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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Tuesday, February 8, 2000
The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call the meeting to order.
I'll take the opportunity to welcome everyone back and wish everyone a wonderful millennium. I hope you live through it all.
Today we have the pleasure of having three witnesses who are here to bring their perspective on Bill C-3, an act in respect of criminal justice for young persons and to amend and repeal other acts.
The three groups include the Sparrow Lake Alliance, and I'll allow those people to introduce themselves in a moment. Also, there will be a joint presentation from the University of Toronto and the University of Montreal. Finally, there will be a presentation from the Ridge Meadows Youth Conference Committee.
We'll begin with the Sparrow Lake Alliance for 10 minutes, and we'll move according to your agenda. From the Sparrow Lake Alliance we have Dr. Paul Steinhauer and Dr. Simon Davidson. Please proceed.
Dr. Paul D. Steinhauer (Chair, Steering Committee, Sparrow Lake Alliance): Good morning, Mr. Chairman. Good morning, ladies and gentlemen.
I'm Paul Steinhauer. I'm a professor emeritus of psychiatry and public health sciences at the University of Toronto and a scholar in residence at the Centre for Health Promotion at the University of Toronto, but I'm here today as the chair of the steering committee of the Sparrow Lake Alliance.
My daughters and I have been victims of crime on a number of occasions. So although I'm a psychiatrist, I'm not a bleeding heart. I want crime to be stopped as much as any person in this room does.
However, my 38 years as a child psychiatrist and especially the work I did for the National Crime Prevention Council, when I developed for them a model for the prevention of delinquency, have taught me that it's more effective and more cost effective to prevent crime than it is to wait until children are well on to a criminal trajectory and then try to contain them.
One of my mentors has been Doug McNally, who was the chief of police of Edmonton from 1990 to 1995. He has been a law enforcement officer for 28 years and was a member of the National Crime Prevention Council. He has pointed out to me that more than 50% of the youth who offend come to the attention of the justice system only once; a smaller number come back a second, third, or even fourth time; but only 5% to 7% of young offenders who commit a first offence go on to become serious and habitual offenders.
So if we want to stop youth crime, our two major goals should be, first, to prevent children and youth from becoming young offenders in the first place, whereas in many provinces we seem to be doing exactly the opposite. I'll talk more about that during the question period if any of you are interested. Second, our goal should be to keep those who are minor and occasional offenders from becoming part of that 5% to 7%; in other words, treating youth who do offend in ways that will increase rehabilitation and reintegration into family and society and cut down on the risk of recidivism.
That's exactly what the Youth Criminal Justice Act says it's trying to do. I have no doubt that many of its intentions are sincere. I certainly do agree with its advocation of alternative measures and suggestions for limiting the use of custody for non-violent offences.
However, at times the words and actions of this act go in opposite directions. The language of the Youth Criminal Justice Act says it's interested in rehabilitation and reintegration, but some of its recommendations and also the fact that the act's single major goal is to protect society mean that any of the attempts to rehabilitate and reintegrate youth and to recognize their immaturity and their need for protection are consistently relegated to second place.
When you deal with youth who are not yet serious habitual offenders, you must choose to do one of two things: you can work to rehabilitate them or you can try to punish them. But you can't do both, because they're incompatible. Our research tells us that the more offending youth believe their sentences stress punishment rather than genuine concern and rehabilitation, the more likely they're going to respond by becoming angrier and more rebellious and the more likely they will reoffend. If your goal is to decrease youth crime, you can't afford to punish children by treating them as if they were adults if you're serious about wanting to rehabilitate them. If you treat them as adults, you will push more of them into recidivism.
But there's another reason to treat children as children rather than as adults. The Youth Criminal Justice Act makes it clear that this government has not yet made up its mind about how it's going to deal with the nation's children. Sometimes it takes a position of leadership as a protector of children and acts as if immature children deserve the protection of the state. It has become a sponsor of and a signatory to the UN Convention on the Rights of the Child. It established a National Crime Prevention Council to protect children from becoming criminals. It has set up programs to protect child witnesses and laws to protect children from smoking, drinking, or being used sexually under age. It's talking about undertaking a national children's agenda. But it makes no sense to me for it to be promoting a national children's agenda and at the same time to be ignoring the immaturity and the need for protection of some of the nation's most immature and damaged youth by treating them as if they're adults.
I would just like to comment very briefly on the identification, publication, and stigmatization clauses of the bill. We can't go on paying lip service to crime prevention and providing support for children, families, and communities and then take steps that will make it harder for families and communities to be supportive.
In the 1980s I participated twice in the defence of not identifying young offenders on the grounds that doing so would further stigmatize the youth; would risk alienating the family, who would then be less likely to assist in the youth's rehabilitation; and would unfairly stigmatize siblings of the young offender. If the stigmatization that is going to be involved if there is an increased sharing of information, as suggested in this bill, goes on, this lengthy, costly process is going to be reopened on a case-by-case basis, and it will be particularly harmful if it occurs at the point where we're trying to reintegrate youth into their community. The problem is that many youth and their families don't have the resources to protect their privacy, especially with legal aid becoming less and less available.
Both the House of Commons and the Senate had grave concerns about the broadening of the information sharing allowed by Bill C-37 in 1994-95. The language of the Youth Criminal Justice Act makes no acknowledgement that the right to share information on young offenders was broadened considerably by Bill C-37.
Multiple witnesses were called who opposed increased information sharing. The Senate asked, and Allan Rock, who was then the Minister of Justice, agreed, that the use of information sharing be monitored carefully. Was this done? Are there examples where the right to share information proved to be insufficient? In the Senate debate of June 20, 1995, some members also were concerned about weakening the protections for youth and about how courts and schools would handle the additional information.
Dr. Simon Davidson (Corresponding Member, Steering Committee, Sparrow Lake Alliance): I'm Dr. Simon Davidson, the chief of staff at the Children's Hospital of Eastern Ontario. I'm an associate professor in psychiatry and pediatrics at the University of Ottawa, and the president of the Canadian Academy of Child Psychiatry. I'm here as a corresponding member of the Sparrow Lake Alliance. I can tell you that the contents of our brief are strongly endorsed by the board of the Canadian Academy.
We're very pleased that the age of criminal responsibility has not been lowered below 12 years of age.
With regard to presumptive transfer at age 14, it means trying youth as adults and giving youth adult sentences. In reviewing Bill C-37 in 1994-95, the House and Senate had major concerns re prescriptive transfer. The majority of witnesses, including many judges, opposed it due to its potential for abusing the rights of youth. We urge members of the committee to review the changes in Bill C-37. It was much tougher than the Young Offenders Act.
The problem is not a need for tougher regulation but for training police, crowns, and judges in how to use the existing regulations well.
With regard to youth in adult jails, they're especially vulnerable because of older prisoners, adult guards, and the clash between adult and youth prison cultures. The YCJA allows temporary placement of older youth in adult custody. This puts youth at risk. The weak and the young are the most vulnerable in adult jails.
Working from the document we've provided you, both empirical and anecdotal evidence indicates that youth are more vulnerable than adults when it comes to not understanding the meaning and significance of the cautions and waivers with regard to the giving of statements and the implications of waiving their right to silence, being most susceptible to making statements in response to pressure and not understanding that they have made a statement.
I'd now like to turn to treatment options. With increased resources from the child mental health and child welfare areas, many children and youth would not enter the justice system in the first place. The real issue is the lack of treatment resources. As long as the treatment resources remain insufficient, any talk about increasing the access of youth to treatment is empty talk and militates against rehabilitation.
If youth do begin in treatment, they should not have that treatment terminated on the ending of the sentence. We need to have much better continuity between the justice system and the child mental health and child welfare systems. Youth should have a choice with regard to entering treatment, but there should also be incentives to encourage it. We need to make sure that treatment is state of the art and has clear goals and directions.
With regard to the role of parents, parents are very important in helping to keep kids out of the justice system. Parents need to remain involved. But there are not enough supports available for parents. Governments must examine policies. When parents feel that kids are increasingly en route to delinquency, the resources or services are not there for them. The school may conference the case, but where are the resources to analyse the child's needs and to provide remedial services? Supports for parents should be there at all levels. A close and strong partnership needs to occur among the child welfare, the child mental health, and the education systems.
With regard to levels of custody or decision-making, if you refer to page 8 of the working document we submitted, the first paragraph says that the federal component is turning decisions over to the courts and to the provincial directors and their delegates. The third paragraph refers to a conflict of interest, and we feel that kids may suffer. In the fourth paragraph we mention that there may well be inequities from one province to the next.
With regard to the reliance on custodial decisions, we appreciate that the YCJA is trying to decrease the use of custody. But there is real value in informal decision-making for all but the most severe offenders, as McNally and Dr. Steinhauer have previously discussed. The YCJA puts in loopholes and catch-all phrases that may undermine the underlying good intent of the law.
We also have concerns about the reintegration philosophy. As I've alluded to, with the child welfare component and the child mental health component together with the justice system, there's an absolute need for the establishment of a seamless service delivery system.
