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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]
Wednesday, March 28, 2001
The Chair (Hon. Andy Scott (Fredericton, Lib.)): I want to welcome the Minister of Justice to the third meeting of the Standing Committee on Justice and Human Rights, where we are considering Bill C-7, an act in respect of criminal justice for young persons and to amend and repeal other acts.
Madam Minister, please proceed.
Hon. Anne McLellan (Minister of Justice and Attorney General of Canada, Lib.): Thank you, Mr. Chairman.
I am very pleased to be back before your Committee today to talk again about Bill C-7, an Act in Respect of Criminal Justice for Young Persons.
As you know, I tabled the Bill on February 5 after a long period of consultations.
Youth justice is a complex issue and there are no easy solutions. We know from discussions with provincial and territorial colleagues, from previous appearances by many witnesses at committee, and from ongoing communication with stakeholders that it's extremely difficult to reach unanimity on how best to improve the youth justice system in Canada. Nevertheless, our job is to bring forward the best possible solutions and foster cooperation and compromise so that solutions can be put in place quickly for the benefit of all Canadians.
No one should be surprised to see me here again this afternoon. The government has remained committed to the renewal of the youth criminal justice system since the Standing Committee on Justice undertook its major review in 1997. The process that has led to where we are today has been comprehensive, if not exhaustive, and perhaps exhausting.
There has been ample opportunity to voice opinions and contribute ideas to the renewal of the youth justice system and to this bill in particular. We have listened to provinces and territories and other important stakeholders and have in many cases adapted the legislation to address their concerns.
That brings us to Bill C-7. It is similar to Bill C-3 except—and it's an important exception—that it incorporates the government's proposed amendments, addressing many concerns expressed by witnesses before this committee.
The substance of this bill has been open to public scrutiny for a long time. It is now time to move forward and replace the Young Offenders Act with the Youth Criminal Justice Act. We can then begin the important stage of implementation by ensuring that the proper planning, funding, and programs are in place to enable the objectives of the legislation to be achieved.
Although some have questioned the need for new youth justice legislation, it is apparent that most Canadians feel the Young Offenders Act is not working effectively as the legislative base for the youth justice system in Canada. Fifteen years of experience with the YOA back up the perception that there are real problems with the law.
I would like to outline how the proposed new youth justice legislation will address some of the key problems with the YOA. First,
our philosophy relating to youth justice, expressed in the Young Offenders Act, is not consistent. Contrary to YOA, Bill C-7 establishes the basic principles that we want to see apply to youth justice.
For example, our system of criminal justice for youth is aimed at preventing crime, at rehabilitation and reintegration, and at making sure that young offenders assume meaningful consequences for their actions. Achieving those objectives would be the best way to protect society.
Interventions with young people must be fair and proportioned, encourage the repair of harm done, and involve parents and others in the young person's rehabilitation and reintegration.
My second point is that the YOA has resulted in the highest youth incarceration rate in the western world, including the United States. Bill C-7 is intended to reduce the unacceptably high level of youth incarceration occurring under the YOA. The preamble to the legislation states clearly that the youth justice system should reserve its most serious interventions for the most serious crimes, thereby reducing overall reliance on incarceration.
My third point is that the YOA has resulted in overuse of the courts for minor cases better dealt with outside the court. The proposed Youth Criminal Justice Act is intended to enable the courts to focus on serious youth crime by increasing the use of effective and timely non-court responses to less serious crimes or offences.
These extrajudicial measures provide meaningful consequences, such as requiring the young person to repair the harm to the victim. They also enable early intervention with young people, as well as the opportunity for the broader community to play an important role in developing community-based responses to youth crime.
That the YOA has resulted in disparities and unfairness in youth sentencing is point number four. Bill C-7 sets out a clear, consistent, and coherent code for youth sentencing. In addition, to reverse the current unfairness, the new law provides that the consequences imposed on a young person must not be greater than what an adult would receive in similar circumstances. The new sentencing provisions also emphasize that every sentence must focus on rehabilitating and reintegrating the young person.
A fifth point of contrast is that the YOA fails to ensure effective reintegration of a young person after release from custody. This legislation includes provisions to assist the young person's reintegration back into the community. The youth justice legislation requires all periods of custody to be followed by a period of supervision and support in the community.
My sixth point pertains to the YOA's process for transfer to the adult system, which has resulted in unfairness and delay. Many of us who are aware of the workings of the youth justice system are aware of what I would describe as inordinate periods of delay taking place on some occasions in relation to transfer applications.
The new youth justice legislation contains significant changes addressing the unfairness of the current transfer process, including the fact that the transfer process itself is being eliminated. Instead, the youth court has the authority to impose an adult sentence in certain circumstances. If a young person receives an adult sentence, it is presumed that if the young person is under 18, he or she will serve the adult sentence in a youth facility. It's very important for people, Mr. Chairman, to understand this point.
My seventh concern with the existing YOA is that it fails to make a clear distinction between serious violent offences and less serious offences. Unlike the YOA, a basic policy direction of Bill C-7 is that serious violent offences are to be treated seriously and less serious offences are to be dealt with through less intrusive, yet often more effective, measures.
My eighth concern with the existing legislation is its failure to recognize the concerns and interests of victims. I would like to point out that Bill C-7 clearly recognizes these concerns and clarifies the role of victims in the youth justice system.
Now I realize we have gone through a lengthy process to get to the point where we are today, and there have been a myriad of opportunities for input. I want to reassure members of the committee, while not always agreeing with the concerns raised, I have listened to those concerns. I think I understand many of the concerns, and if I don't I'm sure I will hear about it today. I think I have listened and now understand the concerns raised by opposition members as well as members of the government. I believe we have adapted the law to address many of these concerns.
At this point I would like to turn to some of the concerns raised by my honourable colleagues. One of the main criticisms I have heard from members of the Bloc Québécois is that the new law is too tough, placing too much emphasis on the crime rather than on the needs of the young person.
First of all, I would like to emphasize that this law is not about being too tough or, I suppose if you're from the province of Ontario, too soft. What it is about, ladies and gentlemen, is what Canadians expect from a youth justice system. It's about accountability, it's about responsibility, and it's about respect.
Under the proposed act, a focus will be placed on determining the remedy best meeting the objective of rehabilitation and reintegration into society, a remedy that takes into account the needs and individual circumstances of the youth and also has a positive and educational effect.
Some have criticized the bill for not providing sufficient flexibility, saying that too much in this bill is automatic. Again, I take strong exception to that. Let me point out that Bill C-7 contains presumptions, just as the Criminal Code does, just as the existing YOA does. Let me be clear: this does not mean that presumptive measures are automatic. In fact, all of us who know anything about the youth justice system know that presumptive measures are not automatic. In the case of the presumption of adult sentences, for example, which are found in the existing YOA, presumptions can be refuted by the accused or renounced by the crown. And that happens regularly in our youth justice system. Furthermore, as you know, different jurisdictions will have the flexibility to set the minimum age for presumptions of adult sentences at an age older than 14, if they choose to do so.
Many other areas in the application of the proposed law provide the provinces with flexibility. For example, the law would allow the establishment of a pretrial screening program; programs using extrajudicial measures; consultations with groups of experts; youth justice committees; designation of place of custody and level of security; development of rehabilitation and reintegration programs; and the power to decide not to impose an adult sentence—all important areas, I hope the committee would agree, in providing flexibility to provincial attorneys general or their designates or agents.
Unlike the YOA, which says nothing about when an intervention should take place, the proposed law recognizes the importance of applying the right measure at the right time. It also specifically refers to the right to a timely trial and other rights and freedoms, which I hope we would all agree are even more important when dealing with youth than when dealing with adults.
Members have raised concerns about the financial burden this bill will place on the provinces and the territories. I believe, Mr. MacKay, this is one of your concerns. Understandably, there are financial implications to renewing the youth justice system. There are financial implications when one chooses to renew anything. To effectively implement the bill and the wider youth justice renewal initiative, additional funding will be provided. It's already been provided to the provinces and territories of this country. The Government of Canada has committed close to $1 billion over a five-year period for enriched cost-sharing agreements that will help provinces and territories implement youth justice renewal.
The government will also provide additional funding for innovative community-based pilot projects, partnerships, training, and other efforts that will support the renewal of the youth justice system. Moreover, the policy thrust of the bill is to move away from custody where it is not required and is not the most effective remedy. And we all know that custody is a very expensive type of sanction. I don't know, Mr. Mosley—is it the most expensive form of criminal sanction?
Mr. Richard G. Mosley (Assistant Deputy Minister, Policy Sector, Department of Justice): Yes.
Ms. Anne McLellan: And we are moving, in this legislation, toward less expensive and more effective community-based programs, which should save money in the long run.
We have heard that the child welfare system is not equipped to deal with children under 12 who exhibit criminal conduct. First, I must emphasize that only a very small number of children under the age of 12 commit crimes. The causes of such behaviour in very young children are extremely complex and, in our view, are better dealt with by health and social agencies that have the necessary expertise and experience. Having said that, I do recognize that there is a role for the Department of Justice to play. In fact, one of the major issues discussed during the development of this law was how to deal with young children who commit offences. The department has been working with a wide variety of professionals from different disciplines, as well as the provinces and territories, to develop a national initiative for under 12 years.
