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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 7, 1999

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call the meeting to order.

Welcome, everyone, to the Standing Committee on Justice and Human Rights. Today we're hearing witnesses on Bill C-3, An Act in respect of criminal justice for young persons and to amend and repeal other Acts.

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Today we have three witnesses—or sort of. Alan Markwart is here representing the B.C. Ministry for Children and Families, and Richard DeBoer is a crown counsel. First, though, I would specifically call on Peter Rosinski, crown attorney. As it reads on our agenda, he's representing the Public Prosecution Service of Nova Scotia, but Mr. Rosinski would like to place it on the record that....

Well, I'll leave it to you, Mr. Rosinski.

Mr. Peter Rosinski (Individual Presentation): Thank you very much, Mr. Chairman, members of the committee, and colleagues.

I certainly was very honoured to receive your invitation to come here and testify before you. I had intended to come and testify before you as an individual and not in the persona of a crown attorney per se, representing the Public Prosecution Service of Nova Scotia. I arrived here a couple of days ago. Upon reflection and after consultation, it appeared to me that what was intended to be individual comments could be construed as perhaps commentary upon the policy of the government, and perhaps upon the machinations of the government in Nova Scotia.

Upon reflection, then, I think it would be most appropriate at this time to decline your very kind invitation to testify. I certainly respectfully decline to do that, having received your invitation, accepted it, and gone so far as to come here.

I hope my apologies are accepted, Mr. Chairman, and members of the committee. Perhaps at some further point in time it may be possible for me to return and take up your invitation, but I cannot do that at this time.

Thank you very much.

The Chair: Thank you very much, Mr. Rosinski. I would invite you to observe the proceedings. We recognize the opening you have given us. We will be hearing witnesses in the new year, and perhaps we would be interested in any opportunities that might arise around those hearings in the spring.

Mr. Peter Rosinski: Yes, thank you. I'll retire, then.

The Chair: Thank you.

Mr. Saada.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I have a question. I don't know if it's feasible or even appropriate, but since of course he's an expert in the field, and I understand officially there is no testimony he can deliver, I was wondering if at the end of this committee meeting we could have a very informal discussion just amongst ourselves, with no formal session of the committee, no records or whatever.

Would you feel comfortable with that?

Mr. Peter Rosinski: I'd be prepared to stay until the end of the proceeding and speak to you about that further, yes.

The Chair: I think you've just been invited to lunch. Thank you very much, Mr. Rosinski.

I'll now turn to the witnesses before us, Mr. Markwart and Mr. DeBoer.

Have you decided who will speak first? As I'm sure you've been advised, we like to see witnesses try to stay as close as possible to ten minutes each in terms of their presentation, after which we'll have questions from the committee.

Mr. Alan Markwart (Manager, Justice Service Section, Ministry for Children and Families, Government of British Columbia): Thank you, Mr. Chair.

In contrast to Mr. Rosinski, Mr. DeBoer and I are here representing the Government of British Columbia. I'm from the Ministry for Children and Families, and Mr. DeBoer is with the Ministry of Attorney General. To be clear, however, we speak as one on this issue.

You've given us 10 minutes each to speak, so I'm going to take the liberty of speaking perhaps 15 to 20 minutes. Mr. DeBoer is here to assist me if necessary.

We've provided you with a short written synopsis of our key points. We will be providing a fuller written submission at a later date.

British Columbia supports the general direction set out for the youth justice system in Bill C-3, in particular the emphasis on diversion and alternative measures, restorative justice, community-based alternatives to custody for less serious young offenders, the rehabilitation and reintegration of young offenders, and measures to better address serious violent offenders.

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We also support many of the substantive changes in law proposed by the bill, and in the second paragraph we give you several examples of some of the key changes we do support.

Notwithstanding our general support for the directions, we've identified a number of concerns about the bill. We have, at the officials level, submitted a rather extensive list of concerns to officials of the Department of Justice, and we trust that they will be addressed.

What we would like to do here is highlight our key substantive concerns about the bill. Our concern here is that if these are not addressed, they might ultimately serve to undermine the otherwise positive thrust of the bill.

First among these is that while we support the use of extrajudicial measures in appropriate circumstances, the creation of a statutory presumption of the adequacy of extrajudicial measures for non-violent offences in particular, and of mandatory police consideration of warnings, cautions, and referrals—for every single offence, I might add—intrudes into the provincial jurisdiction over the administration of justice and may potentially inhibit the effective prosecution of cases.

Second, we believe that the new and more stringent restrictions on temporary detention are not necessary. They will potentially confound and complicate judicial interim release hearings and may inadvertently lead to more delay, notwithstanding that these provisions may be well intended.

A very key concern—and I cannot highlight this enough—is the proposed release to community supervision after two-thirds of a custody and supervision order is served. What this will do is automatically reduce the maximum custodial sentence available for seriously violent offenders, and we fear that this will ultimately undermine public confidence in the youth justice system. An example of that is the current maximum three-year sentence, which is retained in the proposed bill as three years. For manslaughter, the effect of these provisions will mean that the three-year maximum custodial sentence will automatically be reduced to two years, subject to a proceeding for continuation of custody in accordance with a very narrow legal test that will be very difficult to satisfy. That continuation of custody hearing will allow a continuation past the two-year period; however, it would be very difficult to realize.

Third—and this again I would highlight—is that although we agree with the general directions in terms of defining offences as non-violent, violent, and seriously violent, these are very unclear definitions. We have great fears that this is going to create great uncertainty, that it will invite unnecessary and protracted litigation for many years, and may in fact lead to unintended results.

Another key concern is that while we support the approach of conferencing that is identified in the bill, the proposals are far too vague; they are too far-reaching; they lack definition, criteria, and procedures for use; and accordingly, they could prove to be both unworkable and prohibitive in cost.

As well, there are some new sentences created in the bill—some new community-based sentences. One of those is the deferred custody and community supervision order, which is really an adult conditional sentence under a different name, although it is somewhat more restrictive. Our concern here is that if we look at the introduction of conditional sentencing in the adult system, there is no reliable evidence to date that it has in fact had any appreciable effect on rates of incarceration. We fear that it may prove to be the same in the youth system.

There is one omission in this paper, the synopsis, and I will submit a corrected version at a later date.

We also have great concerns about the proposed new sentences of intensive probation, supervision, and support, as well as the new attendance program sentence. The particular concern is about the intensive probation and support program, which we believe is unnecessary, will potentially widen the net, and greatly increase the cost. We in fact do have programs of this sort, a fairly extensive range, but it is our view that there is sufficient scope within the existing conditions of probation to impose these and there is no need at all to create new statutory sentences in order to promote what otherwise is good programming.

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We have key concerns about the omission of deterrence and denunciation from the principles of sentencing insofar as that may serve to erode public confidence in the youth justice system. We can debate the merits, scope, and applicability of deterrence and denunciation; however, we strongly believe that these are salient considerations, at least in some circumstances, with respect to serious violent offences, hate crimes, or offences committed in particular types of circumstances, such as home invasions or assaults in youth custody facilities.

