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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 30, 1999

• 1114

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.): Bienvenue tout le monde. Welcome, everyone.

We're beginning today to hear witnesses on Bill C-3, an act in respect of criminal justice for young persons and to amend and repeal other acts. We have today a group of officials from the Department of Justice. I see Catherine Latimer's name behind the water equipment. I think I'm reading it right.

• 1115

I would ask Madame Latimer—

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Mr. Chairman, it's been my impression that since 1993, the minister usually puts in an appearance when we discuss a government bill for the first time. In any event, I've often seen the Solicitor General and the Minister Justice appear before the committee along with departmental officials. The minister isn't here. Is there a reason for her absence? Is she planning to arrive later?

As you can well appreciate, the bill is highly political in nature. I'm confident that from a legal standpoint, you won't be caught short, and I wouldn't want to put you in that position either, but given that this bill is highly political, I would have liked to see the Minister of Justice testify at the same time as departmental officials. Is there a reason why she isn't here, Mr. Chairman?

[English]

The Chair: I'm advised that the minister has offered to appear at the end of the process and allow us the opportunity to engage the committee and Canada in this debate. She's interested in hearing what happens and what is said about the legislation and she would like to come at the appropriate time to respond to that. We're opening up the discussion today with officials on the question of the legislation before us, so we can all begin to inform ourselves and ask questions of the appropriate people.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Mr. Chairman, I'd like your permission to leave a little earlier. As you know, the House is scheduled to debate a Bloc motion on organized crime today.

Mr. Michel Bellehumeur: That would be my motion.

Mr. Jacques Saada: As Parliamentary Secretary to the Solicitor General, I would like to speak to the motion, as would all government members. In order to do so, I have to be in the House and I'm sorry I can't stay for the entire meeting.

[English]

The Chair: Thank you.

[Translation]

Mr. Michel Bellehumeur: Mr. Chairman, I'd like to know when the minister offered to appear at the end of the process. I'd also like to know if we discussed this in committee. I can't recall missing a meeting. I'm particularly interested in Bill C-3, and I wasn't informed that the minister wished to testify only after all other testimony had been presented. Was this a behind- the-scenes decision? I'd like to know if that's the case. I would have argued in favour of the minister appearing at the start of our proceedings, even in this meant her putting in another appearance at the end of the process. We're dealing with highly political considerations and certain questions can't be answered by departmental officials.

[English]

The Chair: The invitation was extended and the minister responded by suggesting that the officials come and that she would appear later on in the process. There was nothing sinister about it, certainly not on my part. It was simply an approach to dealing with this legislation.

I take your reservations and I'm looking to see if they're shared. Ultimately, at the end of the day, it's the minister's response to our request. She decides that.

[Translation]

Mr. Michel Bellehumeur: You're saying that that's the answer the clerk was given. Perhaps I wasn't here at the time. Perhaps I stepped out for five minutes when the matter came up for discussion, but I'd like to know if we discussed the minister's response in committee. I realize that she sets her own agenda, but I also know that the Justice Committee has some say when it comes to scheduling of witnesses. Did the committee in fact discuss the minister's decision not to appear until later on in this process?

You mustn't forget either that the Quebec Justice Minister has asked to meet with the federal Justice Minister on three occasions and that three times, her request has been denied. If provincial justice ministers, the individuals responsible for applying this legislation in the provinces, are denied the opportunity to question to minister and can't find out what her political intentions are with respect to this proposed legislation, then I would think that at the very least the Justice Committee is entitled to hear from the minister. I would like to see that happen sooner rather than later. It would affect the questions that we will eventually put to witnesses.

Again, I don't plan to question them about their political intentions. The bill was drafted by lawyers, by men and women concerned with the law, but a political decision was made to amend the legislation and I would have liked to hear from the Minister of Justice.

My question, therefore, is very simple, Mr. Chairman. I'm not upset and I don't want to lose my temper. Did the committee discuss the fact that, contrary to the usual procedure, the minister expressed a preference for testifying at the end, rather than at the beginning, of these proceedings? Was this matter discussed?

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[English]

The Chair: Only insofar as at the last meeting last week, when we circulated the list of witnesses we would be hearing, if you recall, it said that on Tuesday—

[Translation]

Mr. Michel Bellehumeur: No, I was there.

[English]

The Chair: —on this date we would be meeting with justice officials. It did not specifically say absent the minister, it did not specifically say the minister has responded by saying she'd appear later, but it did specifically refer to justice officials, and we proceeded accordingly.

So if I—

[Translation]

Mr. Michel Bellehumeur: Mr. Chairman, when you were Solicitor General, you tabled draft legislation and you appeared along with other officials to give testimony. It's standard practice. When I heard that our first meeting would be with justice officials, I assumed that the minister would also be here. I didn't ask for clarification. I didn't ask if Ms. Lisette Lafontaine, Ms. Latimer or anyone else for that matter would be here. I knew that they were interested in this matter and that they would be in attendance. However, I also assumed that the minister would be putting in an appearance. I was wrong, and this issue wasn't discussed in committee.

I'd like the minister to know that I'm extremely disappointed by her actions because we are considering a bill which, I repeat, is highly political. Apparently, she isn't willing to debate this bill the first time it comes up for discussion before the Justice Committee. I can see how highly the minister thinks of the Justice Committee and I want her to know that I am extremely disappointed. I plan to let her know how I feel when she does testify before us.

[English]

The Chair: I'm certain she'll hear about it. Also I don't want to hold myself up as a role model for ministers.

Go ahead.

Mr. John Maloney (Erie—Lincoln, Lib.): If I could just perhaps respond briefly, I'm advised that the minister will be meeting with her counterpart from Quebec on Friday. So those requests of Mr. Bellehumeur have certainly been satisfied. There's no doubt this minister is not hiding from this committee or from Mr. Bellehumeur. It's extremely important legislation.

I can acknowledge that we often hear from ministers at the beginning, but we also have heard from them at the end. To me it's a review of the act that we are looking at, and we should hear from all aspects, all parties. Certainly it's not inappropriate to hear from the justice minister at the beginning of this discussion. I think it's clear that we have to have an understanding or grasp of this act, and I think if we do get this grasp of the act, some of Mr. Bellehumeur's concerns will certainly dissipate. I'm confident this will happen.

The Chair: Thank you very much.

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I just take this as an indication that there's going to be so many changes in the act, it may in fact be amended so many times by the opposition, that when the minister comes at the end, she'll be ready to embrace some of those changes and be well informed.

The Chair: I'm certain she'll hear about that too.

Mr. Peter MacKay: Thanks.

The Chair: Now if we might proceed to this important legislation, perhaps Ms. Latimer could introduce herself and the officials that are with her.

Ms. Catherine Latimer (Senior Counsel/Director, Youth Justice, Department of Justice): Thank you, Mr. Chair.

It is a pleasure for us to be here today for the minister to provide information about the youth justice renewal strategy, to explain the intent and provisions of Bill C-3, which is now before this committee, and to provide whatever background information we can.

I'm Catherine Latimer, the director of youth justice policy of the Department of Justice, and I am here with Paula Kingston, Lisette Lafontaine, Bob Lutes, and Dick Barnhorst. Each has responsibility for key parts of the bill, and I'm sure they'll be able to explain if there are detailed questions that are raised about the substance of the bill. We all work with the Department of Justice in the area of youth justice.

I know youth justice is not a new subject for the parliamentary committee. I think the previous incarnation dealt with it quite extensively. The excellent work was based on extensive consultations, and it resulted in the 1997 report, Renewing Youth Justice, by the committee under the then chairmanship of Shaughnessy Cohen. It formed the basis of the government's strategy for the renewal of youth justice that was launched in 1998.

Given the extensive consultations this committee did, members know it is quite a difficult area of social and legal policy. People care about youth justice, and they often have very strong and entirely opposite opinions about how the system should work. Misperceptions are fairly common. The 1997 committee report was important in clarifying many of these issues and leading to a more solid foundation for youth justice reform.

It specifically addressed the perception that the youth justice system is too lenient by pointing out that our youth incarceration rates are among the highest in the western world and that harsh sentences do not deter.

The committee pointed out that youth crime is a complex problem, requiring a multifaceted response involving many disciplines and partners. This finding underpins the broader youth justice renewal strategy in the new legislation.

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We've distributed the deck—I hope it's been distributed—and what I'd like to do is just take members of the committee through the deck, which really highlights the major changes to the legislation and the new youth justice bill.

In May 1998 the justice minister launched the government strategy for the renewal of youth justice, which is a comprehensive multi-sectoral approach to youth crime, stressing prevention, meaningful consequences, rehabilitation, and reintegration. We are involved with many partners, as you may know, on the implementation of this legislation and the development of the legislation. These include most notably our provincial and territorial colleagues. We're looking also to enhance our partnerships with other sectors and to provide program support and research in funding to make sure the legislation is carried out.

Part of this broader initiative is a change to the Young Offenders Act, which we're proposing to be repealed and replaced by Bill C-3. The goal of the overall youth justice renewal is a fair youth justice system that protects and instills confidence through meaningful responses; that distinguishes between violent and the vast majority of non-violent offenders; that leads to a reduction in the use of the formal justice system and a reduction in the over-reliance on incarceration and improves reintegration and rehabilitation; and that encourages the engagement of citizens and other partners in the broader issue of youth justice.

The key directions of the legislation include respecting national and international concepts of human rights in applying the criminal law to young people; emphasizing principles of accountability and meaningful consequences for the full range of youth crime, and this means different approaches for violent and non-violent offenders; and providing constructive social outcomes within the accountability framework, such as respect for social values, repairing the harm done, rehabilitation, and reintegration. The interventions need to be based on the needs and the circumstances in the individual offenders. There's lots of scope for tailoring the interventions to meet the particular needs of that young person and achieve the best possible social outcome.

Also this system provides a more flexible and streamlined youth justice system. Many have claimed that our bill is fairly complex. It is, and a lot of that is to accommodate flexibility so that the legislation can be applied in a way that meets the needs of those who are applying it in their areas and jurisdictions.

I'll just run through some of the key elements of the new legislation. One of the concerns that has often been raised about the Young Offenders Act is a lack of clarity in its principles and overarching direction. Based on the standing committee's advice, we've attempted to address that by including a preamble and a set of principles and objectives for the legislation.

The preamble includes a statement of values, rights, and responsibilities of both society and youth in relation to youth crime. The principles and objectives are set out in the legislation per se and also at different parts of the legislation to guide the implementation of those pieces. For example, we have sentencing principles included in the bill.

There's no question that the overarching purpose of any criminal law is to protect the public. We're attempting to protect the public through prevention, meaningful consequences, and rehabilitation. The next set of principles really highlights the distinctions between the youth justice system and an adult justice system, and that includes proportionate accountability. I think it's well understood that it's less serious if a 14-year-old commits an offence than if a 40-year-old commits an offence, and the consequences need to be different.

Enhanced procedural protections. Younger people do not understand the processes that they are subjected to in the criminal process and need enhanced procedural protections.

A greater emphasis on rehabilitation and reintegration. These are young kids in the developmental phase, and they stand a very good chance of being brought back into the fold if appropriate rehabilitative and reintegrative techniques are used.

We're also looking for any intervention with these young people to produce the best possible social outcomes, which address the offending behaviour; reinforce respect for societal values; encourage the repair of the harm caused to victims in the community; involve the family, the youth, the community, and others; respect gender, ethnic, cultural, and linguistic differences; and respond to the special requirements of individual kids.

Again, there are special procedural components that respect the due process rights and that also encourage the constructive involvement in the youth justice process of victims and the communities.

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One of the key areas of the legislative reform deals with extrajudicial measures. Although we've had a lot of comments that this is a very difficult word to pronounce and it's not one that resonates, it's a very important concept in terms of finding more effective ways of dealing with many of the young people who are being directed into the youth justice system now.

Certainly by international standards, we use alternatives to the formal processes much less than other countries. This is an attempt to try to find more constructive ways of dealing with young people outside of the system.

What it does is build these measures in as a first-line consideration that police officers must consider before proceeding with other measures. It relies on the police to determine whether non-court measures are sufficient to hold the youth accountable for the behaviour. These non-court measures include: verbal warnings; possibly police cautions, as was recommended by the standing committee; and informal referrals by the police. It's really an approach in stages, and if these measures are not found to be adequate, then young people can be referred to program responses. Those could include victim-offender reconciliation programs, family group conferencing, community service orders, all kinds of things that allow the community and young person to come to terms with the behaviour outside the formal court process.

The principles in there suggest that those measures are presumed appropriate for first-time property offenders, but certainly their use is not restricted to first-time property offenders. Many have found that they're quite useful for more serious offenders and offending. It also encourages the constructive involvement of victims at this stage of the process.

The next set of key changes deals with the actual judicial measures. If our system is working properly, many fewer young people will actually be in the formal court process. But we want the courts to be understood as a serious place of criminal responsibility and accountability, and so the stature of the courts has generally been increased. The courts, youth courts, will be the forum for all youth crime. They could include superior courts, depending on the circumstances.

The legislation allows, in certain circumstances, the imposition of adult penalties, which are Criminal Code sentences. We've also extended the presumption for access to adult penalties. This is again to help distinguish between the different appreciation of violent and non-violent usages.

We've extended the presumption that used to apply only to 16- and 17-year-olds to apply also to 14- and 15-year-olds where young people have been charged with the very serious offences of murder, attempted murder, manslaughter, aggravated sexual assault, and to a fifth category of repeat violent offences. The rationale for that is that the burden should be on the young person to explain to the court why the youth justice penalties are still appropriate to hold them accountable for such serious offences.