Let me assure you that although these children represent a very small proportion of children and youth who commit crime, we are working towards a solution that takes into account their lack of maturity and meets their complex needs. That solution, I believe, and this government believes, is best employed outside the formal criminal justice system.
We have heard criticisms on both sides of the publication issue. What the proposed law will do is strike a balance. We do believe that publishing the name of a young offender could affect their ability to be rehabilitated and reintegrated into the community. And for that reason we have maintained the publication ban, with important exceptions. When a young person receives an adult sentence, the publication ban does not apply. Furthermore, if a young person receives a youth sentence for one of the five presumptive offences—the most serious offences known in the criminal law—their name may be published. However, it will not be automatic. The young person or the crown can still apply for a ban at this point.
I am confident that judges will be able to assess the individual circumstances of each case and ensure the publication ban will apply in appropriate cases. And I do believe, by way of an aside, it is even more important that judges be in a position to exercise discretion when they are dealing with young people, and in fact can have before them and make an assessment of the individual facts of the case, involving, obviously, the individual situation of the young person. I am not one of those who would ever support the stripping of significant discretion from the judges of this country, who are almost always in the best position to assess a complex, difficult, and emotional situation and reach a conclusion that is fair and balanced for all the parties, including the young person and the victim.
Some opposition members feel the court system should direct whether alternative measures should be used. This would run counter to one of the objectives of the bill, and that is to reduce our reliance on the formal court system. As I have already said, we use the formal court system too much in this country to deal with relatively minor issues concerning young people.
As stated in the principles of the bill, sometimes the most effective way to correct offending behaviour is to address it immediately. A formal caution or warning by a police officer, without involving the court system, is often effective. And we know this because we talk to the front-line officers who do this. It's often effective in getting a young person who has committed a non-violent offence back on track. Who better to decide this than the front-line workers like police officers? Rather than take up valuable court time that could be spent dealing with more serious matters—perhaps organized crime—police and prosecutors will have the discretion to decide how to best deal with these less serious offences. These provisions should also prove reassuring to those who express concern about a perceived absence of discretion in the proposed law.
Some have argued that the bill provides for statutory relief. I reject this argument. It is true that with this bill, part of the sentence will be served in the community. One of the most important objectives of the youth justice system is to promote rehabilitation and reintegration. Requiring that custody be followed by supervision and with conditions in the community, where young people can find the structured guidance and support they need, will ease the reintegration process and increase the likelihood of successful rehabilitation. Let us keep in mind that release into the community is not automatic. Should there be reason to believe that the young person would be a danger to the public, he or she may be required to serve part or all of the remaining sentence in custody. Furthermore, should conditions be breached while they are in the community, the young person can be returned to custody.
But, ladies and gentlemen, to me it is a rather disturbing thing that one can have young people who have their whole lives in front of them, who have made a mistake, perhaps even a very serious mistake, turned out on the step of a detention centre somewhere in this country, and there is no structured supervision of that young person in respect of their re-entry into the community from which they came. It seems to me that if we are a caring society who ultimately want to ensure that young people are able to turn their lives around, that element of supervision is very important—we provide it to adults. And it seems to me very important, if we are to seriously help young people, their families, the community from which they come, and even their victims, that they be able to turn a page and get on with their lives. Therefore, I do believe that supervision of a young person upon his or her return to the community is important.
There has been some criticism of the idea of distinguishing between violent and non-violent offenders. It is Canada's failure to target the most serious consequences to the most serious crime that has resulted in one of the highest youth incarceration rates in the world. This should be a disgrace to all of us in this country.
Bill C-7 is designed to provide more effective measures for dealing with both serious violent offences and the vast majority of offences that are less serious. Some have speculated that the new system will create greater delays, particularly between the time of charge, arraignment, and trial. However, with the implementation of the Youth Criminal Justice Act, fewer delays are expected. Police will have more tools to deal with youth in their communities. Greater police and crown discretion early in the process will lead to more meaningful, effective, and faster resolutions of the majority of less serious cases. As I have said before, the formal court process and custody will be reserved for the most serious crimes.
In addition, under the proposed law youths will not be transferred to adult court, a process that has in the past caused delays of up to two years. We all know—we see in our courts—how long these transfer applications can take, and the appeals coming therefrom, before the young person ever gets before the court to deal with the substance of the alleged crime. Instead, youth courts will be able to impose adult sentences. This will streamline the process by eliminating the need for a transfer to adult court.
Ladies and gentleman, while our time here today is dedicated to discussion of Bill C-7, I would be remiss if I did not mention the broader youth justice renewal initiative. In developing new youth justice legislation, it is important to recognize the limits of legislation and to have reasonable expectations about what legislation can accomplish. That is why the Youth Criminal Justice Act is only part of the government's much broader approach to youth crime and the renewal of Canada's youth justice system.
Increased federal funding, crime prevention efforts, effective programs, innovative approaches, research, partnership with such sectors as education, child welfare, and mental health, improvements in aboriginal communities and programming, and effective implementation by all stakeholders—all are part of the broader strategy for the fair and effective renewal of Canada's youth justice system.
I thank you for your time and patience. I hope I have addressed some of your concerns. I know others will remain. This renewal process has now been going on for several years. Canadians and other stakeholders are eager for us to enact this bill and move on to the important implementation stage. In retaining the positive elements of the Young Offenders Act and correcting its weaknesses, we can work together to renew the youth justice system and ensure that it is fairer and more effective for all Canadians.
Mr. Chairman, members of the Committee, I thank you for your patience. I am now ready to answer your questions. Thank you.
The Chair: Thank you very much, Madam Minister, and not to worry—half an hour in our committee is not a long speech.
Mr. Toews, seven minutes.
Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, Mr. Chair.
I want to thank the minister for her comments.
Certainly the minister has covered the field but I don't think she has covered the real concerns. I do appreciate the long and tortuous path of this legislation, but there are so many issues here. I speak with some practical experience, having dealt with Young Offenders Act legislation and the prior Juvenile Delinquents Act. When I look now at this particular bill, I have serious concerns. As I page through it and its amendments, it looks to me simply like a field day for lawyers.
I had to smile when the minister indicated that front-line officers realize the value of a caution or an admonition. The sad truth of it is that they have realized there's simply no other choice in many circumstances but to do that. It's not effective. It's simply the only choice they have.
Mr. Chair, I think the attempts to reform this act will fail. In a few years we're going to be here again. We're going to be scratching our heads, wondering what went wrong. I believe I know the primary, although perhaps not the exclusive, reason. In saying that, I'm not a prophet. I'm simply drawing on a number of years of experience.
The minister has indicated in public that she is not prepared to partner with the provinces on an equal basis in their efforts to work together with the federal government on this federal initiative. Remember, this is an area of federal responsibility. The provinces could simply walk away from the table and say “We'll have nothing to do with this act”. There's no constitutional requirement for the provinces to enforce any of this criminal legislation.
Despite this, the provinces are staying at the table. They're concerned. They want to resolve this issue.
The minister has refused to financially partner with the provinces on a 50-50 basis. When asked why, she has said that the federal government doesn't have the money. Remember, this is a federal program, a federal initiative, and yet she expects the provinces to pick up in effect 75% of the cost of her program.
The provinces aren't satisfied. They're very concerned about this lack of commitment. Yes, there's some initial funding over the first number of years, but then the funding becomes discretionary. That's where the devil is. They can hold up funding. There aren't guarantees of funding. Those are in fact the concerns.
I think this points also, Mr. Chair, to the real reason the minister has refused to extend the rehabilitative powers of the youth court to children under 12. I'm not talking about the punitive powers of the court. I'm talking about the rehabilitative powers of the court to deal with children under 12. The reason is not that the punitive provisions are too harsh for children. But let's assume they're not suitable, and let's just deal with the issue of the rehabilitative powers. The real reason is that the minister simply does not want to put up federal money to support the federal program. It costs money to assist the provinces. It costs money to extend the rehabilitative powers of the youth court to children under 12.
Everyone knows—it's no secret—that the child welfare system is simply not appropriate and effective to deal with these very problematic children. The minister has said here today “There are not many children”. Well, if there aren't that many children, why doesn't she extend the rehabilitative powers? The child welfare system simply isn't as efficient in dealing with getting children before the court and directing child-caring authorities to do that. That used to happen under the old Juvenile Delinquents Act, when I prosecuted under that act. The courts had the power to say to the child-caring agencies “Come and explain why we have your 11-year-old ward on the street”.
I want to know why the minister will not support financially this partnership to the extent of 50% so that the provinces can carry out these federal responsibilities and also help children under the age of 12. If there is a solution, it certainly isn't in this legislation.
Perhaps the minister can answer that.
Ms. Anne McLellan: Thank you, Mr. Toews.
First of all, I would not deny that under a previous government, which shall go nameless, the original cost-sharing arrangements were altered. We're well aware of that. What this government is doing is rebuilding that relationship.
