I call the meeting to order.
This is meeting 20 of the Standing Committee on Justice and Human Rights. Today is Tuesday, June 1, 2010.
You have before you the agenda for today, and today we're continuing with our review of Bill , Sébastien's Law, .
Members, we had planned to have an in camera planning meeting at the end of this meeting. Given the fact that none of the three regular Liberal members is here, I'm proposing we cancel it and hold that meeting at our next meeting on Thursday, with your consent.
I'm assuming that none of the Liberals here have any instructions on extra meetings and that sort of thing. All right.
Now, what we've done is we've divided today's meeting into two parts, two panels. With us on the first panel are a number of organizations. First of all, we have the Child Welfare League of Canada, represented by Peter Dudding, executive director. Welcome here. The Barreau du Québec will appear in our second panel. We've replaced them with Les Centres jeunesse de l'Outaouais, represented by Yves Laperrière, who's the department head. Welcome here. We also have with us the African Canadian Legal Clinic, represented by Megan Forward, a policy research lawyer, as well as Lwam Ghebarehariat, a summer law student. Welcome to our committee.
I think you've been told that you have a certain amount of time to speak, and then we'll open the floor to questions from our members for the balance of the panel session.
Why don't we start with Mr. Dudding.
Great. Thank you very much, Mr. Chair.
Good morning. I am, indeed, Peter Dudding, the executive director of the Child Welfare League of Canada. I'm most appreciative of this opportunity to present our views on the proposed amendments to the Youth Criminal Justice Act.
During my 40 years of working with vulnerable children in Canada, I've worked with children under the Juvenile Delinquents Act and its successors. It is my experience that many of the provisions of the old JDA failed to meet the needs of vulnerable children and our societal objectives of rehabilitation and reintegration, as the measures were arbitrary and punitive.
In particular, I can vividly recall the harsh sentences being given to children under the particularly odious section 8 of the JDA for “incorrigibility”. These children, whose behaviour was deemed dangerous and unacceptable to society, were sentenced to lengthy incarceration. The results were predictably bad in creating angry and dysfunctional adults and too often career criminals who present a life-long threat to society.
By contrast, the Youth Criminal Justice Act was one of the first pieces of Canadian legislation that was written to conform to the United Nations Convention on the Rights of the Child, which was signed and ratified by this Parliament in 1991.
The convention recognizes that all children under the age of 18 have specific and immutable rights that take into account their vulnerability due to age, their relative position in society, and their evolving capacities.
Sébastien's Law unfortunately violates some of these rights, notably article 3 of the CRC, which states that the best interests of children should be the primary concern in making decisions that affect them.
It is my judgment and experience that the amendments proposed by Sébastien's Law will reverse the substantial progress that we have made in Canada since the abolition of the Juvenile Delinquents Act. It is the youth justice system that is failing our children and not the legislation, to be clear.
The stated intentions of the government are to hold violent and repeat young offenders accountable and to ensure that society is protected. The amendments proposed by the government are flawed as follows.
The provisions of the current YCJA have proven satisfactory in addressing the needs and issues raised by violent and repeat offenders.
The proposed amendments have implications that go well beyond the application to a small group of violent and repeat offenders, which will result in more children becoming trapped in the criminal justice system. This is particularly concerning as it impacts on aboriginal and visible minority children who are already overrepresented within the criminal justice system.
Finally, the proposed amendments ignore recommendations that have been made to the government to improve the implementation of the YCJA.
I will now comment more specifically on our concerns related to the proposed amendments contained in Bill .
Make protection of society a primary goal of the act. This change will fundamentally alter the purpose of the YCJA so that “public safety” will supersede any other purpose of the act, and this violates article 3 of the UN Convention on the Rights of the Child. This significantly shifts the focus from rehabilitation and reintegration of the child, and the focus on the child and not on public safety was intentional and purposeful in creating the YCJA in the first place. The proposed amendment, as a primary goal—a primary goal—is not consistent with Justice Nunn's recommendation 20 in his own report.
Simplify pre-detention rules. According to Statistics Canada, the number of youth in remand outnumbers those in sentenced custody--52% of all children in custody were in remand in 2008-09.
Article 37(b) of the Convention of the Rights of the Child states that the arrest, detention, or imprisonment of a child should be used only as a measure of last resort and for the shortest amount of appropriate time. Rather than increasing incarceration for children, the youth court should be given greater supports to ensure that an appropriate safety plan is in place when releasing violent children into the community. Pretrial detention should only be used in circumstances of violent offences and exclude property offences or offences that could endanger the public.
In terms of specific deterrents and denunciation, there is no evidence to demonstrate that the application of these principles to sentencing is effective or appropriate. The application of these principles specifically undermines the principle of proportionality. The sentencing principles reverse the foundation of the YCJA, and, I think, rather importantly--this is the significant part--take us back to that old odious section 8 of the Juvenile Delinquents Act.
On adding, to the definition of violent offence, behaviour that endangers the life and safety of others, the current provisions of the YCJA already address these matters. Also, I would refer you to my comments related to having an appropriate plan in place when young people are released back into the community; that's really a very important thing that this committee should turn its mind to.
In terms of allowing custody to be imposed on youth who have a pattern of findings of guilt or extrajudicial sanctions, again, article 40 of the UNCRC expressly states that any child in conflict with the law should be presumed innocent until proven guilty. Rather than increasing incarceration for children, the youth court should be given greater supports to ensure the safety plan is in place.
With regard to ensuring that adult sentences are considered for youth 14 and older who commit serious violent offences--murder, attempted murder, manslaughter, and aggravated sexual assault--the current provisions of the YCJA should be reviewed in order to create a more appropriate mechanism to review the sentences of any child convicted of a serious violent offence and its application beyond the age of 18 years. The application of mandatory adult sentences should not be required.