The Chair: Thank you very much.
I would suggest to the witnesses to be conscious of the time. I'm going to offer some latitude. We're here to hear from you, but at the same time we want to have the opportunity to have some dialogue.
I now turn to Dr. Anthony Doob from the Centre of Criminology of the University of Toronto and Professor Jean-Paul Brodeur from the École de criminologie of the University of Montreal.
Professor Jean-Paul Brodeur (École de criminologie, Université de Montréal): Thank you, Mr. Chairman, members of the committee, ladies and gentlemen. The chairman has already introduced us, my colleague Anthony Doob from the University of Toronto and myself, so I'm not going to repeat the introduction. I'd simply like to mention that Professor Doob is a member of the Canadian Sentencing Commission and that I was the director of research for that commission. Since then, we've been working together regularly.
The second thing I'd like to say, is that we have a brief. We co-authored it and as I work easily enough in both official languages, but Professor Doob is more comfortable in English, we only have the English version that we didn't have time to translate. If you don't mind, we could have it circulated. We have tables here and if you wish to take a copy, go ahead.
Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Will it be tabled?
Prof. Jean-Paul Brodeur: Yes, it will eventually be tabled.
While the document is circulating, a quick word to give you an idea of the tone of our comments. Concerning the appearance of justice, we agree with the old principle that says that not only must justice be done, it must also be seen to be done. Justice must be seen to be done and we agree with that principle, except for one restriction. The restriction is as follows: we don't think one should legislate simply to satisfy appearances.
In this bill, we think that the legislator has managed to avoid excess. But as a lot is being said about the loss of the public's confidence in our justice system, our position on this is as follows: if there's a problem of trust because the public is ill-informed, in that case, what you need is an information or education campaign. If this credibility gap exists because the system isn't working properly, then it must be changed. But I think it would be immoral and against the Canadian Charter of Rights and Freedoms to increase punishment for youths persons to reestablish appearances and maintain unfounded perceptions.
I'll now give the floor to Professor Doob.
Dr. Anthony N. Doob (Professor, Department of Psychology, Centre of Criminology, University of Toronto): We're going to be speaking about really two issues: extrajudicial measures and sentencing.
On the issue of extrajudicial measures, I think it's important for us to remember that we need an effective mechanism to deal with minor cases of young people who commit offences. The clause on extrajudicial measures is certainly a good start on that. Part of the problem the youth justice system faces at the moment is that there are large numbers of cases being brought to the system that really could be dealt with more effectively outside of the system. There is essentially one case for every 20 youth in our country. So for every 20 youth we could line up, we're bringing one case to youth court. This is really a large number of cases.
It wouldn't be so bad if we could really justify those cases in terms of the nature of them, but when you look at the kinds of cases we are bringing to court—this is on table 2 in the brief that will be available to you soon in both languages—what you see is that we're bringing large numbers of relatively minor cases to court. One can quibble about what is a minor case, but no matter what definition one uses, between 40% and 75% of the cases are relatively minor.
We're not suggesting that all those cases could be kept out of court, but what we are suggesting is that we need clauses that have teeth in them and that will reduce the kinds of minor cases being brought to court so that the courts can focus their attention where they should, which is on the more serious ones. So what we suggest is that you be firm in considering anything that would weaken the clause on extrajudicial measures. It's crucial for the sensible operation of the Youth Criminal Justice Act.
Secondly, in order to ensure that these extrajudicial measures are given proper consideration, we recommend that judges be given the responsibility to comment on and to send back a case for consideration for extrajudicial measures where the judge believes the case should not have been brought to court in the first place.
Prof. Jean-Paul Brodeur: I'll say a quick word about some things concerning incarceration. We've given you several tables and the first one shows that there are major variations from one province to another in Canada concerning the use of incarceration. The data there lead us to believe that judges exercise discretion and I believe they're right in doing so.
The second thing you'll see when you look at those tables is that 50% to 75% of instances of custody are due to relatively minor offences against property such as robberies of less than $5,000 or possession of stolen goods.
The third thing is that the youth's criminal record plays an important role and that young offenders are sometimes handed increased punishment simply because they've accumulated a certain number of minor offences.
In the light of these considerations, we came up with a few recommendations and the first one was in the same direction as the bill which is that the legislator should give up on introducing the idea of deterrence as being one of the goals taken into account for sentencing. We quite agree on this because, to all intents and purposes, the severity of the sentence has no deterrent effect. We ask you to resist any attempt to reintroduce the idea of deterrence which would make the legislation even more punitive.
As our second recommendation, we suggest that when a judge sentences a young offender to close custody, he must identify which one of the motives in clause 38 of the bill was used to arrive at the decision.
In 38(1)(d), it says that some circumstances might justify a custodial sentence. We'd like to suggest amendments to this paragraph to avoid having these provisions serve to justify jailing a young offender to correct, for example, psychological problems. We believe that one should never confuse custody or close custody and a stay in a hospital or a school.
We're presenting our last recommendation as an appendix to our brief. We recommend you change the order of the provisions in clause 37 on the purpose and sentencing principles so that proportionality is not interpreted as being a requirement to impose the minimum sentence. The proportionality risks being interpreted as a requirement to impose at least that sentence or interpreted it as being a requirement to, at most, impose that sentence.
We believe that neither one of these interpretations should be enshrined in the Act and that judges should keep their power of discretion. We will submit a revised ordering of the provisions of this clause to attain that objective.
I will now give the floor to my colleague, Mr. Doob, so he may conclude our presentation.
Dr. Anthony Doob: As you know, the proposed act has a new form of custody order known as the custody and supervision order. What this does is recognize that everybody who receives a custody and supervision order will eventually be released into the community. When we do take what we hope is the unusual step of putting a person in custody, we really owe it to that young person and to ourselves to provide supervision and support.
What we know, and the data are shown in table 6 of our submission to you, is that today large numbers of youth are being released from custody without any supervision and support. There is no probation that follows this. One can ask why this is happening and in what kinds of situations it's happening. What we know is that it's happening in long sentences and in short sentences. Those data are shown in table 7.
Good correctional practice and certainly good service to the young people and to ourselves would be to provide supervision and support, and the custody and supervision order is designed obviously to do that. It turns out that required supervision and support is very popular among the members of the public. I think it's because they understand that one doesn't simply take somebody, put them in custody, and release them cold to the street. So this is consistent with what the public thinks and with good correctional practice.
But what it suggests is that we have to guard against intrusions into this kind of support, which is part of the reintegration order. Now, there is one intrusion listed in the bill, which is that the supervision part of the sentence can be removed. The young person can be detained until the end of that custody and supervision order. Our concern is that doesn't really encourage the proper role for doing that.
We recommend, therefore, that the test for detaining the young person past a normal release point be that the court is satisfied that there are reasonable grounds to believe the young person is likely to commit an offence causing death or serious harm to another person, which is already in there, but in addition that detaining the young person will reduce the long-term risk posed by that youth. It doesn't take much imagination to realize that if somebody poses a risk, to hold them for another month or two may reduce the risk for that month or two. What's crucial, however, is that there be a long-term reduction in risk. We recommend that if they are applying to detain the youth, the correctional authorities be required to provide a plan to the court, and they should be required to ensure that this plan is actually carried out. So we recommend two parts of this in order to ensure the goals of it.
We have one other point we'd like to make. Similar to the previous submission to you, we don't support the provisions that allow a young person's name to be published, as is being opened up in this bill. On the other hand, if you're going to do it, it seems to us there's an oversight in the bill, and that is that the provisions that allow this to happen, which are part of the sentence, surely should not come into play until the appeal period is finished. If a young person does have the unfortunate consequence of having his name published as part of the sentence, then certainly that should not be allowed until the young person has had an opportunity to appeal.
Finally, we'd like to point out that although there are some aspects of the bill we have serious disagreements with, the two key areas we've discussed today, the extrajudicial measures and the general youth sentencing provisions, are very important improvements over the current legislation. Neither of them is harsh or lenient in its overall orientation. Instead, these provisions should help us move toward a more intelligent way of dealing with young persons who have committed offences.
While we have made some suggestions on how these important aspects of the bill might be improved, it should be understood that we're in agreement with the overall thrust of these two parts of the current bill.
Thank you very much.
The Chair: Thank you very much.
Last, but certainly not least, Ms. Lola Chapman from the Ridge Meadows Youth Justice Committee.
Ms. Lola Chapman (Coordinator, Ridge Meadows Youth Justice Committee): Good morning. I'm very glad you put me last because I've learned that what I have to say fits in exactly with what these gentlemen have said.
I'm the coordinator of a program in Maple Ridge called the Ridge Meadows Youth and Justice Advocacy Association. It fits under the extrajudicial measures description in the act.
We're told that crime in Canada may be decreasing, and I'm sure it is, but statistics show that youth crime is increasing. We firmly believe that the best way to combat this is to prevent it from happening in the first place. We must step in early and do something about it. Is that not better than waiting until young people are entrenched in a lifestyle and then trying to deal with it?