While we have not returned to 50-50, and I cannot promise here today that we will go back to 50-50, we have certainly started to rebuild the cost-sharing relationship between us, the provinces, and the territories.
Mr. Toews, the money past 2004 or 2005 is not discretionary. That money is there. That money will be built into future contribution agreements with the provinces. As I've said, over these five years, we are going to be contributing close to $1 billion in cost-sharing arrangements with the provinces and territories of this country. In fact, we are rebuilding the relationship that was changed in the late eighties.
It's an issue that I am sensitive to, and it's an issue I hear about regularly from my provincial colleagues, as you know, Mr. Toews, since you used to be one of my provincial colleagues. This was one of your main concerns, and I respect the fact that you forcefully put this issue on the table. You are one of the reasons I went back to my colleagues around the cabinet table and said that as we renew the youth justice system in this country, we need to rebuild the cost-sharing relationship with the provinces and the territories. We are starting to do that. In fact, while I understand one would always like additional resources in any programming and in any area of governance, I think we have gone some considerable way toward alleviating the concerns of the provinces and the territories.
Let me say that this is an aspect of the administration of criminal justice in this country. Youth justice legislation is criminal justice legislation. The provinces enforce and administer youth criminal justice legislation, as they do the Criminal Code, which applies to adults. I think this is a shared obligation, and one in which we in the federal government do acknowledge our responsibility. And as I say, we're in the process of rebuilding that cost-sharing relationship.
Mr. Toews, the reason we are not lowering the age to include those between the ages of 10 and 12 is that, philosophically, this government does not believe those children under the age of 12 should be subject to the formal criminal justice system. The formal criminal justice system is the single most serious system we have in terms of intervention with people in society. When you enter the formal criminal justice system, it sends a powerful signal in terms of accountability, in terms of one's ability to understand the nature and quality of one's act. The stigma attached to entering into the formal criminal justice system is such....
Our criminal justice system is there to prohibit and to deter, as well as to rehabilitate and to reintegrate into our adult system. In our youth justice system, we are there obviously with an emphasis on preventing youth crime in the first place, and on rehabilitating and reintegrating those who are in fact found to have caused harm to others. But we do not believe that system, with everything it entails formally and societally, is the right place for children under the age of 12.
There are effective child welfare systems and there are effective mental health systems in which these young people can in fact be dealt with. However, Mr. Chair, because we understand that there may be those who fall through the cracks, there may be work the federal, provincial, and territorial governments can do better together with others who work in these systems. That is why we're working hard on an under-12 project: to ensure that those children who do commit crimes and harm others get the help, that families get the help they need, and that it is done in an effective way.
We have a multitude of programs that work with families, communities, the police, and others in this country, and with the provinces and the territories, to ensure we are identifying young people at the earliest age who may be at risk, identifying their families, and getting them the help and support they need. That, Mr. Chair, is how you truly create a safe and secure society.
The Chair: Thank you very much, Madam Minister.
I would remind members that the seven minutes is expected to accommodate both the question and the answer.
Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Madam Minister, you said that there had been long consultations. I don't know if your officials are well informed but, even though it is true that you have met with people in Quebec, one can hardly say that they have been consulted since you did not listen to them.
Even today, Madam Minister, despite the 100 or so amendments that you have brought to this Bill, and despite the changes expressed in your speech and in your way of presenting things, I don't know anybody in Quebec dealing with the Young Offenders Act who would be ready to support you. Among defence attorneys, substitutes of the Crown prosecutor, the Pinel Institute, criminology schools, community law centres, youth centres in Quebec, the Child Welfare League of Canada or even judges, nobody supports you, Madam Minister.
Sure, you may tell reporters that you have held consultations but do not claim to have listened. In the end, you did just what you wanted to do. I know what your officials have been doing and I know they went to see some groups and that everybody told them that they were mistaken. Furthermore, there are people here in this room—I will mention only one, Me Viau, at the back of the room—who told those groups that things would change. Today, we see changes but they are not what people want in Quebec. You may laugh, I know that your Department likes to laugh when dealing with issues of importance to Quebec. You may laugh but nobody in Quebec supports this Bill. Ms. Latimer and Me Viau probably have lots of fun because this issue is a personal matter to them.
I will give you an example, Madam Minister, to show you that you too contribute to disinformation. I refer to something you said today and that you had said in your letter of February 20. You said that, from now on, no youth would be transferred to an adult court. You said that on paper but, when one looks at Bill C-7, it is obvious that it's not true since the Youth Court will now have exclusive jurisdiction to hear the cases of young offenders. It is just another example of the legislative fiction spewed by your Department.
Clause 13 of the Bill states that for serious crimes, crimes referred to at Clause 462, like manslaughter, and crimes referred to at Clause 61, if a young person decides to be tried by judge and jury—and 99.9 per cent of them will do so because it protects all their rights, and lawyers in this room can confirm it—it will be a judge of a Superior Court, that is to say a criminal court, who will hear the case. You say that such a judge would be deemed to be a Youth Court judge, and you are right as far as that is concerned. The Superior Court judge will change hats and become a Youth Court judge.
And there is more, Madam Minister, at Clause 13 once again. Trials by judge and jury will be held in a Youth Court. Go and see how any Youth Court in Quebec operates and you will find that those courts do not have enough space to hold trials by judge and jury. Of course, you provide an answer in the Bill: the location, that is to day the physical location of the Superior Court, will be deemed to be the Youth Court!
That is misinformation, Madam Minister. I could go even further if we were not in committee but I do not want to stray from our parliamentary rules.
Will you recognize, Madam Minister, that nobody in Quebec wants Bill C-7? Will you admit, among other things, that Superior Court judges, even if they are very qualified, do not have any experience as Youth Court judges in order to be able to try young people, even in cases of murder, even for very serious offences? Had you gone to Quebec yourself instead of sending your officials, had you gone to meet with the coordinating judge of the Youth Court, had you gone to meet with Mrs. Toutant of Institut Pinel, had you gone to meet with those people who deal daily with the Young Offenders Act, you would have been told that it is sometimes the young offenders who perpetrated the most serious crimes who can be rehabilitated, and that society would be better served if they were rehabilitated than if they got 25 years as is contemplated by your Bill.
With Clause 61, even if Quebec passes an Order in Council... I'm sure you know what is in Clause 61, Madam Minister, and that you do not even have to read the Bill. I am not the Minister and I know what is in that clause.
Mr. Lynn Myers (Waterloo—Wellington, Lib.): Excuse me.
The Chair: Mr. Bellehumeur, Mr. Myers has a point of order.
Mr. Lynn Myers: Mr. Chairman, we have established rules here for questioning. We're set up to question. Instead of grandstanding and being as obstinate as usual, I wonder if Mr. Bellehumeur is coming to a question at some point. I would hope that's the case, because that's precisely why we have the Minister of Justice here. Presumably, he's prepared to respect those rules and get on with a question, as opposed to simply issuing his tirade.
The Chair: Mr. Bellehumeur realizes he has seven minutes and that he has less than one minute left.
Mr. Michel Bellehumeur: Exactly.
The Chair: The minister has to answer the questions.
Mr. Michel Bellehumeur: Will you add that to my time?
The Chair: If he genuinely wants the minister to answer, obviously he'll have to leave some time for that answer.
Mr. Michel Bellehumeur: Clause 61 states that the Lieutenant Governor of a province can make an Order in Council. Were Quebec to do so, that would not prevent a young person to be dealt with according to they rules of an adult court. That will not prevent the fact that it would be a Superior Court judge who would hear the case. That will not prevent the summons, the bail investigation, the pre-trial inquiry and all those procedures which are not required today with the Young Offenders Act.
And there is this whole matter of the conditional release, the two-thirds and one-third. You may claim that you are not sure how this will be applied but all experts know how it will be, except those in your Department. Wake up! I don't know what is going on in your Department but consultations are not enough. Listen to what people have to say.
Here is my final question, to placate my colleague Myers who obviously...
The Chair: That was your last question.
Ms. Anne McLellan: I want to let Mr. Mosley respond to some of the comments Mr. Bellehumeur has raised.
Mr. Bellehumeur, I guess you and I know full well that you and some others are fundamentally opposed to any change in the youth justice system in this country, and that you are fundamentally opposed to the adoption of any new youth justice legislation in this country. That is your opinion, and you and I are going to be on different courses in terms of the direction in which we should move as a society, in terms of the replacement of the existing YOA with new legislation that is part of a larger renewal of the youth justice system. However, let me make the point again. We have listened, and there is sufficient flexibility in this legislation for the Province of Quebec to continue those programs and initiatives that it presently has in place.
Let me say that I wish there would be some acknowledgement of the fact that we have worked very hard to accommodate the needs of a variety of provinces. North of 60°, obviously there is a need for flexibility that is perhaps quite different from your needs, Mr. Bellehumeur, but that need is still legitimate in this federation. In fact, this legislation has worked hard to ensure—and we have worked hard, and I know many committee members have worked hard—that the flexibility is here to ensure that we have a youth justice system that achieves the core values that I can assure you all Canadians, regardless of where they live, want to see achieved in any renewal of this system.
Does Mr. Mosley have time to reply to some of the...?
