JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, December 2, 1999

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[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call the meeting to order. The committee continues 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 received notice yesterday morning from Mr. MacKay from Pictou—Antigonish—Guysborough with regard to... Well, I'll let him explain the motion. We'll discuss that first, if we can beg the indulgence of the panel, in order to dispense with this, and then we'll get on with hearing from witnesses.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair. I'll make this brief out of respect for our witnesses.

As you know, the motion before the committee would have the Minister of Justice, the Solicitor General, and the Auditor General appear before this committee, to which they are answerable, to defend the main estimates. It was actually filed earlier in the week, but in fairness, in having it translated, that was the delay.

The motion is very straightforward. We would have those ministers and the Auditor General appear to defend the main estimates. We're talking about, in the overall scheme of things, millions of dollars for which the department will receive—

[Translation]

The Chairman: One moment, please.

[English]

Mr. Peter MacKay: The translation is not working?

[Translation]

The Chairman: Please carry on.

[English]

Mr. Peter MacKay: Mr. Chair, these ministers essentially—short of question period, which is not a very effective way to deal with financial matters—are answerable to this committee, and this is really the only direct interaction that members of Parliament would have with these ministers on these important budget allocations.

As you know, the Auditor General has been less than glowing in some of his commentary about these two departments. We know as well that the Information Commissioner appeared before this very committee and had some concerns.

This deals directly with parliamentary accountability. It deals directly with the ability of members of Parliament to exercise a very important duty, that is, to examine these estimates in a pre-budgetary period in the House of Commons. I mean, a small municipality in Pictou—Antigonish—Guysborough wouldn't treat taxpayers with this kind of contempt. It is nothing short of contempt. To say that the ministers don't have time to come before us is, I think, paying very short shrift to individual members of Parliament, who are also working very hard. When it comes to millions of taxpayers' dollars, the ministers could surely find an hour or two to come here to defend the main estimates and subject themselves to a few short questions from members of this committee.

That, in a nutshell, is my request through this motion to you, and I would ask that it be made votable.

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The Chair: I think we understand: the motion is to call on the Minister of Justice, the Solicitor General, and the Auditor General in response to... But I want to clarify something. You've referred a number of times to the main estimates. I believe your letter referred to supplementary estimates.

Mr. Peter MacKay: Supplementary estimates.

The Chair: Okay.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): I have just a question about your comments on contempt, Mr. MacKay. No one has refused to come yet, so I don't know why that strong language—

Mr. Peter MacKay: I said that anything short of refusing to come is contemptuous.

Mr. John Maloney: Anything short of refusing...

Why the Auditor General? The Auditor General is the individual who has in fact flagged the supplementary estimates. I appreciate the justice minister and the Solicitor General, but I don't understand the reason for the third.

Mr. Peter MacKay: Well, for the Auditor General, you've answered your own question. The Auditor General has already examined the supplementary estimates—

Mr. John Maloney: Which we had before.

Mr. Peter MacKay: —which we had before, so it makes perfect sense that he would comment. It's the same as having an opportunity to sit down with the person who does your income tax return and have a discussion with them, in detail.

Mr. John Maloney: So you want him to amplify what he's already put in black and white?

Mr. Peter MacKay: Yes.

Mr. John Maloney: No more questions from me, Mr. Chair.

The Chair: Mr. Abbott.

Mr. Jim Abbott (Kootenay—Columbia, Ref.): Clearly I can't imagine that we wouldn't be in agreement with respect to the ministers.

With respect to the Auditor General, I would just point out that in his most recent tome he made specific mention of the public complaints commission, the backlog of 400 people and so on and so forth. I think it would be of value to the committee to get his more precise perspective on that. I suggest that as just one of the problems he has uncovered, just by way of illustration.

The Chair: Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): From this side of the table, after having sat on the public accounts committee for four years, I agree that the Auditor General should be here. He can broaden what he has said and he can defend it. Without him, we're dealing with what's written on paper. He has to be here.

The Chair: I think we can do this without a motion necessarily, if I see consensus. We don't have a quorum. If I see consensus, and I believe I do, then I think we will take it as the direction of the committee to have the Auditor General, the Attorney General, and the Solicitor General appear before us in defence of the supplementary estimates.

Mr. Abbott.

Mr. Jim Abbott: I'm just curious. I'm not familiar with the calendar of the committee. I was wondering what the chair was thinking of in terms of the timing of them coming before us.

The Chair: At this point, it's pretty tight between now and the Christmas break.

What is the feeling of the committee? I mean, we all know it's full, so we're talking about extra time or we're talking about February.

Mr. Peter MacKay: Mr. Chairman, I fully recognize how full our schedule is at this committee, but I certainly—and I would be interested to hear from the other members—would be prepared to attend an extra sitting if that's what it takes to have those individuals come before our committee.

The Chair: Also, we will all acknowledge that it's going to be contingent upon availability as well. We have to recognize the need to be flexible in terms of timing. That notwithstanding, I'm taking this to mean that we would do this as quickly as we could.

Mr. Peter MacKay: Yes. That would be the request.

The Chair: Okay.

Mr. Ivan Grose: I doubt that you'll get the Auditor General between now and the time we break for the Christmas recess. Everyone is in the same position. They're going to want him.

Mr. Peter MacKay: He has finished his report. He should have some time on his hands.

Mr. Ivan Grose: That means the busy time. Everyone wants him to enlarge on the report—the same as we do.

The Chair: Okay, I think it's very clear. I would instruct the clerk to begin the process of calling and finding out about availability. I will keep everyone posted as to how those discussions are going.

Mr. Peter MacKay: Just so we're clear, then, we have a commitment from the committee that we will—

The Chair: Yes. As I say, I'm trying to facilitate this absence of a quorum. If I see the committee's desires here, it has been recorded that we will begin the process of trying to arrange... Is there a particular order, Mr. MacKay, that you had in mind, or are we really going to allow schedules to dictate?

Mr. Peter MacKay: Well, I'm not opposed to any particular order. I think it might be helpful to have the Auditor General appear first, but subject to his availability, I'd like to see the process start as soon as possible.

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The Chair: Thank you for your flexibility.

Thank you very much, everyone.

Now we'll go to our witnesses: representing the Canadian Resource Centre for Victims of Crime, Steve Sullivan, executive director; representing the Victims of Violence Centre for Missing Children, Erin Hatfield, research director; appearing as an individual, Bruce McGloan, and with Mr. McGloan is Tim Reich; and appearing on behalf of the National Pensioners and Senior Citizens Federation, Don Holloway, president.

Before we begin, I want to, for the record, touch on a couple of things. First of all, it has come to my attention that among those presenting are people who have interest in particular cases that are currently within the criminal justice system, before the courts, as they say. So I would indicate in advance that we would not be prepared to entertain discussion that's relevant to anything that is currently before the court.

But I also take the occasion to bring to the attention of everybody and to put on the record the fact that it is quite appropriate that, as a committee, in the face of dealing with a large, thick piece of legislation and going through clauses and definitions and various things that are important matters of public policy and in this case of the criminal justice system, we remember that it also affects people in a very real way. It is not inappropriate to be reminded of the human aspect of what we do from time to time.

With that, has the group decided, by arm wrestling or something, how we're going to do this? All right. We're going to go in the order that is presented in the agenda, so Mr. Sullivan is first.

Mr. Steve Sullivan (Executive Director, Canadian Resource Centre for Victims of Crime): Thank you, Mr. Chairman.

Let me begin by saying we do have a brief, and I apologize that it is not in both official languages. As you know, the bill is quite complex and quite lengthy. We were notified last week and asked to appear. I just finished our presentation last night, and there was no time to translate it. I will undertake to leave it with the committee, or I can have it translated and sent to members after, whichever best suits the members.

Thank you for allowing us to come before the committee once again. Clearly the interests of victims have been recognized by this committee and by this bill.

The Young Offenders Act was probably one of the most controversial pieces of legislation in recent history. It provoked strong emotions from people on all sides: governments, parents of offenders and victims, academics, and those who work with troubled youths. I think we all realize, though, whatever our opinions are, that the way in which we deal with young people clearly impacts on our adult level of crime. These kids we can't help will go on to be adult criminals. It's clearly important then that we understand and do our best to address the problems of youth crime now to prevent the future adult crime we so often see with kids we can't help.

As I mentioned, one of our problems with getting our brief prepared earlier was the length of the bill—well, not necessarily the length, but the complexity. I think it's been mentioned before this committee that this bill at least appears to be a much more complex youth justice system, and that might be one of our downfalls. Certainly we see in the adult system that we really don't teach people about accepting responsibility for what they've done. We have become a society of rights but without responsibilities.

I would have hoped—and perhaps there's a flexibility in the bill—we would have learned from our problems with the adult system and tried to make our youth system a little more flexible, so that while we do protect the rights of young people and understand that they do deserve to have those rights protected, we also look at it in a broader context of encouraging them to accept responsibility for what they've done, so that we don't get hung up on little violations. The amendments to the admissibility of statements are one indication of that.

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It's important to understand that the purpose of a separate youth justice system is to treat kids differently. So if we're going to do that, if that's what we all agree on doing, let's make it more than just having different sentences and publishing the names of some and not others. Let's have a whole focus on a mentality of treating kids differently from how we treat adults. We need to teach them the lessons we want to teach them in our homes, in our schools, and in our religious institutions.