I quote from paragraph 3(1)(a) of Bill C-3:
(a) the principal goal of the youth criminal justice system is to
protect the public by
(i) preventing crime by addressing the circumstances underlying a
(ii) ensuring that a young person is subject to meaningful
consequences for his or her offence, and
(iii) rehabilitating young persons who commit offences and
reintegrating them into society;
The Ridge Meadows Youth and Justice Advocacy Association does just that. In fact, you almost spelled out our mandate. What we do is we call a youth conference committee. This grew out of the court watch program started in May 1990. Our first meeting with young people was held on September 14, 1994. Our mandate was to step in at the first offence, have the offender take responsibility for his actions, include the victim, and reintegrate the offender into the community while leaving him with a sense of self-worth.
I'm going to describe briefly how it works, although you have a brief giving it to you in more detail.
We accept referrals from both crown counsel and directly from the RCMP. When I receive a file, I contact the parents and the young person within three working days. I explain the program to them and invite them to attend a youth conference committee. I tell them it must be totally voluntary, that they have a right to have a lawyer present, that it's a one time only chance, and that we're not there to prove their guilt or innocence, so they need to agree that they did this thing. If they say they're innocent, fine, then a judge needs to make that decision.
We include the victim and invite them to be at the committee meeting when they want to be. We don't insist. If they say “No, he did it, I didn't, so why do I have to come?”, we ask if they'd like to write a letter or a victim impact statement to be read at the committee. Some of those have been incredibly effective.
We sit down around a table and ask a lot of questions, not just about the incident but about what else is going on in their lives, so that we can make good decisions. When the committee has enough information, the young person and his parents are asked to leave the room and the committee discusses it and decides on a consequence. They try to be fair. They try to make it fit the incident. But they also try to include something in it that's going to give them something to go on afterwards. They ask for restitution where it's appropriate. If they break a window, they fix the window. We've collected over $6,000 in restitution in small amounts.
We bring them back in and we tell them “Johnny, this is your consequence. It's not negotiable, but...”. He's been told this in advance. At that point he can say “No, I don't want to do that”. If he does, the file will simply be returned to crown counsel or the RCMP. If he agrees, he and his parents are asked to sign an agreement. He's signing that he will do it; the parents are signing that they approve of it.
At that point—and this is the important part of what we do—a mentor is appointed to work one on one with that young person throughout the term of his diversion. Over the five and a half years that we've been doing this, we've learned that that is what makes the difference. It's that one-on-one work with a mentor who is there because he wants to be there, who cares about that young person, who's doing all he can to help, that changes some of the attitudes we see when they come in on a first offence.
We have now heard over 650 youth, and the offences have ranged from minor theft to forgery, assault, counterfeit, and so on. Our success rate, measured as not having reoffended for one full year after his diversion was completed, runs between 92% and 94%. We have had both crown counsel and defence lawyers tell us that the kids get far more from our committee than they do in court.
Cases on youth court day were averaging 45 to 60 when we began the program. They are now averaging 15 or 20. One day we had only seven.
In subparagraphs 3(d)(ii) and (iii), Bill C-3 also states that “victims should be treated with...compassion and respect”, “provided with information”, and “given an opportunity to participate”. This we do, but this leads us to clause 4. I'll read a bit from clause 4 because I want to expand on it a bit. It states:
4.(c) extrajudicial measures are presumed to be adequate to hold a
young person accountable for his or her offending behaviour if the
young person has committed a non-violent offence and has not...been
found guilty of an offence;
We are convinced that some assaults, even some assaults with a weapon, are suitable for extrajudicial measures where it is a first-time offence. The goal is to keep them from reoffending and out of the courts, and we respectfully state that the courts do not do that too successfully.
Paragraph 4(d) states:
(d) extrajudicial measures should be used if they are adequate to hold
a young person accountable for his or her offending behaviour and, if
the use of extrajudicial measures is consistent with the principles
set out in this section, nothing in this Act precludes their use in
respect of a young person who
(i) has previously been dealt with by the use of extrajudicial
(ii) has previously been found guilty of an offence.
When this is taken in context with subclause 6(1), there would be no limit to the number of times a police officer could simply issue a warning. Because of their workload and staffing shortages, there could be a tendency for this to happen with increasing frequency. We have discussed this with several rank-and-file police officers. They inform me that they see the process thus: first offence, warning, no consequences, no victim involvement. Second offence, warning or caution, carded as a suspect on PIRS, still no consequences, no victim involvement.
You wouldn't believe how quickly young people educate each other to these facts. When we make a change in our policy, the kids on the street know it within two weeks.
Subsequent offences: another warning or police could pull him up on PIRS as suspect. They would then have to physically pull that file and read it to know whether or not he had been diverted before. Moreover, it would only be a local file. They couldn't know if someone in another jurisdiction, in Richmond, in Williams Lake, in Ottawa, had also diverted this young person many times.
Another thing, the DIV—for diversion—cannot be entered by the police; only the crown. Ottawa Informatics orders this. When the crown diverts, they send police a one-page form. At that point they can enter it on PIRS as diverted.
From this it can be deduced that a young offender could be warned many times before a referral to extrajudicial measures is reported to crown counsel. With this procedure, youth are getting the message that there are no consequences for their offending behaviour. There is no place in this model for the victim. Yet we have accepted that a victim has the right to be heard and included.
There's another aspect to our program, and perhaps it's the most important one. A minor offence is often only the tip of the iceberg, and we've seen this happen over and over again, the iceberg being personal or family problems. We network with other community service providers to bring them in when we find this to be the case. We are directly following the policy in subparagraphs 3(a)(i), (ii), and (iii)—in fact all of clause 3.
I could give you many examples, but I want to tell you about one or two.
How is my time?
The Chair: You're beginning to creep up on its termination.
Ms. Lola Chapman: Okay. I have only a couple more things to say.
I'd like to tell you first of all about a girl who came to the committee for stealing cosmetics, value under $10, from one of our local stores. She came with her mother, who was a single parent. The committee is getting very adept at asking the right questions. Her mother said “This may have been just a cry for help. She had money in her pocket.”
So the committee started questioning her about why her mother might have said this. After a long silence, she said, “Well, lately I just can't seem to find any reason to want to go on living”. I said to her at that point “Are you telling the committee that you tried to harm yourself?” She said “Yes, I tried to drown myself, but I just couldn't stay under the water long enough”. You can imagine how we all felt.
They were asked to leave the room while the committee discussed it. The committee said “This girl doesn't need consequences; she needs help”. We immediately gave her as a mentor one of our volunteers who had training in suicide prevention. We had that girl with a counsellor within three days, because of our networking and because we could pick up the phone and say this is what's happening.
I walked into one of our local stores last spring and this girl came to wait on me, just bubbling with enthusiasm. She said “I'm so glad to see you. I've graduated, I've got a job, and look, I'm getting married.”
That's one instance. Have I got time for another one?
The Chair: Sure.
Ms. Lola Chapman: I want to tell you about a boy who stole a steak. The value was $5.49. When we finally got through at the committee, we learned that this boy was being raised by his grandmother, that his parents had both been killed in a car accident two years previously, that he had had two major heart surgeries within the last year, that he had learning disabilities and had been kicked out of school, and that he had stolen the steak to give to another boy to exchange for pot because he was trying to make friends on the street.
The grandmother, who lived on a very small pension, had saved her money, bought a computer, studied learning disabilities, and was trying to home school him. He had an older brother who had recently married and was living on a farm in the area.
When the mentor went to call on him and his grandmother, she phoned me the next day and said “Where did you get that man?” I have to admit I thought maybe we were in trouble. I said “Have we got a problem?” and she said “No. You wouldn't believe how much he looks like Jake's father.”
That man spent hours and hours with Jake, with his grandmother. He made arrangements with his brother to take him to the farm on weekends because he loved the farm. We got him into grief counselling with one of our local hospitals. I could go on and on, but the end of this story is that he's back in a regular school program and he's doing fine.
For those reasons, we feel we need to get them at the first offence, not after they have become entrenched. We must reintegrate them early. We must let them know that the community cares about them and that they have a reason to go on and do these other things. We must let them even learn the joy, and I mean really learn the joy, of volunteering, of helping others.
So when we say we can caution them or warn them, many times I don't think we're serving their best interests. Perhaps we could say in part 6 that where alternate measures or restorative justice programs exist or are in place in a community, the youth will be referred on a first offence. In those communities where no such programs exist, the police warning or caution could be used. This would apply particularly to theft under $5,000.
We must give the members of the community the opportunity to help our own troubled youth become contributing members of society instead of a problem to it. Please help us by drafting laws and policies that will help us and other communities to do this.
The Chair: Thank you very much.
I will turn to the official opposition for seven minutes.
Mr. Chuck Cadman (Surrey North, Ref.): Thank you, Mr. Chair. I'd like to thank all the panellists for coming down and having a chat with us this morning. It's the start of an interesting week.