In terms of lifting the public ban on the names of young offenders convicted of violent offences when youth sentences are given, the application of publication bans is fundamental to achieving the primary objectives of the act: rehabilitation and reintegration of the child offender. The evidence does not demonstrate any increase in public safety by releasing the name of the child offender. In fact, it violates articles 16 and 40 of the UNCRC, which protect children's rights to privacy. Again, the sentencing provisions should be supported by a plan of safety.
As members of the standing committee are aware, the YCJA was introduced in 2003. At the time, it was planned that a national review would occur five years later in 2008. It is my understanding that the minister did undertake a review, although these consultations were limited and no evaluation report was made public.
Since 2008, the CWLC has been partner with the Coalition on Community Safety, Health and Well-being in three national consultations. This is a coalition made up of approximately 28 organizations from justice, health, education, and child and youth services. It is hosted by the Canadian Association of Chiefs of Police. The summer report and proceedings are attached as exhibits 1, 2, and 3 of this submission. There are over 70 recommendations for changes to the youth justice system in Canada, including specific recommendations related to mental health, substance abuse, and violence.
At the first symposium, there were two key summary findings of note. The rights-based foundation of the YCJA and its attention to the interests of victims were endorsed.
The support systems for children were overloaded before the coming into force of the YCJA in 2003 and are now seriously overstressed and cannot deal with the larger number of children thrust upon them.
In addition to the specific comments already provided in this brief, the CWLC submits our position regarding changes more broadly to the implementation of the Youth Criminal Justice Act as follows: that a comprehensive review of the implementation of the YCJA be conducted by Justice Canada in partnership with provinces, territories, and key stakeholders; that provisions regarding deterrence and denunciation not be included in any new youth justice legislative proposal; that Justice Canada assume leadership in working with provincial and territorial counterparts in justice, mental health, addiction, child and family services, violence prevention, and education to address the requirements of vulnerable young people who are committing offending behaviours; that the federal government develop a national strategy to stop violence against children and youth, as recommended in the UN study on violence against children.
We know that if the federal government enacted these four recommendations, Canada would be in a much better position to prevent, address the needs of vulnerable children, and create a safer, healthier, and more productive society.
Thank you very much.
Good morning, and thank you for giving me the opportunity to speak today. Allow me to introduce myself. I am the department head responsible for administering the Youth Criminal Justice Act, the YCJA, at the Centres jeunesse de l'Outaouais located just across the river, under the authority of the provincial director.
I have been working with young people and their families in the Outaouais for over 20 years. I have long experience in child protection and juvenile delinquency. Through direct intervention with young people and their families, I have been in a privileged position to observe the impacts of poverty, substance abuse, violence, all kinds of abuse and the distress and social exclusion that are often associated with the emergence of delinquency in our young people.
I am currently responsible for the YCJA department, which includes the team of probation officers responsible for all stages and avenues of treatment in young offender cases. I am also responsible for the custodial unit, which houses young offenders from the Outaouais who are sentenced to a specific term of custody or who are in pre-sentence custody at the Apprenti residence.
Representatives of the Association des centres jeunesse du Québec, the ACJQ, have already laid out the provincial position of the youth centres and provincial directors, the PDs. Obviously I support that position, but I am here before today to provide, I hope, some further information about that position by talking to you about the day to day experiences of young people and their families living in the Outaouais.
Let's talk about the position taken by the ACJQ and the PDs in Quebec. The ACJQ is sensitive to and empathetic toward victims, and they, like many experts, believe that the public is best protected by rehabilitating and reintegrating young people into society rather than by punishing them. The message sent by the present federal government is the opposite, and its effect is to create a false sense of security by implementing harsher measures. An information campaign would in fact have the advantage of promoting an informed message among the public based on the studies that have been done. Harsher sentences and an essentially punitive or deterrent approach have never been shown to be effective with young people.
The ACJQ and the PDs strongly oppose the desire to make denunciation and deterrence of unlawful behaviour in fact the primary objectives of sentencing. These are principles imported from the adult criminal justice system and transferred to the youth criminal justice system. To date, there is no evidence that harsher sentences have any deterrent effect on either young people or adults. The real effect of that approach would be that young people would be treated in a manner similar to adults.
Young people all have a sense of invulnerability. They share the perception that nothing can happen to them. This is a good characteristic, and leads to discoveries made during adolescence, but for some of them those discoveries take them down the wrong path. They have the impression that consequences only happen to other people. If a young person who is also a delinquent sees a peer getting arrested by the police, the limited reasoning ability and mistaken thought processes of an adolescent will persuade them that the other person was the victim of their own lack of skill, a mistake or simply bad luck, regardless of the seriousness of the consequences associated with the criminal act, because the young person believes that they will never get caught that way.
As well, the harsh maximum sentences introduced by successive amendments to youth criminal justice legislation are rarely applied by the courts. The case law, legal practice, assessments of young people's situations and protection factors identified by courts at all levels often mean that the judicial system shows a degree of clemency to young people. We believe this stems from the judicial system's recognition and consideration of the fact that a young person is, in fact, different from an adult, and is not fully formed, and that the sanctions imposed on them must be tailored to fit.
Rather than just come down hard on them, at the same time as protecting society, the goal is to offer the young offender an opportunity, through rehabilitation services, to acquire a prosocial lifestyle. Young people have to be held accountable for their actions. That means that measures must be taken that take into account their level of maturity, so that they understand the extent and impact of their actions, and alternatives to those behaviours.