We've also included some judicial discretion to admit statements despite technical breaches. There are lots of due process protections associated with the taking of statements. There continue to be a lot of due process protections associated with the taking of statements by young people. This is a small measure that allows there to be some judicial discretion to admit a statement if there has been a technical breach of some of the enhanced due process protections around the taking of the statements. The procedures have generally been restructured, reordered, and streamlined.

In terms of the next important area, sentencing and sentences, I think it's important to point out at this point that under the Young Offenders Act the two sentences that were most frequently used were probation and custody, both of which many critics of youth justice have argued are not as effective sentences as we could have.

So 50% of the young people who are convicted now under the Young Offenders Act get probation. About one-third end up with custody sentences. There was very little use of alternatives to those two types of sentences.

What we have done here is include sentencing principles that emphasize proportionality and accountability. So the principles really promote linking the severity of the sentences to the seriousness of the offence. They target custodial sentences for the most violent offences and offenders, while encouraging effective community-based sentences for less serious offending.

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The range of community-based sentences has been expanded to encourage young offenders to take responsibility for and repair the harm they may have caused. Also, victim fine surcharges are available at the election of provinces and territories.

There are now four types of custodial sentences under this legislation. The murder regime that was under the YOA has been preserved. We have included an intensive rehabilitative custody and supervision sentence for disturbed youth who commit serious violent offences. This is one that is intended to address the therapeutic needs of the most violent offenders, and this would be a fairly tightly managed sentence for these young people. The basic custody regime is a custody and supervision order for young people, and we've also allowed for a deferred custody and supervision order for non-violent offenders with short sentences.

Significant changes have been made to the custody reintegration and rehabilitation provisions relating to young people. Young persons are to be held separate and apart from adults, with possible transfers to adult corrections facilities that are age related. This new legislation provides greater protections from young people having to serve with adult offenders. So the presumption that young people should serve their time separate and apart from adults is enhanced in this piece of legislation.

We've also allowed for greater scope for administrative determination of custody levels and for reintegration leaves. We think this will facilitate the effective reintegration of young people by making the administration of these provisions easier for those in the corrections system.

We also think reintegration is best served and reduces recidivism when supervision and support are given through the critical period when a young person returns to the community. Unlike the Young Offenders Act, we're now requiring that there be a period of supervision in the community following all periods of custody. This was a feature that was noticeably missing in the previous Young Offenders Act.

To achieve that, the judge at sentencing will state the length of time in custody and the length of time to be served in the community under supervision and subject to conditions. This adds for greater clarity in the sentencing process and greater visibility in what's actually going on.

Scope is also there for both mandatory conditions and additional conditions that are targeted to the youth-specific problems. If a community supervision condition is breached, the youth can be apprehended and returned to custody. I think it's important to point out that the warrant of committal underpins the entire period, so if a young person is starting to run into difficulty, it is much easier to bring them back into a more secure environment until those behaviour problems can be addressed and sorted out.

The publication, information, and records provisions have also been restructured and changed. The publication of names of youth is generally prohibited in the youth justice system except for the most serious of crimes. This applies when an adult penalty is imposed—the publication bans are no longer in effect—and when a youth sentence is imposed for a presumptive offence, unless judicial discretion is exercised to maintain the publication ban, based on rehabilitation and public interest considerations.

If adult penalties are imposed, the records are treated as adult records. The youth record provisions are restructured and simplified, and there's greater access to youth records in the interests of administration of justice and for research purposes.

Most records become inaccessible and unusable if the youth remains crime free for a specified period after completing the sentence, but subsequent convictions as an adult convert active youth records to adult status. So if the young person has not reformed their ways and continues to commit offences, the youth record stays with the young person.

Another element, one that was recommended by the parliamentary committee, is an enhanced role for the community and individuals in the youth justice system.

On the advice of the committee, the mandate of the youth justice committee has been enhanced and expanded. We have provided opportunities for conferencing and partnership approaches at many stages to promote meaningful interventions.

Effectively, what we have done is that at all stages of the youth justice system where decisions are being made, the decision-maker can convene a conference to seek the advice of those who are most actively involved with the young person to get an idea of what condition should apply to the behaviour, or what sentencing conditions would be appropriate, or what conditions and support would be most useful to guide the young person's reintegration plans back into the community.

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So there is lots of scope for creative use of conferencing that promotes restorative justice concepts throughout the youth justice system.

We've also included the constructive involvement of victims and parents. There's lots of scope in the provisions of this legislation for the effective involvement of parents and victims. And there are more opportunities for non-judicial and community-based responses to youth crime.

That in effect is a summary of the key elements of the legislation, and we would be happy to try to answer any questions committee members might have.

The Chair: Thank you very much. In pursuit of that, I'll turn to Mr. Cadman, for seven minutes.

Mr. Chuck Cadman (Surrey North, Ref.): Thank you Mr. Chair.

Thanks, Ms. Latimer, and your colleagues, for attending today. I have some questions, but there was one comment you made during your presentation that troubled me a little bit. You made a comment that it's less serious when a 14-year-old commits an offence than when an adult commits an offence. Would you care to elaborate on what you meant by that?

Ms. Catherine Latimer: Certainly the results of the offences that young people can commit are as serious for the community and the victims as they would be regardless of the age. But criminal law is a subtle concept that's based on the person's mens rea and capacity to form an intent as much as the actual results of the outcome. If a young person steals $100, we would consider that less serious than if a man or a woman of 40 stole $100, because you expect them to be more aware of the nature and consequences of their behaviour and to be held more fully accountable for the behaviour they have committed.

The whole concept of youth justice embraces the notion that young people are at a developmental stage of their lives, and in many cases the appropriate measure of accountability is not as serious as it would be if it were an adult. That's not always the case, and that's why the presumptions around transfer and the possibility of transferring all young people who commit indictable offences, the possibility of them having access to adult penalties, is there. But we would consider that to be quite exceptional.

Mr. Chuck Cadman: So what you're really saying is that it's less serious in the eyes of the law, but certainly not in the consequences of the offence. I would argue that when a 14-year-old commits a murder, it's certainly just as serious as when an adult commits a murder.

Ms. Catherine Latimer: I would concur that the consequences of a young person committing a murder are as serious for the victim and the victim's family and the community as an adult. There's no question about that.

Mr. Chuck Cadman: Let's go on to the presumptive transfers. I have a couple of questions surrounding those. Why was it restricted, or why in your opinion was it restricted to the four, to aggravated sexual assault, murder, manslaughter, and attempted murder? What about aggravated assault, sex assault with a weapon, or any kind of an assault with a weapon, and armed robbery? What are the reasons for restricting it?

Ms. Catherine Latimer: Mr. Chair, I'm going to ask Robert Lutes to respond to that.

The Chair: Mr. Lutes.

Mr. Robert E. Lutes (Counsel, Youth Justice, Department of Justice): There is a fifth category that has been added on the presumption in addition to those four. It's the serious violent offences, and we've put in place, in response to violent offences, a system whereby in any particular case, if the crown is of the view that the offence is such that it should be classified as a serious violent offence, then they will ask for a determination by the judge at the end of the period. If there are three of those, then on the third one there is then a presumption of adult sentences. That's the way this was handled.

It's always open to the crown to make an application for any young person who's 14 years of age or more and commits an offence where an adult would receive two years or more, and I think all the cases you mentioned would fall into that category, but as far as the presumption goes, the only expansion was on the repeat violent offender.

Mr. Chuck Cadman: Following up on that, is what you're saying that in order for the fifth presumption to kick in, it would have to be recorded on previous offences?

Mr. Robert Lutes: That's correct.

Mr. Chuck Cadman: So essentially what you're asking is the crown or the court to have some kind of a crystal ball, that there's an offence that should be recorded as serious enough, and if there's another one that could be serious enough...and by the time we get to a third one.... Otherwise, if they're not recorded, the third one never kicks in—unless the first two have actually been recorded.

Mr. Robert Lutes: That's right, but I think we see that people are well aware that there is grave concern over violent offences. I think the public education part of this process will make it clear to certainly all of the crowns and judges involved with the process that this is a response that has been made by the bill. We've put in what we think is a fairly simple procedure whereby the crown makes the application. Record keeping was a question that came up, in terms of how would people know. We specifically provided for that mechanism by saying if the crown asked for it and the court granted it, the court would endorse the information to say “serious violent offence” and thereby there would be a record created. So we're of the view that the people in the system who need to know will know.

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Mr. Chuck Cadman: I suppose we'll just have to see how it pans out.

Extrajudicial measures. Most people think in terms of a first offence, but I don't think we're dealing with a first offence qualifying for extrajudicial measures, whether it's alternative measures or diversion. We're actually dealing with a first conviction, not necessarily an offence. Am I right?

Ms. Catherine Latimer: Mr. Chair, I'd like Dick Barnhorst to respond to that. He was responsible for those provisions.

Mr. Dick Barnhorst (Special Adviser, Youth Justice, Department of Justice): If I understand your question, I think you're referring to the presumption.

Mr. Chuck Cadman: I'm referring for extrajudicial measures, for the application thereof. Most people would think it should only be the first offence, but I think in reality we're dealing with what is considered to be the first conviction. My concern is that if a young person qualifies for extrajudicial measures, then that offence is never recorded as a conviction. Am I right?

Mr. Dick Barnhorst: That's correct.

Mr. Chuck Cadman: So now the thing is they come along five months later and get involved in another offence. They still qualify for a diversion or extrajudicial measures because there's never been a conviction recorded. Now you have jumping jurisdictions, moving around from jurisdiction to jurisdiction. How are people ever supposed to know there may have been five diversions in the prior few years?

Mr. Dick Barnhorst: The movement from jurisdiction to jurisdiction is an issue. But generally, if you first look at the situation where a young person is in the same jurisdiction, chances are the police have kept a record of their previous decision or the crown has kept a record of the decision regarding diverting this matter or this young person in the past. So I think in most cases it will not be too difficult to track it.

The other thing I think we should keep in mind is that in the history under the Young Offenders Act in this country we have been very cautious generally in the use of extrajudicial, or alternative, measures, as they're called now. We haven't seen serious offences diverted, by and large. They've tended to be relatively minor first-time offenders, by and large. I think that's a context it's important to keep in mind.

Mr. Chuck Cadman: So we're basically leaving it up to the jurisdiction to keep track of things. I can speak from my own experience in working with a diversion program. Even the police don't know from one officer to another that one may have cautioned three months before, and then it comes up again and there are no records kept even that way. That's my concern, that we could wind up with extrajudicial measures ad infinitum.

Mr. Dick Barnhorst: First of all, that exists under the Young Offenders Act, as I think you're indicating. I think we can look at that partly through the training and implementation planning for this bill in terms of police training and prosecutor training in terms of tracking these things. I think that can go a long way toward dealing with that issue.

Mr. Chuck Cadman: Okay.

The Chair: Thank you very much, Mr. Cadman.

Monsieur Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Did the Justice Department have a hand in drafting this background material? It did? We have here highlights of the new youth criminal justice legislation and a table comparing the provisions of the new Youth Criminal Justice Act with those of the Young Offenders Act. We also have a declaration of principle. I noticed this right away on the first page, since I've been following this issue for some time now, not to mention that I'm a lawyer and I've read a number of Supreme Court decisions on the subject. You say that the Young Offenders Act lacks clarity, that it has no overarching direction and that its principles are inconsistent and contradictory. You also say that it contains no clear principle to guide one through the various stages of judicial procedures. Apparently, the new Youth Criminal Justice Act is much clearer.

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How do you reconcile this statement with the many Supreme Court of Canada decisions respecting the application of the Young Offenders Act, specifically a 1992 decision an excerpt of which I will quote to you? Justice L'Heureux-Dubé had this to say:

    ... it is also important to appreciate that it (the Declaration of Principle in the Young Offenders Act) represents an honest attempt to achieve an appropriate balance for dealing with a very complex social problem.

She continues:

    Judges and other professionals who work with young persons who violate the criminal law require a complex and balanced set of principles like those found in the Young Offenders Act.

This is but one decision, and I could quote a number of others for you, because the Supreme Court has handed down a number of rulings respecting the Young Offenders Act. It has been called upon to interpret the Declaration of Principle in section 3 of the Act. Clearly, the Supreme Court justices do not share the view that the legislation lacks clarity, a claim which seems to have prompted the Justice Department to proceed with new youth criminal justice legislation.

My question is very straightforward. What is the basis for this statement, given that the justices of the Supreme Court of Canada appear to the satisfied with the current legislation and seem to feel that it is sufficiently clear and enforceable? What rationale is there for the Justice Department to state so strongly with respect to the Young Offenders Act that this piece of legislation lacks clarity and moreover, sets out no clear principles to guide on through the various stages of judicial procedures for young offenders?

[English]

Ms. Catherine Latimer: The Supreme Court interprets many pieces of legislation and attempts to provide some clarity, but the people who had difficulty understanding what was intended by the principles declaration in the Young Offenders Act were those who were operating within the system and attempting to use it.

I think the standing committee, after it did its very intensive sets of consultations—and we also have consulted with very many people—made the recommendation that the declaration of principles needs to be clarified and the inconsistencies addressed.

This has been a long-standing concern with the Young Offenders Act. It's one that needed to be addressed to reflect the orientation of this legislation.