I have one question for Mrs. Chapman. The program obviously takes some form of financing. This thing can't run for nothing. I just wonder if you could indicate to us how you're financed and what the actual costs of running the program are.
Ms. Lola Chapman: Well, the first two years we lived from hand to mouth and I spent an awful lot of my time trying to raise finances. However, eventually I made a proposal to the provincial attorney general's branch and our two municipal councils that they finance us on a partnership basis. They are doing this at the present time.
We run the program on approximately $25,000 to $30,000 a year, and that includes everything, including salaries.
Mr. Chuck Cadman: How many paid employees are there? Is anybody paid? Obviously there is. How many are actually paid and how many volunteers are involved?
Ms. Lola Chapman: I'm the only paid employee. I can tell you what my salary is if you like. You'd be surprised. We have 22 volunteers.
Mr. Chuck Cadman: Is there training involved with the volunteers?
Ms. Lola Chapman: Yes.
Mr. Chuck Cadman: What kind?
Ms. Lola Chapman: At first, probation did our training. They also act as our gatekeepers. After the first year, they said you're doing fine, you do the training and we'll sit in. I have to add that we evolved as we grew. We didn't know anything about this when we started out. So we've discarded some things and added others.
We've rewritten our training manual twice and now it's pretty comprehensive, including such things as suicide prevention, ADHD, and co-morbid conditions, and even money management, because the kids we deal with are notoriously poor at managing money.
Mr. Chuck Cadman: On the issue of repeated diversions from jurisdiction to jurisdiction, where they may not be picked up for a number of incidents, do you see that as a problem? Do you see that affecting you? You told us your success rate was in the order of 92% to 94%. Do you see the impact of allowing young people to go through any number of extrajudicial measures before they actually are dealt with by the courts having an impact on your statistics or what you see?
Ms. Lola Chapman: Very definitely. I do statistics twice a year, at the end of June and at the end of December, and last year in our area, because the RCMP were so short-staffed—they are short at least 16 members right now—they decided to try this. I have received no police referrals at all from August on. Our success rate dropped by 10%.
Mr. Chuck Cadman: So you feel that the way the legislation is worded could have a negative impact.
Ms. Lola Chapman: Very definitely, for two reasons: one, the word is out there, and two, we're not getting them at that first minor offence where somebody who cares about them can work with them. That's where we've seen the changes happening.
Mr. Chuck Cadman: I'll just ask questions of some of the other members of the panel along the same lines. What do you feel is appropriate for diversion or extrajudicial measures? Should we restrict it to the first offence and a non-violent offence, whatever that's determined to be, because that's sort of up in the air?
Dr. Anthony Doob: I'd certainly be reluctant to limit it. It seems to me the crucial test is that which is contained in paragraph 4(d), which says “extrajudicial measures should be used if they are adequate to hold a young person accountable for his or her offending behaviour” and so on. It seems to me that's the test we should be using. I'm not sure I can imagine one, but if a first-time minor offence fails that test, it should fail that test. If a second- or third-time offence passes that test, in other words, if we can hold the young person accountable, there's nothing magical, it seems to me, about taking that young person to court. A wide range of things, either as part of a conference, as was just described, or outside of the conference system, can be done in terms of community service, etc., to hold the young person accountable. We do it in our everyday lives. We don't necessarily say one chance for our children and then we're going to have to escalate to another institution.
Mr. Chuck Cadman: Do the folks from the Sparrow Lake Alliance have anything to add?
Dr. Paul Steinhauer: No. I completely agree with everything Professor Doob just said.
Mr. Chuck Cadman: Thank you.
The Chair: Thank you very much.
Mr. Michel Bellehumeur: First, I'd like to thank you for your briefs and presentations. I think they'll be very useful.
I have a little comment for Ms. Chapman. I congratulate you and encourage you to keep on in this vein. I think that you have proven to us that it isn't necessary to amend the legislation to achieve meaningful results. We don't have to wait for any amendments at all; we just do what has to be done. I hope that the work you're doing will enlighten the members of the Justice Committee.
I have a question for Mr. Brodeur. As I'm a member from Quebec, I'll start with my compatriots. At the outset, he made a very important comment that gave us the context of your brief as well as the context of certain arguments coming from Quebec since the very beginning. You told us that we shouldn't change things just to try and change a perception. Justice we must have, but we must also have the appearance of justice.
As I have worked with a lot of Quebec organizations dealing with young offenders, my question will be very direct. You and professor Doob, in your brief, said lots of things about prevention, extra-legal measures and rehabilitation of young offenders. Mr. Brodeur, do you believe that the Young Offenders Act as we know it today could have allowed us to achieve all these goals if it had been applied correctly and, mainly, if we had invested all the money necessary for its implementation?
Prof. Jean-Paul Brodeur: Mr. Bellehumeur, I'm not going to try to avoid your question, but first, I'd like to say this. In legal terms, the question you're putting is very hypothetical: if we had left the legislation as it was before, might we not have been able to achieve those goals?
Maybe so, but the gist of my intervention is to put us in the context of the new bill. A lot of things might have happened, but we now have this new bill and I'm trying to fit things in in the context of this new bill and I notice one thing about it. When you compare the two pieces of legislation, you can see that they have different provisions. For example, there is a lowering of the age where you can be prosecuted as an adult. In the previous act, there were about 60 clauses while in this one, there are 160. I think that's an attempt to make the enforcement of the Act more rigorous. Guidance is given but also, and this is what I find very striking in reading this bill, a very major role is given to the youth courts that will be ensuring its enforcement. At this time, it's in fact very difficult to predict what direction all this will take because it will all depend enormously on how the law is enforced.
I can see you're not quite satisfied with my answer, but it's difficult for me to answer a hypothetical question.
Mr. Michel Bellehumeur: You take it for granted the bill will pass. But here was my question: with the present Young Offenders Act, could we attain the objectives set out in the preamble of this bill which is the protection of society, effective reintegration of young offenders and prevention? Ms. Chapman has done extraordinary things with the law as it presently stands. So there are tools in the present act.
My question is very simple, Mr. Brodeur. At the end of the day, is it really necessary to change the Young Offenders Act from end to end and set up a new vocabulary? I'm quite sure that you've noticed the vocabulary used in the bill: it talks about criminal justice, penal justice and so on. It talks about sentencing. It talks about harmonizing sentences. There are a lot of things in there. Did the situation require that the legislation be totally revamped, that the Young Offenders Act be abolished and replaced with a new act or was it possible to attain the same goals if more had been invested or if the others had done what is being done in Quebec?
I'm sure you won't say this is news to you when I tell you that in Quebec, we have a very different approach than that of the other provinces although other provinces are slowly coming around to appreciating what is being done in Quebec. It seems to me there's some sort of education process going on and what they're doing is looking more and more like what's being done in Quebec.
So was it necessary to do a top-to-bottom review of the Young Offenders Act as we knew it?
Prof. Jean-Paul Brodeur: I'll answer your question. Although I did say that you shouldn't pass legislation simply to correct perceptions that might be wrong, I certainly did not mean that this legislation was essentially written up to correct perceptions. There were a certain number of holes in the previous act, for example with the proportionality rationale or the reasons you could send someone to jail for.
When I said that over-punishment wasn't used to restore public perception, I meant that the legislator should resist what I see to be more and more pressing representations to get something more punitive than that. That's what I meant.
You're asking me if it was worth changing the Act from top to bottom and I'm answering yes, sir.
Mr. Michel Bellehumeur: Fine.
The Chair: Thank you, Mr. Bellehumeur.
Next is Mr. MacKay.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair. I as well want to echo the sentiments of my colleagues and the chair that we're most appreciative of your presentations. Not to single Ms. Chapman out again, but certainly the exemplary efforts in your community and the commitment to youth are recognized by all members of this committee.
I want to begin by just picking up where my friend from the Bloc left off. It's certainly encouraging to hear him say that much can be learned from the Quebec experience, and of course information flows both ways. Certainly a great deal of knowledge can be learned from the way each province approaches youth justice.
As a general comment for response, it occurs to me that there is a perversion in this bill. It's almost like a hybrid wolf. There is a feeling, which I think was expressed by many of the presenters, that this new legislation takes the appropriate approach; that is, there's a distinction between violent and non-violent offences. There is greater emphasis put on early intervention. All of you have touched on this aspect of the earlier the better, and the sooner we can introduce a child at risk into the system and identify the root causes.... Most of them are often related to poverty and parental influence and perhaps the influence of older kids. I think this legislation attempts to address all of that.
My question is, that being the case, why would we not want to lower the age of accountability, the age of applicability of this legislation, to at least have a triggering mechanism included in the bill that would start this process sooner?
The reason I say that—and this relates to the point made by my friend from the Reform Party—is that having worked in the system, it's very obvious to me that the child welfare system is breaking down. In talking to people in that system, I hear time and time again that we don't have the resources. We don't have the counsellors available. We don't have the ability to address these situations even through court referrals in the present system, let alone those under the age of criminal responsibility that are supposedly being diverted outside of our current legislation. I would just like all of you, if you would, to comment on that.
