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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 29, 2000
The Chair (Mr. Andy Scott (Fredericton, Lib.)): Ladies and gentlemen, I'd like to call the meeting to order.
Today we'll be hearing witnesses on Bill C-3, an act in respect of criminal justice for young persons and to amend and repeal other acts.
Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Earlier, I spoke informally with the Clerk about this morning's notice of motion. I would like this to be noted for the future. Since the notice of motion mentioned Bill C-3 in relation to future business—in fact, that was the general title—I wrote down that we were going to talk about the bill and future business. In fact, the topic of discussion was Bill C-23. While this is only a technical detail, I would like it to be taken into account in future, so that MPs are not going to meetings needlessly, since it may not be the same Members that sit on the Committee for every piece of legislation that is reviewed.
The Clerk told me that the future business item was aimed at the entire Committee. However, I would like the specific topic to be specified in future so that Members are not going to meetings for nothing. Thank you.
The Chair: In future we'll do that, but I would reassure the honourable member that the future business conducted this morning was to deal with all future business. We talked about organized crime. We talked about Bill C-3 and we talked about Bill C-23.
I would like to welcome our witnesses from the Coalition for Juvenile Justice, represented by Ms. Hélène Le Brun, Advisor, Centrale de l'enseignement du Québec; Mr. Alain Boisvert, Centrale de l'enseignement du Québec; and Mr. Normand Bastien.
It is the practice of our committee that the witnesses have
ten minutes for their presentation, after which the witness has an opportunity for dialogue with Committee members.
Ms. Hélène Le Brun (Advisor, Centrale de l'enseignement du Québec, Coalition for Juvenile Justice): Good morning, my name is Hélène Le Brun. I will be acting as the spokesperson for the Coalition as far as making the presentation is concerned, and my colleagues—I brought my bodyguards with me today, as you can see—will be available to make further comments and answer questions. I would like to point out that Mr. Boisvert is an educator currently practising in a youth rehabilitation centre. So, he is well acquainted with the youth community.
We will working with both briefs this morning. Our presentation will mainly reflect the brief prepared by the Coalition for Juvenile Justice, but we will also be tieing it in with the CEQ brief, the CEQ being a member of the Coalition whose views have not yet been heard, although their positions are essentially the same.
I would just like to take a few minutes to give you some background information about the Coalition. The Coalition represents approximately 25 individuals or organizations working with troubled youth, through both the social services community— particularly youth rehabilitation centres—and the justice and education communities, particularly the CEQ, which represents a number of federations active in both the educational and social services fields, the names of which are listed in the brief.
We think it is important to state right from the start that the Coalition has not taken a legalistic approach to its review of Bill C-3. We did that quite consciously and we intend to demonstrate to the Committee that when it has completed its consultations, it will not need to proceed with clause by clause consideration of this bill, something we believe would be unnecessary.
As you will see, the Coalition has focussed on the spirit and fundamental principles that inform the bill in order to take a more detached approach in reviewing the legislation. Of course, I do not intend to read the Coalition's brief. I would simply invite you to look with me at the table of contents, which is on page 2 of our brief. We will touch on each of the different headings as we make our comments.
In the introduction, we specifically looked at what the main motivation behind the bill was. We felt that much of it was based on misperceptions of young people among certain segments of the population. It was our sense that in the final analysis, a fear of young people could be the driving force behind this bill.
There is no doubt that marginality among young people now is expressed more crudely and radically now than it was before. We see this among marginal youth, such as squeegee kids, street kids, and so on. This is something we were not used to seeing among young people before the 1990s, and it probably generates more fear as a result. But the fact remains that as a general rule, deviant behaviour among young people—for example, drug use or juvenile prostitution—are a lot more dangerous to the youths themselves than they are to society as a whole.
Also, one has to admit that the social conditions facing these young people reveal a great deal about the societal conditions forced on marginal youth and bring home to us what our collective responsibility as a society is. For example, poverty, parental abandonment, abuse, mental problems and drug abuse are often very much a factor in deviant behaviour among youths.
Our view is that it is not by pushing young people further onto the fringes of society or putting them in jail more often that we will resolve the problem. As far as we're concerned, a law metes out punishment, period. And Bill C-3 provides for even harsher punishment. This legislation does not resolve the problems per se. In the view of the Coalition for Juvenile Justice, the only effective way of combatting crime is to gain an understanding of it, but not to tolerate it. We do not want it to be tolerated. We do not want it to be accepted. We simply want to understand it and understand the behaviour that motivates these young people in order to find both mid- and long-term solutions.
That is why we believe a youth justice system must be balanced, educational and foster youth accountability. It must aim to protect society, show society's disapproval of crime and take into account the circumstances of the victims. But it must also aim to foster accountability in young offenders, and provide an opportunity for rehabilitation and social reintegration based on the specific needs and characteristics of the persons involved. We believe that when it is properly enforced—which is not always the case—that is what the current Young Offenders Act does.
Bill C-3 does not do that. It contains a fundamental flaw as regards the soundness of the theory underlying it and, in our view, clause by clause consideration and possible amendments will not turn it into a good piece of legislation.
We believe that Bill C-3 is in fact a setback, a huge leap backward compared to the approach traditionally taken by Canadian society in this area. Canadian society has always said it was important to approach youth crime differently, using criteria specific to the circumstances of youth, which are clearly not the same ones that would apply to adult crime. Yet this is not the direction we would be heading in with Bill C-3.
The fundamental principle that has always informed the Canadian approach is that the specific characteristics and needs of young people must be taken into account, given their lack of maturity. When they are under 18, they are not mature and their development is still ongoing. It simply isn't true that a young person, even a young criminal, has completed his development at the age of 15.
The current Young Offenders Act provides for sanctions, but also provides for support and encouragement and focusses on the fact that young people must accept the consequences of their acts. The current Act allows us to recognize the progress made by a youth and particularly to taking into account a future life for that young person, which is not exactly the case with Bill C-3. There now seems to be a desire to break with that tradition.
On the contrary, this bill makes the protection of society the dominant principle by which the courts should be guided in interpreting the criminal provisions of the law. In practice, this legislation does not create a criminal youth justice system; what it really does is apply the adult criminal system to young people. It flows from a completely different approach. From now on, 14-year olds won't be old enough to vote, to drive a car or to drink in bars, but they will be old enough to be punished like adults.