We would also point out that serious and violent crimes, for which the federal government intends to toughen sentences, comprise only a tiny fraction of crimes committed by young people. Experience also shows that those young people are not necessarily on a distinctive path of criminal behaviour. Studies show, in fact, that they present a lower risk of recidivism after treatment, and their other offences are less violent, than young people who commit property offences.
In the Outaouais, last year, we offered services to nearly 900 young offenders, out of a population of 28,500 young people between the ages of 12 and 17 years.
A majority of requests were handled through diversion, outside the courts, with a success rate of nearly 95%. In cases where a sentence was imposed, for a total of about 274 young people, two thirds received probation with supervision, of which 15 involved intensive probation; 10 received suspended custodial sentences; and 33 received custodial sentences, that is, 33 young people were placed in the custody unit. It will be observed that 33 out of 28,500 is a minority.
Some of the young people in our secure custody unit at the Apprenti residence had received multiple short sentences, the average sentence being 30 days, because of sentencing criteria that limit the use of custodial sentences for young people who are on their first offences.
When we went from the YOA, the Young Offenders Act, to the YCJA, we lost opportunities for meaningful intervention and rehabilitation work with younger offenders, for whom crime is not yet a crystallized way of life. While we could previously intervene for a few months and guide the young person for a period that reflected their needs, access to longer sentences is available to us now only in late adolescence, for young people whose path is more often more firmly formed by then. It must be kept in mind that the centres, the custody units, in Quebec are first and foremost rehabilitation centres.
The law provides the tools that are needed for intervention, but access to those tools is limited, for example in terms of sentencing criteria that reserve access to the rehabilitation centre to young people who have committed more serious crimes, or multiple repeat offenders.
In 2009, in the Outaouais, no young person was sentenced for murder, attempted murder or serious sexual assault. All of the young people who occupied spaces in the custody unit for longer periods were repeat offenders whose crimes involved property or drug-related offences.
Based on scientific data and what the case law tells us, the ACJQ and the PDs are asking the federal government to preserve a separate criminal justice system for young people between the ages of 12 and 18 years. A young person who is still developing has different needs from adults, and intervention must therefore be appropriate. Only an intervention that takes into account, in addition to the nature and consequence of the offence, both what its meaning is to the young person and their individual needs is likely to bear fruit. It must be based on an assessment of the young person and their situation, to determine the measure most likely to succeed in rehabilitating them and consequently protecting society.
Young offenders nearly all have maturity levels below their age. The personalities of young offenders are not completely formed. Early intervention based on their individual needs is the key to effective intervention in this case.
In fact, the Supreme Court of Canada delivered an important judgment in 2008. It held that the provisions relating to the presumption of adult sentencing of young people and the presumption of publication were unconstitutional. The Court therefore acknowledged that because of their age, young people are more vulnerable, less mature and less capable of exercising moral judgment. That decision helps to explain the importance of distinguishing between the treatment of young people and the treatment of adults.
It is also proposed that the name of young people 14 years of age and over who are convicted of violent offences be made public. The age limit may vary from province to province, and so the legislation in force in Quebec would mean that this law would apply to young people 16 years of age and over.
On that point, the ACJQ and the PDs call for the identity of young people 14 years of age and over to continue to be protected, to guarantee that they can be rehabilitated and reintegrated into society and thus avoid the risk of recidivism. Labelling, perhaps even stigmatizing, these young people makes it more difficult to reintegrate them and for them to acquire prosocial behaviours. Long-term protection of the public will be jeopardized, since that measure could increase the risk of recidivism on the part of a young person who anticipated more limited opportunities for reintegration.
The ACJQ reminds us that Quebec is in the vanguard in the world and has the lowest crime rate in Canada. The Quebec model for rehabilitation has stood the test and has made an impression outside its borders. In the last few years, international delegations have been meeting with actors in the Quebec system in an effort to adapt this model of intervention to their countries. In 2009, in the Outaouais, we hosted delegations from South America, and we were invited to Jamaica to explain our system. We have a solid partnership with the academic community, who are also receive international requests.
The ACJQ and the PDs have always advocated a balance between protecting the public and rehabilitating young people. The government should invest in social services, particularly in concrete measures to reduce poverty; it should implement programs to integrate young people into the workforce and promote access to housing, instead of taking the path of punishment and toughening the laws.
We have experienced a population increase in our region, and so have had increased pressure to respond to all requests, without investment being made to support interventions with young offenders. In the last year, we have developed an intensive intervention program for cases at higher risk of recidivism, which are dealt with in their home setting. The program is a fine example of collaboration with the partners in the network, where each of them has agreed to contribute to provide a better response to our young people's needs and target their risk factors. The interventions deal with autonomy, employability, substance abuse, peer influence, victimization and management of their financial and legal situation.
The government should invest in measures like these, measures that have a direct impact on long-term protection of the public, through supervised and ongoing rehabilitation and social reintegration for our young people.
My name is Megan Forward. I am the policy research lawyer at the African Canadian Legal Clinic in Toronto.
I would like to take this opportunity to thank the standing committee for inviting the ACLC to appear and to present submissions on behalf of the African Canadian community.
I apologize for not having been able to provide the committee with briefs to review beforehand. If, upon reviewing the brief, you have any further questions, please do not hesitate to contact me.
The African Canadian Legal Clinic is a not-for-profit legal agency established expressly to address anti-Black racism and other forms of systemic and institutional discrimination in Canadian society. In addition to providing legal services, the ACLC also operates a highly regarded African Canadian youth justice program, which provides court worker services, counselling, programming, and reintegration support to ensure successful outcomes from African-Canadian youth within the criminal justice system.