The bill also ostensibly proposes an administrative decision-making process for placement in open and secure custody, and then requires the province to establish a review board for the purposes of reviewing a youth's complaint about his placement in secure custody. Our concern here is that although this is ostensibly an administrative process, the bill proposes giving an absolute right to state-funded counsel for the purposes of the review board process, and the ultimate effect is that this will create a full legal process that is no different from a court process, and therefore serves no advantage for us.

Although we support a post-conviction transfer process for the purposes of receiving an adult sentence and we also support the changes to presumptive transfer, we are concerned about the test for transfer insofar as the only test is whether an adult sentence or a youth sentence would be adequate to hold the young person accountable for the offending behaviour. Our concern here is that it omits the protection of society as the paramount consideration, as is currently the law. There are a number of problems with the provisions regarding the review and enforcement of sentences, and we could go into a great deal of detail there. Only one example is given, which is that there is no apparent mechanism for the arrest and detention of a young person found in breach of a deferred custody and supervision order.

Finally, there is a professor named Jim Hackler, who is now associated with the University of Victoria, and he is an expert in comparative juvenile justice systems. He has done a comparison of juvenile justice legislation across the western world, and he observed that the Young Offenders Act is the longest and most complex juvenile justice legislation in the western world. We would point out to you that the proposed Youth Criminal Justice Act is roughly twice as long as the Young Offenders Act. We are greatly concerned about the length and complexity of the act, and especially about how that affects access to justice and the ability of young people, parents, victims, and the community to readily understand the operation of the youth justice system.

Finally, we have significant concerns about the potential costs of the legislation. Examples of that would be the conferencing and the intensive probation proposals, and cost-sharing generally. You are probably aware that the federal Department of Justice has increased some funding to the provinces, but despite this additional funding, according to our calculations, by the end of the forthcoming five-year period, British Columbia will still receive less than 30% of our share of actual costs of programs. There is a new bridge funding amount available, but it's very limited. It's temporary and will disappear by the end of the five-year period, and it certainly will not serve to fund the additional costs brought about by the bill.

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As well, we do have concerns about the funding that is associated with the proposed intensive rehabilitative custody and supervision sentence, which is not to say we object to that sentence. However, we think this represents rather highly questionable social policy. If you look at the eligibility for that sentence, a key example would be that a young person only becomes eligible for a certain murder-manslaughter, etc...but a third-time serious violent offence.

There is rather generous federal funding for this new sentence, and while we certainly support treatment services for serious violent offenders, ultimately the question has to be asked, why would we have to wait for a third-time serious violent offence before this federal funding kicks in? Surely, if we have an interest in protecting society, that funding should kick in at the first-time violent offence, so that we can prevent that second and third times.

To sum up the issue of cost-sharing, it's been a long-standing position of British Columbia and other provinces that we should be returning to a 50-50 cost-sharing arrangement.

Thank you.

The Chair: I thank you very much.

Does Mr. DeBoer have anything to add, or will we proceed from here?

Mr. Richard DeBoer (Crown Counsel, Ministry of Attorney General, Government of British Columbia): Just proceed. That's fine, thank you.

The Chair: I would ask Mr. Reynolds to proceed, and he has seven minutes.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): Just going on to your very last point, the 50-50 cost-sharing, when this program was initially set up it was 50-50, is that correct?

Mr. Alan Markwart: That's correct.

Mr. John Reynolds: Was that a signed agreement? I'm trying to get at how we ever got back to 30%. When did that start?

Mr. Alan Markwart: It wasn't exactly 50-50; it was 50-50 on eligible services. It's a rather complicated agreement, but roughly speaking, it was 50-50. There was a capping of the funding at fixed levels in 1989, and therefore any additional costs beyond 1989 had to be fully absorbed by provincial governments. There were subsequent unilateral cuts imposed on that capped amount, roughly 3% each time, therefore again reducing the amounts, all the while that provincial costs were increasing. British Columbia's actual share of costs now is about 20%; namely, the federal government only supports about 20% of our actual costs of services.

Mr. John Reynolds: What negotiations do you have with the federal government to go back to the original agreements when this bill came into place to make it 50-50? How can we expect the program to continue if you start off with a 50-50 cost-sharing level and you're down to 20% now? It has to have an effect on the program, unless the provincial taxpayers are expected to eat the whole thing. Is it the same for other provinces? What about provinces other than British Columbia?

Mr. Alan Markwart: I really don't want to speak to other provinces. I'm aware that the proportionate share for British Columbia and Quebec, in particular, has been lower than other provinces. You're correct that in effect what has happened is that the provincial government has had to absorb the cost, and that is a cost to the British Columbia taxpayers.

Beyond that, although we have improved our programs in a number of ways, the capping and reductions have really inhibited our capacity to take other steps that we would like to take—for example, a greater emphasis on restorative justice programs. Obviously there is a limited capacity of the province and the taxpayer to fund all programs.

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Mr. John Reynolds: What action does the provincial government take to negotiate with the federal government to get back up to the 50-50 level? Is there any hope of that happening, or is it going to continue to get lower?

Mr. Alan Markwart: We have continually requested that. There have been resolutions of provincial and territorial ministers unanimously requesting a return. A similar resolution was reiterated from the ministers of justice meeting last week. However, there has not been an adequate response.

Mr. John Reynolds: So there's nothing coming from the other side suggesting they would want to get back to a 50-50 funding?

Mr. Alan Markwart: No.

Mr. John Reynolds: You have had, as a province, three priorities for changes in this bill. What would they be in order of importance?

Mr. Alan Markwart: That's tough. Could I make it four, perhaps?

Mr. John Reynolds: Sure.

Mr. Alan Markwart: If you go through our list, we do have significant concerns about this two-thirds and one-third scheme, and especially how it impacts the maximum sentences for serious violent offenders. As I said, it effectively reduces the maximum custodial sentence for manslaughter from three years to two years. It reduces the maximum for aggravated assault from 24 months to 16 months. It actually cuts both ways. It also creates a problem at the other end. For example, if a youth receives a 15-day sentence, then he will be released after 10 days and you have to go through all the machinations and processing and paperwork to place him on a community supervision order for all five days. That's just a lot of cumbersome administration.

Mr. John Reynolds: Too much paperwork.

Mr. Alan Markwart: Yes, although the primary concern is at the other end—and the impact on the length of your sentences and how that will be seen by the public.

The second primary concern would be around the unclear definitions of “non-violent”, “violent” and “serious violent” offenders. There are a number of problems in this area, because they are so unclearly stated. A non-violent offence is simply an offence that does not cause or create a substantial risk of bodily harm; a violent offence is one that causes or creates a substantial risk causing bodily harm. The only distinction between a violent offence and a serious violent offence is the word “serious”, and I can give you some examples.

Would impaired driving and trafficking in heroin be considered to be non-violent offences or would they be considered to be even serious violent offences, given the potential risk created by somebody driving impaired or the risk of heroin overdose and deaths associated with that?

Would carrying a prohibited or concealed weapon be a non-violent offence or would the crown have to prove not only that the person was carrying the concealed weapon but that he also posed a risk of substantial harm to another person?

Would criminal harassment be a non-violent or violent offence? Does that in fact create bodily harm?

Would sexual interference, which does not create bodily harm, be a violent offence?