We also believe that Part 2 of this bill punishes blindly, by not considering who the perpetrator is. The bill proposes to protect society by making delinquent youth more subject to the rules that currently apply to adults. It concentrates on the nature of the offence and chooses to ignore the nature of the perpetrator—in other words, his specific characteristics and needs.
In fact, as far as we are concerned, when society allows adult sentences to be handed down to young people aged 14 and over convicted of a violent crime, it's almost as though the youth justice system were removing from its jurisdiction the very client group for which it was created; it is as though the Young Offenders Act were no longer appropriate when applied to young people who have committed crimes; it is as though this were no longer legislation aimed at young people. In fact, it is as though such crimes could not really be committed by immature youths who are still developing. It is as though we assumed that only adults can commit such crimes, and yet even if we wanted our youth to be perfect in every way, we must remember that the people who commit these crimes are in this case immature youths.
We are also assuming that these provisions will apply in all cases where violent crimes of this kind are committed, unless it can be shown that the youth should be treated as just that. Indeed, the danger is that such a concept might now find its way into Canadian case law. That would be a total reversal of the situation, because the U.N. Convention on the Rights of the Child assumes exactly the opposite: all young people must be treated as young people, in accordance with their specific characteristics and needs, unless it can be proven that it is in the interest of a youth to be treated as an adult. So, that is a total reversal of the current approach.
By introducing tougher treatment for young people who commit violent crimes, the hope is that young people will be deterred from perpetrating such crimes. That is the goal here. And yet the current state of scientific knowledge in no way supports that theory. We have no scientific proof that this will deter young people from committing such crimes. Empirical studies show that tough sentences, including jail terms, have no impact on recidivism in adults. Why should it be any different for young people?
On the other hand, research has proven that rehabilitation programs, because of their specific nature and content, are more effective. They don't produce miracles, but they are certainly more effective. It has been proven that they reduce delinquency by 15 per cent overall, that they improve the psychological functioning of 30 per cent of young people when they benefit from rehabilitation, and that they further social integration in 10 to 15 percent of cases. Those are the overall improvements that have resulted from such programs. In some cases, for specific individuals, the percentage may be much higher.
Even though these are not brilliant results, they are certainly a lot more brilliant than the zero effectiveness of incarceration, which indeed lowers percentages in some cases, increases delinquency and leads to more significant problems, in terms of a youth's ability to cope and become integrated into society.
The logic of this bill rests on the proportionality of the sentence to the seriousness of the offence. Yet, the same cannot be said for youth accountability. Greater accountability does not mean criminal responsibility. The two do not necessarily go hand in hand. Education and rehabilitation are what help a delinquent youth to develop over time and accept his social responsibilities—an approach that helps him become a respectful, independent individual. Without support, and without highly personalized, specific rehabilitation measures, it is not the harshness of the sentence that will help a young person to understand that he must take responsibility for his actions.
As far as the Coalition is concerned, only a differentiated approach to delinquent conduct is able to adequately define the relative importance of the different factors contributing to delinquent acts, to measure the risk that this conduct will be repeated, and to arrange for appropriate treatment. Yet in this legislation, extrajudicial measures are always designed to be punishment based on the seriousness of the offence, rather than the specific needs of young offenders. We believe a more nuanced approach is needed.
In order to be effective, a sentence or measure must be appropriate in relation not only to the seriousness of the offence but also the specific needs of the young offender. It must be meaningful to the youth in the sense that he must have a clear understanding of it. And what is most important is that it must come at an appropriate time in that young persons' delinquency. We call this the right measure at the right time. The right measure should not aim first and foremost to sanction the offence. It should aim both to correct the delinquency and foster the offender's rehabilitation. We do not think harmonizing sentences across the board, as described, will yield such a result. For example, it is possible that a minor offence requires a tougher response in the case of a repeat offender and that a first offence would be more appropriately dealt with through rehabilitation.
This bill does not give that kind of flexibility and thus is likely to be ineffectual more often than not.
The Chair: Ms. Le Brun, are you....
Ms. Hélène Le Brun: I'm almost finished. We only have a few brief comments to make with respect to Parts 3 and 4.
We believe the legislation currently before the Committee introduces a highly complex system for the exclusive use of the initiated. It effectively removes young people from the justice system, and its interpretation will be a matter for legal experts alone. It is extremely complex. The principle has been simplified, but the rules of interpretation and enforcement have become more complex.
Moving on now to Part 4 of our brief, our position is, if it ain't broke, why fix it? Do we have the energy and resources we need to implement a new system even though the one we have refined since it was first introduced is producing equivalent if not greater benefits? Indeed, we believe that many other aspects related to the youth justice strategy could be reflected in the current enforcement of the Act.
But let us come back now to the question we raised in our introduction: What is behind this bill? It seems clear that it has been introduced to appease feelings of insecurity in a certain segment of society, which will now have a clear conscience and believe justice has been done.
To pass this bill would be to give into popular prejudices and misconceptions in a segment of the population as ignorant of the way the system works as it is of the reality of youth crime. It totally ignores the current body of knowledge with respect to criminality. Passing this bill would be tantamount to allowing ideology to take precedence, as far as the fundamental principles of the Act are concerned. It would be tantamount to wiping out 16 years of practice and case law. We do not believe that would be in the interests of Canadian youth. In our view, if the government wanted to show real leadership, it would withdraw this bill and devote its energy to strengthening the current Act.
The Chair: Thank you both very much. Mr. Cadman will be the first questioner. He has seven minutes.
Mr. Chuck Cadman (Surrey North, Ref.): Thank you all for coming today.
We've been hearing a lot about the best interests of the child, and I don't think anybody would argue with that, to an extent. Regarding the best interests of the child, is there any point at which the best interests of the community, the citizens' right to safe streets and security, should override the best interests of the child, in your opinion?
Ms. Hélène Le Brun: You seem to see them as conflicting, but we don't. We believe they go hand in hand. It is possible to both protect society and the interests of society and focus on the rehabilitation and social reintegration of young offenders.
This bill places them in opposition, and that is just as dangerous in our view. They must not be presented as conflicting, because in our view, one is not more important than the other. The two go hand in hand. It's true that this has led to problems, because those are the goals of the current Young Offenders Act. Certainly that requires more effort, but they should not be placed in opposition. We must instead seek to attain that dual goal.