It's better to tell the truth than to remain silent. That should be a guiding principle for those who are working with youths. It should be a guiding principle for those who are applying the act.

It's also important to realize that most of our young people never get in trouble with the law, and there are those who do get in trouble for relatively minor things and are never before the courts again. But there is that small segment of young people who are responsible for a large proportion of crime. Those are the young people we have yet to devise a way to help or to reach. One of the statistics I heard when I was at a conference in Hull on young people was that 5% of young offenders are responsible for 50% of youth crime. Clearly there needs to be a focus on those young people.

There also needs to be a focus on that even smaller number of young people who are a threat to public safety. Although we read quite frequently in newspapers about young people committing horrendous acts of violence, we must always keep in the backs of our minds that those are not representative of our children. Those are the rare cases, but they are also the cases that probably require the most intervention. It's when the media stops reporting those crimes and they stop shocking us that we truly have a problem.

The question has been raised about whether we needed a brand new act to accomplish the goals we've set out. I'm one of those people who thought the Young Offenders Act worked relatively well. Certainly we've identified problems in the past, but whether we needed a new act to accomplish what we've done and whether the YOA was beyond repair I'm not sure. The opportunity, though, that presents itself to the government and to members of Parliament with this brand new act is to correct some of the misperceptions about the old act. This is an opportunity to begin fresh and to embark on a process to inform Canadians truly what the new Youth Criminal Justice Act will be about. So hopefully we won't suffer from the same misperceptions that existed in the past.

We have made several recommendations. I will just highlight some of them, and you can read the others when we get the translated brief to you.

We were glad to see the interests of victims were recognized very heavily in this bill, as they have been recently in Bill C-79, which became law just this past week. We expect the CCRA review to better include victims in the corrections and parole system. But this bill made an effort to include victims much more than the Young Offenders Act did.

The “Declaration of Principle” makes reference to how victims should be treated with compassion and courtesy and says victims should be provided certain information. While that intention is applauded, as we've seen in the provincial legislation that uses that same word—“should” instead of “shall”—it really doesn't mean a whole lot.

Recently in Ontario, a family sued the Ontario government because they felt their rights under the Ontario victims of crime act were violated. The court said they had no rights under the Ontario Victims' Bill of Rights, because the word used was “should” and not “shall”. So one of our recommendations is that the wording for the “Declaration of Principle” be changed to victims “shall” be treated with compassion and courtesy and victims “shall” be provided information about the process.

Clause 12 also includes a victim's right to information about the identity of a young offender and how the offence was dealt with, if the young person has been dealt with by an extrajudicial sanction or alternative measures. Once again, that's an improvement, but we would ask for the inclusion of other information there as well, such as information about whether there was a plea bargain. Also, for example, if the process didn't include an extrajudicial measure, would the victims be told if a sentence went through the courts?

So while that clause speaks to an important aspect, we need to go beyond that and include the other rights victims need to be told of and the other processes that are outside the alternative measures section.

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One issue we've had some problems with, more in the adult system, is the victim offender reconciliation program, which is a large part of the restorative justice concept. We recognize that's important, and we know some victims who've gone through the process and found it very helpful. We also know some victims who have reported to us that they've been badgered or pushed into participating in such programs.

We have concerns about victims feeling they have to participate. Certainly victims should be given the opportunity to participate. So one of our amendments is to subclause 18(2), just to say in the committees that inquire about a victim's desire to participate in reconciliation, it shouldn't be that those people are made to feel they have to. The act reads “soliciting... and facilitating the reconciliation”. We would simply change it to “inquiring as to the victim's interest in a reconciliation”.

As you know, Bill C-79 gave victims the right to do impact statements at young offender sentencing hearings. I believe that includes oral statements. We would simply ask that that same right be afforded to victims at review of disposition hearings. When a youth has been sentenced to custody, there is a review of disposition hearings, I think after a year. That was it under the old act, and I don't think it's changed. There is no inclusion that I'm aware of for victims to have any say in that hearing.

As well, for the decision to transfer a youth to adult court, there will be a hearing, and I believe clause 71 says the offender and his or her parents will have a chance to be heard by the court. We would ask that victims have a chance to be heard at that process as well.

This committee recommended in its report on victims' rights that victim fine surcharges be automatic for adults and for young offenders. The minister, in Bill C-79, made it automatic for adults, but she did not do so for youths. We would ask that this bill be amended to make the victim fine surcharges automatic. At the time, the minister said she didn't think such a move was consistent with the principles of the YCJA. We think it is in line with those principles: meaningful consequences, responsibility, accountability, repairing the harm done to the victims. In the adult system there is a mechanism if the individual cannot pay. That's a defence we would say would be applicable here as well.

Our final concern with victims is that while there's a definition in the Criminal Code of “victim” for the purposes of victim impact statements, there is no definition of “victim” in the Youth Criminal Justice Act for the purposes of receiving information, for example. Who is a victim? Is it the parents of a young person who has been murdered? Is it the second cousin of someone who's been sexually assaulted? This is a real problem.

We've dealt with a family from Alberta who wanted to get information from the crown about the case involving the murder of their son. The crown's position was that there is no definition of “victim” in the Young Offenders Act, and in their mind the victim therefore was their son, who was dead. The information was not afforded to them. That's an extreme example, but it highlights the need for a definition of “victim” for the purposes of the YCJA.

You may want to have a different definition from what is in the Criminal Code, because in the Criminal Code it's for victim impact statements, and it's a relatively broad definition. We would ask that you might look at some of the provincial victims' bill of rights definitions, which have more narrow definitions for the purposes of information and that kind of thing.

One of the most contentious points about this debate has been how to deal with young people who are under the age of 12. We recommended to the committee back in 1995 or 1996 that a special mechanism be created for that really small number of young people who are 10 and 11, who have come to the attention of the police for repeated or serious offences. This committee actually, as I recall, in recommendation 9, made the recommendation to the government that there be a process by which 10- and 11-year-olds are included in the process.

Obviously the minister felt that recommendation wasn't appropriate and that it's better to deal with them in the provincial system, and we agree. In a perfect world we would deal with it in the provincial system. But at that same conference I was at in Hull, I heard about a study done by the Earlscourt Child and Family Centre, which I'm sure this committee can get a copy of, and it was revealed that almost 70% of directors of child welfare services say that children under 12 committing offences definitely fall between the cracks. He described, looking at all the provinces, a model of non-intervention. Of course it's a broad statement. He didn't give us a breakdown, province by province. He also said that only six provinces mention serious offending and that the roles of police vary considerably with respect to reporting, detaining, and apprehending.

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I think what's clear is that simply relying on the provinces for these kids isn't working. So we would recommend a special mechanism: it's not to throw kids in jail, it's not to saddle them with a criminal record, but it's a special mechanism to get them some kind of help. And of course it would involve whether they've been through the child welfare system. It doesn't make any sense to just throw up our hands and wait until they're 12 years old so the police can charge them.

We would also, given the growing problems of gang crime and organized crime, ask that the committee examine the possibility of amending the Criminal Code, to create the offence of recruiting children to commit crimes. There aren't stats on this, of course, but certainly I think we all can agree that there are individuals who will exploit the young ages of children to get them to commit crimes because they're either under the Young Offenders Act or they're too young to be even caught by it.

I know my time is coming quickly, so I'll jump to a few of our recommendations that maybe groups wouldn't have made. In subclause 140(7) there's a reference made to capping, to deal with offenders who are found not criminally responsible because of a mental disorder. There's a similar section in the Criminal Code. I hope I'm reading this right. The section in the Criminal Code says that there should be a cap on the amount of time someone should spend in a mental facility if they've been found not criminally responsible.

Those sections were never proclaimed by this government. In fact recently the Supreme Court of Canada, in a case called R. v. LePage, looked at that whole issue of capping because an offender came forward and wanted to have those sections proclaimed. The court basically said that mentally disordered offenders are different from sane offenders and therefore should be treated differently. So we would question the wisdom, given the Supreme Court's decision, given that the government has never proclaimed those sections for adults, of why it would be in the Young Offenders Act. Again, it's not about keeping kids in as long as we can. It's about if we have a young person who has clearly some mental deficiencies, some problems, it doesn't make any sense to say you're going to have the same sentences as someone who is sane and just open the door at the end of the three years or whatever the sentence would have been and let him out.

Given the problems with organized crime, in particular youth gangs, we would ask that this be a consideration for an aggravating factor in sentencing, for judges to consider that if—

The Chair: Mr. Sullivan, so that we can have some conversation, we're going to have to move along.

Mr. Steve Sullivan: Could I just give my closing?

The Chair: We've been pretty open with the numbers, but everyone's been advised of ten minutes per statement.

Mr. Steve Sullivan: I'll just close here.

In general, we support this bill. We supported the YOA. Some of the problems have been fixed, some of the same mistakes I think have been made, but ultimately they both suffer from the same disadvantage, which is that they're reactionary tools. If we really want to change the face of youth crime, we need to do it long before these kids get to this process.

Thank you.

The Chair: Thank you very much.

I'll use the occasion, once again, to ask you try to keep your comments inside ten minutes so that we can engage in dialogue.

