system?
Chief Justice Heino Lilles: That's a very good question. I don't think there is a blueprint or a form for sentencing. I don't think consistency is either to be desired or possible in the area of sentencing. In that respect I disagree very strongly with Herb Allard. It just isn't possible, because there are never two situations exactly the same. People are different. I think that complexity and difference are often highlighted when we deal with people from different cultures.
We do have to deal with aboriginal people differently. I also believe we have to deal with some of the people who escaped from Viet Nam during that ordeal quite differently, because their culture and their experience are quite different from ours. So yes, I think we can and should deal with individuals differently.
Should they have a separate system? That's a very difficult question to answer. I've said this in the past. We've modified our justice system in the Yukon quite considerably and we've adopted many of the restorative principles that aboriginal people have held as their value system. We've been doing that for about 12 years. If the aboriginal people were allowed to obtain their own justice system and were successful in that, the greatest loser would be our system, because we'd lose the opportunity to learn from them and to work with them. We do have a lot to learn from them. In that respect I'd say no, I don't think they should, because we would be the poorer for it.
Ms. Pierrette Venne: Thank you.
The Vice-Chair (Mr. Ivan Grose): Mr. McKay, please.
Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman.
I wanted to direct this question primarily to Judge Lilles—I was going to say Professor Lilles, as he then was—with respect to subclause 10(2) and his comments about essentially how the provincial attorneys general could basically sabotage the entire scheme here by not providing or sanctioning these kinds of programs. His second comment was really a questioning of whether this was an unlawful delegation of criminal law to a province. This is an interesting legal argument and highly ironical given what's going on down the street with respect to our gun control legislation, where the argument is exactly in reverse.
We made the decision that we wouldn't invite politicians to the committee. We're being criticized for that decision, and the ironies are heaped on the ironies. I want to read to you part of a letter where we're being asked to reconsider our decision. This is from the Attorney General for the Province of Ontario, the Minister of Corrections for the Province of Ontario, and the Solicitor General for the Province of Ontario. They say:
Our government has consistently maintained that Ottawa
must strengthen the Young Offenders Act. This action is
needed so people will feel safe and will feel safe in
their communities, and so that young people will
understand that breaking the law brings meaningful
consequences. Ontario residents are concerned about
violent youth crime. They are convinced that the penalties
given to young offenders often amount to just a
slap on the wrist.
I don't think I could state more eloquently the irony of your representations to us today, that almost regardless of what we discuss, whether it's subclause 10(2) or whatever, this government will sabotage this process. I appreciate that you're not politicians, but I still invite you into this realm. How do we convince other jurisdictions that the people who are in the system are consistently saying to us something that is very different from what we read in this paragraph? These are the three premier law officers of the Province of Ontario.
The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. McKay. Your time is up. Now I'll let the witnesses answer.
Chief Justice Heino Lilles: It's a dilemma that others have addressed as well, and it's a big task. It's a big task because we've let it get out of hand as much as we have. We really have let it get out of hand, and we need to develop fairly comprehensive strategies.
Have you heard the statistic that we incarcerate young people in Canada more than the Americans do—at one-third the rate of adults but at twice the...? I don't think people out there know that. I mean, there really is an information gap out there. You want to make it even tougher? It's pretty hard to comprehend. So I think we have to look at other avenues.
Recently a lot of really interesting literature has been coming out of Quantum Criminology. In fact in my office I have a number of articles, and what I should do is send your clerk one or two of those. They're now getting into producing some pretty good figures on what it really costs and what you can save by keeping a kid out of the system. They have very, very good numbers, much improved from a few years ago.
I think there's a business constituency out there that would be very interested in these numbers. Back home I've done a couple of presentations to the Rotary Club and some of the service clubs. These guys—mostly guys, a few gals—almost fell out of their seats. They had no idea what the system was costing and what could be diverted to health and education and some of the other things.
So I think we do have to get some information out there and do some targeting. We have a lot of recovering to do. There is an information gap.
Mr. Justice Kent Kirkland: The key word is strengthening, which I think was about the third or fourth word. How do you strengthen it? Not necessarily by making it longer and tougher; you strengthen it by making it more pure, making it more viable in the whole construction of the statute, quite honestly.