[Translation]

Mr. Michel Bellehumeur: Is that the reason why, Ms. Latimer, the department—when I'm speaking to you, I'm really speaking to the department because you are acting on the minister's orders—took the Declaration of Principle currently found in section 3 of the legislation, a declaration which constituted the very essence of the Young Offenders Act and removed it from the legal framework of the legislation and relegated it to the preamble? Is that the reason why?

[English]

Ms. Catherine Latimer: No, not at all. The principles are intended to give clarity. As I indicated in the opening comments, there are tighter sets of principles at different stages of the act. There are principles that guide sentencing, which were not there in the same clarity before, and there are principles around the custodial provisions and what we're attempting to achieve through custody.

So we're attempting very much to spread the principles out and to give definition to how those legislative provisions are intended to be interpreted at different stages of the act. It was very much an intention to give guidance to those who are operating through the system.

[Translation]

Mr. Michel Bellehumeur: Ms. Latimer, some very noble principles are enunciated in the preamble of Bill C-3. How important is a preamble in terms of how a particular piece of legislation is interpreted?

[English]

Ms. Catherine Latimer: Are you asking me how the preamble is used to interpret the legislation?

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[Translation]

Mr. Michel Bellehumeur: Canada's Supreme Court justices have considered numerous acts. I think they've even looked at Bill 101 and its preamble, but I can't say for certain that they have. I'd have to check my facts. The Supreme Court justices have stated on several occasions that the legislators true intent is reflected in the body of a statute and that only when this intent is unclear that as the last resort, one should refer back to the preamble. Is that correct?

[English]

Ms. Catherine Latimer: Yes, I think that is correct. If there's some ambiguity in the body of the legislation, the preamble helps to clarify it. It also, though, reflects a statement of values about what you're intending this legislation to do. In this particular case, the values extend beyond those the legislative provisions have a direct mandate to cover.

It talks about social values. It talks about social obligation. It talks about working in partnership with other disciplines, none of which work through this particular piece of legislation. Their involvement in the legislation needs to be flagged in a preamble because we think it's important for the broader system of youth justice to have the cooperation of society and other partners. But it is not something this legislation can control, nor should it.

The Chair: Mr. Bellehumeur, thank you very much. We'll be back. We have lots of time.

Mr. McKay.

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

There has been an expression of concern on the part of Quebec in particular, but I suppose other provinces as well, with respect to the functioning of the youth justice system in Quebec. We are told, and have no reason to dispute, that the system in Quebec is far superior to other provinces'. Basically, the position of Quebec is, “If it ain't broke, don't fix it.”

In your mind, is there anything in the bill, be it in the preamble, which Mr. Bellehumeur was concerned with, the statement of values or principles, or in the body of the legislation that prevents Quebec or any other province from carrying on its system in a way that it sees best? That's the first question.

The second question I have is with respect to the growing perception that in fact the way in which things are handled in Quebec are far superior to other provinces. It strikes me as bizarre and indeed strange that prior to 18, the system seems to be far superior. Subsequent to 18, the system seems to be identical, if not worse. The charge rates clearly are less, the incarceration is clearly less prior to 18, but the charge rate is similar or higher subsequent to 18. The incarceration rate is similar or higher subsequent to 18.

I'm wondering whether you could respond to those concerns. You like to deal with facts rather than mythologies when you're analysing a piece of legislation.

Ms. Catherine Latimer: There is much to be learned from the Quebec youth justice system. When we were looking at developing legislation that would reflect the committee recommendations and beyond, we looked very carefully at Quebec's legislative system and the way in which it administered the Young Offenders Act, for a variety of reasons. One reason was that it had the lowest incarceration rates of any of the jurisdictions. Our overriding perception was that incarceration was overused in the country. So we were looking to see how Quebec dealt with those specific issues.

It was one of the reasons we wanted more required flexibility at the front end, to find more effective ways of screening the less serious offenders out of the system. We have attempted to provide sufficient flexibility in the provisions of the legislation so that the benefits of the Quebec youth justice system can continue to operate through this different legislative forum.

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We feel we have learned a lot. We've tried to make sufficient accommodations. If there are other areas where additional flexibility needs to be given in order to ensure that a workable system continues, we would be happy to look at those particular provisions.

In terms of the second question you posed, about the differences between the system for those under 18 and those over 18, I am unaware of those particular statistics. I don't really feel comfortable commenting.

There's a lot about the Quebec system that is different from the way other jurisdictions run. One is the operation of their youth protection system. Many young people are also in what we would consider to be closed facilities under the youth protection legislation as well as the Young Offenders Act. It may be that there's some evening out of the custodial responses after a certain point, but I'm really just speculating here.

We can certainly take a look at it and see if we can come up with some answers. We can check on those numbers and try to find out what the reason for that might be.

Mr. John McKay: Good.

To follow up on both those questions, you're not aware, at this stage, that there is anything in the preamble or the content of the bill that would prevent Quebec from carrying on as it presently does. Is that a fair statement?

Ms. Catherine Latimer: That's a fair statement, yes.

Mr. John McKay: On the statistical stuff, if Quebec diverts youth prior to their entering into the criminal justice system, it would stand to reason that their charge rates and their incarceration rates would in fact look a great deal better in comparison.

Finally, we've recently read that Saskatchewan has just an enormous rate there. A lot of it is driven by aboriginal issues, and I suspect a lot of it is also driven by homelessness issues. Really, a judge may be faced with some rather unpalatable choices. There may well be kids being put in jail because there is literally nowhere else to put them.

Has your department looked into that area as well?

Ms. Catherine Latimer: We've actually looked into both of them. As you know, the government is embarking on a homelessness strategy. We have been working with Human Resources Development on their terms of reference, hopefully to ensure that their terms of reference are sufficiently broad to include these young people who may end up with incarceration options only because they don't have any other options. We don't think that's a good reason to be putting young people in jail.

Certainly our pretrial detention rates and our other incarceration rates are way too high. We're looking to see whether or not there can be some amelioration of or help for the condition of these young people who are often on the street, often vulnerable, more likely to be victims, and more likely to commit crimes. We're looking to address that particular problem through the homelessness initiative as it unfolds.

The other element you raised is with regard to the issue of aboriginals in the youth justice system and perhaps their over-representation, and how to deal with that. We consider that to be a very significant problem. Our view is that you don't really address the youth crime issue unless you're looking at taking specific and particular notice of the unique problems facing many aboriginal communities.

Last week in Winnipeg we brought together representatives from aboriginal communities from across the country to share experiences about what youth justice programs are working well for them with a view to having an opportunity for many of those programs to be brought back to other communities. So we have an aboriginal community capacity-building component built into the implementation of this legislation. We hope that will help address some of the very serious problems associated with aboriginal youth justice. We're certainly taking it seriously.

Mr. John McKay: Thank you.

The Chair: Thank you very much.

Back to Mr. Cadman for three minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair.

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Not to belabour the point, but I just spent the weekend with about 50 or 60 police officers, the majority of them coming from Quebec, and they were not a group of happy campers on this issue. But I'll leave that one where it is.

Why did the government choose not to recommend the victim fine surcharge? This committee recommended that it be applied to the Young Offenders Act or the new legislation. The committee recommended that in the victims' rights report, and I was just wondering why the government chose not to do that.

Ms. Catherine Latimer: Mr. Chair, I'll just respond generally, and then, if it's all right, I'll ask Bob Lutes to provide more information.

We took seriously the recommendation on the victim fine surcharge, and we did provide a number of statutory options. The reason we think you have to be a little bit careful about making it an across-the-board provision is that many young people are impecunious. They do not have a source of income. There are labour laws that preclude them from working, and they have less access to legitimate means of support than some others in the community. So victim fine surcharges are not always the most appropriate way to go.

But we certainly have built into the legislation the possibility of having victim fine surcharges in more than one way.

Bob, do you want to just explain what we've done?

Mr. Robert Lutes: Sure. What we've done is provide flexibility. There was concern about young persons' ability to pay. That's something that's investigated at the time a fine is ordered and imposed, and the court must apply its mind to that. If the court found that the young person had the capacity to pay a $100 fine, our concern was that if the victim fine surcharge worked like it does for adults, up to 15% would be added, but perhaps that inquiry hadn't taken place.

So there basically were two options: one is that the victim fine surcharge was part of the $100 if the province or territory chose to take that route; and if they didn't take that route, it would be presumed to be the same as for the adult system. Our view was that the victim's position was covered and taken into consideration, but there were two ways in which it could be delivered.

Mr. Chuck Cadman: There are those who would argue that this is a case where probably some parental accountability or responsibility could come into it.

The former committee recommended that 10- and 11-year-olds be brought into the system. Contrary to what some people might think, it's not an issue of incarcerating them or anything like that. It's to try to get them the help they need. We just had a case in Alberta where when sentencing a young person for a homicide, a judge said it was the worse case of falling through the cracks he'd ever seen. Why would the government choose not to take the previous committee's recommendation on that?

Ms. Catherine Latimer: Mr. Chair, perhaps I can just start and then pass it over to Dick Barnhorst.

I think the government shared your concern about making sure these young people get the help and support they need, but they felt there was a more appropriate way than trying to deliver treatment through a criminal justice regime. So we do have a strategy to deal with those under the age of 12, and perhaps Dick can talk a bit about this.

Mr. Dick Barnhorst: One thing I'll say before we talk about the strategy is that I think it's interesting that when this authority was available to the court under the Juvenile Delinquents Act, where we were dealing with 10- and 11-year-olds, by and large the courts used services that were available in the social welfare and mental health systems. So although a criminal justice avenue was available, the judges tended to use social services and mental health services.

As stated in the government's policy document of May 1998 entitled “Renewing Youth Justice”, it was felt that when young people commit very serious offences, which are very, very rare, I might emphasize, there probably are significant mental health or child welfare problems at stake that need to be addressed.

The question is, how can we address them? The criminal justice system is one way, but another way is to use and improve upon what's available in the child welfare and mental health systems.

About eight weeks ago a national conference was held here that brought together experts on this specific issue to help in the development of a national strategy for dealing with the person under the age of 12 who commits what would be an offence if he or she were older. First of all, I think it's fair to say it was unanimous that these young people should not be criminalized and that there were ways to deal with them through existing child welfare and mental health systems but that they needed to be improved.

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One of the things that has apparently proven to be a good step forward is the use of protocols that ensure kids don't fall through the cracks, that at the local level you have ways of ensuring that when a child under the age of 12 is involved in what would be considered an offence, the appropriate services are connected.

The model that was put forth at the conference, which you may see replicated across the country to some extent, is one that was started in Metro Toronto in February of this year. It was headed up in a sense by the Metro Toronto Police, and I know Chief David Boothby supported this. What this does is bring together through a protocol and a hot line all of the relevant children's agencies in a community to make sure that kids don't fall through the cracks when they get into trouble.

The other thing that could be part of a strategy would be to look at the adequacy or the appropriateness of provincial child welfare legislation. As you may know, it varies from province to province across the country. Generally speaking, there is the capacity to deal effectively with kids under the child welfare legislation, but there are different wordings. One recommendation being looked at is the idea of working with the provinces on developing model statutes so that we can ensure we have that legislative authority at the provincial level to deal effectively with these young people.

Also, a number of innovative interventions are being developed partly through the National Crime Prevention Centre, and a number of demonstration sites are being set up specifically to look at the best ways of dealing with the under-12 offender, so to speak.

So I think there are a number of things that can be done.

We've had contact with the directors of child welfare across the country. They're interested in working on a strategy. I think it's really a matter of what is the effective way to react, and there are ways other than a criminal justice response.

The Chair: Thank you very much, Mr. Barnhorst and Mr. Cadman.

Now we'll go to Ms. Bennett.

Ms. Carolyn Bennett (St. Paul's, Lib.): Mr. Chair, one of the issues that seems to keep coming forward is that it's not only the law that's the problem, it's resources. If the provinces had the resources to do the right thing by these kids, the outcomes would be better. How do we put the changes to the law together with a call for adequate resources? It's the same for child custody and access. The system needs the resources. How do we as a committee help make sure that happens?

I have one other question.

Ms. Catherine Latimer: I think that's an excellent point, and it's one that was recognized by cabinet as this new strategy was being developed. As many of you know, the budget gave a lot of resources for youth justice issues starting in this fiscal year. We received $206 million to supplement the existing youth justice base and probably $400 million over the entire six-year implementation phase. It is important to use those resources wisely to ensure we get the program supports and the people trained and ready to implement this new legislation and to deliver the youth justice regime in a way that people think would be appropriate.

I can give you more details on our cost-sharing negotiations with the provinces and how we're looking at involving them in the implementation of the legislation, mainly because they have clear responsibility in the administration of justice to do so.

But certainly additional resources are being made available to the jurisdictions to prepare for the implementation process for this new legislation. We also have some additional resources to support a knowledge-based direction in youth justice, which includes some research, pilot projects, training material for those who are involved, building on partnerships, aboriginal community capacity-building, as well as some public legal education.

I know the committee was very forceful in its recommendations around education and making sure people were aware of youth justice issues, and resources have been provided in order to do the public legal education elements necessary to support the bill.

The Chair: A short question.

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Ms. Carolyn Bennett: Not having been on this committee before, I guess I need to understand a bit better why we would presume somebody was to be an adult and that it would be up to the kid to prove the youth penalty should apply rather than the other way around.