The next name on the list is Ms. Hatfield.

Ms. Erin Hatfield (Research Director, Victims of Violence Centre for Missing Children): I would like to say first that I do apologize that the members haven't gotten a copy of my brief. We've had four days to prepare for quite a large bill, and I did the best I could within the timeframe that was given. So my sincere apologies to everybody. I have a few prepared statements.

I would like to take this opportunity to thank the justice committee for hearing the views of Victims of Violence on the bill before us today. Since the inception of the Young Offenders Act in 1984, every federal government has been called upon to amend or remove this legislation. While the debates that have raged over this one piece of legislation have been bitter and severely divided, there seems to be one point everybody agrees on: the legislation is in need of change.

The bill we are addressing today, Bill C-3, will repeal the Young Offenders Act and replace it with a new system. Having gone through the proposed legislation, there are various recommendations we have made regarding this bill. There is one I would like to focus on today, and it is the clause regarding victims of youth crime.

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In the bill there are various sections where it seems as though victims' rights are alluded to, and they're not stated clearly. I think that is very confusing, and it is very difficult. My concern is I don't think it would be fair for victims to have to wait for judicial interpretation, which could be seven, eight, nine years, to find out, yes, they do have this right, or no, they don't have this right. I think it should be very clear.

The first recommendation, obviously, is to define “victim”. That's of great concern. There are various people who could be considered victims of youth crime. Even the parents of the young offender themselves, could that person be a victim? That needs to be clarified. I think they may make a very good argument that they are victims. First and foremost, I'd like to see that addressed.

Second, I would like to see a section added to the bill that is very clear and itemized and that outlines exactly what the rights of the victim are under this bill and who is responsible for ensuring that those rights are seen to. This is something that needs to be addressed. It should be very clear, so that for anybody in the criminal justice system it's very clear that this is exactly what their responsibilities are, this is exactly what their rights are.

I have a few clauses I've read through that I could think of. The bill should include an itemized listing that addresses, at a minimum, the answers to the following questions. First, who is a victim under this act? The definition should be clear to ensure that each victim can clearly understand that they are a victim under this act and they are afforded certain rights.

Secondly, what rights does a victim have under this act? The only mention of victims' rights in the current bill is in clause 12, which outlines that a victim shall, on request, be notified of the identity of the youth and how the offence has been dealt with. In a bill that has considered victims' rights important enough to include the mention of them in the preamble, clearly this is not the only right under the bill that victims are intended to have.

Third, does paragraph 5(d) gives victims the right to make victim impact statements, and would that be written or oral? Once again, the paragraph seems to allude to the fact, but it does not clearly state that a victim impact statement, or any statement by the victim, must be secured regarding extrajudicial measures. The victims, as it's written now, should be provided an opportunity to participate in this decision regarding any measures. This should be clarified just for greater certainty. Will victims be given this opportunity? If yes, then the bill should also clarify who is responsible for ensuring and communicating to the victims that this opportunity to voice their concerns exists.

The fourth point would be subclause 41(1). Does that include the right to make a victim impact statement? As the subclause currently reads, numerous individuals are able to make recommendations regarding a youth sentence. This subclause also notes that the court will consider “all other relevant information”. Is the subclause meant to include a victim impact statement? Victims should have a right at this stage to present a victim impact statement to the court regarding the crime and the effects the crime has had upon them. This is information that is relevant to the crime and the sentence. In addition, the issue or question of who is responsible for ensuring that a victim is informed of these rights should be clarified.

Five, does subclause 59(1), the review of youth sentences not involving custody, allow a victim impact statement to be made? Are victims notified that this hearing is taking place? If the answer is yes to these questions, who is responsible for informing victims of these rights?

Six, does the court need to consider a victim impact statement under clause 72 of the bill, which deals with transfer of offenders to adult court?

Seven—I know it sounds repetitive, but these are various issues in different processes, and I apologize for the repetition—does subclause 97(1) allow for a victim to make a victim impact statement? If a provincial director chooses to make an application regarding the remainder of a youth's sentence, victims should be informed of this proceeding. In addition, victims must be given the opportunity, as in the adult system, to make any comments or voice any concerns regarding a transfer of the youth to a more open facility. That right has already been established concerning parole and conditional release. Do we want to extend that right to youth as well? This would be an issue that should be addressed. I think it's very important for victims.

In closing, I would like to take this opportunity to thank the committee for hearing the views of Victims of Violence. I welcome any of your questions.

The Chair: Thank you very much.

Now, Mr. McGloan and Mr. Reich, I take it you're going to share your time.

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Mr. Bruce McGloan (Individual Presentation): Good afternoon.

My name is Bruce McGloan, and I am a victim. My son was brutally murdered in 1998, Halloween. And I can tell you that the parents, brothers, sisters, uncles, aunts, and good friends are all victims of these crimes.

I'll tell you something about my son. His name was Clayton. I found during the court proceedings he has been described as “victim”, “the victim”, and that's all he's referred to as in that context. He was a great kid. He was 17 years old. He worked for a living. He was taught right and wrong from a very early age. He treated people with dignity and he was well liked by one and all. He was a great sportsman. He was an avid hockey player at a high level. He was a lacrosse player. He had ambitions in his life to pursue possibly a professional lacrosse scholarship in the United States.

I have lots of issues with the way the Young Offenders Act has been implemented and with the proposed changes in this Bill C-3. I don't believe it has gone nearly far enough. There are too many words like “discretion”, “rehabilitation”, “reintegration”, which are all great for non-violent crimes, but I think they've missed the boat when it comes to violent offenders, who are becoming so prevalent in our society from coast to coast. I don't think this bill goes nearly far enough.

I'm reading about a lot of least-intrusive intervention rules when it's talking about presumptive offences. I think they have to create criteria for serious habitual violent offenders. I think that on presumptive offences there should be no publication ban. I think people of this country have to know what our youth are doing, whether it be the neighbour going to the same school... And I believe people committing presumptive offences should be automatically transferred to adult court.

I believe that the punishment for murder, first and second, has to be raised as a deterrent. There's very little that talks about a deterrent, about consequences. There has to be a reason why our youth have got to the point where they swarm people like in the problems they're having in Toronto. We haven't dealt with this in a proper manner, and it's got to the point that our youth know our system very well and they abuse it.

I don't think they have recognized the severity of the criminal use of weapons, especially guns and knives. I think it should be an automatic sentencing in this regard.

As far as street gangs go, they haven't addressed street gangs and racketeering. As Steve Sullivan alluded to, these kids are exploited by criminals. We hear it from one end of the country to another. And we've talked to police chiefs. We've talked to policemen. We've talked to correctional facilities officers. It is a well-known fact that this is happening. Something has to be enacted to prevent this.

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I also agree with Steve about the complexity of this document. I mean, it was 69 clauses, and now it's 156. If you read through this...

I also should apologize that we didn't have a report prepared, but we did have very little time to prepare for this. The complexity of this I think is unnecessary.

I think I'll hand it over to Tim Reich, my partner.

The Chair: Mr. Reich.

Mr. Tim Reich (Individual Presentation): Yes. Thank you.

I will again apologize to the committee for not having a statement prepared for submission. As Bruce alluded to, we had very little time to prepare for this meeting and review Bill C-3.

Please keep in mind when I go through the dozen or so clauses in this bill that we have questions, opinions, or comments we are focusing specifically on the most serious and violent young offenders, the most serious crimes youth can commit, such as murder or vicious assaults with weapons, knives, and guns. We have comments on approximately a dozen or so clauses of this bill. I would like to read them in the order they appear in the bill.

On page 4, definitions, with reference to “serious bodily harm” and “bodily harm”, and “serious violent offence” and “violent offence”, we feel they should be one and the same definition.

On page 10, with respect to subclause 10(4), referring to admissions and statements, we feel this means that a youth can bargain his way out of a secure-custody sentence.

On page 36... I hope I'm getting these clauses correctly identified.

Mr. John McKay (Scarborough East, Lib.): Could you slow it down? What section were you referring to? I was just trying to follow you.

Mr. Tim Reich: The previous one?

Mr. John McKay: Yes.

Mr. Tim Reich: It's page 10.

Mr. John McKay: Subclause 10(4)?

Mr. Tim Reich: Yes.

Mr. John McKay: Okay. Thank you. Could you just repeat your point there?

Mr. Tim Reich: It sounds to us as if this particular paragraph means that a youth could bargain his way out of a secure-custody sentence. In other words, could he plead guilty for extrajudicial measure versus a custodial-type sentence?

To continue, on page 36, paragraph 37(2)(c), regarding least-restrictive sentencing, can this apply to a youth convicted of murder in a youth court? Can they apply a least-restrictive sentence?

Please stop me if I'm going too fast.

On page 45, under sentencing for murder, clause 41, we'd like to see an increase from 10 years to 15 years for murder.

Mr. John McKay: I'm sorry, again I'm not following you. Page 45, clause...

Mr. Tim Reich: Paragraph 41(2)(p), I believe it is.

Mr. John McKay: Subparagraph 41(2)(p)(ii), is that what you're... “in the case of second degree murder, seven years comprised of”?

Mr. Tim Reich: It's subparagraph 41(2)(p)(i), actually.