The Chair: Mr. Mosley should remember the questions. Perhaps we can sneak them in, because there are a lot of people here waiting with legitimate questions, and I'm going to go to Mr. Blaikie.
Ms. Anne McLellan: We'll come back to discussions around youth courts, superior courts, existing law, and new law.
The Chair: I want to bring to the attention of members who get to the five-minute mark of their seven minutes that they're there, so that, to be fair to the minister, she has at least two minutes to answer before I have to cut her off so other people can get to questions.
Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Thank you, Mr. Chairman. I'll try not to ask questions that are so long as to provoke points of order.
I'm probably one of the few people who were here and remember when the Young Offenders Act was introduced and the great hopes everyone had for it, how great it was going to be, compared to the Juvenile Delinquents Act. If I remember correctly, without checking the record, we were fairly supportive at that time of a lot of the concepts that were being introduced with this new legislation. But clearly there are a lot of problems. I certainly don't think one of the things we had in mind was that it would lead to the highest youth incarceration rate in the western world, if that's what you said. That's certainly not what a lot of the architects of the YOA had in mind in 1983-84.
I wonder if the Minister of Justice could comment on what I think is a legitimate complaint of the provinces and others who will be charged with administrating this new act, the fact that it's like a telephone book, compared to the previous piece of legislation, and that it imposes a great deal of complexity and therefore a great deal of cost and uncertainty, without giving the provinces any sort of fiscal help to do that, when you consider what is happening in federal-provincial relations generally. Equalization is capped, although it's been lifted for one year. You've got the health accord, which still doesn't give back to the provinces everything that would have been theirs in federal transfer payments for health à la 1993.
So if you try to see it in the overall federal-provincial context, you're laying a big number trip—whatever you want to call it—on the provinces and asking them to swallow quite a lot. Is there any way you could see your way to alleviating the burden that I think provinces legitimately feel is being put on them?
Ms. Anne McLellan: Thank you, Mr. Blaikie.
That's a very good question. I have heard and we have responded to some of the concerns about complexity. But look, what we're trying to do here is create a system that addresses some of the problems left unanswered by—or unintended consequences of—the legislation that came into effect in 1984. We want to send some clearer direction to those who are involved in the justice system.
So are there more sections here? For example, the whole front end of this legislation is about extrajudicial measures. This is a good thing, I would assert, ladies and gentlemen. It didn't exist in the YOA. There was fleeting reference to extrajudicial measures—and I can give you those references—whereas we have a whole section at the beginning of this legislation that deals with extrajudicial measures. It's much more detailed, and in regard to the sentencing provisions as well.
In some cases people might suggest it is more complex. But it's not complex in the sense that—as far as I'm concerned—with sufficient planning, training, implementation, and education it is going to be difficult to apply. In fact, we are providing to key actors in the criminal justice system some of the things they've been asking for over the past 15 years, greater discretion and direction for law enforcement officers, for example, on the street. We have articulated the principles in a way that does not lead to the incoherence that some, including some provincial court judges in this country, suggested existed with the YOA.
Does it take more sections and is there more language here? Yes, but I believe it aids a more nuanced justice system, a more effective justice system that acknowledges the fact that while some things have worked in the YOA, some things have not. It is time for us to work together to develop a new youth justice initiative, one part of which is this legislation.
With any new or major change, be it in relation to youth justice, the Criminal Code, the extension of EI benefits, parental leave, whatever, it is important that there be an educational and information component, that key people are trained. Obviously, when you are dealing with the justice system, you have a large number of stakeholders who need to understand the new legislation, who need to be trained and provided with information and education. That is why we are spending a great deal of time, effort, and resources in doing just that.
Madam Latimer, for example, could take you through the kinds of workshops we are holding in partnership with others, key stakeholders in the youth justice system, to make sure people understand the manuals and other things.
The Chair: Okay, wrap it up.
Ms. Anne McLellan: Okay. And we are doing that because we understand what our obligations are in this regard. That's why, in some senses, I would say it has been fortunate that we've had the length of time we've had, because we've done an enormous amount of education and training.
On your resource point, I think with Mr. Toews, we were not the ones who ripped apart that 50-50 cost-sharing arrangement, and we are in the process of rebuilding it.
The Chair: Less than 30 seconds, Mr. Blaikie.
Mr. Bill Blaikie: I think the trick, Mr. Chairman, is to have complexity without having it amount to what the attorney general of Manitoba refers to as a rat's nest. That's the way I've heard him describe the complexity that's being imposed upon the province, as well as various off-ramps out of the judicial system. But then they're not just off-ramps. There are so many on-ramps that it's hard for the provinces to imagine how they're going to administer this. So I think this is a problem.
The Chair: Thank you.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you. Welcome, Minister, we are sincerely glad you're here and we appreciate your taking the time, along with your officials, to come and deal with this very complicated legislation.
I want to follow up on the last point you made about government's inheriting this particular situation. Fifty percent funding hasn't been met since the inception of the act. We inherited that act from your government, by the way. During that time, when it wasn't being funding, it was a different economic atmosphere. We were bringing in economic policies that were inherited by your government, that you've been very much the beneficiary of.
With respect to the funding, though, I'm interested to know what the provinces' perception of this is today. This bill has been through numerous machinations—it has been seven years. So I appreciate hearing that your government is now starting to deal with this 50% funding, but we're obviously not there yet, and not to the satisfaction of the provinces.
Second, with respect to the policy thrust you referred to and the expense of custody as a sanction, custody, I remind the minister, is also the safest form of sanction, particularly when dealing with violent offenders.
Restorative justice and extrajudicial measures, I submit to you, have also been around since the inception of this act. They're referred to, in fact they're defined, in the current legislation. They're defined in the very first section. They're also referred to in the declaration of principle. It speaks of other judicial proceedings under this act. So it's there; it's not new. You may be giving it greater definition, but it's already there.
With respect to the time being lost, I think this is where perhaps the greatest concern should be over this legislation. It is lengthy. It goes from a piece of legislation that is 70 sections to one with 200 sections. It injects, Madam Minister, a lot of new procedures that will also be subject to appeal. So you speak of streamlining, but we're creating a rather large piece of legislation, with new judicial proceedings, new processes, that could lead to more appeals.
I want to be on record, Madam Minister, as saying I don't disagree with some of the fundamental principles of this act. I believe there has to be greater emphasis on violence and less time spent on minor offences that can be dealt with in other fashions. But my concern is that we are in fact creating a monster with this legislation because of these new procedures.
I particularly take exception to the injecting of conditional sentences into the youth court system. This currently doesn't happen. We don't need it. Judges already have the ability to give young people second and third chances before resorting to incarceration. This leads to confusion.
Similarly, there are changes to parole, which you say aren't statutory release, but it is a parole-type system where there can be a reduction in sentence. Madam Minister, I haven't practised criminal law now for four years, but there is currently an ability to combine custody with probation. Section 20 of the Young Offenders Act deals with combining the dispositions, which may not exceed two years. It spells out specifically that combining incarceration with follow-up probationary conditions and programming is an option.
One of the biggest problems here is that this act is in fact going to be a make-work program, to lead to greater delay, and to greater exploitation on behalf of some defence lawyers, who will use these many sections to manipulate the system to the detriment of young people, not to their rehabilitation.
Ms. Anne McLellan: You've raised a number of important points.
Just before I respond to one, can you tell me what procedures exist in the proposed legislation that will potentially extend the duration of a criminal trial against a young person?
Mr. Peter MacKay: I can.
One example is the judge's deliberation to determine whether an offence is violent or non-violent, a determination which I understand would also be subject to an appeal. That's one example.
The deliberation over transfers, because it is a new transfer procedure, could also potentially lead to further appeals. These two come to mind quickly.
Ms. Anne McLellan: On the transfer point, right now anybody...and you've only been out of criminal law—you were a prosecutor, right?
Mr. Peter MacKay: I've transferred youth—
Ms. Anne McLellan: Yes, so you know at the beginning you have this young person who's been charged with a criminal offence.
I think we would all agree that, especially with young people, it's important to try to get the matter dealt with as close to the actual event as possible. Even 16-year-olds will say, “Look, if this was such a big deal, how come it took you two, three years to get around to telling me I broke the law and I did something wrong?” You are aware of that as a prosecutor.
Mr. Peter MacKay: It took longer to transfer under the old system than to go to trial.
Ms. Anne McLellan: That's right. And you know what? That's outrageous in a youth justice system. In fact, we know what happens when, because you are transferring to adult court—
Mr. Peter MacKay: And it would then be appealed.
Ms. Anne McLellan: That's right. So the crown comes and makes the transfer application. The court agrees to transfer. Defence counsel appeals that right away. Then, depending on what happens in the Court of Appeal, there is a possible further appeal.
But we know—we have the statistics—this can take up to two years, two years before you even get the young person back before the court to deal with the substantive charge. Think about what happens in your community during that two-year period: Victims are saying, “What's happening out there?” An accused young person's life, regardless of what he or she did, is in limbo, because the substance of the charges hasn't even begun to be dealt with. And you have a community that says, “What's happening here? We know something happened in our community; how is this all being disposed of?”