Anti-Black racism is undeniably present in all facets of Canadian society, but it seems that nowhere are its effects more pronounced or more palpable than within the criminal justice system. African-Canadian youth, who are powerless and plagued by negative stereotypes, are particularly vulnerable to discrimination at all stages of the system. They are stopped, questioned, harassed, and charged at rates disparate with youth from the general population. This discriminatory treatment also extends to sentencing. African-Canadian youth are typically handed harsher punishments and more custodial sentences that their non-racialized counterparts.
As it stands, the Youth Criminal Justice Act's primary focus is on the prevention of youth crime through rehabilitation, reintegration, and community involvement. In the revised act, while they are still included in section 3, these principles are overshadowed by the overarching objective of protection of the public. The ACLC is concerned that the incorporation of this principle will legitimize negative stereotypes about African-Canadian youth--specifically, that they are prone to violence and therefore should be avoided and feared.
At the same time, we are concerned that the addition of these principles will give police officers, lawyers, and judges yet another discretionary factor to consider in deciding how to punish young offenders. Whereas discretion is disproportionately used to the detriment of African-Canadian youth, this provision will inevitably lead to justifying more custodial sentences for African-Canadian youth--all in the name of protection of the public.
Although protection of the public is a valid objective under the YCJA, this principle ought not be framed as an overarching objective under proposed paragraph 3(1)(a). The ACLC proposes that it should be placed along the other objectives as subparagraph 3(1)(a)(iv).
The ACLC is also concerned with the proposed inclusion of the principles of deterrence and denunciation as principles a judge may consider in sentencing. These principles require cognitive and emotional capabilities beyond those of most youth. As with the concern with protection of the public, we are concerned that the inclusion of these principles will give criminal justice officials two more discretionary factors on which to base sentencing decisions. The proposed addition of these principles is further evidence of the government's lack of awareness and understanding when it comes to the dynamics of youth crime.
We believe that in order to combat youth crime, the government must address the socio-economic conditions that drive young people to crime. Indeed, there is no evidence to support the view that increasing the severity of sentences imposed on youth will result in greater societal protection.
For these reasons, the twin principles of deterrence and denunciation must be left out of the legislation altogether. The ACLC is vehemently opposed to proposed subsection 115(1.1), which would require police officers to record any extrajudicial measures handed out in the course of dealing with young persons. Due to police officers' tendency to over-police the African-Canadian community, African-Canadian youth are stopped, harassed, and questioned by the police more often than the general population. We are concerned that this increased interaction with the police will result in extrajudicial measures being issued to African-Canadian youth at rates disparate with other groups.
This effect, caused by the increased contact with police, is exacerbated by the additional discretion afforded to police under this provision. Police officers have the discretion to take no further action, warn the young person, administer a caution, or refer the young person to a program or agency. We are concerned that due to the discretion involved in issuing extrajudicial measures, records created under this provision may be subject to a police officer's racist or prejudiced attitudes toward African Canadian youth. The ACLC is also troubled by the rhetoric surrounding proposed subsection 115(1.1), which will provide police officers with the means by which to identify patterns of criminal behaviour.
Whereas African Canadian youth are already afflicted by negative stereotypes about their propensity toward crime, the ACLC is worried that the presence of extrajudicial measures on a young person's record may be further used to validate and promote this stereotype. In addition, we are gravely concerned that the extrajudicial measures record may be used to justify further surveillance and harassment of African Canadian youth. The ACLC recommends that proposed subsection 115(1.1) be removed altogether or modified to limit the discretionary powers afforded to police under this provision.
The ACLC is also concerned with proposed paragraph 39(1)(c), which would allow judges to consider the presence of extrajudicial sanctions on a young person's record as evidence of criminal tendencies to be considered in sentencing. The ACLC would like to alert the committee to the potential constitutional implications surrounding this provision, which enables a judge to imprison a youth based in part on criminal activity of which they were never officially convicted. At the same time, subsection 10(4) mandates that extrajudicial measures are inadmissible in evidence against any young person in civil or criminal proceedings. The ACLC submits that in order for the extrajudicial sanctions to establish a pattern of criminal activity, the youth court judge must accept the presence of said sanctions as evidence of the young offender having committed the crimes. We do not believe that these two provisions can coexist in the same legislation, and submit that this provision will inevitably attract constitutional scrutiny.
We also believe that proposed paragraph 39(1)(c) should be rejected, as the presence of extrajudicial sanctions on one's record may have no bearing on a young person's propensity toward crime. The presence of extrajudicial sanctions on a young person's record may be the result of discrimination at one or more stages in the criminal process. Furthermore, young offenders may accept extrajudicial sanctions because they do not have the financial wherewithal to fight charges in court or because they do not fully understand their options.
Because the presence of extrajudicial sanctions on a young person's record is not necessarily an accurate reflection of their criminal tendencies and may be tainted by discrimination, the ACLC recommends that this provision be removed altogether.
The ACLC is extremely concerned with proposed subsection 64(2), which would create an obligation on the part of the Attorney General to consider adult sentences in all instances where a young person over the age of 14 has committed a serious violent offence. This is because where there is discretion to sentence a young offender as an adult, this discretion has been disproportionately used to justify adult sentences for racialized youth. Increasing the number of youth subject to this discretion would almost certainly exacerbate this effect. To avoid this effect, the ACLC submits that adult sentences should only be contemplated in extreme circumstances involving egregious facts and exceptionally mature accused.
The ACLC also objects to what it considers to be a widening of the net of offences eligible for custody. We are concerned that the expansion of the definition of serious offences to include property offences will be used to justify the pretrial detention of a disproportionate number of low-income youth, including African Canadians. Accordingly, such an expansion ought not to be allowed. The ACLC further objects to the expansion of the definition of “violent offence” to include any offence that endangers the life or safety of another person by creating a substantial likelihood of harm. This definition is far too subjective and ought to be modified or left out, lest it be used to target young members of the African Canadian community.