Mr. Chuck Cadman: Am I to understand that you believe that the sanction should not be proportional to the offence?
Ms. Hélène Le Brun: Our views in that regard are clearly articulated in the Coalition's brief. As I said earlier, the sanction must fit the seriousness of the crime, meaning that due consideration must obviously be given to the seriousness of the crime, but also the sanction must mean something to the young offender and reflect his specific characteristics and needs.
So, once again, we do not see those as contradictory.
Mr. Normand Bastien (Counsel, Coalition for Juvenile Justice): If you don't mind, I would just like to complete that answer.
We talk about proportionality in the context of the specific sanctions set out in the Criminal Code. What that means is that you determine the offence, from among those that appear in the table, and apply the specific form of intervention that is called for. It took twelve or thirteen years to realize, subsequent to the J.J.M. ruling by the Supreme Court in 1996 or 1997, that intervention is currently possible in relation to young offenders. The type of offence allows us to define the intervention.
But once we know the type and length of intervention called for, we make the connection with the individual. The type of program or detention—if that is required—is arranged on the basis of the specific needs and circumstances of the young offender. The current Young Offenders Act does provide for a certain amount of proportionality. However, if you make that a guiding principle, and make your primary goal the protection of society, it becomes the sole guiding principle and is necessarily linked to harmonizing offences, and so forth. The message will be that the sanction is what counts, and that the intervention is first and foremost a sanction.
In the case of relatively minor crimes, there is provision for extrajudicial sanctions and measures. Yet even these other measures, which include things like referral to community services, warnings and cautions, are designated as sanctions. They are always referred to as sanctions. Indeed, the word "sanctions" is omnipresent in the legislation. When you put sanctions together with proportionality, you establish a direct link that gives the measure the effect of a directive that will and must be followed.
We believe it would be preferable to go back and focus once again on the young offender, and work within the current parameters, which are the length of sentence and needs of the offender.
The Chair: Mr. Cadman.
Mr. Chuck Cadman: You referred a couple of times to the fact that Bill C-3 is designed to cater to the prejudices and the fears of certain segments of the population. Would you tell me who you feel those segments of the population are?
Mr. Normand Bastien: In her Policy Statement and White Paper, the Minister talked about the public's mistrust and ignorance of the youth justice system. That was one of her observations. The Federal-Provincial-Territorial Working Group on Youth Justice made the same observation. Everyone who worked on the draft or drafts of this bill, as well as people who have done research in this area, have all concluded that the public is unfamiliar with the Young Offenders Act and the possibilities it provides.
That is unfortunately what one also observes when meeting with parents, journalists or just about anyone else. People simply don't understand; they don't see the benefits of this Act. We often hear about its shortcomings. Yet when you actually look at the options the current legislation offers, it becomes clear that it would be worth spending some money to increase the public's understanding and appreciation of it, because it has had and continues to have positive effects in a number of areas.
Unfortunately, for all kinds of reasons, historical or otherwise, people sometimes emphasize the shortcomings or negative perception people have of the Act. Well, the message this bill sends is that we are going to be tougher and more demanding.
Some people have high hopes of Bill C-3 based on what has been announced, because people are being told that we're going to get tough with young offenders. For example, people think that from now on, we will detain people that the current Act does not require us to detain. These people believe that any violation of their freedom should be sanctioned by detention.
But that is not in fact the effect of Bill C-3, since young offenders will not be placed in custody. They are not the ones that will be detained. Under Bill C-3, the ones who will be detained are the ones who are already in custody, except that they will remain in custody longer and probably in an adult setting.
But when you tell people you are going to get tougher with young offenders in order to satisfy them, you are actually misleading them, because in the end they will not be satisfied. They will be even more disappointed in a few years and will demand tougher measures still. Four years from now, we will still be examining amendments to the Act, just as we were in 1995, in 1994, and in 1992, if I'm not mistaken. We are here to satisfy a particular segment of public opinion, and yet that will never resolve anything.
When Mr. Rock presented his first draft, in 1994 or 1995, and when he wanted to reverse the burden of proof, it was to satisfy the same people. We are again here to try and satisfy that same segment of public opinion, when in actual fact, their opinion does not jibe with reality. And they will not be any more reassured, since the people that need to be placed in custody already are.
The Chair: Thank you, Mr. Cadman.
Ms. Pierrette Venne: Good morning, and welcome to our Committee.
In the same vein, let's talk about the situation as a whole, particularly in relation to the recent case of five young people who beat to death an 81 year old woman. This particular incident occurred in Chambly, and I recently discussed it with other witnesses. Three of the young people involved got off, as I recall, with only 18 months of secure custody. Obviously, a case like that does not encourage sympathy for young offenders. There is no doubt about that.
At the same time, the media have a heyday with this kind of story and milk it for all it's worth. Some people who read about these incidents are very affected by them. They wonder why young offenders aren't given tougher sentences. So, that certainly doesn't help matters.
At the same time, I can't believe that the Minister of Justice was motivated by only such cases and a desire to please that segment of that population. There must have been something else about the Act that she didn't like, in terms of its enforcement or administration. If you are aware of any problems in that area, I would be interested in hearing about them.
If you think that it's only because of that segment of popular opinion you referred to earlier, well, I must say I would be very disappointed, particularly since the Minister of Justice, as I'm sure you already know, has no intention of withdrawing her bill, no more than the government has.
So, if you could enlighten me in any way in that regard, you would answer my first question.
There is also another point I would like to raise with you. You say that people don't know how the youth justice system works. That's true, but should you not also be doing some advertising and spending money on public awareness? To tell you the truth, just about every one of the witnesses that came before the Committee said pretty well the same thing you did—that people are not familiar with the Act and that it's very difficult to explain.
I imagine that the next Act, given that the Bill is pretty hard to read, will be that much more difficult to explain. Something is certainly missing somewhere. How do you explain the fact that parents do not even know how the current Act works? It's clear that they don't have the information they need.
My last question is, if you had any amendments to suggest to the bill, other than its withdrawal, what would they be?
Mr. Normand Bastien: First of all, I wouldn't like to comment on the Chambly incident, because it is still before the courts in the sense that two young people are still waiting for a decision to be handed down. However, I would like to set the record straight on one thing. As I recall, two of the youths involved got an 18-month sentence, but one was sentenced to ten years in jail. He was sentenced to an initial six-year sentence, followed by an additional four years. He is currently serving his sentence at the Institut Philippe-Pinel. The Crown even withdrew its referral application in this case after reading the existing report. So, the Act theoretically allowed that.