Mr. John McKay: First degree murder, 10 years?

Mr. Tim Reich: From 10 to 15 years.

Mr. John McKay: Thank you.

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Mr. Tim Reich: All right.

On page 47, I believe it's subclause 41(7), regarding sentencing, this again sounds to us as if a young offender can use the diagnosis of a mental disorder to avoid jail time or secure custody. We feel that a young offender having a diagnosis of a mental disorder is quite easily attained in youth court.

On page 48, subclause 41(14), that whole section... our opinion on that is that consecutive sentences for seriously violent young offenders should be mandatory and not left to the discretion of the judges—if we're reading this correctly. Again, it's referring to seriously violent offenders.

Jumping ahead to page 65, subclause 62(1), referring to adult sentences, we don't feel a youth should have the right—again, if we're reading this correctly—to automatically apply for a youth sentence versus an adult sentence on a murder charge.

On page 106—Mr. McGloan alluded to this earlier—subclause 109(1), protection of privacy, we feel young offenders convicted of violent offences in youth court should be identified. If they're convicted of a violent offence, we feel they should lose their right to have their identity protected.

Backtracking to page 89, subclause 93(6), under youth sentences, we feel that a youth convicted of murder in adult court should not be granted parole any earlier than an adult, as we believe is the case now.

Referring to adult sentences, to add on to what I just said, we feel that youth convicted of murder either way should receive an identical sentence to that of an adult, including parole eligibility.

That concludes the recommendations Mr. McGloan would like to submit to this committee. Thank you.

The Chair: Thank you very much.

Mr. Holloway.

Mr. Don Holloway (President, National Pensioners and Senior Citizens Federation): Thank you very much, Mr. Chairman, for allowing the National Pensioners and Senior Citizens Federation to appear.

If seniors and youth appear to be worlds apart, why are seniors interested in youth and criminal justice? It is because family plays a most important role in a senior's lifetime experience. Being the patriarchs and matriarchs of the nation, the social—

Mr. Ivan Grose: I have a point of order, Mr. Chairman. Is this submission in both official languages?

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The Chair: Yes, it's been distributed.

Mr. Ivan Grose: Thank you.

I'm sorry for the interruption.

Mr. Don Holloway: Being the patriarchs and matriarchs of the nation, the social, and sometimes not-too-social, activities of the younger generation are a daily focus for families. No one lives life separately from other persons in this world. We are all surrounded by our own families and the families of other people.

Crime affects the social order. No one sleeps soundly when crime is afoot, and when crime is performed by the young, everyone gasps at the thought of children being involved.

It only right and just that society protects itself from crime. Criminals need to be apprehended, and generally they are. But no matter how big the problem of apprehension is, the real social problem is this: How do we prevent the young from being involved, and when apprehended, how do we cure them—and the word is “cure”—of the criminal mindset?

As far as youth sentences are concerned, compensation and restitution should be the first act of any offender. Just locking them up doesn't cure the problem. It does nothing to reinvent the personality of the young criminal.

After recompensation and restitution must come education. Whether a person is or is not in custodial care, a positive education mechanism should be set in place. We believe this education system should be the same as a university or a high school or any other type of school. There should be a system of education for each type of criminal and each type of crime. Everyone convicted of a crime should undergo this, particularly children, for one reason—namely, their complete personality is not yet formed, and we have a chance to form personalities through education.

Putting someone away for three months or three years does absolutely nothing to change the person. We believe the person should be changed.

With regard to the types of crimes committed by youth, violent crimes are the most important types of crimes, we believe—violent crimes against people's bodies, people's minds. Theft and drug offenders often get more serious sentences than people who commit atrocious crimes against the body or mind of another person.

When we refer to sentencing here, we are referring to what a judge should be empowered to order an offender to undergo. The lash? No, of course. Hanging by thumbscrews? No. Here we are talking about a system of correction, correction of the distorted mind of the offender, and in particular a violent offender.

Seniors and their families are greatly unsettled by violence, any type of violence. Most will gladly surrender a piece of property rather than be violently assaulted. Yet crimes against property sometimes appear to receive more severe penalties, except maybe murder, than do violent crimes. Many describe a punch in the face as, well, what harm is it, they're only kids. But violence leads to destructive tendencies that can continue throughout a lifetime.

With regard to effective measures outside the formal court process, preventing youth crime before it happens is definitely outside the criminal justice system, and the place to start is in the schoolyard. The schoolboy and his followers set the seeds for later criminal behaviour.

Having support is the stock-in-trade of bullies. Bullies are often people urged by others to threaten and do violence. These hangers-on are the hidden criminals in the school system. Getting away with it is their stock-in-trade. These hangers-on placate potential bullies from interfering with them by convincing bullies, through flattery, that they are well-loved individuals. As such, the bully must go out and perform on innocents who cannot defend against him. This occupies the bully and gives him something to do to earn his own hero-worship.

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The hangers-on win in two ways. One, the bully will not harm his “friends”, and two, the bully will supply them with a bit of violent entertainment, for which he will be rewarded as the hero, with flattery from his friends.

This applies to both males and females, and must be nipped in the bud through vigilance.

Yes, this is outside the criminal justice system. Let's make laws so that we can go out there and do something about it, because what's the point in not?

In terms of the national crime prevention initiative, we have in this country the Neighbourhood Watch system, which appears to be very effective and of help. We believe we should have another type of system based on that to secure our neighbourhoods. You know, no matter what the press says, the downtowns of most Canadian cities are perfectly safe places to be, and they're fun places to be. Downtowns are great. Everyone should love them and enjoy them, and they do. But it's the side communities where the danger seems to lurk.

A grandma is told, no, don't go down that street, it's dangerous. What's dangerous, in her mind? She reads so much about street gangs that when when she sees five or six or ten children standing together on a street corner, she thinks, oh, I can't go there, they might attack me. It might not be true, but we need a system whereby there is vigilance throughout these side communities. No one likes to walk down dark streets. We have this apprehension. But we have to get away from this idea that downtown is dangerous and bad. It's one of the safest places you can be. There are always so many people there.

In terms of strategy for children under the age of criminal responsibility, when an officer comes to the house and says, well, your child did this and that, which we have to examine and investigate, the fear in the parent's mind is that the child is going to be taken away.

No one wants their child taken away. We need another type of intervention. A quiet-time approach is needed, where the intervener is seen as a friend of the family, not just a minion of the law. If you want families not to cover up bad behaviour amongst their children, you have to be on their side. You have to appear as their friend to get to the bottom of the case so that you can do the correction. You'll never do the correction without community help. We have to have a different mindset ourselves on how we go about this.

We totally agree with all of the principles you've enunciated. We certainly believe youth should be treated separately. It must always be remembered that character still has a chance to be altered and reformed because of their young age. We believe in that firmly. The whole family must be involved. We certainly agree with that.

When it comes to offenders being given community service as a penalty, that person reporting to their service officer at certain times is not totally the answer. In order to ensure that effective community service is performed, special workers, not social workers, are needed to enforce true performance in spot-check inspections.

Yes, of course the costs will go up, but we cannot do it without costs. Do we really want to do the job or not? That's the question when it comes to costs. Do we want to do the job?

Look, if there was a war tomorrow, there'd be all kinds of money available, so let's not get bogged down on cost.

With regard to measures for more serious offences—

The Chair: Mr. Holloway, on that point, can you come to some conclusion?

Mr. Don Holloway: Okay, I'll come to closure now.

We must broadly interpret what a jail sentence means. Incarceration alone has no value. We need psychological education to reorient the spirit of the offender. He must come out, as George Bush says, a kinder and gentler person in the end. That's what we want to accomplish. Otherwise, the bad boy comes out as Legs Diamond, Al Capone, or Babyface Nelson.

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Sentencing, then, should be whatever length it will take to graduate a rehabilitated person who has been prepared for reintegration into the community. That's our message.

The Chair: Thank you very much, Mr. Holloway, for the message.

Thank you to all the witnesses.

We'll now offer the opportunity for a little dialogue, starting with Mr. Cadman for seven minutes.

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

I thank you all for coming today. I have a couple of questions. I've asked these of previous witnesses.

First, on the extrajudicial measures, I feel we have a potential here where we could have a young person basically going through a revolving door of extrajudicial measures, going from one offence to the next. Especially in cases where we have police cautioning or pre-charge diversion and so on, I've been told that the only way to keep track of that is some type of record-keeping. I have my concerns about how that's going to be done, not only within a jurisdiction—from, say, one policeman to the next, separated by a couple of months—but also from one jurisdiction to the next in terms of knowing if this person has been alternatively dealt with on prior occasions.

Do you have any thoughts on that?

Mr. Steve Sullivan: I'm not sure I'm qualified to say how it would be done, but I would agree that it is something that should be done. I mean, if these kinds of measures are reserved for the first-time low-end, or the kids who are going in maybe once or twice, then you want to keep it to those kids.

Mr. Chuck Cadman: You want to make sure it's the first time. That's my point.

Mr. Steve Sullivan: Exactly, yes.

Ms. Erin Hatfield: There should be some mechanism of tracking, if possible; you know, thirty warnings are just as good as one.

Mr. Chuck Cadman: That's going to translate into better funding, I would suggest, because it's going to cost money to do things like that.