Ms. Catherine Latimer: I think it goes to the issue of the seriousness of the offence that was committed. If it is a presumptive offence, which includes only the most serious offences—murder, attempted murder, manslaughter, and aggravated sexual assault—the issue is that those offences are sufficiently serious that they throw into question whether or not the penalties available in the youth justice system are sufficient to hold the young person to account. It is a reverse onus provision, so that the young person needs to rebut the provision that perhaps adult penalties are more appropriate because they've committed such a significant offence.

Our experience with the presumptions on the adult for the 16- and 17-year-olds—and we've seen it happen—is that these presumptions are rebutted in appropriate cases, and only the most serious offences end up being subject to adult penalties. So it's a watchword to say that this is a sufficiently serious offence that the burden lies on the youth to rebut, but it is not an unmanageable burden in appropriate circumstances.

The Chair: Thank you very much.

Because the resource question is going to come up and is critical to the outcome in real terms as to how this plays out, perhaps you could provide the members of the committee with a note as to the effect of the nature and magnitude of those arrangements, so that we're all familiar with additional resources that have been made available that would support this exercise.

Ms. Catherine Latimer: Sure.

The Chair: Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Ms. Latimer, how long have you been Senior Counsel/Director of Youth Justice?

[English]

Ms. Catherine Latimer: I've been in the position since two years ago last October.

[Translation]

Mr. Michel Bellehumeur: What did you do prior to that?

[English]

Ms. Catherine Latimer: Before I was there, I was with the Privy Council Office. I was the adviser for justice and legal affairs at the Privy Council. Before that, I started my public service career working in youth justice with the Solicitor General's office. I was there for a number of years, and I spent a year's secondment in Manitoba. Before that, I studied comparative youth justice policy at the Institute of Criminology at Cambridge. And before that I was at Queen's University law school.

[Translation]

Some members: Ha, ha!

Mr. Michel Bellehumeur: I see you find that amusing. Are you acquainted with the Montreal legal community center, the legal services board, the Conseil permanent de la jeunesse, the University of Montreal's School of Criminology, the Philippe-Pinel Institute in Montreal, the Quebec Association of Police and Fire Chiefs, which works with Young offenders, the Conférence des régies régionales de la santé et des services sociaux, the Association des centres jeunesse du Québec, the Commission des droits de la personne et des droits de la jeunesse, or with the Crown Prosecutors Office? Have you discussed the legislation with these organizations? Have you discussed the legislation with the Association des avocats de la défense du Québec or with the Regroupement des organismes de justice alternative du Québec? Would you like me to continue? There are approximately 30 Quebec agencies which enforce the provisions of the Young Offenders Act on a daily basis and which reject your bill, a bill which you claim has the necessary degree of flexibility. You stated to Mr. McKay that Quebec would have the necessary flexibility to do what it wanted with the legislation, to continue moving in the same direction, just as if the legislation had not been changed. All of these organizations that I have just listed and that you may not have had the time to consult with because you haven't been dealing specifically with the Young Offenders Act for very long are saying: “No, we can't do what we'd like to do, because the legislation isn't flexible enough”. This is political speak. As I see it, you're not with the minister's office, meaning you're not a political appointee. You're a government official. I wasn't trying to trap you. I simply wanted to know how long you had been working in government and apparently, you have been for some time. How can you explain the fact that no one in Quebec seems to believe the new legislation will provide the necessary flexibility? I'm talking about lawyers, some of whom have been working with young offenders far longer than you have. Some have been working for many years as criminologists, or are professors emeritus who give conferences throughout the world on how to deal with young persons. All of these individuals are saying that the new legislation lacks flexibility. They're telling you not to tinker with the current legislation, because the problem really lies with the way its provisions are implemented.

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As far as money is concerned, let's talk about that. The federal government still owes $81 million to Quebec for enforcement of the Young Offenders Act. How is that being flexible, Ms. Latimer?

Ms. Lisette Lafontaine (Senior Counsel, Youth Justice, Department Of Justice): Mr. Bellehumeur, if you like, I could...

Mr. Michel Bellehumeur: Yes, but the Director of Youth Justice has been the person doing the talking from the outset.

[English]

The Chair: I might just remind you that the round is for three minutes. I'm trying to be as open as possible, so I would appreciate the answer and then we'll move on.

[Translation]

Ms. Lisette Lafontaine: We realize full well that the organizations you mentioned are having problems. In fact, I contacted most of these groups last summer to ask them to meet with me to discuss their problems further, to see if any resolution was possible and to suggest possible accommodations to be included in the legislation.

Unfortunately, they all refused to meet with me, claiming that they had problems with the philosophy behind the legislation, that there was no point discussing their problems and that they wanted to make their position public. I told them that I was prepared to meet with them at their convenience, but I haven't heard from any of them since then.

Mr. Michel Bellehumeur: Just consider the terminology used in the new legislation. It's the same terminology found in the Criminal Code.

[English]

The Chair: Mr. Bellehumeur, you will have an opportunity—

[Translation]

Mr. Michel Bellehumeur: The act contains a reference to a youth court that “imposes a youth sentence”. In French, the expression “infliger une peine” has a very specific meaning. This is vastly different from the provision in the current legislation.

What's the point discussing this with you? You have your own idea. Your message is clear: this legislation must be passed and must become the law of the land. If it's flexibility you want, then draft a provision like the one we are advocating, one that would specify that the Young Offenders Act will continue to apply in Quebec, because we are a distinct society. Let the government bring in a resolution exempting Quebec from having to apply the new youth criminal justice legislation and allowing it to continue enforcing the current Young Offenders Act. That's the kind of flexibility we want. Otherwise, don't talk about flexibility. There isn't any in this legislation.

[English]

Ms. Catherine Latimer: I know we're short on time, Mr. Chair—

The Chair: I'm going to move on, if you don't mind.

Ms. Catherine Latimer: Sure, but we would be happy to go over the elements of flexibility in the bill. We have done a lot of material and preparation—

The Chair: There are a large number of questions to be put, and we try to keep within certain timelines. Many of the people referred to will be appearing over the course of this exercise.

Madam Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Tell me about the flexibilities, Ms. Latimer.

Ms. Catherine Latimer: At all stages of the legislation, there is basically flexibility to allow those administering the legislation to do what is appropriate in their jurisdictions and within their philosophical orientation. Certainly in the first instance, there's absolutely no obligation at all to proceed through the criminal justice system or the youth justice system.

If the prevailing reason for the young person's problem has to do with needs or problems or if it requires some kind of treatment, it's entirely possible within our legislation to have the young person participate in some extrajudicial measures or to be referred out entirely into a different regime, i.e., the child protection regime, which might be more appropriate if that's the prevailing reason for wanting to deal with the young person.

I could ask each of my colleagues to go through the elements of flexibility within their particular pieces of the legislation. That would begin to give you some idea of the scope of the flexibility. We certainly went to the drafters with the idea of ensuring adequate flexibility in mind. We have 17 pages of material that indicate where the flexibility lies in this legislation, so we're not uncomfortable with responding to the flexibility question.

Dick, do you want to start it off on the front end?

Mr. Dick Barnhorst: At the front end of the system, the extrajudicial part, there is enormous discretion allowed. In fact, just to put this in context, I might note that some of the concerns about the bill have been from the other side from some sources, saying it is too flexible, that it doesn't give enough direction to divert matters from the formal court process. So I think most readers view it as a highly flexible front end in this way.

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First of all, there is something replacing alternative measures and it's called extrajudicial sanctions. It's basically a change in name, but it maintains the basic approach of the Young Offenders Act, which means it is up to each province to decide whether or not to offer extrajudicial sanctions and to determine for which offences and offenders it would be appropriate. For example, deciding which eligibility criteria would apply within a province is totally a provincial matter.

In addition, all of the new options that are available at the front end are up to the discretion of the province, including the police cautioning program. This program has been extremely successful in England in terms of proving to be an effective response to young people getting in trouble with the law. It's up to a province to decide whether or not it wants to offer that.

Quite related to the front end, but not only at the front end, is the concept of conferencing or conferences that Catherine was mentioning earlier. That, too, is a highly flexible concept that allows each province to decide how a decision-maker—let's say it's a police officer or a prosecutor who's having to make a decision at the front end of this system—may refer the matter to a conference for advice. How that's set up is almost entirely within provincial discretion in terms of what kind of advice it is, how many people are involved, or what the procedures would be.

The effectiveness of the front end is highly dependent on the willingness of provincial jurisdictions to implement the spirit of the act, which is to try to reduce the number of young people coming into the courts, because there are more effective ways of resolving these matters outside the court process. I think it's a fair comment that the front end is really more of a framework that allows enormous provincial discretion to implement in ways that they feel are appropriate.

Mr. Robert Lutes: Just to add a couple of things on the judicial measures side, a lot of the provisions are identical to those in the Young Offenders Act. However, we did have a number of constructive recommendations that actually came from Quebec, and we've incorporated those suggestions to do certain things. For example, when a statement is taken, right now a young person has a right to speak with counsel and to speak with a parent and have them both present. They had a situation in which a parent was a co-accused or was under investigation, and they felt it was inappropriate. We therefore incorporated their suggestion, and I think it was helpful to all. And there were a couple of others.

Just one other area of flexibility is in the adult sentence sections. What we've incorporated in the area of presumption is that if the crown chooses not to rely on the presumption, all it has to do is say so and the case remains in the youth system. There are more examples, but....

Ms. Paula Kingston (Counsel, Youth Justice, Department of Justice): In the custody and supervision system, there are a number of important elements in which there is a lot of flexibility. I'm thinking particularly of the determination of the level of custody. Under the bill, it's an administrative decision that can be carried out by either officials in accordance with a set of criteria and with due process protections or by the youth court judge. This flexibility, this option, was included specifically at the request of Quebec officials.

In another important area, the one in regard to moving a young person who is serving a youth sentence in a youth custody facility, if that person reaches adult age it's up to the provincial director to make an application to the court to move that person into an adult facility. It's really at the behest of the province whether or not they wish to move that young person. I think those are the two main elements of flexibility.

[Translation]

Ms. Lisette Lafontaine: As for making the names of young offenders public, clause 64 of the bill stipulates that when the Attorney General gives notice that an adult sentence will not be sought in the case of a presumptive offence, the court shall automatically order a publication ban, thereby safeguarding the young person's privacy to an even greater degree.

[English]

The Chair: Madam Carroll gets another question because her first one was three seconds.

Ms. Aileen Carroll: Okay, thank you. I tend to speak quickly.

If none of the groups from Quebec—which, as we've learned, have a great deal of experience with young people in conflict with the law—would come forward to speak with you, Madame Lafontaine, is it possible that they are not as well briefed or aware of the flexibilities that you've outlined here for us this morning?

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Ms. Lisette Lafontaine: It's possible. Not having met with them, though, it's difficult for me to say how knowledgeable they are in the law. That's one of the things I would have liked to be able to do this summer: discuss things to make sure we have the same understanding of the provisions.

The Chair: Mr. Cadman, you have three minutes.

Mr. Chuck Cadman: Mine's just a very short one.

Is there anything in this legislation to deal with adults? Is there anything in this legislation that deals with the old JDA concept of adults contributing to the delinquency of a minor? Is there anything in this legislation that will deal with issues like that?

Ms. Catherine Latimer: There is a provision that you know about, and it has to do with pre-trial detention and release from pre-trial detention, and the obligation of the responsible adult—

Mr. Chuck Cadman: I was more concerned with somebody actually contributing, such as if we have problems with some very young kids dealing drugs.

Ms. Catherine Latimer: One of the issues that was raised to us along those lines was anecdotal, but it was that people were getting young people out of pre-trial detention and were then taking them back onto the streets and were encouraging them to participate in other unsavoury activity. We think such a provision would work well to deal with that type of conduct as well. But again, as you know, that's when the responsible adult has made a specific undertaking to the court. In those circumstances, we think that may well serve to ensure that their conduct is appropriate vis-à-vis the responsibilities they've undertaken in the conduct toward the young person. Outside of that, there's nothing.

Dick, did you have something?

Mr. Dick Barnhorst: I just wanted to add that when we were looking at this issue, we did recall that section 23.1 of the Criminal Code provides a provision that's very helpful on this issue. If an adult is counselling, aiding or abetting in the commission of a crime by a young person under the age of 12, for example, that adult can be held to be a party to the offence, even though the young person, the child, cannot be convicted. I think that is a relevant point that we found helpful when we were reviewing this.

The Chair: Thank you.

Mr. Alcock.

Mr. Reg Alcock (Winnipeg South, Lib.): Thank you, Mr. Chairman.

I'm interested in the comments you made earlier, when you were talking about the changes relative to younger children. I agree very much with what Mr. Barnhorst was laying out.

You talked about an interrelationship with the child welfare system and your conversations with directors of child welfare across the country on this issue. Can you give us a better sense of how that might work? How do you see that relationship working?

Mr. Dick Barnhorst: Do you mean the relationship between the youth criminal justice system and the child welfare system?

Mr. Reg Alcock: Yes, that was one of the comments that's been made—and I should tell you that I was a director of child welfare when the original act was passed, so I had a fair bit of involvement in it.

For those children who fall below the age of 12, I agree completely with what you said earlier about how the system used to deal with them. But you also made some reference to an enhanced relationship between child welfare and criminal justice in terms of the kinds of offerings you could make to children who were younger.

Ms. Catherine Latimer: We're actually trying to strengthen our relationships or partnerships with non-traditional sectors. We're having a series of round tables or brainstorming sessions with people from various sectors. We had one in November with the education sector, and the education sector is very interested in becoming a constructive and useful player in terms of youth justice, all the way from the prevention stage to helping young people reintegrate into the schools and into their communities after they've committed offences.