Had it been referred to the adult system, he would probably have been sentenced to at least 25 years in prison. However, he would have been eligible for parole after ten years. In any case, he would have been out of prison after about ten years, because no penitentiary would have made any effort to keep him in there after that. As soon as he had become eligible for parole, they would probably have arranged to release him. And those ten years would have been spent in a non-youth setting.
Having said that, I cannot answer for the Minister and tell you what goals she had in mind, other than mitigating public ignorance. I do recall, though, that there were other goals in addition to that. There was also the need for rapid intervention. In that respect, I can tell you that this legislation will have the exact opposite effect if it passes in its present form. When you see all the decisions that will have to be made, if only in relation to the sentencing hearing.... There are something like 80 different clauses. Obviously, the need for rapid intervention... and after that, there may be a trial with jury, and so on.
So, you can forget about rapid intervention, or the appropriate intervention at the appropriate time. That may be possible in cases involving shoplifting or that kind of thing, but things already go fairly quickly in such cases.
As for the inability to deal with repeat offenders, technically, such cases are being dealt with as we speak. Under this legislation, when such cases are dealt with, they will be dealt with outside of the youth justice system.
Clear principles and objectives were necessary. A Supreme Court ruling, written by J.J.M., allowed us to gain a clear understanding of one section of the Act after it had been in effect for some twelve or thirteen years. But now we are dismantling that system and starting all over again with principles and goals in four separate clauses that are contradictory. It's pretty complicated. There are principles laid out in clause 3, in clause 37, clause 85 and clause 4 with respect to extrajudicial measures. There are goals and principles enunciated throughout the legislation. So it's difficult to say what specific goal will be met.
You are asking us to play a role in raising awareness about the Act among parents, young people in the schools, and so forth. We do in fact go into the schools regularly to make presentations on how the Act applies. But I am not going to be able to explain to people that the Act is clear. I will not be able to explain it to them so that they understand. I have been a lawyer for 27 years now. I and seven other colleagues spent part of the summer trying to figure out what this legislation said, but we still don't know.
You can certainly imagine that this is not a simple piece of legislation. We had managed to sort out the 75 sections of the legislation and figure out where we were going with them. Now, after the legislation has been in place for 12 or 13 years and been amended a number of times already, the government comes forward with an additional 190 amendments. This is not a simple piece of legislation. On the contrary, it's a very complex Act, and it simply isn't true that we will be able to explain things to people and reassure them. The minute we tell them one thing, the next day, another decision comes along that takes us in the opposite direction, and we just trivialize what has been done before.
I'm simply saying that I would like to have a clear understanding of what the actual goal of the bill is. I don't understand it. I understand that the current Act is not being applied uniformly across the country. And it's quite true that in some provinces, there are differences as regards laws to protect society and the effects of those laws. I'm thinking in particular of the Quebec Youth Protection Act, which provides for intervention in cases where young people have behavioural problems. Many minor crimes are dealt with under the Youth Protection Act, because it does give us an opportunity to deal directly with individual problems.
If we were to opt for the same kind of intervention as would normally be the case for a young offender, the intervention would last for a month or so, because the crime is a relatively minor one, but we wouldn't resolve anything. Under the youth protection legislation, given that we can intervene to deal with behavioural problems, we are able to deal effectively with such problems. The intervention period may be a year or two. That gives us a chance to involve the parents as well.
Of course, once you decide to go with that system, if the system elsewhere is different, then your goal cannot be the same. But rather than starting from scratch, I think it would be simpler to provide everyone with the same tools.
In answer to the last part of your question, as to possible amendments we would suggest, the Coalition believes it will not be possible to create a good piece of legislation from this bill.
Here I will speak on my own personal behalf. For example, if you want to make this bill less objectionable, all the principles of the current Young Offenders Act must be in there. My challenge to you would be to take the first three first paragraphs of the preamble and incorporate them into the principles.
If the preamble is trying to say something and we want people to abide by it, we have to be consistent—in other words, put the various clauses of the preamble in with the principles. I'm sure that legal experts would tell you that if you do that, you will be right back to the current legislation.
There is also another major goal. If you decide to make young offenders subject to adult sentences, you will have to reinstate the test we're all familiar with, namely a balance between rehabilitation and public protection; we mustnÂt concern ourselves solely with public protection, as is currently the case.
Bill C-3 refers to the adequacy test under clause 37. Is the specific sentence adequate to ensure public safety? Again, under the principles laid out in clause 37, with respect to sentence harmonization and proportionality, if one's answer to the previous question is no, then we're dealing with an adult sentence. But let's go back to the criteria for reconciling these two goals; there I think we start to have a piece of legislation that is less objectionable. And what is especially important is that we keep things simple: the concepts should be reduced to a minimum.
Finally, I want to mention one last detail. Section 4 of the current Young Offenders Act, which concerns the Alternative Measures Program, is considered so worthwhile that Canadian legislators entrenched the program in the Criminal Code in 1995. We now have adult alternative measures in the Criminal Code, with all that that entails.
Here, however, alternative measures have been eliminated. We don't want them anymore. From now on, we will have extrajudicial measures with extrajudicial sanctions. We will have referrals—referrals which, for some 40 or 50 years now, have involved transferring young offenders to the adult system. Now that is the most minor measure; a policeman will be able to decide to refer a youth to community organizations. Such measures have now become an alternative to a prison sentence.
All the concepts are changed here, and yet people claim that it's clear. I personally believe that what we have here is total confusion. We are heading towards a situation where we will no longer be able to explain to people that the alternative measures that existed previously for young offenders have yielded such positive results that it was decided to apply them to adult offenders, and yet we have eliminated such measures for young offenders and replaced them with extrajudicial measures.
The Chair: Thank you, Mr. Bastien and Ms. Venne.
Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you both for being with us.
I agree with much of what you've said in your presentation, but I do have some questions. The thrust of this new legislation is to recognize that there are some serious crimes and habitual offenders. I think the minister has tried to work a balance between those young people who commit crimes that are not so serious and those who commit more heinous repeat crimes.
I have two questions. What do we do about the persistent offenders? Secondly, what do we do about youth gangs that recruit young people under the age of 12? Should they be treated in any kind of a different way?