How do you feel about the whole funding aspect of this proposed system? Do you feel the federal funding offers are enough?

Mr. Steve Sullivan: I think the success of the bill, as with the success of the last bill, really depends a lot on funding. It's fine to talk about an increased focus on alternative measures programs, but if no programs are being offered, then what good is the bill?

As to whether the $206 million is enough, I don't know that we're qualified to say, but certainly the funding level is the key to making this or any other young offenders act work.

Mr. Chuck Cadman: I'll just quickly move on, because I know my colleague, Mr. MacKay, also has issues with funding.

With regard to the presumptive transfer, how do you feel about it being restricted to the four offences named? As well, perhaps you have some comments on how it's going to be determined and what constitutes that third serious offence. In other words, are you okay with the four that are there or should it be expanded, and how do we determine that third?

Mr. Steve Sullivan: I'll quickly give you our recommendation, that sexual assault with a weapon and aggravated assault be added to the list of presumptive offences.

Mr. Chuck Cadman: Anybody else?

Mr. Bruce McGloan: Kidnapping could very well be included, and sexual assault causing bodily harm. Actually, any violent or weapon-related charges could be included. Those could be presumptive, I would think.

Mr. Don Holloway: We believe sexual assault is a crime. If violence accompanies it, or if harm is done, that's another crime. It shouldn't be just one crime. It's two crimes. Let's look at it that way.

I mean, harming people is dangerous. It's bad stuff. In a sexual crime, there might not be any harm but there could be mental harm. It's a different type of harm, a different type of crime, and we shouldn't just lump them together as “violent sexual assault”. It's two things, sexual assault and physical assault. These are two crimes that should be punished or corrected both ways.

Mr. Chuck Cadman: Okay.

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I'll direct this one to you, Mr. Holloway, since this affects the group you represent. On the west coast, and indeed across the country, we've had a series of very nasty incidents dealing with home invasions. And a number of them have involved young offenders. I just wonder if you have any views on whether or not that should be addressed with this bill, or if there's some other mechanism.

Mr. Don Holloway: We have personal knowledge of clergy people from our area going to another community and being killed in their own home. We believe that should be addressed. The two crimes there, the physical assault, the murder... The fact that somebody invaded your property and went into your home is another crime. All these things should be addressed. We think that should be it.

Lumping crimes into one, saying these five things are one crime, is not... We believe the charges should be laid accordingly. We figure no one should be going to your home to do anything. If they just go into your home, it's a crime, even if they do nothing. We believe that should all be addressed.

Mr. Chuck Cadman: I'm just going to one final question on your views on the age of application, both at the top end and the bottom end.

Mr. Steve Sullivan: Our position is that the maximum age should not be reduced. This was our same recommendation the last time around. We don't let kids drink until they're eighteen or nineteen, depending on what province you're in. If we put it down to sixteen or seventeen now, two or three years from now you might be talking fourteen. You have to draw the line somewhere, and given the presumptive offence is for the most serious, the maximum age is appropriate.

Ms. Erin Hatfield: Victims of Violence believes that for crimes of extreme violence there should be a provision that allows criminal charges for individuals who are ten and eleven. We also believe that the maximum age should be reduced to sixteen, and that's just maturity and responsibility.

Mr. Bruce McGloan: I'd have to agree that the ten- and eleven-years-olds should be included in serious violent offences. I don't think the social system can actually deal with the problems that are created that these children have. It should definitely be included.

Mr. Don Holloway: I don't think we should just punish children; we should educate them, because they're formative and there's nothing wrong with going down to the lowest possible age. Ten, eleven, nine, eight—let's get there and correct them. If you don't correct them, what's the point of having law enforcement people going out and just throwing people in jail? It doesn't do any good for society.

The Chair: Thank you, Mr. Cadman.

Mr. Bellehumeur has given us the opportunity for Mr. McKay to ask one question. He has to leave.

Mr. John McKay: I apologize for that. It is directed to Mr. Sullivan.

In your presentation with respect to victims' participation in the system, what I was questioning was why Bill C-79 wasn't just simply downloaded right into this bill. Is there any compelling reason why that would be?

Mr. Steve Sullivan: I'm not sure that it's not. We made those recommendations to make it clear for courts and for victims what their rights were. If Bill C-79 is downloaded, or it can be, or it has been, then that answers many of our questions, but we want to make it clear.

Mr. John McKay: We got into some “shoulds” and some “shalls” and some discretionary items. I can't recollect Bill C-79 well enough, but it seemed to me we addressed those issues in Bill C-79.

Mr. Steve Sullivan: As far as I know, this is the only piece of federal legislation that says that victims should and should not be treated in a certain way. I don't think there was any preamble, as I recall, in Bill C-79. Certainly the provincial legislation talks about how victims should be treated, but I don't think in the Criminal Code it says victims should be treated this way.

The Chair: Thank you, Mr. Sullivan, and most particularly, thank you, Monsieur Bellehumeur.

And now to Monsieur Bellehumeur for seven minutes.

[Translation]

Mr. Bellehumeur (Berthier—Montcalm, BQ): My first question is for Mr. Sullivan and Ms. Hatfield.

There was a great deal of emphasis on the victims in your presentation. My understanding is that victim assistance is the purpose of your associations.

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I took notes and I wonder whether everything you mentioned could have been incorporated into the existing Young Offenders Act. Don't you think that victim notification, victim participation in sentencing and all that you asked for with respect to the victims could have been incorporated into the existing legislation?

[English]

Mr. Steve Sullivan: I think you could have amended the YOA to meet these needs.

Ms. Erin Hatfield: I agree.

[Translation]

Mr. Bellehumeur (Berthier—Montcalm, BQ): Did you look at the new enactment and at the changes to the Young Offenders Act besides those dealing with the victims? Bill C-3 does focus slightly more on the victims, but did you take a look at the other provisions concerning young offenders, how they will be dealt with and so on?

[English]

Mr. Steve Sullivan: We didn't hold the two side by side. We tried as best we could to see what the differences were in this bill, as compared to what the changes were in the Young Offenders Act.

Ms. Erin Hatfield: Yes, I have had a chance to review it very briefly. If you want to discuss a specific point, I could definitely try.

[Translation]

Mr. Michel Bellehumeur: Did you notice any significant changes?

[English]

Ms. Erin Hatfield: It seems as though the focus on incarceration is severely reduced in this bill, compared to the Young Offenders Act. That's just my impression. It seems as though alternative measures, as we previously knew them, or extrajudicial measures have been expanded quite broadly. I hope the funding is available for those programs to go forward.

[Translation]

Mr. Michel Bellehumeur: My next question is on earlier testimonies of yours before this committee. When changes were made to the Young Offenders Act previously, in 1992 and 1995, I heard you and other witnesses urge the government to do more than merely amend the act, by ensuring that funding be available to enforce it.

At the time, we were told that the department would be allocating $206 million over three years. Do you think that similar results could be achieved by investing $206 million in promoting and enforcing the Young Offenders Act?

[English]

Mr. Steve Sullivan: As I mentioned in my opening remarks, I didn't think the Young Offenders Act was not fixable. You could have taken the improvements this bill made and applied them to the YOA, and certainly if you had put the $206 million in there, you'd see the same results as you hopefully will see from this bill.

[Translation]

Mr. Michel Bellehumeur: This question is for all four witnesses, and it will be my last one, Mr. Chairman. Do you know how the YOA is applied in Quebec and how successful it is? Did anyone look at the situation in Quebec?

[English]

Mr. Steve Sullivan: We have a general knowledge of how things are applied in Quebec, and certainly in a general way there's much more emphasis on prevention and social services and those kinds of things.

At the conference I was at in Hull, which had people attending from all the provinces, certainly there were different priorities. For example, in Ontario 41% of all young offenders who were convicted of crimes were in some kind of custody. I was surprised to find out, for example, that in Quebec it was 29%, according to these stats, and in Alberta it was 28%.

What's interesting is that there are really good programs and so on in every province, and Quebec has applied the principles of the YOA more consistently than other provinces have, and certainly I think the successes of that have come. There's a perception in the western provinces to throw all young offenders in jail, and I don't think it's accurate. Ontario and P.E.I. probably have the highest levels of custody. I think the other provinces have a lot to learn from Quebec.

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[Translation]

Mr. Michel Bellehumeur: One final comment. In Quebec, of all those involved in enforcing the YOA—and I may learn of yet more today—be it lawyers, Crown attorneys, physicians, psychologists, establishments or what not, not one will support Bill C-3. They are asking for minors changes to be made, but will never support Bill C-3.

What does that tell you when there is no support for such a bill in a place where the Young Offenders Act is enforced?

[English]

Mr. Steve Sullivan: It's certainly a consideration, but we work with victims. Whether or not you need a new bill or you fix the old one, we have dealt with victims in Quebec, as in every other province, who have said that they're not satisfied with the YOA and that there are problems. Again, I don't know whether or not you need another bill for that. From the people we represent or try to represent, there's not complete satisfaction.

[Translation]

Mr. Michel Bellehumeur: Do you have a list of some sort of your membership in Quebec?

[English]

Mr. Steve Sullivan: I can certainly give you names of some victims we've worked with. People don't really belong to our group; victims just come to us for help, and we offer it.