What we are doing here is fundamentally changing this system. We are saying that one seeks an adult sentence at the end of the trial, and therefore the trial will proceed immediately. There will be no appeals in relation to transfer. The substance of the criminal charge will be dealt with immediately.
It is at the end of trial that the court will make its decision in terms of whether or not an adult sentence is appropriate, if the crown has obviously sought that sentence or if the presumption exists. It will be then that issues in and around the appropriateness of an adult sentence or disposition will be dealt with, but the young person.... The victims will have come to court, the trial will be over, and we will be at the sentencing stage of the procedure.
The Chair: Thank you very much, Madam Minister.
Ms. Anne McLellan: Richard is making a list of other things he'll respond to at the end.
The Chair: We'll go now to Mr. Cotler.
I understand the government has seven minutes. I have four names on the list, and then we'll be back.
Mr. Irwin Cotler (Mount Royal, Lib.): Madam Minister, as you know, Canada is a state party to the United Nations Convention on the Rights of the Child and is thereby required to ensure its domestic law is consistent and complies with international obligations under the convention.
Indeed, a reference to the convention is contained in the preamble to the bill. The Supreme Court of Canada has affirmed the primacy of international obligations under the children's rights convention.
Critics of this legislation have argued that the bill does not in fact live up to Canada's obligations under the children's rights conventions in that it does not provide young offenders with an adequate level of special protection for their rights and freedoms, which is one of the operative principles of the bill itself.
I would sum up what the critics have argued in particular: the bill provides expanded access to youth records—there's an elaborate set of provisions on that point; it limits access to legal counsel; it facilitates admissibility of potentially self-incriminating statements; and it gives a broad degree of discretion to provincial directors to specify the level as well as the length of custody.
My questions are really twofold in this regard. Number one, do you see the bill as being in fact consistent with our obligations as a state party to the children's rights conventions, in regard to any reservations we may have filed under that convention?
Number two, can you reply to each of these four critiques to the effect that this bill is in breach of our international obligations?
Ms. Anne McLellan: We have looked at this issue very carefully.
I am pleased to say that we have reference in the preamble to the UN convention. We have obviously done that deliberately to flag for people our belief that not only is this legislation consistent with the convention, but in fact, Mr. Cotler, it is more consistent than the previous legislation.
For example, transfer to adult court has been eliminated, as we've already discussed. All trials will now take place in youth court. In fact, what we have done is enhanced the range of procedural protections for young people. That's a very important point that some people tend to forget under the existing legislation. What we have done by making clear the due process rights of young people in this legislation enhances its consistency with the UN convention.
Mr. Cotler, we have filed, the previous government...quite truthfully, I don't know when this was done; I'm sure Catherine does.
The government of the day did file a reservation with respect to the requirement that youth and adult offenders always be kept separate and apart, because, as we've already discussed, there are places in this country where local officials believe this is neither appropriate nor possible in all cases, as in, for example, some northern communities, etc. The reservation was filed regarding this issue.
Under our new legislation, all youth sentences must be served in a youth facility separate and apart from adults. There is also an additional legislated presumption enhancing protection for those under the age of 18, that youth under the age of 18 who receive adult sentences will also serve those sentences in a youth facility. That is an important protection for those under the age of 18, whether they receive a youth or an adult sentence.
Another thing is that the convention has a focus on the best interests of the child, and we in fact build that specifically into a number of areas, like pretrial detention and, obviously, any possible placement in an adult facility. We do believe this legislation is more consistent with our obligations under the UN convention.
You talk about legal counsel. This country is a world leader in providing legal counsel to young people who are brought before the courts. I think it's fair to say that, in that regard, we provide—and let me give the provinces and territories the credit here, because they run this—a legal aid system in which young people or their families have to access that system. In fact, we are viewed as a leader, so I don't know why anybody would make that allegation. Now, if there's an individual problem in a province with a young person, take that to the provincial legal aid plan. They're the ones who provide legal aid, and this should obviously be worked out. But in global terms, in spite of some of the problems, our provision of legal aid in this country is remarkable. I don't think anybody should be under any illusions about that.
What else did you ask, sir?
Mr. Irwin Cotler: I was talking about the expanded access to youth records, in terms of—
Ms. Anne McLellan: On the expanded access to youth records, again, we have looked at this very carefully, and we do not believe this violates the convention. In fact, what we see is an increase in privacy protection in relation to those who receive adult sentences. Names can only be released after the young person has been convicted in youth court and receives an adult sentence. Under the YOA, a youth can be transferred to adult court at the pretrial stage and the name can be published before the trial even starts and before there has been any finding of guilt or innocence.
That's an important change and an important protection for young people. My view is that if you're going to publish a name, it should happen after the young person has been found guilty of the offence. Keep in mind that we do believe young people are different, and that, because of that, there are reasons why one would have, for example, a publication ban until guilt or innocence has been confirmed.
Mr. Irwin Cotler: Can I also ask you about the degree of discretion that provincial directors have under this bill?
Ms. Anne McLellan: Provincial directors have a lot of discretion now, but I'll let Catherine answer that.
Mr. Irwin Cotler: And that's not only on the level of custody, but on the length of custody as well.
Ms. Catherine Latimer (Senior Counsel/Director, Youth Justice, Department of Justice): The length of custody is a judicial determination that can't be altered by a provincial director, so I'm not quite sure what the criticism you're hearing is based on. I'd be happy to provide more information on that.
The Chair: If I may, Mr. Cotler, we can come back to you. You're quite a way over the seven minutes.
Mr. Cadman, for three minutes.
Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair. I'd like to thank the minister for coming today.
I just have a quick question with respect to the area of the custodial versus the supervisory part of the sentence. Correct me if I'm wrong, but when we first received this bill as Bill C-68 some time ago, there was a mandatory two-thirds and one-third. In other words, for a three-year sentence, there were going to be two years of incarceration with a mandatory one year of supervision. I recall there were some objections raised from a representative from B.C. who appeared, in that the public was just not going to be willing to accept that you were effectively going to reduce the incarceration period from three years to two years.
The argument for doing that in the first place was the requirement—and I think we can all agree—that there should be some kind of a supervisory aspect or component to a sentence. You then changed that, and now what we have leaves it up to the discretion of the courts. Somebody serving three years for, say, manslaughter could effectively serve the entire three years incarcerated, with no supervision. I'd argue that if we're dealing with offenders, and arguably the ones who are most in need of supervision, it's now possible they would get none. They'd just serve three years of incarceration and then walk. How do you square that with the original philosophy?
Ms. Anne McLellan: I'm going to let Catherine Latimer deal with the specifics of what you've raised, but let me say that this was an issue that was identified for us by a number of the provinces, I believe. They had expressed concern in relation to this, and that's why we made the change. The change you see here is in response to concerns that have been expressed by some in the youth criminal justice system.
Ms. Catherine Latimer: We did provide some additional discretion to the judiciary to establish the period in custody and the period in the community for a tight range of offences, one of which, as you indicate, is manslaughter. There is still the requirement that there be some period of supervision in the community, but they could impose, technically, three years less a day in custody and one day in the community. So they could slide it up very far.
But we think it's important to give that amount of discretion, because particularly in some cases like manslaughter, they may well go the other way and really only require a few months in custody and then a lot of supervision in the community. They may well set the proportion in an entirely different way, but we want to make sure that flexibility is there.
As you know, a lot of manslaughter cases have almost some of the elements of an accident; there's some terrible outcome to an incident where the criminal intent was not that significant. It's a very interesting offence and one where we'd like the discretion of the judge to prevail in terms of setting the proportion.
The Chair: Thank you, Mr. Cadman.
We'll now go to Mr. Myers.
Mr. Lynn Myers: Thank you very much, Mr. Chairman.
Madam Minister, as you know, I come from Waterloo region, which has a population of close to half a million. I chaired the police there for ten years.
We have a very effective crime prevention council there. I was instrumental in instructing police to lay cautions, lay warnings, to be part of programs—community service, victim reconciliation, victim services. We were part and parcel of that. These are very important measures.
What I'm really getting at is the extrajudicial measures you've included in this bill, because there are a number of very good things here. I think we need to highlight some of the points that have been raised in that part of the bill, and, in getting away a little bit from the more formal part of the judicial system, take a look at these measures. Perhaps you could highlight and explain a few of them, because I think it's important that we take a look at them in order to understand fully that there are other measures that can be taken in a very meaningful way to prevent our young people from going down that road and ending up in the formal judicial system in a way that I believe ultimately could be to their detriment.
So I'm heartened to see that part of the bill, and I think you should explain some of that to us here today.
Ms. Anne McLellan: Thank you, Mr. Myers.
I do believe it's one of the most important parts of the bill. In fact, especially when one is dealing with, say, first time young offenders for non-violent offences, less serious property offences—although I take the point that to any victim, what has happened to them is serious, and I would not suggest otherwise—in those kinds of areas, extrajudicial measures can be and are very useful.
The police have talked to us a lot about this, and of course, things like cautions and warnings, as you've said, are important tools that police can use in a police caution program. Obviously that is established by the province, and the province can decide the basis on which such a program would be put in place and operate.