We're having one of these round tables with the helping professions. That one is specifically on the issue of how we can better collaborate between the child welfare authorities, the helping professions, and the youth justice system. That one actually is this Monday.

We have another one scheduled for the following Monday, on December 13, on arts and recreation as an avenue, to see whether or not those features can be brought in together.

What we're hoping to do with the round table on the helping professions is basically to fuse a much better and much tighter relationship with them around the child. That's because many of the needs and the interests a young person has are not appropriately and not effectively dealt with through the criminal justice system.

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We often find these horrible coroners' reports or end-of-the-day reports, and the answer is that all systems failed this young person. I think the social welfare system and the child support system, as well as our own youth justice system, need to work very tightly and collaboratively to make sure we're working to the same objectives and that young people are not being punted back and forth between the two disciplines and falling through the cracks. We're trying to fuse a better safety net between the two of them.

Mr. Reg Alcock: I would like to make a brief comment. This is a very difficult set of issues—I don't need to tell you that; you're walking right through that. Certainly what I've heard from the field in the west, where I know it best, is they're very pleased with the relationship they've had with you in the development of this. And frankly I'm very impressed with the piece of work you've done so far. I look forward to seeing what the reaction is going to be as they come back before us.

Ms. Catherine Latimer: Thank you very much.

The Chair: Thank you.

On that note, Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: First of all, I want to reassure Ms. Lafontaine who seems to think that in Quebec, people are criticizing the bill without having actually read it or the government's background material. I can assure you that that is not the case. In Quebec, we are quite familiar with the bill and with the information material and we are following developments closely. I can assure you that Quebeckers will be informed of everything that's been said here in this committee forum and will consider everything carefully. Of that you can be sure.

I invite members to read a brief from the Quebec coalition which is likely in their mail. I've been a Member of Parliament since 1993 and this is the first time I've ever come across such a detailed brief. I'm sure the coalition spent a great deal of time preparing its submission. On reading this brief, Ms. Carroll, you'll see that the coalition is very knowledgeable about the new legislation.

Getting back to the subject of flexibility, Ms. Latimer, how do you reconcile the notion of flexibility with clause 37(2)b) where mention is made of imposing sentences and ensuring that sentences are similar to others that have been imposed. Specifically, the provision in question reads as follows:

    ... the sentence must be similar to the sentences imposed on young persons found guilty of the same offence committed in similar circumstances;

[English]

Ms. Catherine Latimer: We've certainly looked very carefully at that section for a variety of reasons, including concerns we've heard from Quebec. I'd be happy to pass it to Dick to deal with it, but just to let you know, that phraseology is used elsewhere and doesn't relate to a harmonization in which everybody has the same sentence. It's been interpreted by the Supreme Court to allow sufficient flexibility for there to be a regional understanding of what's a fair sentence and whether that's fair vis-à-vis the others within that region where sentences have been imposed.

But I'll refer it back to Dick, who might want to provide more information on a specific provision.

Mr. Dick Barnhorst: I think Catherine has basically covered it, but I could just go back to what it's about. What it reflects is a belief or a policy or a principle of basic consistency, and that goes to the question of fairness in terms of similar offences being treated in a similar manner. As Catherine noted, this provision is currently in the Criminal Code, it applies to adults, and it has not caused the kinds of problems that some people have been concerned about. As Catherine noted, the courts have concluded that there is considerable latitude within that provision in terms of how it's applied to allow regional variations. Similar doesn't mean same, and that leaves quite a bit of room for crafting appropriate sentences that take into account some regional differences.

[Translation]

Mr. Michel Bellehumeur: Are you saying that in the case of a young offender who is on trial in Quebec, for example, on trial for murder, the Crown Prosecutor may not cite decisions rendered by the Court ff Appeal of Ontario in similar cases at sentencing? Is that in fact what you're saying?

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[English]

Mr. Dick Barnhorst: No, I'm not telling you that, but I would think that goes on now.

[Translation]

Mr. Michel Bellehumeur: Therefore, the principle whereby sentences must be similar will have an impact on Quebec courts. Sentences imposed for a particular crime in Ontario or in Vancouver will one day influence the sentences that a Quebec judge will impose on young offenders for a similar offence committed under similar circumstances. Where's the flexibility in this?

[English]

Mr. Dick Barnhorst: What I'm saying is the experience under these same basic words has not had the effect you're concerned about. That's what the courts have determined, that there is sufficient latitude to allow regional variation.

[Translation]

Mr. Michel Bellehumeur: Sure!

[English]

The Chair: Thank you very much.

Ms. Catherine Latimer: Moreover, if they do have the effect, and we're not entirely sure, but we doubt they would, it is more likely that the sentencing patterns in other jurisdictions would be more closely reflected to Quebec. Since Quebec screens out a lot of the less serious offenders, their sentencing patterns tend to be a little bit higher than you would experience in the other jurisdictions. So if there's a gravitation toward longer sentences, it's likely to be in that direction, that other jurisdiction sentences would come out to look closer to the sentence lengths in Quebec.

The Chair: You have one more question.

[Translation]

Mr. Michel Bellehumeur: Where do you see a similar provision in the current Young Offenders Act that mentions imposing similar sentences? Where does it say that the sentence imposed must be similar to the one imposed on other young offenders for an offence committed under similar circumstances? Where do you see that in the current Young Offenders Act?

[English]

Ms. Catherine Latimer: It's one of the major reasons we were looking for amendments to the Young Offenders Act, because the sentencing results of the Young Offenders Act vis-à-vis adults is entirely perverse. They talk about a system of mitigated accountability, and for the seven most common offences young people tend to get longer sentences than adults in similar circumstances.

So, no, you won't find it in the Young Offenders Act, and it's one of the failings of the Young Offenders Act in not having a system of principles that lead to basic fairness in the application of sentencing for young people.

The Chair: Thank you very much.

Before I forget, there have been a couple of references to decisions of the court and references to the court. I'd like us to be made more familiar with that, for one thing.

The second thing is there was a reference earlier about 17 pages of illustrations of flexibility. I don't know if I asked for that at the time, but if I didn't, let the record show I'm asking for it now.

Over to Mr. Maloney.

Mr. John Maloney: The justice committee travelled the country considering the youth justice system, and on the issue of parental responsibilities arguments were presented on both sides of the coin.

In this act there is a possibility of parental responsibility vis-à-vis cost. How would you envisage this happening, and are we concerned about driving a further wedge between parent and child when we should be supporting that, in one case? Perhaps in the other case, are there other ways that parental responsibility could have been brought in but you've negated those, discounted those, and for what reasons?

Ms. Catherine Latimer: We have been very anxious to encourage a constructive role for parents in the youth justice system. One of the reasons we have opportunities for conferencing throughout is to try to bring the parents in, to try to make them a part of the solution as well, so they would have an active role in dealing with the rehabilitative and reintegrative techniques that are being applied to their young person.

Often parents of unruly young people have difficulty understanding how to get them in control. They just sort of throw up their hands and say, they're out of control, there's nothing we can do with them.

We think they need to be brought into the process. They need to be given, if they're willing, some assistance and some tools so that there can be a more collaborative understanding between the young person and the parent, to work on these conduct patterns that have proven to be problematic for society and the young person as well.

In terms of imposing responsibility on the parent for the behaviour that is committed by the young person, our model is an accountability-responsibility model for the young person. If the young person is going to be held responsible and accountable for the offences they have committed, it's very difficult to shift the responsibility in an oblique way to the parent.

We're sort of saying, despite whatever familial influences you may have been under, if you have committed an offence, you have committed an offence and you need to be held accountable and responsible for it. Nevertheless, the measure of social intervention to deal with that can take into account the underlying problems and the underlying conduct, in an attempt to work on the whole set of problems that leads to the particular behaviour. But straight parental accountability is not something that's been embraced in this legislation.

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Do you want to comment on that, Dick?

Mr. Dick Barnhorst: Catherine has covered that point, but I thought part of your question was going to the issue of cost of legal representation for the young person. That provision in the bill basically says nothing in this act prevents a provincial, say, legal aid plan from trying to collect the costs. It is not absolutely required. It is something that could go on now. This is just clarifying that that's possible.

You may be aware of an Ontario Court of Appeal decision of a few weeks ago that touched on the issue of whether the court should have to assess the means of the parent. So this is a current issue. What the bill does here is just clarify that it is permitted by the provinces in running their legal aid plans.

Mr. John Maloney: Again, it's a point of flexibility, I suppose.

The Chair: Thank you very much.

I want to go to Mr. MacKay, since he hasn't had the opportunity to question the witnesses yet.

Mr. Peter MacKay: Thank you, Mr. Chair.

I want to thank the panel. I apologize for popping in and out. There's another justice bill before the House. I also will preface my question with an apology if it has already been asked.

The guiding principles of this legislation I think are the right ones: greater emphasis on alternative measures, a restorative justice model, early intervention, and programs aimed at identifying youth at risk. I say wholeheartedly these are laudable goals.

But my question arises from concerns that have been voiced—and I'm sure you've heard them—about the current funding scheme and the fact that some provinces in this country are funding between 60% and 70% of the old Young Offenders Act and the administration thereof. So with emphasis in this bill on front-end loading and greater intervention by policing agencies and social services agencies, which are already overburdened, how do you reconcile this? How do you say essentially, “Do more; receive less”?

Ms. Catherine Latimer: That's an excellent question, and it is one where we received some guidance from this committee. This committee asked that more of our money be put into the front end in community-based resources than on the custodial side. We have been talking to the provinces and having some negotiations with them, and we accepted their argument that their custody costs are essentially fixed. We can't ask them to suddenly start moving money out of custody and put it into these front-end or community-based alternatives.

So what we did was we sought and received what we're calling bridge funding money, which allows for a front-end loading of opportunities in the community. This would hopefully lead to some downstream savings on the corrections side, which would allow the jurisdictions to reapply those to the community-based alternatives. We have received $125 million over the six-year period.

So a significant amount of resources is being made available to the provinces to work on these more progressive or more constructive ways of dealing with these young people. We did hear those arguments, and we've tried to address those through the funding arrangements.

Mr. Peter MacKay: I just want to be clear then. You're saying this idea of reallocation was examined but ruled out?

Ms. Catherine Latimer: No.

Mr. Peter MacKay: You're not going to take money away from corrections? It's fixed?

Ms. Catherine Latimer: No, I would say that's not the case. I'd go into further detail, but we're in negotiations with the jurisdictions now on the broader cost-sharing agreements over the long haul.

Certainly we did take note of the fact that, independent of our baseline agreements, we came up.... There will be increments to the baseline agreements, with some adjustments made to our priorities in the baseline agreements, and we're in the process of negotiating those. But in addition to those baseline agreements, there is an additional $125 million to help leverage the front end.

Mr. Peter MacKay: But you would know, and I think you would agree, that the original intent of the old act—and, I would suggest appropriately so, here—was that there would be a fifty-fifty split in terms of the funding responsibility for the administration of these new programs. We're not only talking about new programs within the context of the justice system, solely to do with courts. We're talking about the RCMP and municipal police forces being asked to pick up a great deal of slack.

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Someone at a town hall meeting at which Mr. Lutes was in attendance in Nova Scotia indicated that this is Matt Dillon-style justice for the police—that they're now being asked to exercise a great deal of on-the-ground policing, which will result in increased time, increased effort, and hopefully increased discretion.

So my question again is, is this factored in to the programming in the short term, or is this a long-term goal that is going to require a great deal of integration and hopefully matching money from the federal government?

Ms. Catherine Latimer: I would have to say both. We're addressing it on a short-term basis as well, particularly for the bridge funding, where we're attempting to look for some immediate changes and to get the system up and running in the appropriate direction early. As well, there is ongoing and more sustained funding over the long haul.

We have, consistent with the social union framework accord, tried to deliver some stability of the funding over the long haul. So we know there will be, at a minimum, year over year, 2% increases to the baseline agreements. The question is whether we can.... We're negotiating within those baseline agreements about how those funds should be used.

The Chair: Thank you very much, Mr. MacKay and Ms. Latimer.

Madam Carroll.

Ms. Aileen Carroll: Thank you, Mr. Chair.

You made reference earlier, I believe, Ms. Latimer, to referring the young person entirely to the child protection system—

Ms. Catherine Latimer: Sure.

Ms. Aileen Carroll: —and by so doing, not even bringing them into the judicial aspects of the act.

I have some concerns about that, because I have some real concerns about the state of the child protection system. It's sort of a “good news, bad news” thing when I hear you say that. I think the wheels are almost off in Ontario with some parts of that system. I wasn't a member of the justice committee at the time this study was done, so I wouldn't presume to be knowledgeable about the situation in other provinces.

I would ask you to comment for us on your perception of what are the strengths and the flaws of the system. I know that's a rather large question, and I don't mean to leave it too open-ended, but I would like to hear where you think it's going to be able to do the job the new legislation sees it doing.

Thank you.

Ms. Catherine Latimer: It is a big question you raise, and I'm sure you will hear many witnesses wanting to talk about it as well, so I'm happy to offer some....

Ms. Aileen Carroll: Insights.

Ms. Catherine Latimer: Insights, hopefully.

You're attempting to achieve many objectives through the youth justice system. Many critics have argued that you should not be looking to the youth justice system as the leading way to deliver therapeutic regimes. If a young person is needy, it stands independent of whether or not they've committed an offence.