[Translation]

Mr. Michel Bellehumeur: You should leave this list of names with the Chairman.

[English]

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

Mr. McGloan, do you have a comment as well?

Mr. Bruce McGloan: Yes, I wanted to comment.

We had done a little bit of research about the way Quebec treats young offenders, and it's our understanding that they lean more toward the extrajudicial measures. I just wonder what the long-term effect of reoffending is as an adult. Are your percentages the same? We were told that in a lot of cases they're very similar, or even higher in some cases.

[Translation]

Mr. Michel Bellehumeur: Should I answer?

[English]

The Chair: I take the comment, but the order of business is that you're the witnesses and the members aren't. And that's for your protection.

Mr. Bruce McGloan: No, he asked if we had done any research about the way they implement it, and I was just commenting.

The Chair: We take the comment, and I'm sure witnesses will understand that it's very important that we maintain this relationship, because if it ever gets to the point where the members decide that they have become the witnesses, we're in big trouble.

Mr. MacKay.

Mr. Peter MacKay: I don't know about that, Mr. Chair. I think we should be put on the hot seat too.

I just want to begin by thanking all the panellists, and particularly you, Mr. McGloan. I know what an emotionally trying process it is that you've gone through prior to getting here. And we very much respect and appreciate your being here and your presentation today.

Mr. Bruce McGloan: Thank you.

Mr. Peter MacKay: Because of the perspective that you all bring to this, I want to tailor my questions to your presentations and particularly to the victims. A new element of this legislation, as you're probably aware, is borrowed from the adult system. It brings into youth sentencing a concept that's become known as conditional sentencing. And conditional sentencing has been referred to, in street parlance, as a “second second chance”.

Where before you were given probation on top of probation and probation, now there will be the additional option for a judge to give a conditional sentence. That means to say, for example, “We're going to sentence you to six months' incarceration, but you're going to serve it in the community before you're actually incarcerated, and if you screw up again, then you're actually going to go into a youth penitentiary”.

Do you think this is a necessary addition to this legislation, given that the judges already have a fairly broad range of discretion in deciding whether or not to send a youth to a closed facility?

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Mr. Steve Sullivan: We're not opposed to conditional sentencing in the youth or adult systems. We would put the same caveats on it that we do, for example, on the extrajudicial measures—that is, they are not appropriate for crimes of violence.

Mr. Peter MacKay: Okay. That was my next question. Thank you.

Mr. Holloway.

Mr. Don Holloway: We think that's the right track. There's no problem with it except this: where's the education? How are you changing these people's minds? How are you correcting them? That is corrections: to change the people.

We're still dealing with the caveman thing: throw them away. That's not the way. We have to spend dollars on education. If we don't have a large, national educational program for youth criminals—because they are criminals—in order to change their orientation, we're doing nothing. We can spend billions on it if it's only for punishment, but to correct them, to change them... It's a type of schooling, a type of educational program. I don't see that we're working on that method enough. We're still trying to lock them up or we're still saying to them to go out and do so much penalty for their crimes, to go and work with the playgrounds or with children or something else—and just because they're doing that, that's their penalty.

We don't want to see that. We want to see us saying to them, go and do this and get educated. We want to see us saying that we're going to supply them, that once a week they're going to have to write down stuff, that people are going to ask them questions, that they're going to be taken into a classroom or they might be sent a book they have to study and then write an exam on—or we'll even give them a handset on which they can record what they have to say and send it back. We'll do this for six months or for a year and a half until we're sure their mindset has changed. That's the approach we have to take. We have to change the people.

If criminal justice means just grabbing them, throwing them away, and giving them a sentence so that society says, oh, that's a wonderful sentence you gave him, but it does nothing to change the person, we've done nothing.

Mr. Peter MacKay: Thank you.

Is there anyone else, particularly on the comment on conditional sentences not applying to violent offences...

Mr. Bruce McGloan: To non-violent offences?

Mr. Peter MacKay: Yes.

Mr. Bruce McGloan: We're for conditional sentencing in regard to non-violent offences.

Also, though, it should be made clear that the words “non-violent offence” are deceptive too. Non-violent offences could be sexual touching, drug trafficking, pedophilia, and break-and-enters. There has to be some line drawn as to what “non-violent” means. Also, as far as discretion goes, is that the discretion of the judge? We are in support, but to a point. There has to be some type of monitoring.

Mr. Peter MacKay: Mr. McGloan, could I ask you—and please, if it's too personal a question, don't answer—but is the matter involving your son still before the courts?

Mr. Bruce McGloan: Yes.

Mr. Peter MacKay: Do you feel that you, as a parent, been brought into the system and have been given information that at least satisfies you so that you understand what's happening through the process?

Mr. Bruce McGloan: It's very frustrating to be involved in this system. It opens your eyes to a lot of the frailties of our system, I think. In regard to any information we get, we have to go and ask the Crown. I think there have to be changes in regard to the supplying of information.

Mr. Peter MacKay: Has there been a victims services official assigned to your case, or is there someone outside of the crown prosecutor you're dealing with right now?

Mr. Bruce McGloan: Not that I know of. Nobody's contacted us.

Mr. Peter MacKay: There was another point in the presentation about swarming and how this is becoming very much a concern, not only in metropolitan areas. I think it's happening in rural Canada as well. There was a case in Nova Scotia not that many years ago where a college student was swarmed outside a party. He was in a coma for several months and has since recovered.

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Do any of you believe that there should be a specific offence, in this act or in the Criminal Code, aimed at that type of criminal activity? Often this gang mentality takes over. There may be only one or two that are actually inflicting the harm, but because it's in a group, there's no blame assigned.

Mr. Don Holloway: Yes. Seniors believe that street gangs, which is what swarming is... Although it might be impromptu, it's still a gang act. There should be anti-gang laws, anti-getting-together of people, for that type of offence.

Actually we need a task force out there, not just the police the way they're constituted now, walking the beat. We need a task force out there to look into gang activity, even youth gangs, because it's the same thing. They have to get out there and find out where they are, who they are, and what they're doing. And when an offence is committed, the whole gang should be rounded up and brought in, because unless you do that, we're going to have kids swarming. It happens quickly. They might not have it in mind when they leave home, but within half an hour something comes up, somebody points something out, and you have a gang saying, let's go down and do this to that individual. A swarm is created quickly.

But if we had a task force out there looking for it, looking for the potential, finding out what that group is doing... Groups are easy to find anywhere. When you see a group of kids together, you want to find out what they're doing. In my own work years ago, I used to run arenas. We often had dances for the teenagers. Well, as soon as we saw 10 or 15 people in a corner, we knew something was up, and we went down there and had them circulate and move around.

The same thing is needed out in the public, because a lot of this happens... People talk about schools and say there's violence in schools. No. You talk to the principals and the teachers. There's no violence in the schools. Outside the schools, within a block of the schools, that's where the violence is. The school principals and the teachers are in there and still have an hour's work to do before they go home, but the children are out. There's no supervision out there. For that one block around the schools, there should be a task force assigned to check up on this and keep the children from getting into the habit of getting together for violence.

The Chair: Could I ask if others wish to answer the question? Then we'll move on.

Mr. Bruce McGloan: Swarming is a big problem. Actually, my son's death was the result of a swarming, and we would love to see something implemented in this new act that targets that.

Swarming is the most gutless and heinous of crimes. The results that happen... I mean, you get intimidation, witnesses failing to come forward. It is a very big problem out there. As I say, it is coast to coast. You look at Reena Virk out on the west coast and at the problems with that young 15-year-old in Toronto; evidently it happens at a rate of two times a day in the Toronto area—and across western Canada as well. Something has to be done to deter this, and it has to be fairly substantial legislation, I would think.

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

The Chair: Mr. Sullivan or Ms. Hatfield, on this question specifically.

Mr. Steve Sullivan: Just briefly, we've made a recommendation in our brief that participation in organized crime, gangs, be an aggravating factor in sentencing. Now certainly there's no objection to that being under a separate offence. We made that recommendation because we weren't sure of the constitutionality of making being part of a gang an offence, but certainly our experience with that and the recommendation to us came from Theresa McCuaig, who this committee has heard from about the murder of her grandson, which involved a gang. We certainly would support those measures.

Ms. Erin Hatfield: My comments are very similar to what Steve said. Quite a few studies have found that adult gangs will use youth and recruit them and get them to do their dirty work. One of the quotes that was found is very short: “Minors are frequently used to carry out illegal activities because if they are caught they are rarely, if ever, prosecuted.” I guess police don't identify that they are a member of a gang and it's allowed to continue—and adults know. “How old are you? Under 18? Good.” You need to remove youth from that situation. That's very important.

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The Chair: Thank you, Mr. MacKay, and thank you, panel.

Mr. Grose.

Mr. Ivan Grose: Thank you, Mr. Chairman.

I'd like to thank all the witnesses for appearing, especially Mr. McGloan. You epitomized how the system should work. We so often hear from our constituents that they have no say in the system. We hold hearings, and no one turns up. You've turned up.

A committee starts with a blank page, and if no one turns up to tell us, the page remains blank and we go with what we have. So I do appreciate you being here. As I say, it shows the system does work and we do listen, because you go down on the page.