Mr. Normand Bastien: The first part of my answer has to do with repeat offenders. The problem here is that serious crimes are being targeted. Yet a significant percentage of the people who commit a serious crime, such as murder or manslaughter, have no previous criminal record. So, they cannot be considered to be repeat offenders.
When dealing with an offender who has a record of 22 break- and-enters and a considerable number of car thefts, but who has never resorted to violence, this new legislation would require that we move in stages. Before deciding to detain the individual, we would have to look at all the provisions of clause 37 and following to determine what circumstances would justify having a repeat offender committed to custody. It's extremely complicated. This individual may have been convicted of a series of shoplifting offences, car thefts and break-and-enters, but he never resorted to violence. And yet, with an individual who has committed a serious, and unacceptable crime, it is the adult sentencing process, based on the concept of presumption, that applies. If we want to deal effectively with repeat offenders, then let's do that, but forget about using crime as a starting point. Instead, let's have the individual assessed. Under the Act, an individual who has repeatedly committed shoplifting offences will never or practically never be sent to court, even if it is his eighth offence. Maybe he is trying to send us a message, and perhaps certain interventions are appropriate then to ensure that he won't move on to the next stage. But under this bill, we are being told to forget about that individual and send him into the community. We will have neither the needed resources nor the energy to deal with even one shoplifting offence, let alone twelve; on the other hand, we will devote all our energies to dealing with murder-related problems. I realize that it is important to make those efforts, but at the same time a combination of circumstances can be involved in crimes of passion or similar offences. My point is that you shouldn't be concentrating on the crime or offence, but rather on the youth and his specific needs. That is important.
As for gangs, unfortunately, more often than not adults are the ones recruiting the young people. Last week, there was a seizure in a Montreal school and 20 young people were arrested on suspicion of drug trafficking. We all know that these youths had links to adults. But yes, we did arrest them; and yes, we did intervene; and yes, we took them out of school. But the adults who were selling drugs to them are still selling drugs and will continue to do so.
So, what did we really resolve? Our society has decided to deal with these issues by trying to get the message out that it will not tolerate this kind of behaviour. And yet some individuals are able to take advantage of the situation, and most of those individuals are adults. When we arrest a youth who is 17 years and a few days old who is active and recruiting, we can treat him. The Act currently in effect allows us to opt for a referral in such cases, and that is generally what we do. The next Act will mean that use of referrals will be limited to such cases. I don't think it's necessary to set prerequisites and to use this as a basic principle. What we need is some way, following conviction, of treating an individual who meets criteria such as these and whose specific circumstances are taken into account.
Under the adult justice system, there is a provision with respect to dangerous offenders. Before a person is convicted of a crime, an application can be made to a court and evidence can be adduced to have an individual designated a dangerous offender for the purposes of preventive detention. Why? The burden of proof has not been reversed. Why wouldn't we do the same with young offenders? Well, I believe we can solve problems by reserving exceptions for exceptional circumstances, rather than making them a general rule.
The Chair: I believe Mr. Boisvert would like to add something.
Mr. Alain Boisvert (Centrale de l'enseignement du Québec, Coalition for Juvenile Justice): The criteria must reflect the young person's needs, otherwise we may as well give up hope for these 14 or 15 year olds. There are rehabilitation programs that are specifically geared to young offenders. An institute in Montreal carries out empirical research on the phenomenon of violence and both develops and analyses youth rehabilitation programs.
What we want to avoid is ending up in a situation where a youth's only hope is to reach the age of 18 and go to prison, because he has played some role, either large or small—but more often than not, small—in a crime. Perhaps he was one of the five people who committed a crime and only the seriousness of the crime was considered, perhaps he was a distant or close accomplice, perhaps he knocked down a door or attracted somebody's attention without really knowing what he was getting into. But that youth's personality is still developing, there are certain choices he has yet to make and criminal values are not yet deeply rooted in him. Could we not take him out of a criminal environment, treat him and return him to society, rather than turning him into an adult criminal and putting a label on him that says that at the age of 18, whatever happens, he'll go to prison—to crime university? Rather than focussing solely on the crime, would it not be better to base our decisions on the youth's specific needs, his maturity and his rehabilitation potential?
The Chair: Thank you. We will now move on to questions from other members of the Committee.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you very much, Mr. Chairman.
Thank you very much for your presentation.
Thank you so much for being here.
I have a couple of questions. Just to pick up on a question posed by my learned friend, I find it a bit of a contradiction, to be quite honest, that we are suggesting that this new legislation, on the one hand, may be too harsh, but you favour a dangerous offender type of application that could hold a person indefinitely, although in that categorized age of young person.
With respect to the United Nations Convention on the Rights of the Child, we know that countries such as the United States and Great Britain have provisions to hold young persons as young as the age of seven criminally accountable, so there are precedents.
On your overall pronouncement about how offensive it would be to transfer a 14-year-old, there is a general theme emerging that you do not recognize deterrence or denunciation as being at all applicable to young persons.
I want to share with you a little story about a case I was involved in with a young person. Don't take this in any way as my being an advocate for corporal punishment, but there was a family that used to keep a razor strap on the wall in the kitchen. The strap was called “old trusty” and it never came off the wall, not once, but the kids who grew up in that household were very much aware that the strap was there.
I just use that as an example to demonstrate it is a useful element, particularly for young people, to know that those provisions exist. I don't think anyone—the drafters or anyone in the criminal justice system—anticipates transferring a young person, a 14-year-old, into an adult system where they're going to wind up at the Kingston Penitentiary. I don't think that's envisioned at all. It would be exceptionally rare, and I just don't see it happening, even in the worst possible scenario.
Do you completely rule out deterrence and denunciation as being anything we should take into consideration in our youth criminal justice system?
Mr. Normand Bastien: Thank you for clarifying your question. When I spoke earlier of the typical habitual criminal, I was not recommending that we do anything that would turn youths into habitual criminals and put them in jail for life. I was referring to the current automatic referral mechanism and suggesting that it be replaced, when a youth is convicted of a crime under certain circumstances, by a mechanism similar to the one used in adult sentencing. I am not recommending life sentences. I am simply saying that there is a mechanism we can use for a specific application and through which the decision can be made, following the application, to apply adult provisions to a youth. Although the mechanism used for adult offenders has a different goal, we could use a similar mechanism to apply adult sentences to a juvenile. That is the first point.