Many will argue that they want to be able to impose a penalty because they want more time to impose a therapeutic model on the young person. Others argue that this is not useful and that the access to therapeutic regimes—child welfare, education, and mental health—shouldn't be linked to whether or not the young person is under sentence, that these things should be disaggregated. That's one of the reasons we want to work more closely and cooperatively with our other partners.

The problem is if young people are coming into the youth justice system and receiving long sentences to address their needs, you end up punishing the needy. If a young person is being abused at home, you end up giving them a longer sentence in custody. There are some basic justice concerns about that. It's not that the needs of the young person shouldn't be addressed, but the question is, what is the most appropriate regime for addressing those concerns? Is it the criminal justice system, or is it some other regime and some cooperative way of doing it?

I take your point that if the other regimes are not working as well as they could be, they need to be fixed as well. But the separate regimes need to be disaggregated to some extent. These things need to be separate.

And I think many people will argue that custody is not a very effective place to be administering corrections or therapeutic regimes in the first place.

So we need to think about the purpose of bringing young people into sentence and into the youth justice system. Certainly when they're there and they have a sentence, we need to work well and try to address all the needs they have. But in our view, it's a limiting factor. The accountability is a limiting factor. Young people who are needy don't get longer sentences than are necessary to account for the offence they've committed. That's the model that's reflected in the bill.

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Ms. Aileen Carroll: Do you think those opportunities and resources are more readily available in Quebec and are being brought to bear, which is why the difficulties have arisen?

Ms. Catherine Latimer: Certainly, from our view, child protection seems to be handling a great many young people who have problem behaviour and have problems generally, more so than in some of the other jurisdictions. I think that's a fair comment to make, but I'll pass it to Lisette because I'm not that familiar with the child welfare system in Quebec.

[Translation]

Ms. Aileen Carroll: You can give your explanations in French.

[English]

Ms. Lisette Lafontaine: There is not much I can add to that. We haven't made a special study on the Quebec welfare or protection system. I know one of the arguments the Quebec government used in wanting to continue with the Young Offenders Act is because their welfare and youth criminal justice system are very well integrated, and they think it may undo this good relationship it has now. But I couldn't tell you more on how the Quebec welfare system works.

The Chair: Thank you.

Mr. Cadman.

Mr. Chuck Cadman: I'm fine.

[Translation]

The Chairman: Mr. Bellehumeur.

Mr. Michel Bellehumeur: Do you have any studies or statistics which might help us understand why you want to reform the youth justice system and which show that publishing names affects the youth crime rate? I'd like to see these studies, if they in fact exist.

[English]

Ms. Catherine Latimer: Could I comment on one of the assumptions that seems to be underlying the question? It is that the publication of the name goes to correcting the young person's behaviour. I'm not entirely sure that's the policy motivation for the publication.

[Translation]

Mr. Michel Bellehumeur: What is the motivation then?

Ms. Lisette Lafontaine: The provisions respecting the publication of names amount to a kind of balancing act on our part with the view to reconciling the right of freedom of expression and freedom of the press with the right of young persons to privacy. To say that publication of the young offender's name will assist in the rehabilitation process is certainly not a valid argument. On the contrary, the evidence shows that publication can harm a young person...

Mr. Michel Bellehumeur: It will stigmatize that young person.

Ms. Lisette Lafontaine: ... by stigmatizing him. That's why the young offender's name can only be published in a very limited number of instances. Basically, a young offender's name can be published when he is transferred to adult court. Bill C-3 provides for the publication of the young person's name when the court imposes an adult sentence.

We will continue to protect the names of young persons who receive youth sentences. In cases where a young offender receives a sentence for one of the five presumptive offences, it will be up to the judge to decide if that young offender's name will be published or not.

Mr. Michel Bellehumeur: I'd like to come back to my initial question which dealt with the Declaration of Principle. I think you've just demonstrated to me that there has indeed been a shift in philosophy. In the current Young Offenders Act, the number one focus was the needs of young persons. That was the number one priority. This is reflected in section 3, in the Declaration of Principle. Next in order of importance was the protection of society. It was believed that by investing to meet the needs of young persons, society would be protected in the long term.

You've addressed one simple area of Bill C-3, and many other examples could be cited. Solely on the issue of the publication of names, you've told me that the rules in place are not based on the needs of young persons, but rather are designed to achieve a better balance between the rights of various parties. It's precisely for this reason that people are unwilling to sit down, as you mentioned earlier, to negotiate different accommodations with you.

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The overriding philosophy here is ensuring the protection of society and the circulation of information. Then, if there is any time or energy left over, the government will focus on the needs of young persons.

[English]

Ms. Catherine Latimer: Bob, as a point of clarification, do you want to indicate the section of the Young Offenders Act?

Mr. Robert Lutes: There was an amendment in 1995 with Bill C-37 that clarified the declaration of principles. It's (c.1), which was added. It said the protection of society, which is a primary objective of criminal law applicable to youth, is best served by....

So there was some debate. The Supreme Court of Canada had dealt with the principles, and that was an attempt to clarify the protection of society as being important.

Ms. Catherine Latimer: I would also say that there were many laudable intentions reflected in the Young Offenders Act. It wasn't so much the intentions and the additional rights and protections that I think legislators had difficulty with; it's more the outcomes.

There are many problems here. One is that too many young people are charged with criminal offences in this country and end up in custody. As we indicated in the declaration, the principles were found to be conflicting and unclear.

The rights and protections for young people were too easily weighed. There were some serious encroachments, particularly on the publication side. The names of young people who were transferred to adult court before they were even convicted of an offence were made public. So their rights under the Young Offenders Act were enormously violated. They may have been acquitted at the end of the day, but their names would still have been made public.

Under our legislation, nobody's name is made public until there's a conviction in place. So in many ways, the process protections are being tightened under this legislation as opposed to loosened.

The Chair: Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair. I'm going to pose this question to Mr. Lutes. I know he has extensive practical experience with youth crime—not as an individual but as a prosecutor.

I very much agree with the principle that it was a perception problem when it came to the old Young Offenders Act. I think this legislation envelopes much of the best of the Young Offenders Act and perhaps expands on some of those concepts and principles.

With respect to the perception, though, there are a few elements here that might lead to the same types of problems. I'm referring first to some phraseology here.

Is deferred custody, which is under the sentencing sections, like a conditional sentence? Is that something wherein the judge has the discretion to say, you will serve two years, but you're going to start out in the community under conditions, and if you don't comply with conditions, you're going to be brought back?

Further to that, I'm concerned that many of these proactive approaches are going to be misconstrued by judges who will perhaps put too much emphasis on trying to take this community approach and take it too far, and rehabilitative principles are going to be put ahead of protection of society. Conferencing, partnering, and bringing more players in are all wonderful in the abstract, but will they actually work? Will the accusation of soft approach plague this legislation as well?

I must admit that the complexity, which you did touch upon in your opening remarks, is a concern, things like the admissibility of statements that will lead to exclusion of evidence. Under the old Young Offenders Act, there was an eight-page document that the police had to go through before they could get a statement admitted. Will judges, lawyers, and prosecutors be given extensive briefings on this? My fear is this is going to take years to implement.

I know that's a fairly straightforward question.

Mr. Robert Lutes: On the admissibility of statements, we have made some changes there at the request of many people. Will it make the process any more simple? We recognize that the taking of young offenders' statements is complicated. We also recognize that the taking of adults' statements is complicated when it's done right.

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I don't think anyone disagrees that young people have additional circumstances or special circumstances that have to be taken into consideration.

I've been involved with the process a long time and this is the first commitment I've seen on the part of the federal government to this degree to participate in the transitional issues and to participate in training. It's well recognized that police know things are going to change, the crown knows things are going to change, and everybody in the system knows things are going to change. The undertaking has been made to provide some support materials. We have attempted on many occasions, when people asked if we could go and speak with them—whenever we could we tried to set the time aside to do that. So I think there's a pretty clear commitment that it's going to take some time and energy for this bill to work, and I think that's there.

In terms of judges, whether they'll take, as you called it, the soft approach, and whether that might undermine something, I guess one of the things we've seen is people have as their first declaration sometimes that if the young person didn't go to court, it wasn't treated seriously. But the people who participated in alternative measures, and hopefully will participate in the expanded extrajudicial measures, will recognize that it's a very powerful process and it's not a “soft” approach. It's often more difficult for the young person, who can't simply not participate. There are a lot of judges in Canada, and for that part we'll have to wait and see.

On the question of deferred custody, Dick is the sentencing guy.

Mr. Dick Barnhorst: On deferred custody, yes, it is similar to a conditional sentence.

I just want to add that it's important to realize that we incarcerate a huge number of young people in this country. As the preamble indicates, one of the objectives is to reduce the over-reliance on incarceration. Deferred custody is one of the new sentencing options—we haven't talked about those today—that are available to judges to encourage them to try approaches other than custody. When you consider that more than 80% of young people incarcerated in this country are non-violent offenders, and many are first-time non-violent offenders, we think these kinds of options can be very effective in terms of providing a meaningful consequence without custody.

Now, when we get back to public perception, which is what you were talking about, it seems to me, although there may be concerns about public perception in terms of conditional sentence, we also have to work on public perception about the use of custody with young people in this country. That's a major effort that we have to push very vigorously. That's why this five- to six-year implementation period is so critical. It wasn't done in the same way when the YOA came.

So I'd just like to say there's more to the public perception around this issue than just whatever people happen to think about conditional sentences, say. It's really a question that we're over-incarcerating young people, and this is an option that judges.... By the way, we've been talking with judges; we've been in judges' training sessions. There's not been a single negative reaction to this option that I'm aware of.

Mr. Peter MacKay: I think the approach of your designation between violent and non-violent offences is going to go a long way in that regard too.

This is a question, as well, dealing with custody, sentencing, and reintegration. Having just been answered that deferred sentencing is like conditional sentencing, is this approach of reintegration, which I think again is the way to go—“intensified supervision in the community”, I think was the phrase that was used—akin to parole for youth? If it is, does this not counteract one of the positive perceptions that did exist about the Young Offenders Act, that being that there was greater truth in sentencing? I don't like using that phrase, but it's the one that's been sort of encompassed.

Having a young person there until what they call warrant expiry under the adult system at least provided a set time period: we have this long to try to fix that kid. Now, I know that's not what happens, but that was the objective: we have two years; they're going to be with us for two years, and we can tailor our rehabilitative programs and structure around that timeframe. With this new approach, obviously, the time factored in is going to be, all right, you're going to do this amount of time in custody and this amount of time you will be under a type of parole.

Ms. Catherine Latimer: Supervision.

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Mr. Peter MacKay: I guess my question is—you've obviously done some research into this—is that lack of consistency going to undermine public confidence? Is it going to undermine the ability that currently they have in youth offender facilities to say, we have this amount of time to work with them? It's set by the judge at the time of sentencing. Is that correct?

Ms. Catherine Latimer: That's right. Can I ask Paula Kingston to answer that? It's her area.

Ms. Paula Kingston: Yes, in terms of one of your questions about greater truth in sentencing, I think it's important to note that the judge at the time of sentencing will state in open court the time that the young person...the portion that will be served in custody and the portion in the community. That's deliberately done to meet that concern.

Also in terms of corrections people or custody people knowing they've got a certain amount of time to deal with that young person, they will know they have that amount of time in custody and in the community. But what's really important is the community portion, when the person goes from custody into the community. There's a provision in the bill that requires a reintegration plan to be carried out when the person first goes into custody that will talk about the appropriate custodial treatments or programs as well as the appropriate community treatments and programs that should follow.

So, in fact, having taken into account the kinds of things you're talking about, it's considered more effective in terms of effective reintegration strategy to deliver those programs in the community. You have the continuity from custody into the community, it's a graduated release, and it should in the end make for more effective reintegration.

Mr. Peter MacKay: Are there revocation provisions built into that?

Ms. Paula Kingston: Yes, there certainly are. In fact, there are certain mandatory conditions the young person must comply with, such as report, and you know, obey the law. There are also individual conditions, which could be to take a particular program, a treatment program in the community. It could be whatever would be appropriate for the needs of that young person. If the young person doesn't comply, there's a review process that could mean they would go back into custody to serve the remainder of that sentence.

Mr. Peter MacKay: The review process is carried out by whom?

Ms. Paula Kingston: By the court.

Mr. Peter MacKay: I'm concerned that in rural Canada a lot of these programs that are envisioned by this act may not exist.

Ms. Paul Kingston: Yes, you're right, and that goes back to the kind of financing and resourcing issues Catherine was talking about. You're absolutely right. This is one of the priorities for the increased funding, to work with communities in that way.

Mr. Peter MacKay: Thank you very much.

The Chair: Thank you very much, Mr. MacKay.

I want to take the opportunity to put a couple of questions myself. I would be interested in terms of the experience, given the rather definite nature of the period of confinement in terms of the young offenders legislation and what you would anticipate in the future. I understand the rationale behind that in terms of programs and so on.

My question is, has there been any evidence that because the system is more automatic, if I could put it that way, more defined than the adult system, there is less willingness to participate in programs and so on, because of that fact? That's question number one.

The second question goes back to the presentation, the first part of the presentation where—and this might speak to the fundamental issue as to whose interests this is intended to get to. There is a reference to the “goal is a fair youth justice system that protects and instills confidence through: (1) meaningful responses that distinguish between violent and vast majority of non-violent offenders”. Now, I would like to hear from you what the purpose of the distinction is. Is the purpose of the distinction to determine appropriateness of response relative to consequence of action? Or is the purpose of the distinction to address different needs based on the nature of those offences?