Mr. Holloway, I appreciate your attitude, I myself being fully qualified to be a member of your organization. I loved what you said, that our downtowns are not unsafe; they are safe.

Mr. Don Holloway: They are safe.

Mr. Ivan Grose: We do have problems, but I'd like to ask you, does your group really feel that the system is serving them? I know you've made a few suggestions, but you haven't said that the whole thing was no good. Does your group of people really feel that they're being well served by the system, or possibly, with the new act, a little better served?

Mr. Don Holloway: Seniors, like persons with disabilities, are very vulnerable. The appearance is, well, you're old; you're not very strong; we can do something to you. A child running down the street and grabbing a lady's purse and running off with it is one thing, but where seniors are physically attacked, that's another thing. It shortens the lifespan; it creates things in your mind that make you a recluse, and you're afraid of everything for the rest of your life. It's really bothersome. Prevention is the whole key to everything.

Just having sentences and all kinds of measures to deal with it after it happens... It starts off very young, and I say it starts off outside the school, within that one block, and unless we have something that's going to change the character of children as they grow up and become youths, we're not doing anything. It's easy just to grab them after it's done and bring them to court and throw them away, but that's not what society wants. Society wants prevention. You get prevention through different methods, and we need budgets in order to do it.

If you need three more policemen, okay, the budget is easy to get, but if you need three more investigators or three more undercover people to go out and try to prevent this, or if you need an educational program for someone who has done it, it's hard to get that kind of money.

Mr. Ivan Grose: Yes. Thank you.

Mr. Sullivan, I've listened to you before, and I always appreciate what you say. You made a comment about the Young Offenders Act, that it really wasn't all that bad. We may be able to make it a little bit better with the new act, but I think you probably will admit that someone has done a terrible job of selling the Young Offenders Act. I found that my constituents don't understand it, the police I've spoken to don't understand it, and even judges don't understand it. They seem to get their information from the media or from talk shows rather than from reading the act. Do you have any suggestions on how this new act could be better sold? Could you help us? How could we do it?

Mr. Steve Sullivan: I think this is certainly your opportunity to do so. The benefit of bringing in a brand-new act is that you can start fresh and hopefully educate all those people better.

You talked about police officers. This is a very large and complicated bill, and I think police officers and crowns will require specific education on what their powers are now, what they can do and what the new offences are. Education for the people applying the act is incredibly important, because if they don't understand it, the public is not going to understand it. So if you can do that, you're winning half the battle.

The other part is trying to educate the public, because I think most of their concerns are about the high-end violent offenders.

As we mentioned, I thought the YOA worked relatively well with some adjustment, but people didn't understand that and some of them didn't agree with it, which is fair enough. But I think if the public is going to debate it, they need to understand it. Certainly our organization, with the people with whom we work, will do our best to educate our constituents, if you will, but I think the federal government has the opportunity now to correct some of the misperceptions and to point out the improvements that have been made.

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Mr. Ivan Grose: But if we don't do a better job than we did with YOA, we'll be right back—

Mr. Steve Sullivan: We'll be back here ten years later with another name on a different bill.

Mr. Ivan Grose: Thank you.

How am I doing, Mr. Chairman?

The Chair: You're doing wonderfully, Mr. Grose, but you have two minutes left.

Mr. Ivan Grose: Fine.

Ms. Hatfield, you asked that we define “victims”. Would you rather have us define “victims” in legislation, or leave it to the judgment of the court? In some situations the victim may extend much beyond the person who was hurt. In other situations, there's a single victim and that's it; the cousins or the aunts and uncles really aren't concerned. Do you want it defined, or do you want it left to judgment?

Ms. Erin Hatfield: I would like it defined. I see your point, and it is a wonderful point. My concern is that someone in Nova Scotia who is the aunt of a victim will be denied victim status even though she wants it, whereas someone in British Columbia will be accepted, and that is a very difficult thing across Canada.

If we are going to have victims' rights in this bill, as the preamble outlined, let's find out who a victim is so that we don't have confusion, we don't have one crown attorney saying yes, you are a victim, but now it's transferred and the other crown attorney has decided, sorry, no, you're not. That does happen, and that's a very big concern for our organization. If you are a victim, you're a victim, and there are certain rights to which you are entitled.

Mr. Ivan Grose: So even though you're suggesting our societies do differ from coast to coast to coast—

Ms. Erin Hatfield: Yes, they do, and families.

Mr. Ivan Grose: —you still want it defined.

Ms. Erin Hatfield: Yes. I know that's very challenging. Of course I've taken the easy way out and not provided you with a suggestion, but I think it is important. Each family is different, each region is different, and each case is different. I would like to see maybe a very wide definition so that people who may like to be considered a victim are able to be. I think it's very important for a victim to be able to open it up and, as you said, be able to read it and understand it for good PR.

Mr. Ivan Grose: Thank you very much.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Grose.

We'll go back to Mr. Cadman for three minutes.

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

I have one quick question. I'd like to hear each of your comments or views on the absence anywhere in this act or the previous one of two words: “deterrence” and “denunciation”. They do appear in the Criminal Code, but they don't appear anywhere in youth legislation. I'd like to hear your views on that.

Mr. Don Holloway: Would you please repeat the two terms you gave?

Mr. Chuck Cadman: They are “denunciation” and “deterrence”, when we're talking about principles and principles applied to sentencing.

Mr. Don Holloway: Deterrence.

Mr. Chuck Cadman: Yes.

Mr. Don Holloway: All right. One thing we've discussed is deterrence. It's hard to put your finger on what deterrence should be, but we have come up with the idea, and I've been talking about it all through my presentation here, about re-educating the offender. That's often a deterrent. No one wants to go through school again, and no one wants to study. Children hate school, and this is what it would be. It would be a good deterrent if you had to sit down and pound the books or pound things that are coming to you every week to which you have to make replies in order that you're going to study. We've certainly looked into that, and we believe it's deterrence.

There's one thing we would like to bring up, and I've been asked to bring this up. That is, the mindset that goes with this imported slogan from the United States, “soft on crime”. A lot of people think unless you put them away for fifty years, you're soft on crime. It's a bad slogan, and we should get away from it. If we educate people, people will say you're soft on crime. We have to get our own mindset right. We're not soft on crime at all, but don't let a slogan throw the whole system down the drain.

Mr. Steve Sullivan: Those are two principles the act doesn't mention specifically, but I think we'd all agree that the intention is that you want to deter youth from being involved in behaviour and you want to let them understand that society doesn't approve of what they've done, which is to denounce their actions. Those are two principles this bill should reflect.

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Ms. Erin Hatfield: I don't really have anything to add aside from what Steve just said. Sorry.

Mr. Bruce McGloan: Sadly missed in this legislation are deterrents, denunciation, and you can add to that consequences. Look at the approach taken in a state such as California, where they have the three strikes and you're out. Their focus is on violent offenders. Serious violent offences have dropped 40% in California. They should definitely re-look at this. There have to be deterrents; there have to be definite deterrents. These kids know the system too well, the ones who are in and out of it, and they do take advantage of the previous legislation.

Mr. Tim Reich: We would definitely like to see at least the word “deterrent” included as a significant part of this act. I refer again to the most serious violent young offenders. We've been told there are underage gang members in this country who do not attend school and who have been diagnosed as clinically psychopathic. No matter what type of psychological intervention is made available to them on a long-term basis, some of these young people who have a deeply embedded gang mentality are just not going to mellow until they get into their 30s. We've been told that by some top clinical psychologists in the country.

When you get to that level—and it is an extreme level and one that, yes, does not happen very often, but when we are speaking at that level—to us there is no option for prevention other than a deterrent for these types of gang members and young people who have this deeply embedded mindset.

Mr. Chuck Cadman: Thank you.

The Chair: Thank you, Mr. Cadman.

Mr. Maloney.

Mr. John Maloney: Ms. Hatfield, you indicated that the age should perhaps be dropped to 16, because of maturity levels. Mr. Sullivan has indicated that it should remain the same, supposedly because of maturity levels: we allow them to drink at 18 or 19. How do you reconcile the two positions, or can you?

Mr. Steve Sullivan: Different groups have different perspectives. Some different members from the same party have different perspectives. One of the values in having more than one victims' group or victim come is that you get different perspectives from different people, although we all represent essentially the same people.

Mr. John Maloney: Would presumptive offences triggering more adult sentences satisfy your concerns?

Ms. Erin Hatfield: My concerns?

Mr. John Maloney: Yes, on age.

Ms. Erin Hatfield: No. When you are 17 or 18, there is a maturity level, and you fully understand what you're doing. We've created this youth system that is very specific and very protective of youth, and 51% of the youth we're getting now are 16- and 17-year-olds. So if we're going to have a protective system, we should have younger persons. Those older persons will free up a lot of the youth going through.

I think it will improve the public perception of youth crime in Canada. It will reduce a lot of individuals in the system currently and focus on those who are young, less mature.

Mr. John Maloney: Notwithstanding that, do you have any difficulties with 16- and 17-year-olds, if they're considered adults, going to adult custodial facilities?

Ms. Erin Hatfield: If they have committed a violent crime, no, just the same as I don't have a problem with an 18-year-old going if they have committed a violent crime. No.