The second point has to do with deterrence. You cited the example of a family that made it clear, using the method of deterrence you referred to, that disobedience would not be tolerated. However, just because the method you use in your family deters your children does not mean it will have a similar effect on your neighbours' children. When a sentence is handed down to a juvenile offender, only that offender and the people with him at the time the crime was committed are likely to be deterred by his sentence; they're the only ones who will receive that message of deterrence. You will not be deterring all the other youths out there in the street or anywhere else by handing down that sentence, however harsh it may be. You will only affect the people directly involved, but no one else. Indeed, that is exactly what the J.J.M. ruling said. It pointed out that deterrence was important, but that its impact was limited to the specific group that had committed the crime in question and that deterrence was unfortunately not something that could be considered to have a general impact. I think deterrence is important, but again....
And there is another point I want to raise. I come back to the example of the family you gave. What made your method of deterrence effective was that the intervention occurred immediately after the violation, and not six months later. In other words, the minute a family rule was violated, an appropriate sanction was applied the next day, and perhaps even the same evening. But when you subject the young offender to the full provisions of this Act, but only impose a sanction a year or two later, you lose any potential deterrent effect. What is needed is a simple process that allows intervention to occur at the appropriate time, and in the appropriate amount. When you put in place a system that only allows you to take action of one kind or another a year or two later, then you're obviously missing the boat.
Mr. Peter MacKay: Can I just pick up on that very briefly?
The Chair: Briefly.
Mr. Peter MacKay: Does that tie in or is that consistent with your overall objections, as a practising criminal lawyer, as I see them, that this new act will very much be an instrument of delay, and delay will very much deny not only an element of deterrence, but an element of effectiveness—that it will deny to victims an element of direct contribution, and will deny for young people this sense that the system is holding them accountable?
I agree with you 100%, sadly, that the complexity and the interwoven sections have created, although I think with the best intentions, an unworkable system. For your information, we heard from numerous judges who, as you have said, pronounced that they couldn't make hide nor hair of many of these transfers and new provisions that would lead to hearings—the determination of whether it was a violent or serious violent offence. The transfers now are very complicated, where the trial takes place and then the sentencing.
I would pick up on Madame Venne's question to you. Is there a way to improve this, or do we go back to the drawing board?
Mr. Normand Bastien: In answer to your point about the complexity of this legislation, I would say that goes without saying. No one who has read the bill from A to Z has been able to give me an explanation of the process it lays out. The legal draftsmen could perhaps provide assistance in that regard. I could put a number of questions to you and you might be able to help me. Personally, I still feel quite unsure about its content.
The Young Offenders Act has been criticized for being complex, and I recognize that it is indeed extremely complex. You know that as well as I do. There were a number of contradictions in the principles and we didn't know how to interpret them. You always had to interpret them together and refer to others as well. It was extremely complex. It took the Supreme Court 13 or 14 years to finally explain it to us, in its J.J.M. ruling, so that we could have an understanding of how to interpret these fundamentally conflicting principles. We now have an excellent guide.
Clause 3 lays out a number of general principles, and yet they will be completely undone by those set out in clause 37, which for their part will be diminished by certain principles that have now been enshrined in clause 4, and the same for clauses 84 or 85. A general principle applies, provided it isn't contradicted by another, in a specific chapter. Interpreting this Act will therefore be far more complex. We could restate in the Act the principles laid out in section 3 and at least protect the interpretation given in the J.J.M. ruling. In that area, anyway, we would save some time.
I have been a lawyer for a number of years, and for the last 23 or 24, my practice has involved working with young offenders and youth protection. If I simply decided not to think about its potential impact on young people and spoke to you only as a lawyer, my view would be that this is an excellent bill for members of my profession. We will all end up in court, before the Court of Appeal and the Supreme Court arguing case after case, as we see fit. We will make a fortune with this legislation, but young people certainly won't come out the winners, far from it.
I think we need to keep things clear and simple, and preserve those principles that have received a positive interpretation.
The Chair: Thank you.
Mr. Alain Boisvert: I'd just like to comment briefly on the previous question. Although the razor strap on the wall has an impact, we also know that before that strap can be a deterrent, every youth has probably had to be knocked around a little bit. We have helped youths become responsible. Every youth has to become a responsible person and figure out for himself what the consequences of his acts are for others and for himself. Teaching a young person to be become a responsible adult is the goal of a rehabilitation centre. That is exactly what we are doing with young people—not teaching them to avoid criminal sanctions. That is the approach we take working directly with young people on the floor, where I work. That's why I wanted to make that point.
The Chair: Thank you, Mr. Boisvert.
Mr. Jacques Saada (Brossard—La Prairie, Lib.): Mr. Boisvert, Ms. Le Brun and Mr. Bastien, thank you for being with us today and presenting your views.
I have three questions. You partially answered one or two of them. Ms. Le Brun, in your presentation, you said that since the primary goal is public safety, judges would take that into account when dealing with young offenders.
I will put my three questions one after the other so that you have time to structure your answers accordingly.
First of all, if Bill C-3 rebalanced its overall goals and maintained the goal of public safety, which everyone sees as essential, and placed the needs of young offenders and rehabilitation on an equal footing, do you thing that would be enough for judges to reach the appropriate conclusions about what we're hoping to accomplish through this legislation?
Secondly, you spoke of—and I'm referring here to comments made by both Ms. Le Brun and Mr. Bastien—meaningful consequences. You said that the sentence had to be meaningful. That isn't the only element, but it is certainly part of the equation. The preamble of this bill refers in English to “meaningful consequences”, which is not translated in quite the same way into French, but that is what it means. It says that society has a duty to respond to the needs of its youth. It refers to multidisciplinary measures involving the youth's environment, his parents, and so forth. It refers to measures, rather than sanctions. And, of course, there a reference to the International Convention on the Rights of the Child, and other instruments.
Before confirming with you what I believe I understood Mr. Bastien to say twice, just so that it is absolutely clear in my own mind—sometimes it takes a while for things to penetrate—I would just like to ask him whether, by enshrining the preamble in the Act itself, we would be able to give a clear indication of what we're trying to accomplish with this legislation and the purpose it is intended to serve?