Ms. Catherine Latimer: I'll take a stab at your second one, and then I'll pass it to Paula about whether the automatic nature of the release mechanism acts as a disincentive to people participating in a program. Are you okay with that, Paula?

The purpose of the distinction between violent and non-violent kicks in at many different stages, both in terms of the potential regime in terms of custody.... The intensive rehabilitative custody model is for the violent offender, so our special sentence, as we call it, is applicable for those who have serious problems of violence and may have some mental problems associated with those particular tendencies toward violence. The distinction we draw there very much affects what kind of mechanism is there to address the needs of the offender at the tail end of the system.

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It's also important for us, in terms of a procedural benchmark, to say if it's violent, you need to take it a bit more seriously. If it's murder, manslaughter, attempted murder, or aggravated sexual assault, or if this is part of a pattern of serious violent offences, it needs to be taken seriously in the system at the front end. The reason we needed to draw that distinction was because failing to draw that distinction meant that the same shoe fit all feet in the youth justice system. They're all getting comparable sentences, some for very minor offences and some for pretty significant offences. It meant that first-time property offenders were often finding their way into custody facilities, when on the adult side they would not.

If you looked at the comparable sentences for the seven most common offences for adults, they were generally lower than what young people were getting in the same circumstances. We wanted to more clearly delineate between those offences that needed to be taken seriously, where there needed to be expensive and tailored regimes to try to deal with that behaviour—because failing to deal with that behaviour was going to have, downstream, protection-of-society consequences—and those where we could deal more effectively and more easily in more constructive ways in the community. So it was the way to slice through the two, both in terms of definition at the front end and appropriate measures at the tail end.

Paula.

Ms. Paula Kingston: In response to your question about concerns about the release—the community portion and the custody portion—and whether there would be less willingness to participate in programs, I think what we can really do is look at the current young offender system and the murder sentences that are there for the youth system. We have the model now in place for a murder sentence where a portion is first served in custody, followed by a portion in the community, and there's been absolutely no evidence of any disincentives to participate. In fact, there have been quite a number of successful cases where the youth has been very successfully rehabilitated or reintegrated using that model.

I should also point out, though, that it's not really fair to say it's an automatic release, because the young person is subject to being detained in custody, and as was just discussed, the person can also be revoked if they aren't complying with the conditions surrounding the community portion of the sentence.

The Chair: I apologize for the use of the term.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Just so that the committee understands clearly and rightfully appreciates Bill C-3, do you have any studies available which indicate that harsher legislative provisions or sentences have an impact of some kind on the youth crime rate?

[English]

Ms. Catherine Latimer: Just as a point of clarification, we haven't changed any of the penalty structures. The penalty structures under this bill are the same as the ones under the Young Offenders Act, so we're not technically making this system tougher than the Young Offenders Act.

Dick, do you want to respond?

Mr. Dick Barnhorst: I would just build on this point by saying that in many ways, you could perceive this bill as being less tough, in some respects, than the Young Offenders Act, because we do have some problems with the Young Offenders Act, as Catherine was noting earlier.

For example, in terms of many offences for which adults might get a lighter sentence, young people are getting longer sentences. In a sense, if we implement the changes proposed in this bill, we may see that some sentences are actually less harsh—and we think probably more effective—than are currently being done under the Young Offenders Act. I think that's the fundamental issue.

In my view, it is not really fair to characterize this in a general way as harsher sentences. In fact, again, as Catherine mentioned earlier, under the YOA, it is quite possible that a young person can be sentenced to a longer period in custody because of the needs of the young person. By focusing more on the offence as an outer limit, in terms of accountability and proportionality, we think in fact it may be less harsh than the Young Offenders Act. So it's a complicated issue, and I don't mean to oversimplify it, but I do think it's important to respond to the general point that I think you were making that the bill makes it harsher or stiffer for young people. I don't think a careful examination bears that out.

• 1320

[Translation]

Mr. Michel Bellehumeur: You just stated that under the Young Offenders Act, it's possible to impose harsher sentences then it would be with the provisions of Bill C-3. Is that in fact what you just said?

[English]

Mr. Dick Barnhorst: That is correct to a point. I was pointing out that because of the consideration of the needs of the young person, which is often perceived as the softer approach, that can, in fact, lead to a longer sentence, yes.

[Translation]

Mr. Michel Bellehumeur: Is it possible then that those individuals imposing disproportionate or harsher sentences under the Young Offenders Act were not respecting the spirit of the legislation? The courts and the provinces had ample means, given the Declaration of Principle in section 3, to impose on the young offender the appropriate sentence. We have all of that under the current Young Offenders Act.

[English]

Mr. Dick Barnhorst: I'm sorry, could you clarify? We have all of what under the Young Offenders Act?

[Translation]

Mr. Michel Bellehumeur: Let me tell you how it is in Quebec. When young persons have a problem with the law, even when they have committed murder, the Young Offenders Act contains the necessary measures to address the needs of young persons, in keeping with the Declaration of Principle in section 3.

You're telling us that we're not about to see harsher sentences with the adoption of Bill C- 3 and in fact that young offenders will receive even lighter sentences.

[English]

Mr. Dick Barnhorst: No, I'm sorry if I gave you that impression. I'm saying that in addressing the needs of the young person, under the Young Offenders Act it is possible and it's permitted by law for the young person to receive a harsher sentence than he or she would otherwise receive if it were based on the offence. That's the basic point. I'm sorry if I was not clear.

[Translation]

Mr. Michel Bellehumeur: You talk about addressing the needs of young persons. If these young persons need some kind of follow-up or need to be confined to closed custody for a certain period of time, then we must address these needs. You're saying that under the new legislation, even if a young person requires some kind of follow-up for five, six or even ten years, he could be released after two years. What you're saying makes no sense whatsoever.

[English]

Mr. Dick Barnhorst: Well, I'm not sure I'm following your point completely, but I'll try to respond.

The point we're making here is.... First of all, I'd refer you to subclause 37(1), which refers to the purpose of sentencing. In that provision it clearly states the rehabilitation and reintegration of the young person must be promoted. So any sentence that is imposed must take into account the needs of the young person.

What the bill is also saying, however, is that there should be some outer limits. If it's an extremely minor offence, then the consequence or the sentence that is given by the court should be limited to some extent by the seriousness of the offence. Within that limit, the needs of the young person must be addressed. It would not be a valid sentence without looking at the needs of the young person, because of the requirement that the sentence must promote the rehabilitation and the reintegration of the young person.

• 1325

What I think all the confusion might be about is this question of putting some outer limits in terms of what the criminal justice response can be to a particular offence and the young person who's committed it.

The Chair: Mr. MacKay.

Mr. Peter MacKay: Thank you.

I think I know the answers to both of these questions, but I just want to clarify. On the upper end of the range of sentencing for the worst offender.... Heaven forbid, but it happens that a young person of 16 commits a first-degree murder, planned, premeditated. The outer limits don't change under the transfer provisions, which I think is perhaps the most confusing element of all of this because the onus has switched a couple of times now.

They're tried as a youth, brought into the adult court system at the end of it, and sentenced as a youth convicted of first-degree murder. They can still receive life, 25 years, but with eligibility in 10 years. That would be the outer limit. That would be the worst that could happen.

I have something arising out of the chair's question with respect to release. If a young person is sentenced to 18 months with the designated six-month community supervision, is that like statutory release? Do they get that release at 12 months into the 18-month sentence regardless of behaviour on the inside, or is there a gating where someone in the system can say no, this person took no programs, was dragged kicking and screaming through this 12-month sentence, and we're not releasing them at six months? It's not mandatory statutory release like we see in the adult system.

Ms. Paula Kingston: In fact, in your example, the release at the 12-month mark would be subject to a test. The corrections people, the provincial director or whatever, can take that young person before a court. That's based on the current murder provisions that are in the Young Offenders Act now.

In the test there are a number of factors that are set out that really look at the young person's risk of re-offending in a serious way in the community. You look at all those factors. Is there a pattern? Is there non-compliance on previous occasions or something that would address that whole issue? If a judge does decide that a person meets that test, they would not go out.

Mr. Peter MacKay: I just want to be clear on this point. It's not strictly performance appraisal?

Ms. Paula Kingston: No.

Mr. Peter MacKay: It's also risk assessment. The onus is on the crown to satisfy a youth court judge that this person is likely to recommit?

Ms. Paula Kingston: It's on the provincial director.

Mr. Peter MacKay: All right. Thank you.

Ms. Paula Kingston: Again, that's based on the current murder provisions.

Mr. Peter MacKay: Presumably a person could be in for 12 or 18 months for something less than murder.

Ms. Paula Kingston: Well, that's right now, but the process is based on the current murder provision.

The Chair: The onus is on the crown in that case. Is that what I heard?

Ms. Catherine Latimer: It's on the provincial director.

The Chair: Okay. Thank you.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: You say you were involved in the drafting of this legislation. Is it indeed a fact that Canada's youth crime rate is falling?

[English]

Ms. Catherine Latimer: Yes, thankfully. Youth crime is on a downward trend in Canada. Violent crime is stable or nudging up a little bit, but overall youth crime has been dropping since about 1995.

[Translation]

Mr. Michel Bellehumeur: Several years ago, the Jasmin Report was released in Quebec. Are you familiar with this report?

[English]

Ms. Catherine Latimer: Yes.

[Translation]

Mr. Michel Bellehumeur: Good. Speaking from a legal, rather than from a policy perspective, what would you say to my proposal to amend Bill C-3 through the inclusion of a provision which would read as follows:

    This act applies to all provinces with the exception of Quebec. The provisions of the Young Offenders Act in place immediately prior to Royal Assent being granted to Bill C-3, proposed legislation tabled during the Second Session of the 36th Parliament and entitled An Act in respect of criminal justice for young persons and to amend and repeal other acts, continue to apply in Quebec.

I'm not asking you to respond from a policy standpoint, because you're not here for that reason, but rather to respond from a legal standpoint. Would it be possible to include such a provision in Bill C-3?

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[English]

Ms. Catherine Latimer: It's not a question that's unfamiliar to us. Madame Goupil has written making that recommendation and request. It's our view that there are significant legal and policy concerns that would arise from allowing one jurisdiction to opt out of the criminal law regime that's applicable to all other jurisdictions. There are profound issues of fairness and equity and one thing or the other.

I don't know if I can comment any further. I think that's sufficient.

[Translation]

Mr. Michel Bellehumeur: You mentioned legal and policy concerns. I'm not interested in policy concerns. I'm interested in the legal side of things.

[English]

Ms. Catherine Latimer: It poses some significant fundamental principles of justice arguments, both under the charter and under the Bill of Rights, if people in different geographical locations in Canada are being subjected to different criminal regimes and different treatments and the possibility of different penalties. There are some significant considerations associated with those proposals.

[Translation]

Mr. Michel Bellehumeur: Did you just say that sentences differ from one province to the next?

[English]

Ms. Catherine Latimer: Different sentences or different penalties? There certainly would be different sentences. The range of sentences has been enhanced under the Youth Criminal Justice Act. There are sentences available under the Youth Criminal Justice Act that would not be available under the Young Offenders Act.

[Translation]

Mr. Michel Bellehumeur: Finally, there's the provision calling for similar sentences to be imposed. You're telling me that Quebec will not be able to impose different sentences than the ones imposed in British Columbia because then, it wouldn't be complying with the Charter.

[English]

Ms. Catherine Latimer: I think there's a bit of a problem in the translation. Are you talking about the actual severity of the penalty or the range of sentences that might be available to the young person? What I'm saying is that the range would be compromised. There would be fewer sentencing options available under the Young Offenders Act than under the Youth Criminal Justice Act. The ultimate penalties would remain the same. We didn't change the penalty structure under the new Youth Criminal Justice Act.

[Translation]

Mr. Michel Bellehumeur: What exactly do you mean when you say that overall, sentences would be similar?

You have a better understanding of French, Ms. Lafontaine. I think you understand what I'm trying to say. Ms. Latimer just said that from the standpoint of legal concerns, it would be impossible to include in this legislation a provision exempting Quebec from the application of Bill C-3 because one day, a situation might arise where the sentences imposed on young offenders in Quebec would differ from those imposed on young offenders in other provinces. Is that in fact what you're saying?

[English]

Ms. Catherine Latimer: That is not what I said. I'm sorry.

[Translation]

Mr. Michel Bellehumeur: That's not what you're saying. Good.

[English]

Ms. Catherine Latimer: That is not what I said. I said there would be serious legal and policy ramifications for having that provision. The range of sentences that would be available under the Young Offenders Act would not be the same as those that would be available to other youth being subjected to the criminal laws in other jurisdictions, and that causes a concern.

Similarly, the human rights protections, the due process protections, would be different in Quebec and frankly not quite as tight as they would be in some of the other jurisdictions, and that would cause some problems. So there are policy and legal concerns about allowing for an opting out.

[Translation]

Mr. Michel Bellehumeur: Are we agreed then that Quebec currently applies the Young Offenders Act quite unlike other provinces?

[English]

Ms. Catherine Latimer: Certainly, and that's why we've allowed sufficient flexibility within the Youth Criminal Justice Act. Many of the jurisdictions can allow a certain flexibility within a legislative framework that's applicable throughout. We recognize that it's not just Quebec that has a unique application of the YOA. Some of the other jurisdictions have a unique application of the YOA as well, and they have a huge incarceration rate.

It's a question of how you want to deal with the ramifications of all jurisdictions having different modifications.