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Mr. John Maloney: Steve, you have suggested perhaps we should lower the age limit on the other side. Largely I think your reasoning is that there's been a default of the provincial authorities. You suggested we should have special mechanisms, but you didn't elaborate on that point.

Mr. Steve Sullivan: As you have a separate youth system for kids aged 12 to 18 or 17, within that separate system, you could have an even more separate system for the 10- and 11-year-olds, where they would obviously be included in the YCJA but not put into prisons with other young offenders.

I'm not a craftsman, and it's easy for me to sit here and say you should do this, but the kind of system I envision is one where kids have a last chance before they get to the Young Offenders Act, before they get sent to jail. There should be one last mechanism to get these kids the help they need. If that means we have to put them in the YCJA, because the provincial welfare system either can't or won't amend itself to deal with them, then I think that's appropriate.

Again, it's easy for me to say you should do it. How you do it is not an easy thing, but something needs to be done for those kids who are falling through the cracks. Fully 70% of directors of child care agencies said these kids are falling through the cracks. What we're doing now is simply waiting for them to reach the age of 12, when we can throw them in the YCJA. If we can create some kind of in-between mechanism to deal with them and to direct the help they need, then that's better than just waiting for them to reach 12 years old.

Mr. John Maloney: If we bolstered the provincial systems, would that satisfy your concerns?

Mr. Steve Sullivan: If the provincial systems can be fixed to bring in uniformity to deal with and be given the powers and the appropriate funding to deal with these troubled youths, then that's the preferable mechanism. But currently that's not being done.

Mr. John Maloney: Thank you.

The Chair: Thank you, Mr. Maloney and Mr. Sullivan.

Mr. MacKay.

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

I was going to resist getting into the whole funding issue, because it's clear from every witness we've heard so far that we can fix this legislation and make all kinds of amendments until the cows come home, but unless the actual programming has the proper funding, it's simply not going to work. I would agree the emphasis is right in this legislation. The front-end, rehabilitative, educational emphasis, as Mr. Holloway has emphasized, is fine. But without the cold, hard cash, it's not going to work.

The other fundamental element of the act is the emphasis on the high-end violence and differentiating between violent and non-violent. I'm not sure we have the formula right as yet as to what should be included as violence, as some of you have mentioned.

I have two fairly specific questions. I'll direct the first one to Mr. McGloan.

I think Mr. Reich mentioned the ten-year maximum. Unless you actually work in the system or unless you've been brought in through no will of your own, because you've been victimized or a family member or someone close to you has been victimized, the average Canadian doesn't realize the true effect of that type of high-end violence that can be perpetrated.

Is ten years enough in the case of a young person who has committed the worst offence in the worst circumstances and shown no remorse or any attempt to rehabilitate themselves? Is ten years, as a minimum, really enough? Even if they're brought into the adult system and given that designation of life incarceration, it doesn't mean that. It means ten years. What was your thinking when you went into identifying this clause as inadequate?

Mr. Bruce McGloan: We would look at fifteen years. The main reason for that is it is the most heinous crime you can commit.

We hear from the experts within the correction system, psychologists and psychiatrists, that these people who do commit these crimes in most cases have some disorder. Usually it's psychopathic, or there's another term for it. In each case they require many, many years of custodial-type treatment. That has to be looked at very, very seriously.

Mr. Peter MacKay: And the ten-year designation, as you know, is the ceiling. It's a range up to ten years.

Mr. Bruce McGloan: Yes, that is the maximum.

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Mr. Peter MacKay: And often the jury has given some input into that in the final analysis. So you feel that the range itself should be broadened to 15 years?

Mr. Bruce McGloan: Yes. For repeat offenders who are snubbing the law and who are committing these repeat offences, there has to be a provision to increase that maximum sentence to deal with these. It is a small percentage of young offenders and it should definitely be looked at.

Mr. Peter MacKay: I have a couple of other broader questions for all of you. I'd like to get your opinion on the issue of cost recovery that is touched upon in this bill and the ability of a judge to order an offender to make restitution, to make compensation that would sometimes include community service orders if they cannot or will not make the restitution. Also, what is your opinion on the issue of parental accountability, which we haven't talked about too much here today?

Mr. Don Holloway: Restitution is a very important thing. If you do a crime, why get away with it? The problem in the courts... We say we have a criminal court and we have a civil court. You go to the criminal court, and if you're convicted, you're convicted. The judge doesn't seem to have the power or the willingness or the authority to say “Okay, do some restitution”. The family has to go to another court, a civil court, and say “We want some restitution for the loss”. I think that's harmful in these cases. We should have some system whereby a judge has the power to say “All right, make restitution, and this is the kind of restitution you will make, because we've studied this and we know just what should happen”.

Mr. Peter MacKay: I'm just trying to follow you here. You are talking about some specific orders that a judge could make to a young person: “Turn over a $300 Nike jacket to the court”.

Mr. Don Holloway: It would normally be a civil case, but he should have the power to be able to do this. We've kept those two sides of the law so separate that it's difficult for a judge to say “Make restitution”. A judge will say “Have you made restitution? Okay, you have already, so therefore I'll be more lenient with you.” I don't hear judges saying “Make restitution”. So we have to combine civil and criminal laws in these types of cases whereby the judge can order restitution. It's very, very important.

If you don't mind, you were mentioning the length of sentences. It's very wrong to say that a sentence for this type of crime is five years, a sentence for another crime is ten years, a sentence for another is twenty years. I'll get back to my point that sentences should be whatever length of time it will take to graduate the person through rehabilitation and to make him a good citizen and join society. These people have brought out cases whereby young people are psychologically broken and it takes them until they're in their thirties before they even begin to be repaired. Okay, so if it takes twenty years to do it, let's do it. Why say “Okay, you're out in ten years and you're free of us”, and these persons still have the same mindset and they go out and continue what they've been doing? Let's get away from this idea of up to ten years, up to fifteen years, up to twenty years, at the discretion of the judge. Let's say it's unlimited; it can be three weeks, but it can be twenty years too.

Remember Gilbert and Sullivan: Let the punishment fit the crime. Well, let's do it. Let's not put artificial barriers in the way of judges so they can't do anything.

The Chair: I believe Mr. MacKay has put a couple of questions for everybody and the time will have expired. Do the others wish to answer?

Mr. Steve Sullivan: I guess with regard to restitution orders and parental accountability, you might be able to tie them both in. The problem with restitution orders in the youth system, I would suspect, is the same as in the adult system. They're so difficult to enforce that it's almost not worth it in the end for the victim.

In the youth system judges can be much more imaginative. As you said, if the kid has a $300 coat or pair of shoes or whatever, perhaps those kinds of things could be worked out. On the other hand, if the young person is not willing to pay for it, perhaps the parents should pay for it. If the problem is that the parents are suffering from poverty, then of course you don't want to do that. Judges should be able to take that all into account before they even order restitution.

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I think those two principles can be tied together. Before you teach a kid about responsibility, perhaps you need to teach his parents about responsibility. Again, a lot of the problems we see with these young people is that there are simply no financial resources at all.

Those two concepts are not necessarily in different worlds.

The Chair: Mr. McGloan or Mr. Reich.

Mr. Tim Reich: Just to be clear, we're talking about recovering costs for youths who commit vandalism to private property. We're all for that if that's what we're talking about here, recovering these costs or forcing young offenders convicted of vandalism to repay all or a certain portion of the cost to a person who has had their car window smashed or their house ransacked.

There was a case in the last year and a half in Calgary where there was $60,000 worth of damage done to the inside of someone's house during a ransacking incident. That is an extremely significant amount of damage. To not financially hold any of those people convicted of that responsible to repay either a sum or a portion of that amount of money is not right. They have to be made accountable for the damage. Even if a young person has to give up owning a car for a couple of years, well, let's do it. Why should they have the right to spend their money on a car when we have to burden the insurance companies to account for the financial damage of these young people? So yes, we're all for it.

The Chair: Thank you very much.

Mr. Grose.

Mr. Ivan Grose: Despite your advice, I'm going to cast myself in the role of witness.

Mr. Holloway, I was particularly impressed with what you said. I liked your remark about if it takes three weeks or twenty years. I agree with you completely. With some, three weeks would be enough. With others, it could take twenty years. We also have to segregate our correction system and our mental health system, because we're incarcerating people who have mental problems, and incarceration doesn't do that problem any good. They need treatment.

Mr. Don Holloway: I can't agree with you more.

Mr. Ivan Grose: Ms. Hatfield, you said something that disturbed me a bit. You said that you had no problem with committing 16- and 17-year-olds to adult institutions. Having more than a passing familiarity with adult institutions, I would suggest that you avail yourself of the opportunity to visit either a maximum- or a medium-security institution. I think it might temper your view on that. I'm afraid that if you commit people of tender years—they may not seem to be tender people, but they're of tender years—you're creating more problems than you had to begin with. This is just a suggestion.

The Chair: If there's nothing else, I'd like to thank those witnesses who have helped enlighten us in terms of this legislation. I think it's very important. The point's been made. Mr. Sullivan and others have said that this is an opportunity for Canadians to become more familiar with the concepts involved in this. For your part in our efforts to do that, we thank you very much.

This meeting is adjourned.