Common assault may not cause bodily harm; it may be construed as a non-violent offence. Cruelty to animals does not amount to bodily harm to a person; however, it is a serious offence that can be an indicator of potential harm to others. Robbery with an imitation hand gun.... We could go through all the list.

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What's happened with the lack of definition is that it is going to invite litigation in each and every offence as to whether it falls into a non-violent, violent, or serious violent category, and there will be never-ending litigation. And it would affect the proceedings at all stages as to whether the police will have to exercise the presumption of diversion for a non-violent offence. But what is a non-violent offence? It affects the sentencing criteria, it affects continuation of custody criteria.

In our view, it would be far better to create schedules of offences to settle this question. It would provide far greater clarity.

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

Thank you very much, Mr. Reynolds.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): I want to congratulate you on your submission; it is most enlightening. I now have a better idea of where British Columbia stands on Bill C-3.

What sticks in my mind, though, is the fact that the government amended the Young Offenders Act, saying that it lacked clarity, was too complex, and that it would not be applied properly by certain provinces. Both the submission before me and your testimony lead me to conclude that Bill C-3 has not been made any clearer and, furthermore, that it is extraordinarily long and complex. You go as far as saying that it could potentially diminish confidence in the system.

Would it be fair to say that, instead of amending the Young Offenders Act as we know it and as it is currently applied, had the government allocated additional funding to British Columbia—reference is currently made to an additional $206 million over three years—to ensure stricter enforcement, better results would have been achieved without having to amend the legislation or do anything else?

[English]

Mr. Alan Markwart: To be clear, the position of our government is that we support this bill. We support the general directions of the bill, notwithstanding that we certainly appreciate your comments about additional funding. We should bear in mind that, notwithstanding whatever legislation we have, it is programming and services that go to the heart of the effectiveness of the youth justice system as much as or more than legislation—and, I would suggest, perhaps even more than the legislation.

Around the issue of clarity, yes, we've raised a number of concerns about clarity. It's a question about whether the Young Offenders Act provides clarity and whether this bill provides clarity. We do support the general directions of this bill and we believe that the bill provides greater clarity, broadly speaking, in terms of, for example, emphasizing diversion and alternative measures, alternatives to custody, dividing offences into certain categories, and certain provisions to deal with serious violent offenders. The lack of clarity is around some of the substantive provisions that go to bring into effect those broad directions. So where the clarity is required is around some of the substantive provisions we have identified.

I hope that answers your question.

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[Translation]

Mr. Michel Bellehumeur: It does in part. But when, with respect to diversion and alternative measures and special treatment for serious young offenders, support is expressed for the general directions of the new bill, Bill C-3, I can only wonder. My view is that the existing young offenders legislation would allow for diversion measures, alternative measures and appropriate treatment for dangerous offenders. Serious crimes committed by young people could be tried in adult court.

The fact is that, without sufficient funding, programs cannot be implemented to deal with dangerous offenders, to put in place effective alternative measures and ensure that, provincially, diversion measures have every chance of being successful.

My question remains: If additional funding were provided to develop alternative programming in British Columbia and facilitate diversion and the handling of dangerous offenders, would changing the legislation still be warranted?

[English]

Mr. Alan Markwart: Again, I would have to reiterate that the view of the government is that we do support the bill in the general directions. We believe that some of the substantive proposals need greater clarity and need some change. I agree that we could accomplish many of the objectives through funding alone. Quebec and British Columbia I think are in similar positions. I think it's generally agreed that Quebec and British Columbia have the most progressive youth justice systems in the country.

Generally speaking, you could say there is sufficient scope within the act to take many of the directions proposed, but the reality is that this has not been the case throughout the country. If you want a more consistent approach throughout the country, perhaps a greater degree of guidance and general direction is necessary.

[Translation]

Mr. Michel Bellehumeur: Now, I have a better understanding. Ultimately, is the primary purpose of Bill C-3, whose broad underlying principles include harmonized sentences and equal treatment for young offenders, whether in British Columbia, Saskatchewan, Quebec or Atlantic Canada? Is the objective not that all young people be treated equally?

[English]

Mr. Alan Markwart: Actually, I'm not sure that's the case. If there's a push towards harmony and uniformity, I frankly think the general thrust of the bill is to attempt to push other jurisdictions in the same direction as Quebec and B.C. have gone.

[Translation]

Mr. Michel Bellehumeur: Specifically, under “Sentencing”, at clause 37(2), the bill states that a youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with certain principles, and paragraph (b) reads as follows:

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

Is the purpose stated in this paragraph not to harmonize the sentences imposed on young people, whether in Quebec, British Columbia or Ontario, and basically to treat everyone equally?

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[English]

Mr. Alan Markwart: I'm not sure I would agree with that. I think it goes to the principle that equity and similar treatment, at least within a province or jurisdiction.... I'm not sure the courts would go far and wide in, for example, British Columbia and begin asking questions about what kinds of sentences are imposed for these offences in Alberta and Saskatchewan and Quebec and Ontario. The general rule would be what kinds of sentences are usually imposed for offences of this nature and for offenders in these circumstances within that particular jurisdiction.

The Chair: Thank you very much, Mr. Bellehumeur. We'll be back.

Peter MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

I want to thank you both for being here. Your presentation is excellent. It has the same pristine clarity that we've come to expect from crown counsel. I wish some of my defence lawyer friends were here. Where's Mancini today?

Mr. Alan Markwart: If I could clarify, I am not a crown counsel.

Mr. Peter MacKay: You're not a crown counsel. I thought you were introduced as a crown counsel. I'll get on with my cross-examination, then.

You made some excellent points with respect to the funding. That is the overriding question that comes back time and time again. If provinces are unable to administer existing programs with less than 50%, if they're being asked to do more with less, it's going to be extremely problematic.

You've also pointed out, I think quite rightly, that this entire exercise is a bit like Cartesian thinking: we're written everything down, or at least we've started in that direction, but in reality we haven't written everything down. In regard to one of the points you made about having a list with respect to definitions of violent and non-violent offences, I would also add to that list break and enter into dwelling houses and threats to cause bodily harm. And you didn't say that it was a complete list, but I think there is a need to clarify that.

I would like to ask you a question with respect to the use of what you have compared, and others have compared, to conditional sentences that exist in this new legislation. Should we consider including a schedule of offences that should not be applied with this new provision? The reason I say this is that we know conditional sentences are currently before the court, and pending the outcome of that, is this something we should contemplate: having a schedule of offences, that judges should not be permitted to consider applying this deferred sentencing principle, which is really nothing more than a conditional sentence in the Youth Criminal Justice Act?

Mr. Alan Markwart: If I may take the liberty, on your comments on cost-sharing, a point I would like to make is that I did a calculation last night and the federal contribution to adult correctional services in Canada is 49.5% of the total cost. The federal contribution for young offenders' services is substantially less. This leads us to the unfortunate conclusion that the social policy position of the federal government is that in effect young offenders are less worthwhile than adult offenders.

But to go to your question, there is in fact a restriction on the use of the deferred custody and supervision order. It is limited to non-violent offences. As indicated earlier, we believe there needs to be better definition around what constitutes a non-violent offence. Therefore, if there were a schedule of offences created, that would satisfy your question, I believe.