I think if you look at those kinds of approaches, they are to deal with the situation as it occurs, in a timely and effective way, and to acknowledge the fact that you don't always have to invoke the formal criminal justice system to have an effective outcome.
In some cases, you do, and obviously, as presently under the YOA, law enforcement authorities and prosecutors will exercise their discretion and make those decisions. But we're sending a very clear signal here that extrajudicial measures are important and must be considered. They're not an add-on or a frill to send everybody up before a judge where the judge admonishes the young person to go home and be a good person, or puts them in detention for a few weeks or a few months with no effective follow-up.
We know from places in this country and elsewhere where extrajudicial measures are used that they can be so effective in terms of holding young people responsible, providing closure to victims and communities, letting people get on with their lives, and also preventing recidivism.
So in fact I think we need to encourage these programs. We need to provide training, where required. We need to provide, as we are through our additional resources, resources for those communities and provinces that want to do more in this area.
We talk a lot about conferences and sentencing circles. These are other extrajudicial measures that can be so important, whether it's a family group conference or whether it's in the form of a youth justice committee. These can be very important tools that help law enforcement agencies and others involved with young people deal with the young person, deal with the victims, deal with whoever appears relevant in the local community.
I think we have to start to understand that there is more to helping young people turn their lives around when they've committed a wrong than slapping them in front of a judge and having the judge determine guilt or innocence with some penalty that maybe had no relation to the victim or the community in which the harm has been committed.
So I applaud the Region of Waterloo for the work that you have done, and I believe you and your chief of police, for whom I have the greatest respect, will in fact find the provisions in this legislation and the additional resources useful in building on what you've already been doing.
The Chair: Thank you very much.
Mr. Bellehumeur, three minutes.
Mr. Michel Bellehumeur: That was a brief question.
Suppose a young person accused of a listed offence pleads not guilty and wants to be tried by judge and jury. Who is going to try him? Where will the trial judge come from? Where will the trial be held?
Mr. Richard Mosley: Mr. Chairman, it's related to the question that Mr. Bellehumeur asked earlier about the application of clause 13 of the bill. Clause 13 does provide, as has been the practice for many years, that the provinces may designate the youth court within their jurisdictions and that those designations vary province to province.
There is, of course, a fundamental guarantee to a right to a jury trial if you're faced with an offence for which you can be sentenced to more than five years. Under the existing provisions of the Young Offenders Act, should a young person be transferred to an adult court and elect to be tried by judge and jury, they would necessarily have to be tried by a superior court judge and jury.
This bill recognizes the fact that the superior court judges of this country have the experience with juries. The provincial courts of the land do not try cases with juries. Those courts designated as youth courts do not try cases with juries. So in the situation where the youth chooses to be tried by a judge and jury, then the superior court of the province will be deemed to be a youth court for that purpose.
I should also point out that it's not at all unusual in Canada for judges to change hats, to be one day a youth court judge and on another day an adult court provincial court judge.
Mr. Michel Bellehumeur: Where are the time savings? You say that everything will be faster but tell me where will the time savings come from. Physically, the trial will be held in Superior Court and the judge who will try the case with a jury will be a Superior Court judge. Whether there is a transfer such as that which is provided for by the Young Offenders Act or whether Bill C-7 is implemented, with Clause 13, the length of time will be the same.
In the Joliette jurisdiction, where I have practiced for a long time, the Youth Court is in the same building as the Quebec Court and the Superior Court. If anybody asks for a trial by judge and jury, the time will be the same: one year or two years. It is not because the Minister of Justice, with her magic wand, has changed the hats of the judge that the process will be faster. It is just a matter of location that does not exist.
It is also a matter that is important for the Superior Court judges who are already dealing with lots of cases such as the Rock Machine and all manner of hard core criminals. They won't put those trials aside in order to deal with the cases of the Youth Court. You will not save any time. All the experts have told you so. When you say that young people will be dealt with by the Youth Court, that is pure disinformation. In the specific cases for which you have changed the Act, it is not true.
The Chair: Mr. Bellehumeur...
Mr. Michel Bellehumeur: You are wrong.
The Chair: Alright, Mr. Bellehumeur.
Ms. Anne McLellan: First of all, I'd like to clarify, as Monsieur Bellehumeur should know, that under the existing YOA, if a young person elects for trial by judge and jury, it is dealt with by a superior court judge.
Mr. Michel Bellehumeur: It's the same thing.
Ms. Anne McLellan: But in this context what will happen, as Mr. Mosley has explained, is the superior court judge will be designated, as deemed in this legislation, to be sitting as a youth court judge. Let me tell you where the time is saved. You weren't listening, Monsieur Bellehumeur. What I said—
Mr. Michel Bellehumeur: That's not a place.
Ms. Anne McLellan: What I said about the time was the following. Where are the problems in the system? Part of the problem is on a transfer application; where there is a transfer, it takes two years before the young person is confronted with the substance of the crime and is found guilty or innocent. What we're saying here is no more transfer to adult court. In fact, what is going to happen is the substance of the charge will be dealt with immediately. There will be discussion after a finding of guilt or innocence in relation to whether an adult sentence is appropriate. But the trial is over.
Mr. Vic Toews: I have a point of order.
The Chair: A point of order for Mr. Toews.
Mr. Vic Toews: I'm finding this exchange very interesting and quite helpful. What I find a little frustrating is that members have so little time to ask the question and to respond. And I notice every single question and answer has gone over the time period, and probably even mine. Why don't we simply recognize reality and increase the time for a question and answer, Mr. Chairman? We're obviously not obeying the rules.
The Chair: Respectfully, we have the minister until 5:30 p.m. today and we won't be solving that problem between now and 5:30 p.m., so we'll go now to Mr. DeVillers.
Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chairman.
Madam Minister, when our Committee dealt with Bill C-3, we heard several witnesses from Quebec who complained of a lack of flexibility in the Bill. I am not sure what Mr. Bellehumeur's position is, and I don't even think he had enough time to express his position clearly, but several of those witnesses were from Quebec. So, could you elaborate on some of the parts of the Bill that relate to their concerns?
Ms. Anne McLellan: In fact, I think if you look at clause 61, that is an example of flexibility, where we have provided the provinces with the discretion to make a decision as to whether they, in their respective jurisdictions, want to lower the age at which presumptive adult sentences apply from 16 to 14. That's a very important aspect of flexibility, it seems to me, and it is very respectful of the fact that different provinces might have different views. In fact, it's also respectful of the exercise of discretion that takes place now. And it happens every day, I suppose, across this country, in terms of prosecutors exercising discretion on behalf of the provincial attorney general, in terms of whether they will seek, for example, adult sentences in certain cases or whether they won't. That happens.
What we're doing in clause 61 is saying to those provinces that want to make it more formal that they can do it through Order in Council. They can go on the record as saying, in this jurisdiction the following discretion has been exercised. So it is not on a case-by-case basis or done, if you like, though the simple administration of youth justice in the provinces. They can pass an Order in Council saying that any 14- or 15-year-old who is charged with any of those five offences will not be presumed dealt with as an adult. It's an important part of flexibility, it seems to me.
Also, in regard to things like pre-screening programs, Quebec has a pre-screening program. Some other provinces do. Provinces are experimenting with them. Again, it's an example of flexibility. We're not saying a province shall have a pre-screening program, but there's flexibility. If they want such pre-screening of charges, that can happen.
As to police-cautioning programs, again we're providing the provinces with discretion in relation to those programs and how they operate.
In respect of alternative measures, a broad degree of flexibility is provided to provinces in determining what those programs would look like. In the range of sentencing options, like community service, restorative justice, supervision, and treatment, new options for the most serious and violent offenders, there is flexibility provided to the provinces. The provinces enforce and administer the criminal justice system, and we want, wherever possible, to provide the requisite degree of flexibility, so that provinces can administer this legislation in a way that makes sense for their local circumstances.
The Chair: Thank you very much.
Mr. Peter MacKay: Ms. McLellan, I really wish we had more time with you. I mean that.
Ms. Anne McLellan: We've still got another 30 minutes.
Mr. Peter MacKay: I have three questions, of which you probably have time to answer one.
In the scenario that was posed to you by Mr. Bellehumeur, are you telling us there will be a preliminary inquiry process in this as well? Because where it's an indictable offence, if they go to superior court, I suggest there will have to be a preliminary inquiry.
I've just been reading section 535 of the code. With the police caution programs you've been speaking about, extrajudicial measures, I'm concerned that the police are being given more responsibilities. Is that not the case? You're basically asking them to become counsellors and father confessors in living rooms around the country. They're going to be pretty busy seizing guns under your new legislation.
Third, where we have this new system of transfer from youth to adult, is there not some merit in at least examining the transfer of a child to youth court? I don't want to be painted as an extremist, throwing 11-year-olds into Kingston Penitentiary, but if this new system is to work as brilliantly as is proposed and there is a system where we're emphasizing early intervention.... You've acknowledged that the criminal justice system in some instances, for children, is providing a real service, because it's getting them off a track they're on. It's perhaps, in many cases, doing the job that the social services cannot do.