Without getting into the detail as to my own impression of how we could do that, I would suggest a transfer provision similar to the provisions that bring youth into adult court that would bring those currently outside the legislation into the system—and we could set a limit of 10- to 11-year-olds—and allow a crown prosecutor, a police officer, to present evidence that would suggest, yes, this legislation should attach to get the ball rolling, to get this kid into the system, to get the treatment, and to get the appropriate services to apply.
Perhaps I could start with you, Dr. Steinhauer.
Dr. Paul Steinhauer: First of all, I think you're absolutely right that both the child welfare system and the mental health system in many of our provinces are in serious trouble because money has been taken out of them for long periods of time and there's no way they can do the job they should be doing. However, it seems to me that to be criminalizing younger children is really setting a very bad precedent. To me it makes much more sense that we should be investing in the kinds of services that are needed.
In some provinces they have cut back on social assistance, and in Toronto, 37% of the children are living below the poverty line. Poor children have three and a half times the rate of delinquency. We have a long-lasting lack of support for subsidized housing, which means that many poor families move again and again and again, and with each move there is a change of school. This interferes with their being able to learn, and we know that the children who are behind in school are significantly more likely to get into trouble with the law. We know that 70% of young children don't have access to supervised recreation facilities, which can be a strong protector of healthy development and which at the same time can decrease symptoms in children who already have behavioural problems.
In addition to all that, we've cut back on the quality of parenting, because if you put all these additional problems on parents, the parents aren't going to focus as well, and there's going to be more conflict, more disharmony, and more dysfunctionality in the poorer families. Then when we cut back on social services at the same time, particularly the remedial educational services that make such a difference between some children being able to make it or getting behind and quickly giving up and falling out of school, and if we also cut back on our mental health services, and then if we just put the icing on the cake by introducing zero tolerance policies in the school so that for relatively trivial offences we push the children out of school, take no responsibility, leave them idle for long periods of time.... Maybe some of our provinces should be looked at for their neglect or abuse of their children and for pushing a large number of children into the system.
If we provided the supports for families that are needed in an age of globalization...in 70% of families, two parents need to work to stay above the poverty line. If one of these parents were to stay home, we know from Statistics Canada that the number of poor children would triple overnight. It seems to me that this country has changed so much from the country I grew up in, in the 1930s and 1940s, where we wouldn't have allowed people to be so neglected by the community and by the society. I think that's what we have to get at—and not criminalize the younger children.
Mr. Peter MacKay: I'd like to interject here, if I may.
The Chair: Excuse me, Mr. MacKay, but I cut off Mr. Bellehumeur and I want to be an equal opportunity chair here.
We have 30 seconds left. Does anybody want to fill it?
Dr. Simon Davidson: Yes. I really appreciate the intent of your question, but I think you're trying to use the justice system to try to overcome some of the deficits in the child welfare system and the child mental health system—
Dr. Paul Steinhauer: And the education system.
Dr. Simon Davidson: —and the education system—at the risk of increasing criminalization of children.
Mr. Peter MacKay: But to use Dr. Steinhauer's words, are we not embarking on a zero tolerance system for those under the age of current criminality? Are we not pushing them aside? If we know mental health is not working, we need something. I guess that's what I'm suggesting.
Dr. Simon Davidson: Absolutely. That's why I appreciate your question.
The Chair: Thank you very much. Perhaps in answering a question to follow you may be able to slip in a point or two.
I'm now going to recognize Monsieur Saada.
Mr. Jacques Saada (Brossard—La Prairie, Lib.): I'm going to have a question for Mr. Brodeur and another one for Dr. Steinhauer but first I'd like to say something to Ms. Chapman.
I want to thank you, Mrs. Chapman, for the presentation you made. You bring it to the level of humanity that we need.
Would you please do me a favour? In regard to this lady who is going to get married, would you please tell her that she also had an impact on this committee?
Ms. Lola Chapman: Thank you. I will.
Mr. Jacques Saada: Mr. Brodeur, I listened to what you said very attentively. I also listened very attentively to the answer you gave to those questions put by my colleague Bellehumeur. Maybe the answer to this question is already in your brief, that I haven't had the time to read yet.
Clause 3 makes protecting the public the main goal of the Act and everything concerning prevention and all the measures set out are, so to speak, the instruments needed to attain this goal. Do you agree with this way of putting the problem in the Act?
Prof. Jean-Paul Brodeur: When I was the Director of Research for the Canadian Sentencing Commission, I personally wrote a long chapter of the report and in it I said that protection of society was a highly criticizable argument. There's something fraudulent in this rationale about protecting society because if you protect society by imposing a criminal sanction on someone then, by definition, the protection failed somewhere before. You see what I mean? We're talking about protecting society the second time around, so to speak.
I would add two things to that. Protecting society becomes an argument that has enormous repressive potential when you are trying to resolve the problem that I just pointed out, that is, that the use of criminal sanctions means that protection has already failed, by adding deterrence to societal protection. Deterrence concerns the future. So if deterrence is added to the desire to protect society, you may end up with a repressive approach to sentencing. I noticed that in this bill, the temptation to introduce deterrence has been resisted.
The second point I would make, Mr. Saada, is that I have not changed my views a great deal, since I continue to believe that the argument about protecting society makes promises that we cannot really keep, but that I have taken into account the Canadian tradition of interpreting this concept of protecting society, which is also found in Britain and France, for example. In the 1960s, the Ouimet committee said that the only valid reason to punish someone was to protect society. It is an argument of last resort. If it is done, it should be for that reason, and no other. We are talking about an interpretation of last resort, a kind of ritual negative interpretation of the societal-protection argument.
I believe that there is a small degree, and perhaps a large degree, of that in here. We will have to wait and see how the judges apply it. The worst application, of course, would be increased sentencing, still on the pretext of protecting society. From what I have seen, that is not what has happened in Canada since I have been working in this field. As you can see, despite these criticisms, I have given you my answer.
Mr. Jacques Saada: My next question is for Dr. Steinhauer.
A few months ago I was in Paris for a conference on the issue of what was called “child criminality”. One of the judges sitting on the panel mentioned the importance of striking the proper balance between the sanction and the efforts at rehabilitation. I thought I understood what he said, and philosophically I felt pretty comfortable with that. But then I heard you, at the very beginning of your intervention, mention that—and I quote you—“punishment and rehabilitation are incompatible”.
Dr. Paul Steinhauer: Right.
Mr. Jacques Saada: Would you please help me understand that?
Dr. Paul Steinhauer: Making a child accept responsibility for behaviour is healthy for that child, but the more punitive the child feels a response is, the more undeserved and the more sadistic the child feels that is.
This was originally done with reference to a parent. The more the child feels that the parent is being punitive rather than caring when the parent is correcting the child, the more likely the child is to become angry, to be rebellious, and to reoffend in the same way. If society has a grossly punitive punishment, I don't think there's any way the child is going to perceive that as caring.
Mr. Jacques Saada: I understand. Would that mean that—if I just draw the logical conclusion from what you've said—you have some reservations concerning the division of violent crime versus non-violent crime in terms of the process?
Dr. Paul Steinhauer: No. I would prefer to say very much what I believe my colleagues were saying: I think there comes a point where one has no choice but to place a child in custody because the child is sufficiently violent that without custody he represents a threat to the rest of society.
If that happens, I think we should make sure that we are building in a remedial program rather than just warehousing the kid, as so often happens in many provinces in Canada today.
On the other hand, for a non-violent offence, if it is possible to treat that child in the first place without getting that child in the system, as Mrs. Chapman was suggesting...the more we can avoid putting the child into custody, the better we are likely to be. When you put a rebellious, angry child in custody, you put him into a community where the norm is that he's with other rebellious youth, and that is likely to backfire in regard to your goal of rehabilitating the youth.
Mr. Jacques Saada: I thank you for answering this question. I just want to say that my question was asked in order to get a better understanding of what you were saying. Philosophically, I think we are very close.
The Chair: Thank you very much.
Mr. McNally, three minutes.
Mr. Grant McNally (Dewdney—Alouette, Ref.): Thank you, Mr. Chair.
Thank you for your presentations.
Thank you in particular to Mrs. Chapman. Mrs. Chapman has done a lot of good work in my riding. That's why I'm here today: I want to let people know that what she's doing is very effective in our community of Maple Ridge and Pitt Meadows, in a population of about 75,000 people, and I suggest that this is the route that we need to examine further.
In some of the theoretical and philosophical debate, I think we're missing the point: this type of program is the kind of program that would allow children the opportunity to take responsibility for their actions in such a way that they do get some meaningful consequences. As I think Mrs. Chapman pointed out, they are actually helped early on, which is what I think my colleague from the Conservative Party was trying to point out: in legislation, we need to have a trigger to get these kids involved in a process that will help them out.