While African Canadians are very concerned about safety in their communities, many feel that this kind of tough-on-crime approach is not the answer. Youth crime must be addressed through rehabilitation, reintegration, and community involvement. Indeed, the power of these principles has been confirmed through the success of the African Canadian youth justice program.
The amendments under Bill represent a significant departure from the prevention-centred principle, which the ACLC believes will result in the further stigmatization and criminalization of African Canadian youth.
These are my submissions. Thank you.
Thank you all for your testimony today. It's been very helpful.
My name is Megan Leslie, and I'm the member of Parliament for Halifax.
To the ACLC, first, I think it's incredible that we're actually looking at this legislation through a race-based lens. I really want to say thanks for coming and testifying.
The amendments here are trying to address the problem of persistent offenders. I recognize that we don't want to paint all young offenders with the same persistent offender brush, but we have heard that the majority of offences by youth are actually by these persistent offenders.
Recommendation 22 from Nunn actually recommends that when you're looking at pretrial detention, you consider patterns of offences versus patterns of findings of guilt, because that's what happened with Archie Billard in the Theresa McEvoy case.
You said in your testimony that African Canadian youth are charged more often, picked up more often, and harassed more often. When I read the Nunn recommendation, I think that's a good recommendation--let's look at patterns of offences versus guilt, so that we can stop the Archie Billard situations--but I'm wondering what the implications are for racialized communities, in particular for African Canadian youth and, I would argue, aboriginal youth.
Could you share with us your thoughts on the Nunn recommendation, and also on the changes to the bill?
I am going to talk about clause 2.
The definitions of "serious violent offence" and "violent offence" are being amended.
We note that the new definition of violent offence will encompass a very large number of Criminal Code offences based on a “substantial likelihood of causing bodily harm”, a factor which the accused may not have even considered at the time the offence was committed.
Regarding serious offences, the list of offences that meet the criterion of an offence carrying a maximum sentence of five years is long. The number of offenders deemed to have committed a serious offence will be out of proportion and useless given the desired effects and the risk of the label “serious offender” influencing decisions made under sections 29 and 75 of the Youth Criminal Justice Act.
Now, the changes to the Youth Criminal Justice Act made by clause 3 of the bill raise the notion of public protection to the rank of principle. Rehabilitation and social reintegration become methods, whereas they are currently considered important principles guiding decisions made under the Act.
The Supreme Court of Canada has recognized the important of the declaration of principles, writing that principles should be given the force normally attributed to substantive provisions. Our fear is that changing this declaration represents a shift toward principles of criminal law applicable to adults, and here we are referring to section 718 of the Criminal Code.
The Barreau du Québec reiterates its support for the specificity of criminal law applicable to youth, which focuses on rehabilitation as a means of protecting the public over the long term. The proposed amendment does not include the notion of long-term protection of the public. The Barreau du Québec contends that the notion of "public protection" is linked to immediate protection of Canadians, not long-term protection that promotes rehabilitation and social integration.
The English version of the proposed new subparagraph 3(1)(a)(ii) uses the word "promoting", which is rendered in French as encourager. This subparagraph deals with social reintegration and rehabilitation. We suggests replacing encourager with favoriser, which is closer to the meaning of "promoting".
Finally, we note that the proposed change to paragraph 3(1)(b) reiterates the notion of “diminished moral blameworthiness or culpability” recognized by the Supreme Court of Canada in R. v. D.B.
Clause 4 relates to the proposed changes to subsection 29(2) of the Act is to incorporate certain paragraphs of section 515 of the Criminal Code.
The Barreau du Québec contends that in matters of pre-sentence custody as a consideration in sentencing, the court must have the means necessary to impose the right sentence at the right time. We believe that the current provisions of paragraph 39(1)(d) of the Act, which allow a judge to exercise discretion in extraordinary circumstances, should also apply in matters of pre-sentence custody. We believe that if this were to be done, the bill would properly address the concerns raised in the Nunn Report.
Clause 7 of the bill adds a paragraph to subsection 38(2) of the Youth Criminal Justice Act stating that the objectives of the sentence may be "to denounce unlawful conduct" or "to deter the young person from committing offences". We would note that subsection 38(2) establishes the objectives and principles of sentencing. This import from the Criminal Code is contrary to the objective advocated by the Barreau relating to the special nature of the criminal law that applies to young people.
We note also Parliament's desire to include in section 3 of the Act the notions of denunciation and deterrence. Serious studies have shown that using sentencing as a deterrent has no effect on crime.
Clause 8 of the bill amends paragraph 39(1)(c) by adding extrajudicial sanctions as elements to be considered in imposing a custodial sentence. The Barreau du Québec is opposed to this addition for the following reasons. First, extrajudicial sanctions are applied in cases where the youth acknowledges the facts of the offence. The youth thus receives special treatment: an extrajudicial sanction. This type of sanction has great potential in terms of rehabilitation given that the youth recognizes the facts. The Barreau contends that adding this item to the list of factors the court must take into account in imposing a custodial sentence will cause the benefit which extrajudicial sanctions are intended to bring to be lost.
Further, adding extrajudicial sanctions to the list of factors to be considered will have the effect of bringing into court a measure that was designed to avoid court proceedings. The Barreau is of the opinion that the distinction between extrajudicial sanctions and sanctions imposed upon conviction must be preserved. Only the latter should be considered by the court in imposing a custodial sentence.
Currently, pre-sentencing reports do not mention extrajudicial sanctions longer than two years under section 119 of the Act. Would that time period be applied in the context of the changes to paragraph 39(1)(c)?