The Vice-Chair (Mr. Ivan Grose): Thank you, Judge Kirkland.
Mr. Cadman, briefly, please.
Mr. Chuck Cadman: On the post-adjudication transfer, the minister, when she first talked about the gist of the new act, said that this post-adjudication transfer was going to shorten the process. At least one person last week said they thought it was actually going to make it just as long, because the time was going to be taken up at the sentencing hearing as opposed to the transfer hearing.
I'll couple that with the fact I did a TV show back home about a year ago with a criminal defence lawyer with whom I don't tend to see eye to eye most times. He agreed with me, though, or I agreed with him, that the only people who are going to benefit out of this, the way it is now, are he and his colleagues.
Is the process going to be a lot longer and a lot more complicated?
Mr. Justice Michel Jasmin: It's not going to be shorter, for sure, because you're going to have to do the same thing after, whether he's found guilty or not. The question you first have to debate is whether it's a violent crime or not, and we haven't defined what is a violent crime.
You know, violence is so different, and you have to have a debate on violence, if it's a violent crime or not. If I have kids fighting in a schoolyard, they're violent kids. Any normal kid, if somebody pushes them, is violent. Where does it stop? We have to go through a procedure to define violence. Then we'll have to make a hearing, the same hearing we were doing before, but we'll have to do it after. So I don't think it will save time.
Chief Justice Heino Lilles: I'm just trying to think of some way to push some provincial buttons. It's hard to do, because they're just demanding, demanding, and you know they're not going to provide the resources—or at least some of the provinces aren't.
There have been some estimates that as one of the things that will flow from this, it will require 50% more judicial resources, courtroom resources, clerks, space. Someone should maybe cost that out, even ballpark, and say to the provinces, okay, this tough regime is going to cost you a heck of a lot of money, and it's going to cost you soon, because once this is passed, you're going to need to put people in place to handle it. I think 33% to 50% is probably right.
The Vice-Chair (Mr. Ivan Grose): Thank you, Judge Lilles.
Ms. Bennett, I know it's been a long time, but I hope you remember your intervention.
Ms. Carolyn Bennett (St. Paul's, Lib.): Thank you, Mr. Chair.
I do need a little help with what Mr. McKay was asking in terms of the challenge on unlawful delegation. Whether it's Judge Jasmin asking about the driver of the car or whether it's your concern about disparities being such that eventually it could be considered as perhaps an unlawful delegation, I guess what I'm concerned about is that then when you read the act, it says the last possible resort is incarceration. If there are no supports and services, then the last possible resort is the only resort.
So what do we do in crafting the car that actually can insist there be services, when we have provinces that are ideologically opposed? I have some huge concerns that no matter what we do, these people will sit on a panel and say “I know youth crime statistics are going down, but I know it's going up.” There's nothing to do to dissuade them, because they talk to the local cop on the street, which is sort of what you're saying.
Yet there are those of us who actually do believe these kids most of the time can be turned around and deserve a chance to be turned around. How do we explain that $100,000 would go a long way in a treatment centre or with a counsellor or in helping Big Brothers, or whatever we could be doing with that $100,000 a year? How can you convince people they'll get a better result?
Mr. Justice Kent Kirkland: I know the previous minister and possibly the present minister indicated that the allocation of transfer funding between the federal government and the provinces was going to be restricted to non-custodial use. That's one way to do it. Just insist that the money go to non-custodial use, build up community service programs, out-of-custody programs. I understand there is to be perhaps an increase in transfer of funds to the provinces, and that's one way to ensure the money is designated for non-custodial use.
Mr. Justice Michel Jasmin: I'm just waiting for the bell to ring. If you'll permit me, I won't answer your question, but just let me tell you before the bell rings that this new law will change our approach in Quebec too. We're judges, and we must go by the law. If the law says we must start it by the infraction first, by the gravity of the infraction, we'll have to change our approach.
No matter what people say, it doesn't permit us to be flexible, because we'll always have to have section 3, which is the principle of the law, to apply it. I'm a chief judge at court, and I have four letters from judges saying they are most probably going to retire if the law is passed, and some of them will just ask me to change to go to civil matters instead of youth matters.