Mr. Peter MacKay: I have a question along those same lines definitionally. In the Criminal Code they talk about “bodily harm” and they include hurt, injury, interfering in a substantial way with physical/psychological well-being, and integrity of health. These are read into the Criminal Code now in sentencing hearings because of McGrath and Mathieu, which is a recent Supreme Court decision. Without that type of clarity in this new Youth Criminal Justice Act, do you feel that this is going to be left fairly wide open for sentencing judges on hearings to interpret what is bodily harm and what is serious bodily harm? The machinations occurred in the adult system. Are we not just setting ourselves up for the inevitable?

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Mr. Alan Markwart: Yes, I totally agree, and that goes back to our point about the need to create a schedule of offences, otherwise we'll be into a great deal of uncertainty and protracted litigation, case by case by case.

Mr. Peter MacKay: I have another specific question. Subclause 14(2) of the Youth Criminal Justice Act deals with jurisdiction in the Criminal Code for this legislation. Why wouldn't we include section 810.1 in this list of jurisdiction?

Mr. Alan Markwart: I indicated that we only wanted to hit the highlights of our concerns. That would be our position as well, that section 810.1 should be included to allow for a peace bond for concern about sexual offending.

Mr. Peter MacKay: I'm sorry to be giving you some of these specific questions, but your brief was so thorough and it did touch on many of the overall concerns.

I have a couple of more specific questions. Clause 9 of this bill deals with evidence of cautions, warnings or referrals, these extrajudicial measures, police officers' warnings. However, it says they're not admissible in any proceedings. In a bail hearing proceeding, I suggest, this type of evidence is crucial, and most crown counsel would want to be able to exercise at least the discretion of putting that before a judge.

Let me give you an example. A police officer has warned a kid three or four times, taken him home, had him in the squad car, and talked to him on the street. Under this new act, one interpretation is that none of that is admissible at a bail hearing.

Mr. Alan Markwart: I think we would have to put our minds to that issue more. I think one of the concerns about a warning, a caution, or a referral is that obviously, since the person has not been to court or through the more formalized extrajudicial sanction process, there has not been proof or an admission—

Mr. Peter MacKay: That's the case now.

Mr. Alan Markwart: —of responsibility for the offence, which then may raise the question about the status of that information before the court for the purposes of the bail hearing.

But quite frankly, that is off the top, and I think we would have to put our minds to it more.

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

Now I turn to John McKay.

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

As well, I'd like to compliment you on your brief. It's concise and to the point.

I take your point on the definitions, and I take it that's easily fixed by simply attaching a schedule of offences. Is that a fair comment?

On your first point, with respect to the anticipation that in effect three years would become two years on manslaughter and similar kinds of offences, and that will bring the administration of youth justice into disrepute, presumably, though, there has been a notice by the crown at the outset that the crown is seeking an adult sentence in this particular instance, and presumably if they were not successful in obtaining an adult sentence, then you would be in fact fixed with a three-year maximum.

So I wonder whether that in fact militates against your point, that the system of justice will not so much be brought into disrepute as that there will be some loss of public confidence. Presumably the concept of the scheme is on those five-plus-one offences. There will be adult consequences for this kind of crime, and for those who don't make the cut, so to speak, they will be treated as youth crime. I would be interested in your comments on that.

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Mr. Alan Markwart: I'm not sure I fully understand the point, because this issue is not really connected to whether the person will receive an adult sentence. This applies to those cases where the young person does not receive an adult sentence and is retained in the youth court system, for example, for manslaughter.

If you do a simple comparison of the current maximum for manslaughter in the Young Offenders Act and in this bill, it is three years custody. What this bill does is mitigate that to two years. I'm not sure that is going to contribute to public confidence in the youth justice system. There has been a considerable degree of public concern about the adequacy of sentencing, especially for serious violent offenders.

So notwithstanding that there may be provisions in terms of changes to allow for adult sentencing, we're speaking where that hasn't occurred and where they're kept in the system, and the net result is that they're in effect receiving a mitigated sentence.

Mr. John McKay: Presumably they're getting a youth sentence because they've not been able to—to use a bit of a vernacular phrase—make the cut for the adult sentence.

Mr. Alan Markwart: Right.

Mr. John McKay: So I think your concern needs to be put in the context of that issue.

My second issue is with respect to the omission of deterrence and denunciation for the purposes and principles of sentencing.

I went back to the declaration of principle, and the first declaration of principle says:

    (a) the principal goal of the youth criminal justice system is to protect the public by

      (i) preventing crime

Is that deterrence in another phrase?

Mr. Alan Markwart: By the prevention of crime?

Mr. John McKay: By the prevention of crime. That's the first principle.

Mr. Alan Markwart: Not as I read it. I read that as referring to early intervention measures, community mobilization measures, all those things that occur outside of the specific case so that we can prevent the commission of crime in the first place. I don't think that speaks to issues of deterrence or denunciation at all.

Mr. John McKay: Let me read the definition in full and see whether you still think that:

    (i) preventing crime by addressing the circumstances underlying a young person's offending behaviour,

So that's directed specifically to the individual, and as I would read that, the first stated goal—not necessarily the number one goal, because I don't know that it's stated that way—is deterrence of this young person's behaviour.

Mr. Alan Markwart: Yes, but if you read that, “preventing crime by addressing the circumstances underlying a young person's offending behaviour” really speaks to a rehabilitative thrust.

Mr. John McKay: The rehabilitation is further on.

Mr. Alan Markwart: It certainly does not speak to the issue of general deterrence. There is a distinction between specific deterrence and general deterrence. In the decision known as J.J.M., the Supreme Court of Canada has already stated that the principle of general deterrence applies to young offenders, albeit to a lesser degree. We think that's appropriate; it should be to a lesser degree. But it applies nonetheless.

I think the key issue around the principles of sentencing is that in the Young Offenders Act there are no principles of sentencing. There is a declaration of principle from which certain sentencing principles can be derived.

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The proposed new act expressly includes principles of sentencing for young persons. Section 718 of the Criminal Code expressly includes principles of sentencing for adults. In section 718, it expressly states that denunciation and deterrence are principles to be considered for adults.

If you look at the principles set out in the Youth Criminal Justice Act, those principles are omitted. The courts cannot help but make a comparison and say that Parliament put it here for adults, that it is not here for youth, therefore Parliament intended these to be omitted. That's our concern.

Mr. John McKay: Is it—-

The Chair: You've expired your time.

Mr. Cadman, three minutes.

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

I thank both of you for coming. I know the weather's a bit of a blow.

My colleague Mr. Reynolds started by asking you if you could have your choice of three things...and you went to four, although you only managed to get through two. Would you like to finish it off?

Mr. Alan Markwart: Sorry. I think I spoke about the concerns about the one-third release and the definition of violent offences.

These are in no particular order. These are all key priorities.

Third, we have tremendous concerns about the conferencing provisions. I would like to be clear that we support the notion of conferencing; it's really a matter of the provisions being too vague. It speaks to a conference being able to be convened by “any person”. Any person? There aren't any criteria. There are no procedures. In what kinds of cases should these be used? Certainly there need to be some limitations on this, such as, for example, that a conference can be convened in accordance with a program of conferencing established by the province. Then, allow the province to establish some regulations to determine the nature of conferences and who's going to do what.