Finally, the Barreau would like to see all means available to facilitate rehabilitation—including extrajudicial sanctions—used before an adolescent is placed in custody. Does changing the consequences of this type of sanction create a risk of this option—which has great educational potential for the adolescent—being underutilized?
Clause 8 of the bill proposes that the Attorney General be required to notify the court of his or her intention not to seek an order that the young person be liable to an adult sentence in cases where "the offence is a serious violent offence and was committed after the young person attained the age of 14 years". It provides that "the lieutenant governor in council of a province may by order fix an age greater than 14 years but not greater than 16 years for the purpose of" that obligation.
The Barreau has always opposed any form of intrusion in the professional independence of prosecutors. We contend that notice preceding an application for an order must be given in order to serve the cause of justice and allow the parties to act accordingly. The prosecutor’s decision to not seek an order has no function that would justify giving notice to the court.
Good afternoon, Mr. Chair.
Good afternoon, ladies and gentlemen, members of the committee. I would like to take this opportunity to thank you for inviting me.
I am going to start out on a positive note by saying that I am relatively convinced that I share intentions similar to yours. I have not come here in the hope that people will be victimized or murders will be committed. For 25 years, I have worked hard to reduce crime among young people throughout Quebec and Canadian society. I am involved in a number of things. I think we are in agreement on those intentions. Our opinions may diverge when it comes to some facts and methods. I am therefore very happy that this discussion is possible and that you are allowing it. I congratulate you on holding these hearings.
Given that the Regroupement des organismes de justice alternative is not very well known, I am going to say few words about it.
We are a provincial association composed of 37 non-governmental organizations in Quebec. Those organizations work with young people and victims of crime. We work with those two clienteles with the aim of protecting society, and through referrals by the police, extrajudicial sanctions and the administration of several specific sentences as provided by law. Each year, we work with and offer services to about 10,000 young people and 5,000 victims of crime. We believe that we are, in a way, a key player in the field of justice for young people and victims. Our analysis of Bill has led us to the conclusion that in its present form, the bill will contribute neither to improving public safety nor to improving outcomes for victims of crime.
With respect to public safety, we wonder about the appropriateness of amending the Act. It has been in force for seven years now, and I think there are still several approaches to be developed. Some aspects have not been fully implemented. It is mainly the arguments you are advancing for amending the Act that is causing us problems. We can see from the figures, using all of the methods used to identify crimes, that youth crime is either stable or declining. I could quote the figures you certainly have at your fingertips, in particular the Statistics Canada data. They are easy to find. It seems to us that for the moment, there are no objective data that justify the proposed amendments to the existing Act.
Quebec, and Canada as well, in our opinion, has chosen to tackle youth crime by examining the causes of that crime and working to rehabilitate the young people. Several programs have been created with a view to remedying the harm caused to victims of crime. We want to tell you that when they are combined, the following three strategies—rehabilitation, reintegration and reparations—are recognized as being the most effective for combating crime and recidivism in young people. In our opinion, public safety will not be enhanced by applying measures that are essentially based on detention and punishment. In our opinion, the objectives of achieving more public safety are inconsistent with the methods adopted in this bill. Forgive us for giving you advice, but we will take the liberty of doing that.
We propose, instead, that you strengthen what is already working: remedial justice and rehabilitation. In our opinion, it would be a shame if considerations other than objective data and measures that are working were to result in major amendments to the Act such as those you are proposing. In our opinion, Bill is a step backward in terms of justice for minors. Clearly the overarching objective of this bill is to protect the public rather than to meet the needs of young people and provide reparations for victims. I think this bill flies in the face of the conclusions reached by several authors, who say that deterrence and denunciation are ineffective with offenders. The prospect of a longer sentence has no impact on them at the point when they commit an act. This has been demonstrated over and over. And it means that young people are no more rational then adults when they commit an act.
If referring young people to the adult system is contrary to the unique needs of young people, making it easier to sentence them as adults, even in small numbers, amounts to putting many components of our youth justice system, a system that has its roots in the 19th century, back on the table.
As well, it seems inappropriate to us to amend an act to cover a few special cases. It becomes a general policy that affects all young people, based on only a few of them. Why would we want to take harsh measures for the few extreme cases when the existing Act already allows for adult sentencing? The possibilities available under the present Act have been illustrated by both the Barreau du Québec and other people who have testified here. It is already possible to punish violent behaviour by young people under the existing Act.
I will move on to the question of outcomes for victims. The ROJAQ adopts the comments made here by the Association québécoise Plaidoyer-Victimes on May 13, 2010. We also oppose the way this bill exploits victims. Using victims' rights to legitimize getting tougher on crime is despicable, in our eyes. Victims are not all calling for punishment. Revenge is not a common thread among victims. Harsher punishment will not necessarily meet the demands of all victims, even if some would like to see it.
In 2001, as the AQPV noted, Allan N. Young certified in his study for the Department of Justice of Canada that there is no evidence that victims want harsher sentencing. That bias had been criticized by other countries. The ROJAQ therefore protests against Canada taking that path, in spite of the criticism leveled against it. What some victims, or most victims, want, what means most to them, is to get answers to their questions, to be able to speak about what they are feeling, about their experience as a result of the event, and to obtain reparations.
The ROJAQ believes that it would be much more appropriate for your government to propose a set of measures that would promote participation by victims in the judicial or extrajudicial process, and to support the development of restorative justice in Canada, which means supporting the existing provisions of the YCJA in that regard.
It would also have been desirable to announce improvements to the assistance provided to Canadian provinces so they could improve the criminal injuries compensation system. Thank you, sir.