You had an 11-year-old in your own city commit an armed robbery. There have been young 10- and 11-year-olds, who have the ability to comprehend the serious consequences and the quality and nature of their acts, I would suggest, who have robbed elderly people, who have beaten other youth, and sadly, are on a track to become hard core criminals. Shouldn't there be a provision, in some very limited instances, for a judge to look at that youth and say, we have to get this person into a system, we have to elevate them into the youth system—not the adult system, but taking a child and putting them in the youth system?
Ms. Anne McLellan: In relation to the issue concerning preliminary inquiries, as you know, young people now have the right to a preliminary inquiry.
Mr. Peter MacKay: When transferred.
Ms. Anne McLellan: Yes.
Mr. Peter MacKay: So to answer the question, where are the savings? There's going to be—
Mr. Michel Bellehumeur: What savings?
Ms. Anne McLellan: My comments in relation to timeliness of the process—my prepared comments—were in and around the issue of transfer and the streamlining of that process, so that young person gets dealt with and there's a finding of guilt or innocence more quickly than there is today. You conceded that yourself.
Mr. Peter MacKay: Yes, but I just want to confirm that there will still be a preliminary inquiry process. So there's no saving there.
Ms. Anne McLellan: Young people—what do you want to do, strip them of their rights?
The Chair: That's it.
Mr. Peter MacKay: I'm not suggesting we take it away. I was asking you to confirm it.
The Chair: Mr. McKay.
Mr. John McKay (Scarborough East, Lib.): I wanted to go back to the issue raised by Mr. DeVillers on flexibility. You have built flexibility into the system. Certainly clause 61 allows a provincial attorney general to create flexibility on the presumptive offences.
Haven't you, in the process of being responsive to flexibility, actually created chaos? In theory you could have Quebec with a 16-year-old limit, Ontario 14, Manitoba 15. In theory you could actually tiptoe through the tulips. You could have some presumptive offences at 16, some presumptive offences at 14, all within the same jurisdiction. I wonder whether, in the process of trying to be flexible, you haven't in fact opened up a charter challenge, whether in fact this kind of flexibility exposes youth to different levels of jeopardy. Rather than harmonizing across the country, in fact you'll create a patchwork of regimes, allowing a defence attorney to say, how is this fair? In Hull someone will not be exposed until they are 16, in Ottawa it will be at 14, and it will really depend on arbitrary discretion on the part of an attorney general.
Ms. Anne McLellan: In fact we looked at all that. The example you've just given...it happens now, John. It happens now, where in fact provincial attorneys general, or their prosecutors, make those determinations, and there may be guidelines already promulgated by attorneys general. There may be instructions, or whatever you want to call them, to prosecutors about, for example, always seeking an adult sentence in the following situation, or never seeking an adult sentence in the following situation. Those guidelines and instructions vary right now across this country.
Mr. John McKay: At this stage in our guidelines and instructions, you are doing it by Order in Council, aren't you?
Ms. Anne McLellan: We're actually asking an attorney general to be open about it, to in fact put it out there. We're increasing transparency here. As it relates to 14- and 15-year-olds, if you do not wish them to be subject to the presumption, then we are providing an attorney general with the opportunity, as opposed to simply sending an instruction or a guideline to their prosecutors in the province, to in fact go to their colleagues and the Lieutenant Governor in Council and promulgate a regulation. What that does is make the process much more transparent within that jurisdiction, and there is a higher degree of political accountability than exists right now. Mr. Toews would know, as a former attorney general, that we could probably ask a lot of people in Manitoba, or Alberta, or Ontario, what guidelines or instructions are issued by their attorney general in relation to the following offences, for example, shoplifting, where there may even be variances within a province as to how prosecutors in a given city choose to proceed, by indictment or summary, because of the nature of the problem. So if someone wants to take the opportunity, this provides a higher degree of transparency and political accountability.
Mr. John McKay: But how is that—
The Chair: Thank you, Mr. McKay. Mr. Sorenson.
Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you, Mr. Chairman, and thank you to the minister for coming. I never dreamt I would sit on a justice committee. My father always used to warn me, you'd better watch out, or you'll end up before the justice. Now I'm sitting for a committee, and I find it overwhelming.
Ms. Anne McLellan: You should have been a lawyer.
Mr. Kevin Sorenson: Right, I should have been a lawyer.
I have about three questions. I ride on the plane with you back and forth a lot. Someone said if you have questions to ask the minister, position yourself beside her and maybe you can—
Ms. Anne McLellan: Any time, it would be my pleasure. It would be my pleasure.
Some hon. members: Oh, oh!
Mr. Kevin Sorenson: Sorry about that, Mr. Scott.
Ms. Anne McLellan: That was really insensitive of me.
Mr. Kevin Sorenson: That was great. Because you got to respond to that, I hope I can get more time.
Our concern is with—
The Chair: These are your final seconds.
Mr. Kevin Sorenson: Madam Minister, our concern is the protection of society. We believe that is what needs to be the guiding principle of any new Youth Criminal Justice Act. We see that in the guiding principles of this bill it really becomes secondary. I realize you can say that rehabilitation in the long run will aid in the protection of society because they will be rehabilitated young persons who are ready to be reintegrated back into society. We would argue that some of those rehabilitation programs simply aren't working.
With regard to the alternative measures or community-based programs you've been referring to, do you believe they should be used for all types of offenders or only for non-violent, first-time offenders? That would be my first question.
We think that with a lot of the violent offences that take place, through periods of incarceration with rehabilitation programs in those centres, they can be effectively rehabilitated, but it also gives protection to society in a different way. Also, an old Statistics Canada fact-finder said that a very small percentage of violent offenders are incarcerated. I'm questioning that.
The second question is in reference to the publication issue.
The Chair: This will be your last one.
Mr. Kevin Sorenson: You said you could apply not to have your name publicized or that some wouldn't be publicized. Is there a mechanism to appeal the publication ban? If a judge said, no, we will not publish the name, is there a mechanism to appeal that?
The Chair: Thank you, Mr. Sorenson. We'll end there in order to have time for the answer.
Ms. Anne McLellan: In relation to the guiding principles of this legislation, I find it interesting that you say what you say, because I think Mr. Bellehumeur takes a different approach in terms of what he would view as the guiding emanation of this legislation. He would argue that too much emphasis is put on the protection of society and not enough on other values.
Let me say that for us this legislation is premised on three important values: first, if you're interested in truly creating a safe and secure society, the best way to do that is to prevent crime in the first place, prevent another victim from being created. That speaks to the importance of early intervention in the lives of young people and families at risk. That's why we have a crime prevention program. That's why we work with the provinces in this area. That's why one has a panoply of early intervention social services that try to identify young people from the earliest age who could be at risk; for example, children born with FAS. Crime prevention goes back, in a way, to before the birth of an individual in that if we can get to people who are pregnant and who are tempted to drink or do drugs, we can prevent an awful lot of young people in this country from ending up in our jails. It is an issue of profound importance for our aboriginal communities regardless of where those communities are. So prevention is key to us.
Then, obviously, we are concerned about meaningful consequences when young people break the law. We are concerned that they be held accountable and that they take responsibility for what they have done. Meaningful consequences, however, do not always mean—nor should they—you just put more people in jail for a longer time. How meaningful is it if you slap someone into detention for a few weeks or months where there is no programming and no supervision when they leave? I think we need to seriously and honestly address that: what are meaningful consequences for young people? I think we know those consequences will include a wide variety of things depending on the young person's situation, the seriousness of the crime, the community, and the family. A whole host of things would be taken into account in determining what constitutes meaningful consequences. So you hold the young person accountable through meaningful consequences.
Finally, if you're in the business of protecting society, you have to acknowledge that regardless of how serious the crime, young people will return to communities at a relatively young age. Therefore, one has to work hard to ensure you have rehabilitative and reintegration strategies. That's how you protect the public.
We can't go on selling the public a bill of goods that if you just put more people in jail longer, we're going to be a safer society. Detention and custody are appropriate in certain circumstances, absolutely. Do we need to acknowledge, for example, an increased degree of violence in certain youth crimes? Absolutely. Do we need effective measures to deal with that reality? Absolutely. But putting more young people in jail for a longer time is not going to provide safer communities and streets. We have to get past the simplistic messages and understand why young people get in trouble and provide the support they need to turn their lives around.
The Chair: Thank you, Madam Minister.
Mr. John Maloney (Erie—Lincoln, Lib.): Minister, you've referred to this initiative as youth justice renewal. Certainly, the Young Offenders Act is an act that many love to hate. I think it's important for the wayward youth of this country and for the protection of the general public that we succeed this time. I think you would perhaps agree with me that legislation alone is insufficient to address a matter as large as the youth justice system. Outside of the black-and-white law, what other initiatives have you entertained—you touched on it in your answer to Mr. Sorenson—that would ensure we really are going to have a renewed youth justice system?