I'm going to ask Mrs. Chapman whether she knows of children in a community who are outside the Young Offenders Act, who are under 12 years of age, and who would benefit from getting into the diversion program at an earlier age.
Ms. Lola Chapman: Yes. We have worked with two or three who were under 12.
The first time was at the parents' request. Two 10-year-old boys had been caught stealing from their families, up to the point of over $500. The parents wanted something more to happen than what they were able to do, and they phoned me and asked what I could do. I told them that if they requested it and if they would write me a letter saying they were requesting it, we would hold a family group conferencing with those children, their families, and their siblings.
It was really effective. At the end of the conference, we even had a little five-year-old stand up and tell them that he thought he had done something wrong and that it made his brother do this. At the end of the conference, each of the boys withdrew with their families to decide what they were going to do about this. They came back with a list of some of the consequences they had agreed to. The lists were along the same lines, but the exciting part was that one father read out what the group had decided on what his son had agreed to and then wrote right in the agreement that in return they would try to return to being the caring, loving family they were before it happened.
The second time we did this was with a couple of boys who had been breaking windows at school. Again, it was a parental request. That also was very effective.
In five years, those are the only two cases in which we've dealt with under-12s. There is some need for it out there, but the big problem is that with the kids who really need it, you aren't going to get the parental request.
The Chair: Thank you very much.
Mr. John McKay (Scarborough East, Lib.): Since I have only three minutes, I have to go quickly.
This is for Dr. Doob. On page 4 of your paper, you comment on clause 4, saying:
We recommend, therefore, that judges be given the responsibility to
comment on and to send a case back for consideration....
I'm assuming, then, that the case has come before the judge, that there has been a finding of no criminality, and that he then makes some recommendations with respect to “extrajudicial measures”. Or has there been a finding? Am I misreading that?
Dr. Anthony Doob: Here's my concern. Let's say we have a very minor case that, on the surface, appears to be one that would be most appropriately dealt with by the kind of program that Ms. Chapman has described. The judge sees that case and in effect is asking those who are responsible for bringing that case before the court to consider whether there might be a more appropriate way of dealing with this problem outside of the court system. If it turned out there wasn't, then it would obviously come back, but it would really be the opportunity for the judge to ensure that this whole section of the act was actually being followed. Otherwise it could be ignored and there would be no consequence to you ignoring it.
Mr. John McKay: My question really is whether or not a judge could, absent any finding of criminality, send this back for consideration of extrajudicial measures.
Dr. Anthony Doob: My suggestion is that they should be able to. The judge should be able to say this is something for which they would like to ensure proper consideration. If a case comes back and they say proper consideration has been made and the case is now before you, the judge would obviously be hearing it.
Mr. John McKay: So the judge is going outside of his judicial function. There is no finding of criminality for this individual, yet the judge recommends—
Dr. Anthony Doob: The proposal we're making is that the judge would ensure that part 1 would be followed.
Mr. John McKay: How much time do I have?
The Chair: You have one minute left.
Mr. John McKay: Let me just go to table 4. We hear great amounts of testimony as to the difference between the way Quebec deals with matters and the way the rest of Canada deals with matters. I'm just looking at your table, and it appears that there clearly is a difference in the way Quebec deals with relatively minor offences. But when it comes to more serious offences—theft, property damage, and break and enter—Quebec if anything is more prone to resort to custody, to custodial sentences. Is that a correct conclusion?
Dr. Anthony Doob: No, not exactly. What the table is saying is that, of the relatively small number of custodial sentences handed down in Quebec, obviously a larger proportion of them are going to be used for the more serious offences. In effect, what I'm saying is that provinces like Ontario—which is using, however you want to count it, sort of a larger proportion of its custodial sentences for minor offences—are therefore using a small number for serious offences. Quebec, on the other hand, is putting only the more serious kinds of cases—
Mr. John McKay: It's putting fewer cases into the system.
Dr. Anthony Doob: It's putting fewer cases in the system. When they do get to serious cases, they are in fact sentencing them into custody, but so is Ontario.
Mr. John McKay: In a proportion similar to the rest of the provinces?
Prof. Jean-Paul Brodeur: Yes, but I want to reiterate this point.
Basically, you have two ways of exercising leniency in Quebec. One of them is not sending the case to court. Once you decide you're going to send it to court—these are probably the more serious ones, like break and enter, for instance—you can have a heavy sentence or a lighter one. Previously, you sort of excluded all of these cases because even though they were break and enters, you did not send them to court. Basically, there's a difference in having 22% of cases out of 770 and having 15% with custody for break and enter out of 3,800. Do you see what I mean?
Mr. John McKay: Yes, I do.
Prof. Jean-Paul Brodeur: That's basically it.
The Chair: Thank you.
Dr. Anthony Doob: We didn't want to get too far into numbers, but let me just explain. Quebec is using its custodial sanctions more for the more serious ones. But when you do look at what Quebec is doing on break and enter, for example, Ontario puts 43% of its cases of break and enter into custody and Quebec puts in 34%. That's not in the tables before you, but it's looking at sentencing data.
The sentencing data is different from how you're using a scarce resource. This table is really suggesting that we're squandering a scarce resource more in Ontario than in Quebec, but in Canada generally we're squandering a very expensive scarce resource, namely custody.
The Chair: Thank you very much, Mr. McKay.
Mr. Michel Bellehumeur: Mr. Brodeur, in your answer to Mr. Saada concerning deterrence, you said that that temptation has been resisted. Do you mean that the bill under consideration, the Act in respect of criminal justice for young persons, is less repressive than the current Young Offenders Act?
Prof. Jean-Paul Brodeur: What I said, sir, is that it was extremely difficult to answer that question. My basic position is that this legislation has made the judges' task more complex and much more important. Once judges have had a chance to use this law, we will see what the results are.
Of course, there are some things that are obviously more repressive. For example, lowering the age for adult sentencing from 16 to 14 is clearly more repressive. But there are a whole series of measures that I believe are a little bit more liberal.
Second, Professor Doob and I have talked about two specific things in our brief. That does not mean that we agree completely with everything else. I will mention something that bothers me quite a bit about imposing adult sentences on young people. I find this provision rather surprising. I am referring to subsection 72(2). If a young person at a hearing wants to be dealt with as a child, he has to complain and ask not to be treated as an adult. The provision says:
(2) The onus of satisfying the youth justice court as to the
matters referred to in subsection (1) is with the applicant.
I have some difficulty with the logic of that. The child has the onus of proving that he is not an adult. I find that idiotic. Excuse me. I have difficulty with that because the young person is in fact a child. Why should he have to prove that he is indeed what he is? It seems to me that it should be up to those treating him as an adult to prove or demonstrate that he is not what he seems to be.
Professor Doob and I certainly have reservations about some parts of this bill. We have even made other suggestions. As you have seen, we have made others,
but don't start us up
on statistics, because we could be here for hours. So we talked about a certain number of things and we have serious reservations about some other aspects.
Nonetheless, I still believe that introducing a new act has avoided the problem of piecemeal amendments to the old act to make it more and more repressive. That is why I answered you the way I did, saying that because of the enormous pressure that is building, it was better to start fresh so as to possibly block this rising resentment in Canada. The decision was made to introduce a new bill and thereby prevent the old act from being changed little by little, which might have led to even more catastrophic results than bringing in new legislation would. That is my position.
Mr. Michel Bellehumeur: That was what was happening from 1991, because the Young Offenders Act was amended a number of times.
Prof. Jean-Paul Brodeur: Yes, absolutely, but perhaps not always in the right direction.
Mr. Michel Bellehumeur: We are in the process of amending it yet again, without even having statistics on the latest amendments. Among other things, there are really no statistics on the last amendments that date back to 1994-95, and we therefore cannot judge whether those amendments were good or not, yet here we are changing the law again.
Prof. Jean-Paul Brodeur: I agree. It seems that our positions are getting closer together instead of farther apart. You recognize that we are sort of nibbling away at the old act. Maybe it is better to introduce a new set of provisions and say that this is a fresh start. You are all nibblers around this table, and I am telling you to try to reduce your appetite and give us a chance at a new beginning with this bill.
Mr. Michel Bellehumeur: I will end on this, Mr. Chairman. There was one thing that we do not agree on; I feel that we could have reinvested in re-implementing the current Young Offenders Act and got better results elsewhere in Canada. Everyone around this table agrees that in Quebec, the results are better than elsewhere. It may be because we enforce the act and the other provinces don't. In Quebec, we perhaps have a different social approach than the rest of Canada does.
Prof. Jean-Paul Brodeur: That is true, Mr. Bellehumeur, although it should be pointed out that Quebec went ahead with youth justice reform before the federal government did.
Mr. Michel Bellehumeur: That is true.
Prof. Jean-Paul Brodeur: A group of elite judges was created. In Quebec, there is a lot of pride about this and the feeling that we have expertise. Although the difference is very difficult to explain, I believe that the fact that Quebec took responsibility for youth justice a little earlier is part of the explanation.
The Chair: Thank you, that was very interesting.