My third question is a little more delicate. I have talked to a great many people outside of this Committee. As you know, I'm from Quebec and I have spoken to judges, educators—I myself was active in the education field for almost ten years—and many others. I have talked to people working with school boards and teachers who say that there are problems. In fact, even some judges have referred to the fact that youth protection services are experiencing availability problems which are compromising their ability to identify specific problems in young people and establish ongoing and constructive contact between school officials and social welfare workers.
I have two related questions to ask on the same subject. First of all, I would like to know what steps the CEQ—I say the CEQ, but it could include other similar organizations—has taken to facilitate both contacts and funding, because this is a provincial responsibility, and what action it has taken to make it known to the school boards that it opposes all zero tolerance practices, if that is indeed the case.
Ms. Hélène Le Brun: I will give you a partial answer to some of your questions, and then Mr. Bastien can comment. Your first question was, if Bill C-3 rebalanced the two objectives, would that be enough? As Mr. Bastien pointed out, that would certainly be an improvement. But both the Coalition and the CEQ believe that would not be enough, because two extremely thorny problems remain in this legislation as regards harmonizing sentences across Canada, which prevent what we have described as a differentiated approach.
Mr. Jacques Saada: But why would we in Quebec suffer the consequences of harsher sentences, rather than fostering use of the Quebec approach elsewhere in Canada?
Ms. Hélène Le Brun: Because the case law will apply.
Mr. Jacques Saada: Really?
Ms. Hélène Le Brun: The case law applies across the board. We believe that given its current approach and practices in this area, Quebec could provide information about its rehabilitation programs, which are applied better and are better adapted to needs, since Quebec has a long tradition in the area of psycho-education. As far as I'm concerned, it's not a question of being a distinct society, but really a question of practices, since we have a psycho- education school.
In terms of the case law, we believe this legislation could result in a pan-Canadian body of jurisprudence based on such different practices that if nine provinces out of ten decided to harmonize their sentences, Quebec legal practitioners would have no choice but to apply the proportionality rule confirmed in the jurisprudence. They would not have the choice of harmonizing the proportionality of a sentence on the basis of the legislation, and so on. It would then become extremely difficult to take a differentiated approach in dealing with a first minor offence, as we pointed out in our brief.
In practice, with a repeat offender, for example, it may happen that the decision is made to immediately send him to a closed centre and to carry out his rehabilitation in a closed centre, but that is not always the case.
Also, in every rehabilitation program, there are ups and downs. You take three steps forward and one step back, and as well, there are periods of stagnation. Parole is another factor that has to be considered: Mr. Bastien could give you more information about that. For example, how can we bring rehabilitation programs in line with the schedule for parole? That would be very difficult to achieve in the case of a young offender who had received an adult sentence. Both the case law and the actual harmonization would make that a very complex operation.
There is no doubt that if both objectives were enshrined in the Act, there would be less danger of disappropriation. I would also like to partly respond to another question you raised, since you did refer directly to me.
It is true that there are currently some problems ensuring appropriate coordination between youth protection authorities, educators and the young offender community. Putting them on the same wavelength seems to be a difficult task.
In the early 1980s, when the Youth Protection Act was passed and, subsequently, the Young Offenders Act, I was a professional educator. At the time, there were ten or so of us doing this work in each of the school boards. Youth protection counsellors also had fairly balanced work quotas. I can tell you, Mr. Saada, that not a week, or even a day, went by when youth protection and school community interveners didn't talk or discuss specific cases. But that assumes access to adequate human and financial resources throughout the system. When we did have them—and in my experience, that lasted five or six years—that was what occurred on a weekly basis.
Overnight, psychologists were expected to be active not in four schools a week, but six or seven schools a week, and youth protection workers suddenly found themselves handling 15, 30 and sometimes even 45 case files a week. There is no longer any opportunity to get information out, as there was back then. Nor are we in a position to carry out dialogue and consultation. So, coordination is certainly a problem in that area.
In the fall, the CEQ launched a major campaign against violence in the schools. We did this in collaboration with our various partners at the school boards and social services—because the CEQ also represents social service workers—that entire dimension, youth protection, and other relevant dimensions are all very much involved.
I would even go so far as to say that the current Young Offenders Act has made it possible, both through the social services prevention networks and the school community, to deliver prevention and youth accountability programs to young people that meet their needs.
That is a very recent practice. It has been around for barely 15 years. It is still being used. Indeed, some scientific advancements are based on that practice. Why would we want new legislation to compromise those advancements? It's like introducing a new French program into the schools and deciding to start from square one, rather than building on a solid foundation.
The Chair: I must go to Mr. Cadman. We're quickly running out of time.
Mr. Chuck Cadman: I have just a short question. Thank you, Mr. Chair.
In the case of second degree murder, for example, where currently—it would be under Bill C-3 too—you have a seven-year custodial, with four years secure and three years open and then no further consequence for a young offender, how does that serve the interests of the survivors of the victim, when there's no further consequence after seven years?
Mr. Normand Bastien: I'm not sure I really understood the question, but one thing is certain: once you start.... I know that you're talking about the specific sentences set out in Bill C-3—for second degree murder, it's six years, four years, three years.... Am I right?
Mr. Chuck Cadman: And there's no further consequence. How does that serve the interests of the survivors?
Mr. Normand Bastien: When you decide to work with a young offender and keep him in the juvenile system, either under the current provisions or any future system, that means you have decided he can benefit from the resources made available under the youth system. By making that choice, you are essentially saying that you believe the programs available to that individual will allow him to progress so that we can put him under mandatory supervision after four years.
Of course, mandatory supervision doesn't mean you're coming to the end of your sentence. It's a pretty strict regime. Someone who doesn't abide by the conditions and demonstrates that he has not yet achieved the level of progress he was thought to have achieved is brought back to a centre.
There is another issue we also need to focus on. When someone is given an adult sentence for second degree murder, if memory serves me, that person would be eligible for parole after seven years. Once again, you're dealing with the same dynamic: is it better to focus your efforts on an individual by putting him into an intensive four-year program for juveniles, with very serious follow-up over three years, or should he be locked up in an institution for seven years and then put under mandatory supervision, given the problems parole poses on a daily basis, as well as everything he will have picked up during the seven years he spent in a penal institution? I believe that if we have adequate resources and programs in place, it is preferable to invest in the individual.