So this law is very, very sad in the way we apply it, because we're going to have to change our application. Judges must always judge by the law of the land. That's why we have discussion. I imagine the judges in Quebec share my view, and we've been discussing it. I feel sorry for that, but it is a true fact that this law will direct us toward the infraction much more than toward the youths, as we're doing right now. That's the point I wanted to make.
Mr. Herbert Allard: I could answer further.
Currently we can't use secure treatment in child welfare, because there is no such thing, so this isn't just a criminal justice or youth justice issue. They're inexorably drawn into the whole network of services. When you say even custody, treatment is often custodial, and if you haven't such a place, you can't....
Right now we have what we call open custody, but if the Lieutenant Governor doesn't designate, we don't have one. Or if he or she says in their wisdom that an ordinary lock-up is open custody, which they've done in four provinces already, that's a travesty. That's wrong. But it's done right now. So under the new regime, you have a really good question. We're back to the early comment about resources. Without resources, you can't sentence in a flexible way.
This is one of the dilemmas with the Ontario data and their feeling of unease. They've done a terrible job even in their confining institutions. They are appalling places. They've had murders and suicides and you name it. So they avoid these issues.
One thing that's really back again is we don't have good data. If I were to tell you that on any given night in Canada, 5,000 kids are locked up, and there are only 13,000 in the adult penitentiary system, surely you would conclude that the young persons' system is doing something harsh. In Alberta, on any given night, it's about 500. We had them sleeping on the floors until we started our alternative measures programs. We wouldn't have adults sleeping on the floors. We wouldn't demean adults as we demean kids in many of our programs. But who gives you the data?
Our local chief of police, bless her, the other day said 25% of the crime is committed by young people in that age group, but guess what, 35% is committed by the next six years. But do they say that? There is really no difference between the crime rate of 16- and 17-year-olds and the crime rate of 18- and 19-year-olds. In fact 18- and 19-year-olds commit more serious crime. Does anybody tell you that?
Or if you extend the range to 18 to 24.... But common sense tells you crime is a young man's game. So why are we counting 80-year-olds in the statistical data of the young offender profile? Why? Because it serves a political mandate and a vision.
I think we hate kids. I don't think we like kids. I think we're afraid of them. Some of us are even afraid of our wives, but that's another matter.
Voices: Oh, oh!
Mr. Herbert Allard: I can't resist the notion of zero tolerance, because you see, zero tolerance flies in the face then of all these flexible things we're talking about in family therapy and family intrusions. We've never really thought it out. You can't have zero tolerance if you believe zero tolerance means just going to jail. I take it that zero tolerance means you're going to do something about it, not overlook it. Most people think zero tolerance is to get tough. But wives and husbands don't want to get tough, really. They want to try to reconcile. Parents and children want to reconcile.
This is a dilemma. Are we doing a moral exercise in youth court or are we doing a criminal justice exercise? I like the old Juvenile Delinquents Act. I think it served us well for many years, and I'm sad it's gone, because it spoke to the issue that we want children to learn from the experience, that it's to be moral re-education in the legal setting. We've abandoned that. We're now mechanical and legalistic.
I don't blame kids for just going with counsel. Often they will plead guilty to things. In the accusation of the old statute, they pled guilty to things. For example, they said they were accomplices, but they didn't know what “accomplice” meant. They were just there.
Even now, let's face it. That's why I mentioned Milgaard and that. We have a lot of young people who at trial are acquitted of the charges that are laid, for good reason: because they didn't do it. We don't talk about that.
Mr. Justice Michel Jasmin: When I did my workshop, I sat down with six tough young offenders. Probably most of those kids would go to adult court. I asked them about the juvenile system—six tough young offenders, picked by chance. I sat down with them and said “I'm a judge. You've been condemned by a court. I want to know what you feel about the system. Can I exchange with you?” I spent four hours with them.
For the first half-hour they were brave to me: “I didn't do 50 break-and-enters; I did 120 break-and-enters.”
Mr. Herbert Allard: Yes, it's bravado.
Mr. Justice Michel Jasmin: Or “I was smoking pot when I was doing community work.” That was the first half-hour.
In the second half-hour they got into very wishful thinking: “At 18 years old, I'm going to be all right, Judge.” When 18 comes—it's magic in their heads. “I'm going to be all right. Don't worry.”