Mr. John Maloney (Erie—Lincoln, Lib.): Ms. Chapman's statistics refer to the question of 10- and 11-year-olds. Your statistics of two out of 650 over five years are rather small, but you left the door open to those who perhaps need it most, and that's the parents who are not going to bring them forward. I would like to perhaps have the comments of Dr. Doob and Mr. Brodeur on Mr. McKay's comments. Should there be an interim transition that could bring 10- and 11-year-olds into the envelope? If not, why not?
Dr. Anthony Doob: I think there's no need to change the minimum age. It seems to me the difficulty with changing the minimum age in order to get services is quite clear. The problem is that the Youth Criminal Justice Act or the Young Offenders Act are both attempts to try to hold young people accountable for what their offence is. The focus is criminal law; it's on their offence. Certainly in the Youth Criminal Justice Act the language and the focus are on holding young people accountable, are on proportionality in terms of the offences.
The difficulty is that if what we're saying is that our social welfare systems are so corrupt that the same provinces administering the social welfare policies or the child welfare policies are somehow going to miraculously provide services if it's done under a different name.... I find it very difficult to believe we would do anything progressive under criminal legislation that we're not willing to do under child welfare legislation.
The other thing is that it seems to me that a lot of the public concern seeming to support the notion of criminalizing 10- and 11-year-olds is actually there because people aren't looking at the possibility of other alternatives. When one gives to and presents to people the alternative of saying whether they would prefer to have this dealt with under criminal law or under child or social welfare law, people overwhelmingly prefer to have even violent events dealt with under child welfare law. I think they do so quite sensibly, because they're saying these are young children who are desperately in need of support in terms of care and guidance and so on, and we should do it that way.
Think about what that would mean. If we're going to have a child welfare law or if we're going to have a criminal law that is somehow dealing with these child welfare cases of very young children, how are we then going to talk about proportionality and holding people accountable, when in reality what they have to do is be found guilty of an offence beyond reasonable doubt before we're willing to provide services? It seems to me that we should provide services for children in need without having to go through this business of having to find them guilty of a criminal offence. If there are services that are needed, we should be providing those services.
I agree completely with Paul Steinhauer when he says our difficulty is that we don't have good youth policies for any age, really, but particularly for the very young. If we're interested in dealing with avoiding and preventing crime, that's where we should go. We should do that and we should do it right, rather than pretending that we're somehow going to correct the world through criminal law.
The Chair: Thank you very much.
Mr. Chuck Cadman: Thank you, Mr. Chair. This is just a short question for Dr. Steinhauer or Dr. Davidson.
In your written submission, you suggest and support involving parents more in the system. I think we can all agree that we would like to see that. But further down on the same page you say you have some reservations about holding parents accountable for the failure to supervise their kids when they're out on assigned undertaking.
I'm sure you've read the act and have seen that the language actually says “wilful failure to comply with an undertaking”. I just wonder why you see a problem with that. That is currently in the YOA, so all we're doing in this legislation is actually increasing the option. I just wonder why you feel that way, because we're talking about a wilful failure to comply and not just a parent who is just being negligent.
Dr. Paul Steinhauer: I think one of the unfortunate things that happens with the present system is that very often parents are cut out of the child's life once a child has gone into custody. I think our goal—and Ms. Chapman had a wonderful example of this—is that the family should be involved at all stages and should be encouraged and given the kinds of help it needs to do an effective job. I believe in involving families that way.
I think the comment you're making about our written brief is we're concerned about the tendency on the part of some provinces to say that parents should be made to pay, or if a child is allowed out of custody on the responsibility of the parents, if the child breaches his parole, then the parents are going to have to be made to pay for that. Our concern is that if having the parents involved is a punitive measure for the parents, particularly at a time when the parents have lost control or are having trouble getting in control of a youth, making them financially responsible is going to erode further the relationship between parents and child. It may encourage many parents to throw up their hands in frustration and not be there to try to help their youth through a difficult period.
Mr. Chuck Cadman: Just to expand on that, what we're talking about, at least in this legislation, and what I think you're referring to is the part that actually holds a parent criminally liable for a wilful failure to comply with a signed court undertaking. In other words, why would a parent who has lost control, or feels they've lost control, stand before a judge and say, okay, I'll take this person back in my custody, and I'll guarantee he'll be in court and that he'll live up to all the conditions you impose? Then the parent goes away and just forgets about it. That's a wilful failure to comply with a signed court undertaking, and we're saying there should be some kind of sanction.
Dr. Simon Davidson: Or the parent goes away and tries to fulfil their obligations, but because the situation is already out of control, it becomes even more out of control.
Mr. Chuck Cadman: Again, the word “wilful” is key here.
Dr. Paul Steinhauer: I would think too that there might be many parents who at the time, with the best intentions in the world, might pledge that they will do what they can to help get this child under control and to help him manage, but then, after a period of time when it became clear that this wasn't happening, they would be so discouraged and defeated that they might give up completely.
Mr. Chuck Cadman: But isn't their obligation then to pick up the phone and tell the probation officer or the courts that he's out of control, he's breaching, please take him in, rather than just ignore it? That's my question.
Dr. Paul Steinhauer: Well, I must say, if I had a little more faith that the answer would not be just to put the child in custody because he has breached parole but instead to work with that child and that family to effectively support them to help the child...I think that would be a much more reasonable thing to do. Unfortunately, what happens very often is that the parents do call in that they are having trouble that is often a problem in a parent-child relationship—for example, holding a child to a curfew—and if this comes back to court, the child is then put in custody, which I do not think is a helpful thing for anybody.
Mr. Chuck Cadman: This is not about parole. This is interim release; this is bail.
The Chair: I want to make sure everybody gets a chance here.
Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): I thank you all for coming. It has been extremely helpful. I realize that with your level of expertise and professionalism, the time you've given us is very generous indeed, and I am very grateful for it.
I think you underline the dilemma we face as federal legislators working with the Criminal Code, having to attempt, perhaps, to remedy issues that are not really ours to remedy, but because the areas have been abrogated by the governments who are responsible, we are allowing our legislation to trigger society's response when it ought not to be triggered by this legislation, nor at this level. That is not in any way to offload, but when we consider the province of Ontario—and I, for one, sit for Barrie—Simcoe—Bradford—and we talk about the youth welfare system...or not the welfare system but those measures that are in place to deal with children, such as child welfare.... I look at Simcoe County and we are the third-lowest funded in the province of Ontario. It's simply incredible to observe that the wheels are off. So, Dr. Doob, how are we to respond properly to the excellent insights you're sharing with us?
Dr. Anthony Doob: I understand the concerns you have, but one of the things you do is pass legislation that makes it more difficult for provinces like Ontario to squander important resources on locking up young people who shouldn't be locked up. It seems to me that's one of the things this piece of legislation does. We have, however you want to count it, large numbers, and by large numbers I mean thousands of young people who are being put in custody at costs of $150 to $250 a day. This is a substantial amount of money that isn't being used effectively. If we can, in effect, cut that cost....
The problem is that to require that there be a positive change and that money be used for something sensible obviously is to some extent outside your jurisdiction. On the other hand, if you go back to the extrajudicial measures, one of the things that could happen in that is by encouraging that, both in terms of legislation and in the cost-sharing arrangements, the federal government could ensure that more positive kinds of outcomes are going to occur for young people than simply locking them up for 30, 60 or 90 days.
Ms. Aileen Carroll: Thank you.
The Chair: Thank you.
Prof. Jean-Paul Brodeur: Could I have an opportunity to respond to that point?
Ms. Aileen Carroll: If you like, sir.
Prof. Jean-Paul Brodeur: The first thing might be a bit outrageous. If you look at the history of child welfare legislation, one origin of it is in England and it dealt with the SPCA. Basically, you had this caring institution for animals, and they started to bring children there.
The position is not to broaden the spaces where you have dogs to put more children in; it's to take a principled position saying we're acting in this capacity because there's an urgency and we couldn't refuse them. But basically you must have a person-caring system. So I would say there's a position of principle there.
The second thing is that it seems to me some of the worst repressive packages and penal disasters have been when we have mistaken the criminal law, which is, at bottom, a coercive system, for a hospital, for a mental asylum, for a school, or for some sort of caring facility.
Again, to answer your question, I believe you have to be adamant that it is not our function and we are not good at dealing with these. In some cases, dedicated persons do wonders, miracles and all that, but basically we cannot institutionalize miracles. If you want a caring system, put the money somewhere else.
The Chair: We have time for two more interventions, Mr. Bellehumeur and Mr. McKay again. I understand Mr. Steinhauer wants to speak too.
Mr. Michel Bellehumeur: I read it quickly, but tell me, is what you said, about subsection 72(2) of the bill, for example, in your brief?
Prof. Jean-Paul Brodeur: The brief deals only with custody and extrajudiciary measures. We did not go into this issue of....
Mr. Michel Bellehumeur: All right. Are there other points like the one about children and subsection 72(2) that raise questions?