I guess the fourth concern—which could be the first concern, because they're equal—is the intensive probation and support provision. Again, this is not because we in any way object to those kinds of programs. We have a number of intensive probation and support programs. In fact, in the lower mainland area alone, we have 39 full-time workers providing intensive probation and support.

Our concern here is that it's unnecessary, that we currently provide these programs by way of condition of probation, that it could at the end of the day end up widening the net and being applied to youth who do not require it, therefore greatly increasing our cost. If it increases our cost, then what it does is inhibit our capacity to do other things that we should be doing, such as, for example, a broader implementation of restorative justice programs.

Ostensibly it's framed so that the province can opt out, but it is not really an opting out. It states that the court may only impose that sentence with the consent of the provincial director. Certainly that's improperly framed. We would not want to imagine a situation where the judge is sitting there peering at the poor probation officer from the bench and saying, “Do I have your consent, Mr. Probation Officer, to impose an intensive supervision and support order?” The probation officer would say no at his great peril.

If these orders are to be kept, certainly it should be subject to, for example, a kind of distance rather than a consent provision. You say that it should be imposed only in accordance with a program of intensive probation, supervision, and support established by the province and subject to a report by the provincial director as to the availability of the program and whether the young person is a suitable candidate.

Having said all that, we would prefer simply not to have the sentence at all.

• 1215

Another option, if there's an insistence to keep this sentence, may be to marry it together with the deferred custody and supervision so that a period of intensive supervision and support becomes the form of community supervision for that deferred custody and supervision.

But again, we would prefer to have neither.

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

Mr. Saada.

[Translation]

Mr. Jacques Saada: Mr. Chairman, I have an opening question. Reference was made to the funding provided by the federal government for adult correctional services as compared to youth correction services. I understood you as saying, and correct me if I am mistaken, that the federal government had provided more funding for adult correctional services than for youth correctional services. Is that what you said?

Is the constitutional responsibility of the federal government the same in both instances? Does the federal government have the responsibility under the Constitution to fund the youth services as well as the adult services?

[English]

Mr. Alan Markwart: The answer to your question is yes and no. Certainly it is similar in the sense that the criminal law is an area of shared constitutional jurisdiction, that the federal government of course is responsible for creating the criminal law and the provinces are responsible for the administration. Constitutionally, the federal government is responsible for penitentiaries.

The line of demarcation about what constitutes a penitentiary sentence versus a provincial sentence is not in the Constitution; it's set out in the code. The federal government has decided to draw a line of demarcation that coincidentally ends up with the federal government absorbing roughly 50% of the cost.

But I think the point remains the same: constitutional questions aside, the federal government does provide half of the funding for adult correctional services in this country, yet does not do nearly the same for youth correctional services. I would question whether that's the right balance.

Mr. Jacques Saada: Okay. I'll look it up. I just wanted to make sure I understood you.

I have two very brief questions. First, in your presentation, on at least two occasions you referred to the public confidence. Would you say that your general support for the bill has more to do with reassuring the public in their perceptions or more to do with the substance of the bill? How would you weigh all that?

Mr. Alan Markwart: That's a difficult question to answer. As I said before, I think we do support the general directions. Unlike the Young Offenders Act—and I appreciate the comments of the representative from Quebec—we do think that, broadly speaking, this new act does set out clearer directions in terms of a clearer emphasis on diversion and alternative measures, alternatives to custody, and the dividing up of offences into non-violent, violent, and seriously violent. In that broad sense, it does provide some clear direction.

The public confidence issue is a big issue because—and I think it's a relatively small number of cases—the credibility of the youth justice system has been questioned primarily as a result of public attention to a small number of high-profile cases in which, rightly or wrongly, the public perception has been that the sentencing was not adequate. I think that's something we have to be cognizant of.

[Translation]

The Chair: Mr. Saada, your three minutes are up.

[English]

We'll be back around. I'm certain that everyone's anxious to hear what else you have to say.

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[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur: Do you have statistics available on youth crime in British Columbia? Has violent crime increased in recent years?

[English]

Mr. Alan Markwart: Yes is the short answer. There is a report from the Canadian Centre for Justice Statistics that does a comparison of violent crime rates over the last 10 years, from 1988 to 1998, I believe. It's only been released in draft form and it will soon be published. The increase has been 77% Canada-wide.

Now, that varies to some extent from province to province. We've had similar increases in British Columbia. There are some qualified remarks to make about that ostensible increase. They are based on police charge rates. Police charge rates are not a measure of the actual behaviour of youth, but certainly, in part, a measure of the response of the justice system to that behaviour.

Certainly most would agree that some of this increase, at the least, is attributable to changes in charging practices, and the common example given is zero tolerance policies in schools, which may precipitate a greater degree of charging. Nobody knows how much this ostensible increase is a function of changes in charging practices versus changes in youth behaviour. And that's been a matter of debate for some considerable period of time.

[Translation]

Mr. Michel Bellehumeur: I was talking about serious, violent crime. You maintain that there has been an increase in British Colombia, is that right?

[English]

Mr. Alan Markwart: Yes.

[Translation]

Mr. Michel Bellehumeur: Regarding repeat offences, have you had many repeat offenders among young offenders in British Columbia?

[English]

Mr. Alan Markwart: I don't think it's peculiar to British Columbia. Certainly the research indicates that a very small number of young offenders account for a substantial proportion of youth crime as a whole. Generally the figures vary. From 6% to 7% of young offenders account for more than 50% of all the offences committed by young persons as a whole. And, of course, these are your chronic property offenders. I don't think that is peculiar to British Columbia; it's across the board.

The Chair: Thank you very much, Monsieur Bellehumeur.

Ms. Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): At the risk of being redundant, I too would like to thank you for an excellent brief. It will help us a great deal as we move forward on this.

The mention of a schedule was one question I had. It's been addressed. I don't think that would be a very difficult thing for us to recommend if the distinction between non-violent, violent, and serious violent were addressed by including a schedule.

I'm concerned about a number of issues. There was one you mentioned that particularly struck me. In quoting Professor Hacker, who has done quite a comparative study, you said you believed that the Canadian legislation, which is already considerably longer than any other country's, with the new legislation will be twice as long as the original. You've highlighted access to justice as a key concern, which is indeed a key concern. Is it unfair to ask you or ought I to ask Professor James Hacker how that can be streamlined? Where can we as a committee make recommendations to remedy what you have properly highlighted as a serious concern?

We didn't ask you here for easy questions.

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Mr. Alan Markwart: No. It is a difficult question. However, if you look at the bill, I think there are a number of areas where there could be some clarification and consolidation.

Without going into the great details, all of the review and enforcement provisions.... There are very similar provisions, for example, for continuation of custody for a regular custody and supervision sentence, as distinct from continuation of custody for the offence of murder and conditional supervision. The enforcement procedures are very similar but duplicated. They could be shortened.

The conditions that go along with the forms of community supervision are.... Again, there's a lot of duplication between the two that could be shortened. There are two different provisions for review of non-custodial disposition. There's provision for breach of a community disposition, yet there's another provision for contravention of an order for a community disposition. These things can be merged and reconciled.