Then we started talking about the justice system, and finally, after three hours, it was just like throwing un plat de porcelaine à terre. They started to say “You didn't act properly with me when I was 12 years old. You didn't tell me to stop when I had time to stop. You always told me I had another chance. I met a lawyer who told me not to plead guilty. You didn't come up with the right measure at the right time. You adults did not act as adults towards me.” That was their main concern after that.
I could see them, very tough, with tattoos, and one of them was crying his head off when we left. We spent four hours with them. They said “You didn't act properly at that time.”
That's why in our report we say we must have the right measure at the right time for the kids. That's why we must act properly and quickly. That's what they were expecting of us as adults. We're missing the boat. We're missing the boat.
I'm proud of what we do in Canada with regard to gun control, legislation regarding same-sex relationships, and the death penalty. I think there's a great difference between us and our American friends. We're being stronger than that, and we're wiser than those people. In the state of Illinois the death penalty has been suspended by the governor because a new trial has been ordered for 12 out of 25 inmates.
In 1908 we had a law that was taking care of youth only. In 1984 this law was taking care of youth and society. This law will take care of society, and we're dropping the kids in this law. I'm pretty sure of that. In five years I'm going to retire, but I'll tell you that in five years we're going to have a law saying that the Young Offenders Act finishes at 16 years old. I don't know if it's shared by my colleagues, but that's my personal feeling.
Mr. Herbert Allard: It won't work, so we have to do something. We think that if we pass a law, we change things. We could make things worse.
The Vice-Chair (Mr. Ivan Grose): Thank you.
Mr. Maloney, wrap up.
Mr. John Maloney (Erie—Lincoln, Lib.): I want to return to the post-adjudication process. You feel it won't be any quicker.
We had a young lady appear before us who had been charged with first-degree murder. It took her a year to get to that pre-adjudication process as to whether or not she was going to be kicked upstairs, and in fact she was. Is that the norm? Say that child was charged with first-degree murder and tried in youth court. Would that disposition not happen quicker than that? Then you'd have your post-adjudication as to whether there was to be a sentence as an adult. Even if it is the same time as a post-adjudication process, is it not perhaps preferable insofar as...is there not a bias against guilt or innocence when an individual has a pre-adjudication, and then they're booted upstairs? People might say there's something really bad about that individual. Also, then we lose the safeguards that we have in youth court as far as confidentiality during the trial and things like this are concerned.
I'd like your comments on that.
Chief Justice Heino Lilles: Let me respond to that.
I agree with you. I think the post-adjudication approach makes much more sense. You're dealing with a smaller group of people, but more importantly, you know what the findings of fact are. I don't know if you've ever sat through a transfer application when it happens at the front end. You're forced to believe all of the allegations that are made by the police at a stage when they really don't know exactly what happened, or if they do, they're exaggerating it, because it hasn't been tested. So I think that makes great sense.
When we say that it won't happen sooner, it's because this legislation builds in all the additional processes. I mentioned to you that I got to clause 103, and I discovered 13 new hearings that will take place. Nearly all of them will be triggered for the kid who's going the transfer route or could risk transfer. You have to hold a hearing to determine this and hold a hearing to determine that. Those are the things that slow it up.
With regard to your point, yes, in my view, post-adjudication transfer makes sense. In many cases it could speed things up, but it's not going to under this legislation.
Mr. Justice Michel Jasmin: We'll give the kid who's waiting for adjudication the message that the time they're going to spend waiting for their trial is going to pay twice. It's going to be double time. So kids will start to add it up. Young offenders are very quick. They say a crime committed is the same thing as for an adult. Instead of insisting on having a speedy trial, which they do in the United States—and that is one good thing they do—what the kids will say is that if you're detained, all the time spent between the appearance and the date of trial will count twice, just like for an adult. For the kid who stays incarcerated for two months while waiting for a trial, that will count for four months after he has been found guilty.
Mr. Herbert Allard: But it doesn't count for much if he's going to get life with no parole. I have to keep coming back to that. I think the thinking behind that whole notion of treating kids like adults for those purposes is repugnant. I've seen too many young people who, under the current legislation, have spent their formative years in penitentiaries and jails.
Mr. Jacques Saada: Who puts them in jail?