I'd like to thank this honourable committee for the invitation. My name is Michael Spratt. I'm a criminal defence attorney here in Ottawa with the firm Webber Schroeder Goldstein Abergel. I deal with youth on a daily basis, as do most members of our organization. The CLA comprises more than a thousand criminal defence lawyers who deal on a daily basis with issues that this bill seeks to tackle.
Before I start, I'd be remiss if I didn't thank Jennifer Myers and Ildiko Erdei for their assistance in evaluating the bill.
That said, and cognizant of the limited time I have, I'll jump right into it. I'm sure you'll cut me off if I go over.
There are some positives in this bill. I'm going to tell you all the things that I think are negative or need reconsideration, but I'd like to start with talking about some of the positives: reversing the unconstitutional onus that was present before and was struck down by the Supreme Court; and provisions such as mandating that youth serve their sentence in a youth facility. Providing that there is adequate funding for these youth facilities, I think we can all agree that this is something that is advantageous.
However, there are some major difficulties with the bill: the shift in principle from rehabilitation and reintegration to deterrence and denunciation; problems with judicial interim release; the broadening of the definition of serious offence and the implications this will have with the number of youth who are in pre-sentence custody; the broadening of the definition of violence and the impact that will have on the number of youth who find themselves in custody following conviction; the consideration of extrajudicial sanctions and determination as to whether a youth should be sentenced to custody or not; and the associated problems with the publication of the youth's name.
Before I discuss those issues in whatever detail I can, given the time, I think it's important to look at the context in which this legislation is being proposed. The current legislation, from our perspective, is successful. There is a decrease in youth crime, specifically a dramatic decrease in property crime committed by youth. The YCJA corrects the historic problem of over-incarceration of youth and has demonstrated that an emphasis on rehabilitation and integration works.
The use of custody for property offences was a great problem preceding this bill. Of course, the over-incarceration of youth has a number of negative impacts, both on the youth themselves and on the system, and that shouldn't be a goal that we're striving towards.
The context here is that the justice minister has said that the protection of the public is a primary goal--and I couldn't disagree more--but the protection of the public can best be achieved through rehabilitation and reintegration, not through abandoning those principles in favour of a short-term fix that may not ultimately in the long run serve the goals that we all find valuable.
The bottom line is that the system works. Youth who engage in serious and violent behaviour can be detained and are detained under the current legislation. There are always isolated examples to the contrary, but what works shouldn't be abandoned over a few isolated incidents.
I'd like to speak about denunciation and deterrence. Again these principles are a move away from what is working currently, and they're not consistent with what we know about youth. I'm sure this committee has heard a lot of evidence from people much more expert than I am about how youth think, what they respond to, and how they are less affected by general deterrence and denunciatory sentences. In the government's own legislative summary, there are studies from Professor Bala and Professor Grondin and others cited to support that principle. I'd commend to the committee to consider in detail those studies and the evidence that I'm sure you'll hear from people like that.
Deterrence and denunciation aren't effective on youth. Youth are recognized to be more vulnerable, less mature, less able to exercise judgment. Re-incorporating those provisions, which run contrary to what we know is working under the YCJA, is going to result in more jail, either jailing of a youth who is presumed innocent before his trial or a custodial sentence after trial. More jail, I submit, leads to more crime and ultimately less protection of the public.
On the topic of jail, I'd like to speak about pre-sentence custody. The starting position here is that the youth are presumed innocent and should be detained only when necessary. Again, the justice minister has said that violent repeat offenders can't be held under the YCJA. That may be the public perception, but that's not correct. Currently, yes, there is a presumption against release, for very sound and very valid reasons, but with violent offences, youths who have demonstrated non-compliance can be detained. They can be detained if the offence is serious.
On the topic of seriousness, the new legislation as proposed defines very broadly what a “serious offence” is. Under the new legislation, a youth can be detained if a serious offence is committed. We can all agree that certain violent offences are serious; however, the legislation goes beyond that and includes property offences. Property offences, which we have seen under previous forms of youth legislation, have posed significant problems that lead to over-incarceration. These serious offences would include offences such as theft, possession, being unlawfully in a dwelling house, fraud, and possession of break-and-enter tools such as a screwdriver.
Jail is not the best place for the vast majority of youth. Separation from family and community support networks, disruption of a youth's routine and schedule, aren't desirable. Of course, putting a youth in custody in a custodial institution with the youth who probably deserve to be there is not advantageous either. Youth are vulnerable and open to influence. This bill could lead to a youth who has committed property offences being in an institution with much more violent youth who deserve to be there. Of course, no one wants to create a training school for young criminals. It's rehabilitation that works, not warehousing.
From a practical standpoint, increasing the chance that a youth who has committed some of these offences may find himself or herself in pre-sentence custody raises a number of issues. I can tell you that there will be more bail hearings, more delays; there will be more costs associated. I'm sure you'll hear from crown attorneys who will tell you that the courts as they are now are overburdened. I'm sure you'll hear from correctional institution officials who will tell you the problems of funding their institutions as well.
There will be litigation. The over-incarceration of youth, given the circumstances unique to them and their development, may leave this section open to attack under section 7 or other sections of the charter. And of course there are ripple effects throughout the charter. Paragraph 11(b), the right to a speedy trial, may come into play, with youth who are detained ultimately suffering more prejudice than those youth who would have been released under previous legislation. And of course, at the end of the day, these youth who commit property offences, who under this bill could be incarcerated, may not and in my experience likely would not ultimately be sentenced to a period of incarceration.
Moving on to sentencing, there's a removal of the consideration about the seriousness of crime and of the circumstances of offence; that language is taken out. That's what should be considered. Violent youth currently can be sentenced to custody and can be sentenced as an adult.