If he is 17 or 18 years old at the time of his offence, he will be 35 when he becomes eligible for parole and set free, even for as heinous a crime as second or first degree murder. He will still have 50 years to live and at least 30 active years ahead of him. I don't think we can afford to make a mistake and that the only possible choice is therefore to invest in programs geared specifically to young offenders.
Just because the sentence is four years plus three years doesn't mean we should give up. However, we need to explain to people that four year plus three years is serious. If you also consider that individuals automatically become eligible for parole after serving one third or two thirds of their sentence, it seems clear that if that is the case, things would be even worse than they are now, to the point where the Act would become discredited.
Some individuals are eligible for parole after serving one sixth of their sentence, for major drug trafficking offences, for example, supposedly because they did not resort to violence. However, I believe that if we don't make certain qualifications and if we simply make the process automatic in such important cases, we will end up facing the same disadvantages and the new measures will be just as badly received by the public. So let's take this whole process seriously and put in place the right programs for the right people. However, we have to ensure that they are actually delivered and that we are given the resources we need to do that.
Before concluding, I would just like to make a brief comment about the balance we're suggesting between rehabilitation and reintegration. This is already set out in the current statement of principle, because there is nothing new about making the protection of society the principal goal of the legislation. That is already stated in paragraph 3(1)(c) of the Young Offenders Act. The problem is that we have retained small parts of it, and yet the previous paragraph, which referred to decreased responsibility, has been eliminated. The previous paragraph, which talked about the needs of young offenders, rather than young people in general, has also been eliminated.
In the preamble, where it refers to the needs of young persons, the bill states:
[...] whereas members of society share a responsibility to address
the developmental challenges and the needs of young persons and to
guide them into adulthood;
But what happens when they turn 18? Do we just forget about them? The current Act refers in a number of places to the needs of young offenders. A young offender is an individual who has been convicted of an offence and who has special needs. We look after him as long as he is under our jurisdiction.
But under the bill you are currently considering, the preamble states that once they reach 18 years of age, or adulthood, we don't look after them anymore. At the very least, the preamble should be put back in, but I personally prefer the principles as they are currently drafted.
Of course, if you want to take the preamble and put it back into the Act, I would ask that you not include the second paragraph, because it states that this bill should replace the current Act, which in my view would take us towards a goal that I do not support.
Having said that, I'm sure that some of the paragraphs that are there, with adjustments with respect to adult needs, would improve this bill. They would make it less objectionable. But we would still be left with goals that amount to nothing but sanctions throughout the legislation: sanctions, sanctions and more sanctions.
The current Act is built on sound principles. Our system of youth justice now allows us to provide assistance based on the needs of the young offender. This is not something new; it has been that way since 1984. Our entire system of intervention was developed on that basis. When a youth comes into the system, the first step is to determine his needs.
In 1995, the Jasmin report aimed to improve that intervention by gearing it more to the needs of young people and ensuring that the appropriate intervention could occur at the appropriate time. We never said either the Act or its enforcement were perfect. We wrote I don't know how many hundreds of pages in which we suggested improvements to the enforcement of the Young Offenders Act, specifically to allow us to intervene at the right moment, and so on. So, I'm not claiming that the current system is perfect. But this bill advocates a system that focuses on the offence, and as a result, we will have to review our approaches and practices and the structure of our organizations. Our intervention system will have to be completely reviewed and redefined, because our goals will be completely different. That is why we are forever coming back to the principle that our focus must be the needs of individual youths. We hope there will not be too much contradiction in the legislation.
The Chair: Thank you.
For the last question, Madam Venne.
Ms. Pierrette Venne: I know that you didn't take a legalistic approach to this bill, but at the same time I can see that Mr. Bastien is quite familiar with the different provisions of Bill C- 3. He could certainly answer my question. Clause 18 deals with youth justice committees. These committees may be established by the Lieutenant Governor, and so on, and the goals are certainly commendable. It is important to recognize that this is a new concept and, according to paragraph 18(2)(d), the functions of youth justice committees could include, and I quote:
providing information to the public in respect of this Act and
the youth criminal justice system;
We believe this clause has merit. So, I was wondering whether you had taken a closer look at it, since I would be interested in knowing what you think. I put this question to the judges who appeared before the Committee last week, including Judge Jasmin, and they didn't seem particularly enthusiastic about these citizens' committees. I would like to hear your reaction now.
Mr. Normand Bastien: Citizens' committees are provided for under the current Act, but not in that specific form. There aren't many of them. The only example I'm aware of is the Kirkland District Quebec Superior Court, which no longer exists, but which did have a citizens' committee. But its goals were different: its role was to meet with people and reassure them.
The problem with citizens' committees, other than the goal of providing information to the public with respect to this Act and thus playing the role that legislatures, provincial authorities or other groups should possibly be fulfilling, is that they will have significant powers. Any judge could ask them for a report on extrajudicial measures, sentencing, and so on. My feeling is that given the multiple functions of such a committee, we run the risk that people will be more disappointed than they will be encouraged. If such a committee recommends a particular solution to a judge but the judge does not follow that recommendation, since he is under no obligation to do so, it's possible that the report produced by the citizens' committee, to which it may have devoted a great deal of work, will only lead to major disappointment. Also, counsel will not be arguing in front of a citizens' committee, but rather, in front of a judge. If we want an advisory group or citizens' committee for the purpose of providing information and advising either legislators or provincial authorities on how to improve a specific case, we can certainly keep them. I think that kind of function could fall within the purview of such a committee. But if it is given quasi-judicial functions, I personally would have a hard time agreeing to that.
I want you to know, however, that that is my personal view. The Coalition has not reviewed the matter. I think citizens' committees should be entrusted with duties that they are able to appropriately perform. When citizens' committees are given judicial functions, it leaves one with the impression that they are being used to facilitate the work of those authorities responsible for administering justice. This is wonderful: when a citizens' committee comes along and says we should give a young offender a chance, I can't help but laugh. That's just not the way things work in actual fact. We have decisions to make, and we have a duty to make them. We should not be doing surveys to determine whether we will go ahead or not. That can only delay the decision-making progress, and this is no time to do that.
The Chair: Thank you, Mr. Bastien and Ms. Venne. I also want to thank Mr. Boisvert and Ms. Le Brun.
I'm going to ask the witnesses who are elsewhere to find their way to the table, as we thank you very much for your presentation.
We'll adjourn for a few minutes to get reorganized.