[Translation]

Mr. Michel Bellehumeur: The fact that Quebec applies the Young Offenders Act differently than other provinces isn't a problem. However, if we wanted to include a provision in Bill C-3 exempting Quebec from the application of Bill C-3 so that it could continue to apply the existing Young Offenders Act, then that could pose a problem.

• 1335

[English]

Ms. Catherine Latimer: The Constitution of Canada gives federal law and federal procedures to the federal government to ensure there's some consistency and continuity in the basic application of criminal laws and criminal procedures across the country.

So it does create some policy and legal issues if a jurisdiction...granted, it would continue to be a federal law that would be applied in Quebec, but if it is distinctly different from what is being applied in other jurisdictions, it creates some friction with what the framers of the Constitution initially had intended. I think there are some significant policy and procedural questions associated with it.

[Translation]

Ms. Lisette Lafontaine: Mr. Bellehumeur, your asking whether problems arise over the fact that Quebec administers the legislation differently. I don't believe that's the case, because the provinces are responsible for administering the legislation. It's not as if different legislation was in place in a particular province.

Mr. Michel Bellehumeur: That's true. As you see it, it would be a Charter problem, because sentences would not be similar, as you would like them to be.

[English]

Ms. Catherine Latimer: More than that.

[Translation]

Mr. Michel Bellehumeur: Excuse me?

[English]

Ms. Catherine Latimer: I think it would be much more than just—

[Translation]

Mr. Michel Bellehumeur: More than that. Much more than that.

[English]

Ms. Catherine Latimer: No. It would have an effect, but it would be broader than that. It would be primarily the additional due process protections that wouldn't be available to young accused in Quebec and would be available to young accused elsewhere. There are some significant problems.

[Translation]

Mr. Michel Bellehumeur: Has the federal Justice Department discussed the Young Offenders Act with the US Justice Department?

[English]

Ms. Catherine Latimer: We have certainly consulted with many officials from the United States on various aspects, such as, for example, Jerome Miller and a variety of other people who have been active in some of the de-incarceration movements in the U.S. We've consulted with some significant researchers and policy development people in the U.S.

[Translation]

Mr. Michel Bellehumeur: Would it be accurate to say that Bill C-3, the new Youth Criminal Justice Act, resembles more closely the legislative provisions in place in the United States then did the old Young Offenders Act?

[English]

Ms. Catherine Latimer: No chance. The U.S. doesn't embrace the elements of restorative justice that we have built into the legislation throughout. They don't have the same kind of programmatic response at the front end in terms of alternatives at the front end. They don't have the same kind of supported reintegration structure that we're advocating at the tail end.

They're more inclined to want to waive young people into the adult system in a way that we think does not adequately protect their due process rights or that stands in the long-term interests of society in terms of rehabilitation and reintegration. In no way could you say that this is close to any of the U.S. models we had a look at.

The Chair: Thank you, Monsieur Bellehumeur. I've given a lot of latitude here.

Mr. Mackay.

Mr. Peter MacKay: Thank you, Mr. Chair. We can see the mental gymnastics we get into when we take this unique jurisdictional approach.

My question is quite simple. In terms of the approach and the philosophy, the model of including restorative justice—front end, all of that—being embraced, why would there be any hesitation to expand the envelope of young offenders and the application of the new Youth Criminal Justice Act to those under the age of 12?

I say that not to offend any of the small “l” liberal Cartesian thinkers out there who would suggest that this is so we can pound 10-year-olds into the ground, but so we can have a triggering mechanism that would get them involved in these programs at the first instance, so we would be able to identify a 10-year-old or an 11-year-old who...and I'm suggesting that it would be in extremely rare cases, probably less than 1% application. But why wouldn't we want it?

There have been studies about this. In fact, even some of the justice department's own experts recommended this during the deliberations. Was that given serious consideration? And what are the arguments against doing so?

Ms. Catherine Latimer: It was given serious consideration. I'll pass this on to Dick, who can comment on why a different tack was taken.

Mr. Dick Barnhorst: The basic position that you may be aware of was stated in the May 1998 document, A Strategy for the Renewal of Youth Justice. I'll just summarize that.

• 1340

As you mentioned, it's probably the rare case that we're concerned about. These tend to be the cases where maybe a relatively serious offence has been committed. It appears that it's those kinds of cases that probably raise the most significant mental health and child welfare issues. When you raise the question of needing a trigger to get the appropriate programs in place or to get the appropriate response for that young person, that's absolutely correct. I think the question really is this: does it require a criminal justice response to do that?

As I was mentioning earlier when you were out, we recently had a national conference of experts, about eight weeks ago, where this issue was looked at very carefully. I think it is fair to say that there was unanimous agreement that there are other ways—other than the criminal justice system—but the real issue, the real challenge for the future, is what those other ways are. And how do we get those triggers in place to actually make sure that happens?

Some of the elements that were put forward as part of a potential national strategy on this issue included things such as police protocols. There's one example that's been recently introduced, as of February 1 of this year, in Metro Toronto, where all of the relevant child- and family-serving agencies, including the police, are connected through a protocol process, which also includes a hotline. The whole idea is to make sure there's an effective, timely response so that kids don't fall through the cracks.

The other point to keep in mind, I think, is that under the old Juvenile Delinquents Act, when this authority was available to the courts—

Mr. Peter MacKay: What was the lower end of applicability under the Juvenile Delinquents Act?

Mr. Dick Barnhorst: There wasn't a specific statutory reference, but the common law was generally considered to be seven.

Mr. Peter MacKay: Seven.

Mr. Dick Barnhorst: Yes.

But even with the 10- and 11-year-olds, which is the most common group that people talk about, even in that age category, the judges, under the old Juvenile Delinquents Act—they had the authority—tended to use child welfare and mental health responses as a way to address the needs or the problems of the young person.

So to sum that up, the real question is—and this is what the conference was partly about, looking at a national strategy to address it—what are these other effective ways of dealing with it? We've had considerable interest from, say, the directors of child welfare from across the country in work on this matter, and we are in the process of working on it.

In addition to protocols, there are questions about the adequacy of provincial legislation for the under-12 age group. There's provincial child welfare law. There's also provincial child mental health law that needs to be looked at to be sure that there is the legislative capacity in each province, to be sure that we can take the appropriate action.

For example, in some jurisdictions, for an 11-year-old who commits what maybe would be a serious offence and is demonstrating severe emotional or mental problems, it's possible to have that person detained in a secure treatment facility because it's such a severe mental health kind of case. There are procedural protections in place, but it doesn't require a criminal justice response and a criminalizing of the behaviour.

It's really more a question of getting at what's behind the behaviour with this age group.

Mr. Peter MacKay: Let me just ask you, though, where would you detain them and for how long? You have no jurisdiction to do it.

Mr. Dick Barnhorst: No—

Mr. Peter MacKay: Under child welfare...in the worst-case scenario again, a 10-year-old or an 11-year-old commits a murder. I'm concerned about the timeliness of the ability to intervene and the long-term care of that individual—and of course about the protection of society if this kid is displaying anti-social, sociopathic tendencies. How do you intervene quickly and how do you meet all of those needs?

Mr. Dick Barnhorst: Well, that's what I'm saying. I want to be clear on this. I wasn't suggesting that federal law would deal with that. This is really a matter of provincial child welfare and mental health law.

Mr. Peter MacKay: So there's no uniformity.

Mr. Dick Barnhorst: Actually, a review of the legislation would indicate that we're not that far from some uniformity. One of the things that's being talked about in the idea of a strategy is to look at where there are some differences among the provinces, to develop maybe a better capacity in some of those provinces that don't have quite the same kinds of legislative provisions.

But I do think it's not all that different across the country in terms of child welfare and mental health. I think you'll find that in the most serious cases those systems do and can respond in a way that can provide an appropriate treatment for the young person.

Mr. Peter MacKay: Was there any documentation or study or papers that came out of this group, this session you're talking about? Would they be available?

Mr. Dick Barnhorst: Yes, I'd be glad to make that available to you. One of them, for example, was a review of the directors of child welfare across the country in terms of the adequacy of the law and adequacy of services. I can get that to you.

Mr. Peter MacKay: Thank you.

Thank you, Mr. Chair. Thank you, panel.

The Chair: Mr. Bellehumeur, another question.

• 1345

[Translation]

Mr. Michel Bellehumeur: The new act will be called the Youth Criminal Justice Act. The terminology in this legislation is quite different from that found in the Young Offenders Act. I can give you some examples of the differences. Where, in the Young Offenders Act, do we find a reference to “infliger”? Where, in the Young Offenders Act, do we find a reference to a victim or to an accused person? Where, in the Young Offenders Act, is mention made of imposing a sentence proportionate to the seriousness of the offence? Wouldn't you agree that this is new terminology?

Ms. Lisette Lafontaine: I agree that the use of the word “infliger” in French is a new. The framers of the legislation felt that this was the appropriate word to use. I would have preferred the word “imposer”, but I don't think that this changes anything as far as the meaning of the legislation is concerned.

Mr. Michel Bellehumeur: I see.

Ms. Lisette Lafontaine: I agree with you. I don't much like the word “infliger”, but I was told that this was now the word commonly used in French.

Mr. Michel Bellehumeur: Would it be incorrect of me to say that the structure of Bill C-3 is very similar to that of the Criminal Code?

Ms. Lisette Lafontaine: I hadn't particularly noticed. Are you talking about the terminology used or the way in which the legislation is structured?

Mr. Michel Bellehumeur: Both. In my opinion, there are some similarities between the terminology used in the Criminal Code and that found in Bill C-3, as well as some similarities in the way in which both pieces of legislation are structured, for example, similar references to court appearances, sentencing and so forth. I see many similarities with the Criminal Code, particularly with the chapters at the beginning of the Criminal Code.

Ms. Lisette Lafontaine: I don't know if Bill C-3 more closely resembles the Criminal Code then other acts. An act often contains chapters. As for the use of the word “sentence”, in the Young Offenders Act, we've referred to this as a disposition. That's the only time this terminology is used. Perhaps the final results were not quite what we were hoping for, but our objective was to simplify matters. We certainly have no intention of changing...

Mr. Michel Bellehumeur: Fine. I was wrong to think that somewhere, people gave this matter some thought and decided to harmonize the Criminal Code and the Young Offenders legislation. That's not the case.

Ms. Lisette Lafontaine: There was no decision as such to harmonize the two. Our objective was to simplify matters. I know that we have been criticized for producing an extremely complex piece of legislation, but we wanted to use the most up-to-date terminology. I don't think many lawyers talk about dispositions anymore, but rather about sentences.

Mr. Michel Bellehumeur: Only those lawyers who specialize in this field talk about a disposition.

Ms. Lisette Lafontaine: Even they tend to use the word sentence more than disposition. That's truly what guided our action. It was really a technical decision. It certainly wasn't a political decision, and it wasn't our intention to change anything whatsoever in the legislation.

Mr. Michel Bellehumeur: I'm quite certain that the framers of the legislation and the Justice Department took into account the fact that Justice Lamer, in a Prince Edward Island reference on the Young Offenders Act, cautioned that the Young Offenders Act was not a replica of the Criminal Code.

Ms. Lisette Lafontaine: And we don't want it to be one either.

Mr. Michel Bellehumeur: And you don't see that happening now?

Ms. Lisette Lafontaine: That wasn't our intention. Nor were we instructed to produce some kind of carbon copy.

Mr. Michel Bellehumeur: Therefore, in your opinion, when the experts who apply the law tell you that what you're really trying to do is adopt legislation for persons under the age of 18 that replicates the Criminal Code, they are wrong and you are right.

Ms. Lisette Lafontaine: No. As I said, it wasn't our intention to reproduce the Criminal Code. The results will have to speak for themselves.

Mr. Michel Bellehumeur: That's all for now.

[English]

The Chair: Thank you very much.

I want to thank the witnesses.

Mr. Maloney.

Mr. John Maloney: I have no questions for the witnesses, Mr. Chairman. Mr. Bellehumeur indicated he had a brief, which he waved, and he said he would provide a copy to Ms. Carroll. I'm wondering if the entire committee can have a copy of that brief.

Mr. Michel Bellehumeur: No.

The Chair: No—

[Translation]

Mr. Michel Bellehumeur: I received it either yesterday or today. My assistant handed it to me. It's a brief from the Quebec coalition. The coalition wrote to all members of Parliament and senators and forwarded to them a copy of its submission. You'll probably receive your copy in today's mail.

• 1350

[English]

Mr. John Maloney: Thank you.

[Translation]

Mr. Michel Bellehumeur: While I have the floor, Mr. Chairman, I'd like to clear up a few things. I had said that I would submit a list of witnesses whom we had agreed upon, along with their addresses. I would like to do so at this time.

Mr. Maloney, I believe you're the one who said that we need to achieve a balance in terms of hearing from witnesses from Quebec as well as from other parts of the country. I have here the names of several prominent university professors from Saskatchewan and from the social sciences faculty of the University of Victoria, British Columbia, all of whom have expressed in interest in presenting testimony to this committee. It would be very interesting to hear the views of Western Canadians which oddly enough, sound a lot like what I have been saying here for the past several months.

[English]

The Chair: We appreciate the breadth of your intelligence, Monsieur Bellehumeur.

I would like to thank the witnesses.

I'd like to thank Mr. Maloney for hanging in and allowing us the opportunity to continue until the appointed hour.

I look forward to an ongoing dialogue. There's some information that we've requested and we hope to see it soon. I'm sure we'll have the occasion to discuss the contents of this legislation again with all of you.

We're adjourned.