I'm sure there are a lot of other areas. For example, there's constant repetition about a parent having an opportunity to make representations at various hearings. Why not consolidate that in one area and say a parent may make representations at the following types of hearings, instead of repeating it throughout? There are a lot of things that could be done.

Ms. Aileen Carroll: Do you think it's the drafting that's at fault here, rather than the intent or treatment of substantive issues? I think I'm moving close to Monsieur Saada, but not exactly.

Is that what's wrong? I mean, we have fixes.

Mr. Alan Markwart: Well, I'm reluctant to comment on my federal officials, whom I work with closely and respect, but I think there has been a problem with the drafting, yes.

Ms. Aileen Carroll: There's been a problem with the drafting.

Thank you. I don't mean to put you on the spot.

The Chair: Thank you very much, Ms. Carroll.

The committee would welcome anything additional by way of substantial suggestions. Having, I think, read in the opening statement that you'd made 140 suggestions to this point, I presume we're not breaking a lot of new ground here—or if we're up around 150 or 160, I'm not sure.

In any case, not being aware of the correspondence that's going on between you and Justice, what is new, we would like to hear those kinds of substantial suggestions as well.

Peter MacKay.

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

Don't be restrained at all by the fact that some drafters may be in the room.

Mr. John McKay: And those who aren't are watching it on television.

Mr. Peter MacKay: That's right, and this will be rebroadcast.

I have a question on subclause 36(7) of the bill that deems all offences summary if not elected by the crown. Maybe this question is more appropriate for Mr. DeBoer, but this to me.... Well, first and foremost, it runs contrary to the Criminal Code and section 34 of the Interpretation Act.

It also has other law enforcement implications, because the objectives may be frustrated when it comes to things like six-month limitation periods on the laying of a charge, for sex offences in particular; fingerprinting for indictable offences; and CPIC limitations for putting those records on-line. I don't know if this is something you had included in your other recommendations, but I'd be interested in your reaction.

Mr. Alan Markwart: Again, this is a matter we really haven't put our minds to closely, but just a quick reading of it suggests that it is only limited to appeals, not to proceedings around all matters. So it's only for the purpose of appeal.

Mr. Peter MacKay: Okay. So you're not concerned about that, then?

Mr. Alan Markwart: We'll look at it, but it's not something that has come to mind.

Mr. Peter MacKay: There is another clause with respect to access to records. It's rather cumbersome to follow, but it talks about having access to records for two months, which seems to be an inconsistency when a young person can go through extrajudicial sanctions and you can have access to their records of extrajudicial sanctions for two years. Then you have considerations for bail hearings as well under subclause 81(1).

• 1230

So I find that rather inconsistent and also confusing.

Mr. Alan Markwart: We agree. That is another of the points we've made, that the two-month retention period for judicial reprimand is absurdly short and, ironically, may lead to circumstances where, if you compare it to the two-year retention period for extrajudicial sanctions, counsel may advise a youth to proceed to court instead of extrajudicial sanctions because of the shorter retention period.

Mr. Peter MacKay: So it may in fact have the reverse effect by forcing the traditional court.

Mr. Alan Markwart: Yes.

Mr. Peter MacKay: Okay. I have another rather quick question, something that jumped out at me from the Criminal Code comparison of breaches of probation.

Subsection 733.1(1) in our Criminal Code talks about breaches being “without reasonable excuse”, whereas a different standard is applied under clause 136 of the Youth Criminal Justice Act, where it talks about “wilfully”. There's a nuance there that I think could be finessed by some some sharp criminal lawyers. I mean, this is going to be a make-work program for lawyers anyway, but this clause in particular is going to give them a lot of leeway.

Mr. Alan Markwart: Well, that actually is an area that goes to the enforcement of orders, and we're getting into particulars here. But I did mention before—you're correct—that clause 136 does require proof beyond a reasonable doubt. However, there is provision in clause 56 for contravention of an order, and the standard of proof is “without reasonable excuse”. So how do you reconcile these two? It seems to be something that should be reconciled.

The Chair: Mr. MacKay—

Mr. Peter MacKay: Perhaps I could have one final point on that.

The Chair: Sure.

Mr. Peter MacKay: Not to dwell on this, but when it comes to breaches of probation by young offenders, and particularly where there is such great emphasis on non-custodial sentences, having worked with youth on these types of probation orders from the court, and with this new philosophy of non-custodial dispositions, I just see this word “wilfully” and the interpretation that could be placed on this as leading to an absolute glut of court cases. They're going to be coming back time and time again for breaches, and they're going to be saying, well, I didn't “wilfully” intend to run into my former housebreaking mate; it just so happens we were on the same street corner. It didn't “wilfully” happen.

You don't see that?

Mr. Alan Markwart: No, I don't see that, because it's the current law.

Mr. Peter MacKay: Okay.

The Chair: Thank you, Mr. MacKay.

We'll go back to Mr. Saada, just to finish his line, and then to Mr. Maloney. I'm sure there will be no problem.

Mr. Jacques Saada: I have selected one comment and one question. The comment is, I refer to what you were saying during your presentation, and correct me if I misunderstood you, but you said the intent of the bill is to push the rest of the country in a direction taken by B.C. and Quebec. Is that fair or almost accurate?

Mr. Alan Markwart: Well, far be it from me to speak for federal officials on this, but certainly if you look at the thrust of the bill—

Mr. Jacques Saada: Just the impression.

Mr. Alan Markwart: It suggests that, yes.

Mr. Jacques Saada: The reason I mention that comment is that's it's funny, you say the same thing Quebec is saying, but Quebec is basing it on on being against the bill, and you are basing it on being in favour of the bill. You understand the kind of difficulty we're in to make decisions here.

My question is, if we take into account the fact that in each province you have different education systems, social services, health services, and so on, do you feel this bill gives your province the flexibility required to adjust whatever is in the bill to your own needs, circumstances, and conditions?

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Mr. Alan Markwart: By and large, but with some key exceptions. Again, we would go back to issues around conferencing, intensive supervision and support programs, attendance programs. We have significant concerns about those provisions, and there is not sufficient scope in the bill to allow us to opt out or adjust, to modify or whatever, no. Even in terms of the provisions around open and secure custody, it's the same thing. Ostensibly there's flexibility there, but we don't really see flexibility.

The Chair: Thank you very much.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): You've zeroed in on the problem of definitions of “violent” and “non-violent” and you've suggested there's an alternative—schedules. I'm just wondering, in talking about flexibility, leaving it violent and non-violent, whether that would be, say, giving flexibility to a judicial determination by a judge. Do you think that's a positive benefit or a negative one? Your concern is that there may be a plethora of litigation and appeals over what in fact is or isn't.

Mr. Alan Markwart: I'm not quite sure I understand.

Mr. John Maloney: Perhaps the legislation is purposely vague on non-violent and violent in order to give the judges more discretion in that area. Is that perhaps a negative, or do you feel it is a positive as well?

Mr. Alan Markwart: I suppose you could argue that there's a positive side to flexibility in terms of giving the courts the discretion. You have to weigh that against...I see no other choice but that if we go down this path, there is going to be never-ending litigation about what is or is not a non-violent or violent offence. On the other hand, you could argue that a schedule creates a degree of inflexibility. You have to weigh one against the other, and we certainly fall hard on the side of clarity and certainty and avoiding protracted litigation. The proceedings in youth courts are long and complex and costly enough. We don't need to add to that.