Ms. Anne McLellan: You raise a good point. In part what this does is focus our attention on the fact that as a society we seem to think that all you have to do is pass tougher laws, and that is the whole focus of how we create safe communities and have a youth justice system that responds effectively to why young people get into trouble with the law and harm other people. It just seems to me that we have to blow that thinking apart and acknowledge that while one needs effective youth justice legislation—and that's what we're trying to do here with this new legislation—we also need other things to happen in our society.
It drives me back to the prevention piece, crime prevention through social development. If we could get provinces, cities, social agencies, the justice system, everybody, pulling in the same direction, I believe there are probably sufficient resources out there. If everybody was integrating their programs and pulling in the right direction so that there was not a kid born with FAS or young people from the earliest age were not at risk in homes where the families were at risk because of addiction, drugs, domestic violence, and lack of education and literacy, that is what prevention is about, and that's how you prevent, I think, young people from getting into trouble with the law.
Now, there are still going to be kids who get in trouble. Let's acknowledge that. But we can do a lot using means other than formal criminal justice legislation. Mr. Bellehumeur, whether it's the YOA or the new youth justice legislation, it applies after someone has been hurt. It applies after we have another victim in society. Wouldn't it be nice if we could take some of the resources we spend after someone has been hurt and the police have been called to a house, a playground, whatever the case may be, and work with, for example, child welfare agencies, mental health agencies, schools, and others to prevent criminal activity in the first place?
The Chair: Thank you.
Next is Mr. Bellehumeur for three minutes. I have another name on my list. I don't think we'll get to it, Peter.
Mr. Michel Bellehumeur: What you are saying is already being done, Madam Minister: the police and the Crown prosecutors already cooperate.
When one applies the Young Offenders Act, one is able to do so. The problem is that there are some provinces which do not apply the Young Offenders Act.
I was reading some reactions to your Bill. In Saskatchewan, they talk of a rat's nest, which is not a good sign for your Bill. In the Maritimes, they talk about a monster, which is not too good either. The Liberals talk of a patchwork and of a complex Bill. Some people say that it does not go far enough.
What guarantees do you have, Madam Minister, that those provinces which do not now apply the Young Offenders Act at the present time will apply a Bill that is even more complex, a Bill that is a rat's nest, a Bill that is a patchwork of different systems, a Bill that creates a monster? What guarantees do you have that they will apply this Bill when they do not apply the Young Offenders Act at this time? Today, there are already extrajudicial measures in the Young Offenders Act but they do not use them. Today, with the Young Offenders Act, young people can be detained separately from adults. There are provinces where they are detained with adults. What are your guarantees? You don't have any guarantees that those provinces will apply the new Bill properly. We will never agree.
My question is this: why would you not clearly allow Quebec to continue implementing the existing Young Offenders Act? You would just have to add a clause similar to Clause 61 that would read like this: By Order in Council of the Lieutenant of a province, this province can withdraw from the implementation of Bill C-7 and can continue to implement the Young Offenders Act.
What is your problem with that, Madam Minister?
Ms. Anne McLellan: First of all, everyone acknowledges that the existing YOA has been applied differently, in certain respects, in different provinces. In fact, Monsieur Bellehumeur, that is one of the things your province, the Province of Quebec, talks about most frequently, the flexibility, the recognition of local circumstances, and the opportunity to experiment with local, province-specific, or even perhaps—who knows?—city-specific approaches to deal with particular problems. In fact, as we know, in northern Quebec, with some isolated or remote aboriginal communities, the problems are different. Your province acknowledges different approaches.
I'm not here to defend other provinces or territories, but all provinces and territories have alternative measures of some type, and they have for many years. They may not use them to the same extent as some other jurisdictions, or they may look different, but all provinces have alternative measures. Please, let us not create an impression that there are provinces or territories that do not have alternative measures. Of course they do.
I come back to the fact that I do not believe there is anything in this legislation that restricts the kinds of programming and flexibility you have used in the past to create the kinds of approaches you have in Quebec. So as much as I respect your legal acumen, I guess you're right, Monsieur Bellehumeur, that you and I will continue to disagree on this point.
The Chair: Mr. Owen.
Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you, Minister, for coming before us.
I didn't have the benefit of the either exhausting or exhaustive—
A voice: Exhilarating—
Mr. Stephen Owen: —or exhilarating—experience of going through the previous bill, but I did have the chance to read some of the record of the debates and discussions. I have a concern similar to that of Mr. Bellehumeur's, but perhaps I'll express it a little less forcefully.
Simply put, I appreciate the creativity and the flexibility and the greater definition that Bill C-7 gives at both ends, dealing with the most serious issues as well as first-time, non-violent offenders. I'm not so worried about the complexity. I think it adds definition. It adds instruction. It will build, over time, a better body of experience.
My concern is that in applying diversionary discretion at either a police or prosecutorial level, there are great savings to be had off the top. You've mentioned the costs, to say nothing of the delays or the inappropriate nature, of the criminal justice court and corrections system for some offences.
My concern is that when attorneys general, prosecutors, and correctional officers are under severe fiscal restraint—and I've been such an officer under such a constraint—there's a real temptation and pressure from treasury boards to take the quick buck and divert people out of a system that is expensive but then not to provide the requisite funding in the community that would support the restorative justice programs.
We've seen this with the deinstitutionalization of mental patients, which was all done with the best of philosophy and broad agreement in principle, but people have then been let down in the community and in many cases tragically end up in the criminal justice system.
My question is, how will this bill help us support the notion of a community-based, properly financed, and not simply well-intended restorative justice program?
Ms. Anne McLellan: I think that's a very important point. There are two things here—first, the legislative direction and guidance, and second, the funding issue, and how one can provide incentives through funding.
If you look at the legislation and the way it is set out, it provides much clearer and stronger definition, as you have said, in terms of saying, “Look, stop thinking about custody, however brief a period of time, or the formal judicial process, whether it leads to custody or something else, as always your first line of attack. Look at a range of other things.”
Custody, or even the formal judicial process, is something that should be used in more serious situations, as a general principle. The legislation itself is structured in such a way that it sends, I think, a pretty strong message to anyone who didn't get it before that within the youth justice system we think you should look at either extrajudicial or, within the formal justice system itself, alternatives to something like custody, which is the most expensive sanction the criminal justice system can impose.
In addition, to go back to questions around guarantees, there are no guarantees as such, I suppose, except that it's clear to police, it's clear to judges in particular, it's clear to prosecutors, and it's clear to everyone else who works in the system what the intention of this legislation is—namely, much greater detail and specificity than the YOA.
Second, it is clear in and around the funding. Our additional dollars are going to be used to encourage provinces to develop the kinds of meaningful programs, whether in terms of restorative justice, conferencing, or various kinds of programs, including community-based, that will provide the kind of intervention that will help young people, that will involve the community, and that will reduce the likelihood of recidivism.
You know, under the previous cost-sharing agreements I think we were actually rewarding those provinces that put young people in custody. We were paying for that expensive back-end remedy of custody. Therefore, those provinces that had more kids in custody for longer got more money. Well, that's kind of perverse. We're now redressing that. Certain provinces will benefit significantly in terms of the new cost-sharing arrangements.
So it's a combination of clearer direction and greater definition and using the incentive of additional dollars to say, “Look, we all know that we have to do better than we have, and we're here to help you develop the programs that will, we believe, in the long run make sure that young people get a chance to turn their lives around and avoid becoming serious repeat offenders.”
The Chair: Thank you very much, Madam Minister, and thank you, Mr. Owen.
We have to allow the minister to leave. We also have to advise the cameras that they have to go off. We have some business, and we're going to hear bells very quickly.
Thank you very much, Madam Minister.
Ms. Anne McLellan: As always, Mr. Chair and colleagues, it's a pleasure to be here. I don't expect that we will always agree on everything, but I respect the opinions of the members of this committee. I respect the work you do.
This has been my first opportunity to be back here since the last election. It will come as no surprise to any of you that we have a busy justice agenda, and one that Canadians obviously expect all of us to discharge in a timely and efficacious fashion in order to ensure the better safety, security, and well-being of Canadians wherever they live.
I certainly pledge to you that I look forward to working with all of you in the coming weeks and months. As I say, I'm not naive enough to believe we will always agree, but I will always respect the opinions that I hear expressed here. Thank you. Merci beaucoup.
The Chair: Thank you very much. I suspend the meeting for thirty seconds.
The Chair: I call the meeting back to order.
If you refer to the agenda for today's meeting, you'll see that at 5:30 p.m. we're supposed to be going to future business. The minister has agreed to appear before the committee on the Judges Act. You have received notice of this, so tomorrow, at 11 a.m., across the hall, we'll be honoured with another visit from the minister on the Judges Act, Bill C-12.
I've received two notices of motion with regard to Bill C-7. I would propose that we move on the Judges Act first. If we're in agreement, I would propose that we hear the witnesses we were instructed to find or speak to on Tuesday afternoon. Immediately following hearing the witnesses, we would proceed directly to clause-by-clause. We would save discussion about future business on Bill C-7 until Wednesday afternoon, and then we'd entertain the motions, as put by Mr. Maloney and Monsieur Bellehumeur—and you received both of those.
Is there any objection to that critical path?
Some hon. members: No.
The Chair: Then with that, the meeting is adjourned.