Mr. Herbert Allard: The system, the courts, the law, the transfer system we now have. We've been putting young people in adult cells since 1908. Before that, we put all of them there. It's not a new transfer. The adult system is not a new device.
Chief Justice Heino Lilles: I won't debate that.
Judges do. Judges put people in jail. That's a very good point, Mr. Saada. I tell my colleagues that.
In the Yukon we have a very liberal-thinking bench that is very sensitive to young kids. The first sentencing circles in all of Canada were done in the Yukon. Clan leaders in some communities have been sitting on the bench with me for 10 years. We have one of the highest incarceration rates in Canada. So judges take some of the responsibility, but we share it with the system.
In the north there are no resources. The only way I can access an alcohol treatment program for a kid is by sending him to secure custody. It's not available anywhere else.
The Vice-Chair (Mr. Ivan Grose): They seem to have forgotten the bell, so that's fine. Let's go on mining this reservoir of wisdom we have here.
Mr. John McKay: I think Judge Lilles is on to a rather critical point here. Some of what we deal with here is statistical. One thing that is fairly clear is that aboriginals are overrepresented. It's also clear that a lot of custodial sentences are given because there are no alternatives. The real question is, does this bill do anything for that? Five years from now we're just going to be doing the same thing all over again, because if in fact resources are not made available to give you gentlemen alternatives, you'll still be sentencing people to jail, and you'll still be overrepresenting aboriginals in—
Mr. Herbert Allard: I think we will then in fact lower the age to seven or eight at the bottom end and lower the age of sixteen and lock up even more. We'll say “It isn't working, so we have to lock up more. It isn't tough enough.” How tough do you have to be to please these people you referred to who want us to be tough? How tough is tough enough? Maybe we should go back to hanging kids. Truscott was sentenced to be hanged for a crime committed at the age of 14. We're not immune from all of these attitudes. It's not that long ago that we hanged all sorts of young people.
Mr. John McKay: There is a certain Alice in Wonderland quality to this.
The Vice-Chair (Mr. Ivan Grose): Thank you.
Mr. Chuck Cadman: I'd like to address a quick question to Mr. Allard. You were referring to life without parole. I don't see anywhere in there where it talks about life without parole. My understanding is that the same sentencing provisions are in the bill as there are in the current law, where the maximum would be seven years and ten years for first or second.
Mr. Herbert Allard: I don't read it that way.
Mr. Chuck Cadman: I don't see anything about life without parole.
Mr. Herbert Allard: I find that interesting. I've struggled with that, and that's why I threw it out. I read and read, and if it says an adult sentence, it means an adult sentence, which means that whatever it would attract for an adult, he gets.
Mr. Chuck Cadman: Parole provisions are different for young offenders treated as adults. The life sentence still applies, but the parole provisions—
Chief Justice Heino Lilles: It's ten years.
Mr. Chuck Cadman: It's ten years and seven years.
Mr. Herbert Allard: But it doesn't mean mandatory. I'm saying he might apply.
Mr. Chuck Cadman: Eligibility, of course.
Mr. Herbert Allard: I know young people who have done 20 years under the current law, which seems to inhibit.... When I say “mandatory”, I mean the only sentence the judge can give is life.
Mr. Chuck Cadman: Oh, certainly.
Mr. Herbert Allard: This is what I'm saying.
Mr. Chuck Cadman: It's a matter of semantics. I understand.
Mr. Herbert Allard: That's why it gives rise, then, to all this debate about truth in sentencing. We're not going to get into that one. But it's part of that whole dilemma. How do you read a statute and get all of these minutiae out of the way to know exactly what can and can't be done?
Chief Justice Heino Lilles: I don't want us to get confused on this, because I know it is very difficult to work through these clauses. We also know that these provisions have been amended about five times in the last ten years, and we've gone through a whole spectrum of things. But I think Mr. Cadman is right. We're looking at ten and seven as the maximum sentences for young people.
Mr. Chuck Cadman: For parole eligibility?
Chief Justice Heino Lilles: Yes.
Mr. Herbert Allard: You're saying young people, or young people transferred and presumptively dealt with as an adult? I don't read it that way, I'm sorry.
Mr. Chuck Cadman: It is a life sentence, but it's the parole eligibility. That's what I was saying. You were saying there's no parole.