Mr. John Maloney: Is there a possibility of a merger of the two concepts? Would that give you perhaps the clarity as well as the ability of the discretionary element?

Mr. Alan Markwart: That's an area we would have to put our minds to, and we would have to look at specific proposals. I assume you're suggesting something like creating a schedule, but with some discretion to vary from that schedule. I'm not sure about that; we'd have to think about that more.

Mr. John Maloney: As a philosophy, I think from your testimony you agree with the period of supervision after a custodial sentence, although you zero in and look at the shortcomings, perhaps, as a sentence of manslaughter.

Mr. Alan Markwart: No. In fact we don't agree with the period of supervision after a sentence. This entire scheme of release after one-third, in our view, is based on a false premise. It's based on alleged findings that a substantial number of youth who are committed to custody do not have a period of community supervision following. That is patently untrue.

I can get into long stories about interpretations of statistics and put you to sleep. The bottom line is that we have done a survey in British Columbia and it is more than looking at youth sentence to custody, and more than 90% have probation following custody. The very small numbers that don't have probation tend to be 18- or 19-year-olds, where, in effect, the judge has just given them a short sentence and said “Well, we're now done with the youth justice system and there's not much point in placing you yet again on a period of probation, because you're now an adult.” So we don't really think it's necessary at all.

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

As the person responsible for keeping these people in time, you don't have to worry about anyone going to sleep. They seem to have enough questions.

Mr. Cadman.

Mr. Chuck Cadman: Mr. Markwart, on the issue of extrajudicial measures, how do we keep kids from bouncing from one informal cautioning to the next, to the next? In other words, it's basically just one diversion after another, because these are supposed to be for the first offence only.

• 1240

Mr. Alan Markwart: There are two answers to that. One is an administrative answer. It is the responsibility of the province to set up systems to be able to track when warnings and cautions...and, yes, that is a cost factor. The second is that you're going to the concerns about the presumption of extrajudicial measures, and that's set out in paragraph 4(c), where it states baldly that extrajudicial measures are presumed to be adequate for non-violent offences where the young person has not been previously found guilty.

That sets up this kind of never-ending round of a presumption that the young person may receive an informal police warning the first time, be referred to a police-based community accountability program the second time, receive a Crown caution letter the third time, receive formal extrajudicial sanctions the next time around, and then commit yet another offence. And if that offence is non-violent, because he still hasn't been found guilty, there's still a presumption that extrajudicial measures are suitable.

That goes too far, in our view. We certainly support the principle that extrajudicial measures should be used as much as possible, but not the “are” in paragraph 4(c), which, in effect, speaks to every case.

So that includes the kid who comes up on 10 B and E's and is caught for the first time. It speaks to the 7% chronic offenders. It also raises a whole lot of questions for us about potential interference with prosecutorial discretion and the potential of the courts scrutinizing and overseeing the exercise of prosecutorial discretion. The solution is to modify that. I'm not a draftsman, but there has to be some room around that principle, to the extent possible, so that it doesn't apply to each and every case.

The Chair: Peter MacKay.

Mr. Peter MacKay: I would like to follow up on that. Is it also going to be problematic for the introduction of evidence at bail hearings and for disclosure purposes? Is it now going to be incumbent upon crown counsel to make this available to defence every time the police or the crown...or one of these extrajudicial measures has been exercised? Is that all going to be required by the crown to disclose?

Mr. Richard DeBoer: We just really haven't looked at that issue at this time. There may be an issue of fairness, despite the fact that they're not able to be used, so it's one of the things we'll consider in our next submissions.

Mr. Peter MacKay: Thank you.

I have an overall question with respect to individuals who are completely outside the umbrella of this legislation, that is, kids who are 10 and 11 years old.

Mr. Markwart, I suspect that this is right in your wheelhouse in terms of area of expertise. We're talking about a very small percentage of kids who would be affected.

I had some discussions with Mr. Rosinski on this, and I'm not going to bring him into this because of the statements he's made.

There was a suggestion of one possible mechanism to address this. If we all agree that the philosophy is right in the front-end loading of rehabilitative measures, and early intervention is there and available in this bill, why wouldn't we want to have the earliest possible intervention with a 10- or 11-year-old who has embarked on chronic criminal activity?

• 1245

My question to you is would you favour, or have you contemplated, a mechanism not unlike the current transfer provisions where crown counsel could make an application to transfer a 10- or 11-year-old into this system to avail themselves of all of these, hopefully, rehabilitative, proactive progressive measures?

Mr. Alan Markwart: I think the simple answer to that is yes, we've looked at that and our government does not support lowering the age to allow for prosecution even in exceptional cases.

We would certainly agree that there needs to be early intervention to address these cases and there has to be some social intervention. The real question is what type of social intervention. And it is our view that the more constructive approach is to use existing provincial child protection legislation, mental health legislation, various services and programs rather than criminalizing these youth. In particular, if you think about the consequences of potentially incarcerating a 10- or 11-year-old with 18- and 19-year-old young offenders, the result at the end of the day is that it undoubtedly would do more harm than good, in our view.

Mr. Peter MacKay: Keeping that in mind, what do you say to the inevitable question, when an 11-year-old goes out and sets a senior's apartment on fire or is being used as a drug runner and is involved in violent acts and activity: are the social welfare mechanisms, child services, which are all so drastically underfunded, timely enough, and do they protect the public to an extent where there is no real availability for closed custody?

I keep in mind your last comment, that this is the thing that's really difficult to get your mind around, putting an 11-year-old in a closed facility. But when all other avenues are exhausted, what other mechanisms are there short of this new act?

Mr. Alan Markwart: The kinds of dramatic examples you give we haven't experienced, which is not to say we haven't had problems in certain cases. I think we would be the first to admit that the kinds of programs and services that are applied to the small population could be improved and should be improved.

Generally we're satisfied that the existing legal mechanisms in provincial jurisdiction can address this problem. One of the things the province is currently considering is secure care legislation. If that proceeds, then it would be yet another tool in our tool kit to address this.

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

John McKay.

Mr. John McKay: Thank you, Mr. Chairman.

I wanted to question you about your point about the adequacy test on adult sentences. Your complaint is that rather than simply adequacy you should include protection of society as part of the test.

I'm looking at clause 72, which is, I take it, the essence of your question. The preliminary reading is:

    the youth justice court shall consider the seriousness and circumstances of the offence, and the degree of responsibility, age, maturity, character, background and previous record of the young person

Then it goes on to enunciate the adequacy test. And then of course you fall back to clause 37, which is purpose and principles of sentencing, which is the protection of society.

I'm wondering how really strong that point is, because once the determination is made—and I would say that protection of society has to include circumstances of the offence and degree of responsibility—do you really feel you have to say that protection of society has to be in the adequacy test? You certainly cover it probably at the beginning without saying it, and you certainly cover it at the end when you do the ultimate sentence, because that's the number one phrase that comes out of clause 37.

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Mr. Alan Markwart: Your description was an awfully obtuse way of getting to stating that the protection of society may in fact be it. But the reality is that the test is very specific in terms of adequacy of accountability. Whether or not the courts are going to read in those broader considerations you suggested is open. They may well do. Our point is, why not have clarity about this and put it there?