Prof. Jean-Paul Brodeur: I have at least one other that is not in the brief. It concerns a clarification of the principle of proportionality, which I think has a tendency to incense some people in Quebec. In my opinion, clause 37 needs to be restructured. That isn't in there yet and will be something that I could add, if you like, as an appendix.
Mr. Michel Bellehumeur: Are you talking about paragraph 37(2)(b), which deals with similar sentences?
Prof. Jean-Paul Brodeur: Paragraphs 37(2)(c) and 37(2)(d) state:
c) the sentence must be proportionate to the seriousness of the
offence and the degree of responsibility of the young person for that
d) subject to paragraph (c), the sentence must:
(i) be the least restrictive sentence that is capable of achieving
the purpose set out in subsection (1),
It is as if paragraph 37(2)(c) is saying that a proportional, that is, sufficiently punitive, sentence must be imposed, but the part about the least restrictive sentence possible is the principle of graduated sentencing, meaning that the least restrictive sentence can be imposed, but subject to the principle set out in paragraph 37(2)(c), the principle of proportionality.
There is a risk that proportionality will be interpreted in a punitive way. Proportionality implies that the sentence is proportional that once it has been arrived at, the least restrictive measures can be chosen.
By changing the order of the provisions, we might be able to get rid of what appears to me to be an illusion and correct an efficiency in the bill.
Mr. Michel Bellehumeur: Section 37(1) talks about imposing just sanctions. Those provisions even have an impact on paragraph 37(2)(c).
Prof. Jean-Paul Brodeur: But we cannot speak for the courts.
Mr. Michel Bellehumeur: But we can guide the courts, for example, through the legislation.
Prof. Jean-Paul Brodeur: Yes, we can guide them.
I have spent a lot of time arguing along these lines. Justice is never equivalent to punishment. There was the so-called
movement. When we talk about proportionality, we are always thinking in terms of retribution. There are other forms of justice, like restorative justice or reintegrative justice. To impose a sanction is not necessarily to exclude someone. Certain other consequences may be imposed on the offender, and then efforts are made to reintegrate the person. When I see the word “just” in a law, I do not always connect it with the word “punitive”, although that seems to be a connotation that some people are apt to give it.
The Chair: Thank you very much.
Mr. McKay, please, and then I promised Mr. Steinhauer a comment, and we'll be done.
Mr. John McKay: In some respects we have kind of a fascinating case study here in terms of the approach Quebec takes and the approach the rest of Canada takes. Intuitively, one would think that after age 18 there would be a significant difference in the rates of criminality in Quebec versus the rest of Canada. I'm wondering whether you're able to make any observation on that point, as to whether in fact by treating a youth arguably differently in Quebec that in fact there is a difference in the rate of criminality as adults.
Prof. Jean-Paul Brodeur: Basically your question would involve some sort of answer that would bring you statistics about adult criminality in Quebec to the effect that if you treat people more leniently when they're younger, this will have positive effects with regard to adults, and then one would expect that the rate of offending with regard to adults would be lower. I would have to—
Mr. John McKay: I wouldn't choose the word “lenient”, but nevertheless that's the crux of the idea.
Prof. Jean-Paul Brodeur: No, but that's the gist of your question. Off the cuff, I cannot provide you with an answer right now. I'd have to go back to statistical books.
Is there anything in your statistical computer mind?
Dr. Anthony Doob: I think if you look at prime rates in Quebec overall, they do tend to be lower, for example, than Ontario. My suspicion on this is that it has less to do with the youth justice system than a more positive orientation toward children overall. We're all looking at the youth justice system and in a sense we tend to look for explanations there. I think that's part of it, but it's really probably more symptomatic of a more positive sort of child friendly approach to children in the province.
The Chair: You have been so interesting as to be a chair's nightmare. Is everybody still squirming?
Monsieur Saada, to follow up on the last question, and then I promise....
Mr. Jacques Saada: [Inaudible—Editor]...these figures.
Am I right in saying that, generally speaking, all the studies we have been able to find show that the more offenders, whether they are youth or adults, are incarcerated, the higher the risks of recidivism? In other words, does increasing the length of time spent in custody increase the risks of further criminal activity?
Prof. Jean-Paul Brodeur: I will first say one thing. In the criminal justice field, there is currently one group of people saying exactly that. The more we take a punitive approach and incarcerate people, the higher the rate of criminal activity will be. Many people are saying that and have statistics to support that position, but it would be wrong to overestimate the knowledge of the justice world we have in criminology. Someone might come up with other statistics that could show, for example, that if someone is incarcerated often for short periods, the person will begin to have health problems as he or she gets older and will therefore commit fewer crimes. Around the age of 44 or 45, these people commit fewer crimes because it is hard work being an offender, to some extent. So there are two sides to the issue.
Personally, I am more on the first side, but it is very difficult to answer statistical questions in the area of criminal justice unequivocally, unambiguously and with absolute certainty.
The Chair: Thank you very much.
My friend Mr. Alcock reminds me that the only thing worse than cutting people off is not cutting them off. We'll move on to Mr. Steinhauer to close.
Dr. Paul Steinhauer: I'd just like to respond to the issue you raised, Mrs. Carroll. I think one of the major problems we have is that in an age when the problems of families are far greater than they were when I raised my children in the sixties, and when the problems of society are far greater, we don't have the supports built in for families who are having trouble successfully raising their children on their own. Part of that is because of an insufficiency of resources. We have not considered it an important thing in this country the way they consider it important to support child rearing in most of western Europe and certainly in Scandinavia.
Partly, also, resources are insufficient. Resources in one sector pull back on their core mandate, and as a result, mental health will just look after mental health. It won't consult the schools or child welfare. Child welfare will just deal with its mandate. It won't do any protection. Education will only teach the educational problems. It will ignore the behavioural problems or try to exclude the children.
I saw this beautifully. I've had a three-week opportunity to meet with over 60 groups with probably 4,000 workers from all those professions in Alberta to try to look at what an integrated system should look like. From each group I heard that back in the mid 1990s when there were cutbacks to all of the different children's services, each group retreated to its own mandate and started excluding. Since the most difficult children are the ones who end up in the justice system and eventually are often the ones who have problems affecting two or three different systems, that means the systems that are already overstrained are able to say, we can't take you because we haven't got the resources.
So somehow or other, building an integrated system of resources to support child development—and I would be glad to communicate with you about how that might be done—is really what is needed.
If you look at the child welfare situation in Ontario, for example, back in the early nineties, the average worker had 15 minutes each week to spend with a family, and that was if she hadn't had a fresh allegation of sexual abuse, which meant she somehow had to find 14 to 16 hours over a two-week period, which meant everything else had to be shoved on the back burner. There is no way they can possibly do their job with that sort of overcrowding.
So one message that I would hope this committee might give to some of the provinces who are screaming hardest that you take more kids into the justice system and criminalize them is to get them to look at what the conditions are that allow kids to end up in the stream that ends up in the criminal system and to do something about that.
The Chair: Thank you very much. I think it's evident—
Ms. Aileen Carroll: Mr. Chair, if I could just say one quick thing—and I know we're breaking the rules all over—thank you for being patient enough to get that response on the record, which is very helpful.
I vice-chair the committee on Canada-Europe, Doctor, and I have been to Strasbourg recently. I, too, have been appalled at where we sit in any comparison with western European countries on how we as a society provide family support, how very non-child-centred we are. So I thank you for that.
The Chair: Thank you very much. Obviously the combination of witnesses has been fortuitous in terms of this discussion—
Mr. Michel Bellehumeur: Mr. Chairman, I would like to make two comments. This meeting started at 11 o'clock and we have devoted barely two hours to these five witnesses. We should allow at least three hours when there are five or six witnesses. Even though we opposition members have some things to do to prepare for Question Period in the House, I stayed here to listen to our witnesses.
The agenda for the meeting scheduled for 3:30 p.m. indicates that we will be hearing six witnesses. I hope that we will have at least three hours and that, in the future, morning meetings will begin before 11 o'clock, otherwise we will be able to hear only two witnesses or two groups. We ask witnesses to come here and then we do not have enough time to ask them questions. That does not make any sense. I would have liked to ask our last witnesses a number of questions.
I would also like to point out that I have been on the justice committee since 1993 and I know that it sometimes takes a long time to get the French version of documents. Since we are studying an issue that is extremely important and that we have already invested a few years in, I hope that people will be diligent and that all briefs that need to be translated into either English or French will be ready quickly so that all members of the committee have the same documents at the same time and we can act as fairly as possible.
The Chair: Thank you very much. As I said, I think it was a good combination of expertise and background, and we thank you very much for your help.
I would advise members of the committee, just before we leave, that we've had a couple of cancellations for this afternoon. To some extent, the problem that was expressed will be remedied. But it will give us the opportunity—they're thinking I'm going to invite you back—to discuss some items of business that I think we should at this time.
Mr. Reg Alcock (Winnipeg South, Lib.): Do you want to address the business now?
The Chair: No.
Thank you. We're adjourned.