Mr. Herbert Allard: That's what I'm saying.
Chief Justice Heino Lilles: I understand. I'm with you.
Mr. Herbert Allard: There's the sentencing—
Chief Justice Heino Lilles: You're talking about the transfers.
Mr. Herbert Allard: Yes, and again, that's what's so convoluted about it. I still see that the intent of this is to put 14-year-olds in jail for life.
Chief Justice Heino Lilles: I still come back to the question. Let me just say that the real challenge for you as politicians is the point that has been made several times: How do you get that message out? What can we do as judges to help to get that message out? Unless you somehow get it out and stop this spiral, it's not going to get any better.
Mr. Herbert Allard: Mr. Chairman, there's something else we didn't mention, and that is the notion amongst the committee that kids get off. The facts are that at trial more kids plead guilty and are found guilty than adults. We have good data on that, and if we're locking up twice as many for twice as long as we did ten years ago, the current legislation is pretty tough compared to what we had before. But I'm rhetorical again: how tough do we have to be to please this group?
The Vice-Chair (Mr. Ivan Grose): Well, Judge Allard, I quite frankly go along with your statement that if you tell the people that it's tough, they will believe you, but if the policeman says it's not tough then they believe him. I've had that experience, and I was hooted down by the crowd when I told them we have the toughest juvenile offenders act in the world. The policeman said it's not tough enough. The policeman never read the act, incidentally, but he won and I lost.
Mr. Justice Michel Jasmin: The toughest is the hanging. In England in the 18th century, there were 200 crimes for the death penalty. One of them was pickpocketing. By the time they were hanging the guy in a public place for pickpocketing, people were picking the pockets of all the people looking at the guy getting hanged. So how tough could you be? Bringing in the gallows or being sent to the gallows is, I think—
The Vice-Chair (Mr. Ivan Grose): One fast question, and that's the last.
Mr. John McKay: Just as a final point of clarification, I want to understand something. In the judicial mind, when you are giving an adult sentence, is it your view that all of the parole qualifications and parameters apply to that sentence as if that child were an adult?
Chief Justice Heino Lilles: Under this legislation?
Mr. John McKay: Under this legislation.
Chief Justice Heino Lilles: I don't know the answer to that.
Mr. Justice Kent Kirkland: We debated that earlier today ourselves, and we don't really see the answer in here.
Mr. Herbert Allard: I don't think so.
Mr. John Maloney: Is there nothing that...[Inaudible—Editor]?
Mr. Justice Kent Kirkland: Maybe, but we haven't figured it out yet.
A voice: There's no difference.
Mr. Herbert Allard: There is a common belief that they are entitled, but I don't know how you deal with it in those terms.
Mr. John McKay: Should we make a point of clarification in the bill itself that when sentencing is applicable, parole and eligibility for parole are also equally applicable?
Mr. Herbert Allard: But that's not much help. If we're going to move to mandatory penalties with consecutive sentencing and all the rest, what does it matter? Parole will soon be an anachronism anyhow.
Mr. Justice Kent Kirkland: I think the simple answer is yes, it would obviously be very helpful if it could be spelled out in the statute. Then we wouldn't be saying that we don't know.
Mr. John McKay: That's a good, useful point to end on.
The Vice-Chair (Mr. Ivan Grose): At this point, I would like to thank you distinguished gentlemen. I let the questions and answers go much longer than usual because we weren't getting opinions, we were mining pearls of wisdom from experience. So I do thank you very much for coming.
Now I have some bad news. We're not going to be able to have our dinner tonight. We're going to be popping up and down like the traditional trained seals in the House of Parliament, and we'll have to forgo the dinner.
Mr. Justice Michel Jasmin: If ever you wish to come to Montreal to visit the new courthouse, I'd be ready to receive the committee. It's a formal invitation that I give to the committee, for you to see how we work. You're invited, if you'd like to come down.
The Vice-Chair (Mr. Ivan Grose): Most certainly. Thank you very much, Judge Jasmin. We'll try very hard to do that. I personally would like to do it, and I'm sure the rest of the committee would.
Chief Justice Heino Lilles: Thank you very much for having us. We really do appreciate the audience that you gave us. Thank you sincerely.
The Vice-Chair (Mr. Ivan Grose): The meeting is adjourned.