Mr. John McKay: So you read clause 37 right into clause 72.

Mr. Alan Markwart: You could. You may not.

Mr. John McKay: Meaningful consequences, protection of society, etc. You'd jam that right into the adequacy test?

Mr. Alan Markwart: Maybe so. It's there. It does reference the purposes and principles of sentencing. But having said that, the test is clear in terms of.... You're moving from the general to the specific.

Mr. John McKay: I agree.

Mr. Alan Markwart: Our point is, why have any doubt?

Mr. John McKay: The second question is with respect to testimony we frequently hear, and it is that Quebec does things so much better than do the rest of us as far as their handling of the youth justice system is concerned. It seems to me you have a particularly unique perch to test, if you will, this working assumption that seems to be prevalent here. My impression is that the charge rates are clearly different in Quebec as opposed to the rest of the country. My similar impression is that the end product is not greatly different.

I'd be interested in your comments as to how Quebec handles the justice system, as opposed to the rest of the provinces.

Mr. Alan Markwart: I would respectfully decline to make any comments on the Quebec system. I certainly have some familiarity with the Quebec system, but not enough, and I don't think it would be appropriate for me to be making comparisons.

The Chair: Thank you very much.

Mr. Cadman has a short question.

Mr. Chuck Cadman: My question is to Mr. DeBoer, I would presume. By moving the transfer provisions from the front end to the back end to go to a sentencing hearing, do you anticipate the actual full process being shortened by doing that, or are we essentially going to wind up with the same thing, except with long, drawn-out sentencing hearings instead of drawn-out transfer hearings at the front?

Mr. Alan Markwart: We think it will be shortened, yes, because you now have to go through a full transfer hearing. That is quite a lengthy process. It often takes several months to schedule, and then there are appeals, and then a person is transferred and he may go through a preliminary hearing and then a trial. With the post-adjudication process, all of that is really shortened up. You don't go through a transfer hearing. You would go immediately to a preliminary hearing and then trial to determine guilt, and then the transfer process, in effect, becomes a sentencing process.

The Chair: I would ask the indulgence of the committee and put a couple of questions myself to the witnesses.

Two or three times, there's been reference to the public confidence in the former YOA and the fact that we need to deal with this. I'd like to explore that a little bit, since you brought it up.

First of all, would you agree that we do incarcerate young people at a relatively high rate in Canada?

Mr. Alan Markwart: No. I know there is a study often quoted that suggests we incarcerate at twice the rate of the United States. Frankly, that study is not well done at all. I could give you a variety of reasons—three.

One is that it is a comparison of the proportion of youth who come into contact with the police who are incarcerated in each of the countries. The researcher concluded, in terms of the youth who are not charged in Canada, that the statistics are not reliable in that regard—and I agree that they're not reliable—but then made the leap and said, therefore, there are no youth who are...the police don't exercise their discretion. And that just created an erroneous conclusion.

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Second, there is no regard to the comparison of what is or is not custody in the two countries. Certainly open custody where there are group homes, and even foster homes, in the United States would be considered to be alternatives to custody.

Thirdly, and this is an important part, there was no regard to provisions for transfer to adult court.

The estimate is that about 200,000 youth under the age of 18 are dealt with by the adult courts in the United States, which is vastly greater than Canada. I did a calculation, and if we dealt with youth in the adult system as much as we did in the United States, in B.C. we would have nobody in custody, they'd all be in the adult system.

The Chair: I wasn't limiting my comparison to the United States, but rather other jurisdictions, to get a sense of that. But I take your point. Your answer would be the same, even—

Mr. Alan Markwart: There are variations across Canada as well, as you know, but I think it's generally agreed that our rates of use of custody, especially compared to Europe, are higher. And that's true in the adult system as well.

The Chair: The reason I asked the question is that we have alluded to public confidence. I think you've mentioned the fact that some of the public's view of the system is as a result of an awful lot of attention to a small number of high-profile cases, and therefore I drew the conclusion that you might have the view that the problem of public confidence is not necessarily well-founded. Is that a fair assumption?

Mr. Alan Markwart: Yes and no. I don't think there is a clear answer.

I think what has happened is that there are some very serious high-profile cases that have come to the attention of the public, and there were concerns about whether they are being transferred to adult court, or whether they've received an adequate sentence. The public view is that it has not been an adequate response. The dilemma is—and the public may or may not be right on that; I'm not going to comment on it—that what has happened is that by and large these are the only cases the public hears about, so the general conclusion that is often reached is that this is how the entire youth justice system operates, when really the other 98% of the system by and large works quite well, thank you.

The Chair: I was taking you down a path that we're all on, I think, and that has to do with the fact that we're trying to balance that public confidence with an inherent assumption that a lot of conclusions are drawn in the way you've described, and therefore, as makers of public policy, we have to be very cautious in terms of that confidence requirement, as against good, well-informed public policy decisions. Other than sharing our view of the problem, I was looking for something by way of solution. But I don't know that we're going to get it today, and that is no reflection on the quality of the witness.

I don't know if Mr. MacKay had another question, otherwise I think we're—

Mr. Peter MacKay: I had one question that I think goes back to your very first and overriding concern about the funding of programming. What overall programs are going to be funded any differently under clause 155 of the new act, compared to the old section 70?

The concept is basically the same, that there's going to be cost-sharing. I'm looking at the new clause 155, compared to the old section of the Young Offenders Act. It talks about programming, cost-sharing. There's really nothing new.

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Mr. Alan Markwart: The cost-sharing under the old program was a very complex cost-sharing agreement, but by and large it applied to all services: secure custody, open custody, community-based services, you name it.

The new cost-sharing is really not connected to the provision of the legislation; it's connected to administrative negotiations between the levels of government. What the federal government has been talking about is in effect targeted cost-sharing for certain specific types of programs: diversion, alternative measures, alternatives to custody, and so on.

Generally we agree with the position that we should be targeting funding to certain types of programs, provided that the principle of 50-50 sharing is not compromised. That's our key issue.

Mr. Peter MacKay: And that principle—correct me if I'm wrong here—was simply in the air before. It wasn't legislated that it was going to be 50-50 cost-sharing.

Mr. Alan Markwart: No.

Mr. Peter MacKay: That was the original intent when the Young Offenders Act came into being.

Mr. Alan Markwart: That's right.

Mr. Peter MacKay: So by extension, there's nothing new here that guarantees a 50-50 cost-sharing arrangement.

Mr. Alan Markwart: No.

Mr. Peter MacKay: And it would be misleading to state otherwise. Even with this new funding, that's not going to get us up in the range of 50-50 cost-sharing.

Mr. Alan Markwart: Nowhere near it.

Mr. Peter MacKay: Even with the bridge funding. Nowhere near it?

Mr. Alan Markwart: No.

Mr. Peter MacKay: Thank you.

The Chair: Thank you very much, Mr. Markwart and Mr. DeBoer. We appreciate very much your contribution to informing us and Canada about this very important piece of legislation.

I thank members of the committee for their attention. I would go back again to the fact that nobody dozed off at all. So thank you very much.

Voices: Oh, oh!

The Chair: The meeting is adjourned.