The broadening of the term “violent offence” is also problematic. It's an over-broad definition that could capture such offences as threats. Of course, by including “recklessness” in that definition, many more youth will be captured, through that provision. When we're looking at youth, it has to be remembered that a youth does not have the foresight that an adult may have or that we can impute to an adult. By including recklessness, we might be over-incarcerating youth who again aren't going to benefit from a custodial sentence.
Also of great concern is the consideration of extrajudicial sanctions when looking at whether a youth can be incarcerated. Of course, those aren't judicial findings. They are, to a great part, discretionary. There's less procedural protection, and ultimately, a youth may be punished more harshly in the future for accepting responsibility of acts in the past.
Again, with these sentencing provisions, there will be more trials, there will be less incentive to resolve, and there will be less incentive to take responsibility, which has an impact not only on the youth and their rehabilitation but on the system as a whole.
I'll hold my remarks on potentially publication issues. I think others have spoken to those, and they flow through largely the same concerns.
Good afternoon, ladies and gentlemen, committee members, Mr. Chair. I would like to thank you very much for inviting me to speak to you.
Like every member of the public, when the media report a heinous crime, whether committed by a young person or an adult, my first reaction is to hope that the person guilty of the crime will be punished very severely, and I sometimes even think the expression "very severely" would not be adequate for the seriousness of the harm done to victims or the anger I feel. But as in many other situations in life, our first impulsive reaction is rarely the right one, and in many cases, the consequences may be the complete opposite of what we want. Life teaches us that in situations like that, it is important to stop and think.
I do understand the need felt by some members of the public and some parliamentarians to believe that toughening the Act will provide better protection for victims of crimes committed by young people, but it would be a serious mistake to believe that and to proceed to amend the Act on that basis.
My core message is that rehabilitating the young offender and protecting the victim are two sides of the same coin. It isn't an either-or choice, as the public discourse would currently have us believe; it is both one and the other, when it comes to protecting the victim and rehabilitating the young offender. In other words, the best way to protect victims is to rehabilitate young offenders. I therefore strongly support the position stated by Mr. Dudding of the Child Welfare League, who spoke a little earlier about clause 3 of the bill.
In what capacity am I appearing before you? I am wearing three hats: first, as an researcher studying the development and evaluation of leading edge practices in the rehabilitation of young offenders; second, as an educator involved in the rehabilitation of young offenders for over 40 years; and third, as a member of the public and grandfather of grandchildren.
As a researcher, first, I would like to highlight a few facts. All of the literature on intervention with adolescents shows, first, that nearly all adolescents, and I would ask some of you to remember this, commit at least one criminal offence during adolescence. The research data show very clearly that 95% of boys and 75% of girls commit an offence during adolescence. Some of those offences may be serious, and even very serious, but most of these young people are able to make reparation for their acts, to develop, to become responsible citizens and not to become criminals. Only a small proportion of them, fewer than 5%, will pursue a career as young offenders and as criminals once they become adults. So it is important to realize that adolescents have multiple different development trajectories and it is important to take this into account in a youth justice system.
Second, contrary to certain beliefs conveyed in the media and elsewhere, it is possible to rehabilitate young offenders, and it works. There are very good programs and effective methods for doing that. Canada is even a world leader in terms of prevention and in alternative justice and rehabilitation methods. In terms of rehabilitation and open custody, for over 30 years, nearly 65% of young people who participated in the program at Boscoville, in Montreal, did not reoffend after their time at that institution.
In more recent experience dealing with serious instances of crimes committed in the community at the Centre jeunesse de Montréal, we have achieved similar and even slightly better results. Research data show that contrary to what was said a few minutes ago, rehabilitation programs work with young offenders if conditions are placed on them. However, when those figures were collected, they also measured young people who had simply been placed in detention with no treatment or rehabilitation. In that case, over 90% of the young people reoffended within a few months after their placement.
The use of deterrent sentences, as shown by a multitude of studies, produces no results and results contrary to the desired effects. Not only does this not protect society, it worsens youth crime.
In order for interventions with young offenders to be effective, that is, for them to succeed in preventing recidivism and promote reparations to victims and harmonious reintegration of the offender, there are some essential prerequisites. The first is that the criminal justice system must be different from the adult justice system. All of the scientific and professional literature shows very clearly the extent to which a young person is not yet an adult, that they have not finished developing, not just in physical terms but also in cognitive and emotional terms, and thus that they have needs that are different from adults' needs.
The second prerequisite is that the entire criminal justice system be guided by the principle of differential intervention. The principle of differential intervention means that because not all young offenders are the same and they do not all have the same needs, the intervention must take those differences into account. For example, a young person with a minor delinquency profile who was placed in a secure custody institution with intensive intervention would be at risk of leaving the program with a more serious delinquency profile. Conversely, a young person with a serious delinquency profile for whom only minor intervention is used will have a strong chance of engaging in more serious delinquency afterward.
It has also been shown that certain intervention methods work well with certain types of young offenders but are ineffective with other types of young people. That is why it is important to adapt the intervention to the young person's delinquency profile.
If the law is to punish the severity of the offence, it must also allow for the young person's profile and needs to be taken into account. A formula that would also be an objective was suggested in Quebec, in response to the report by Judge Jasmin: the right measure at the right time for the right young person.
Researchers elsewhere in the world, and particularly here in Canada, have developed assessment methodologies that make it possible to get a better idea of the risks of recidivism and the needs of these young offenders—Andrews and Bonta, among others. These methodologies are necessary and we have them, and they have proved their usefulness. It is important that before sentencing a young person, allowance be made for using methodologies like these to assess each offender's situation. That would mean that the sentence would be based not only on the seriousness of the offence, but also on the needs of each young offender and on their chances of being rehabilitated and not reoffending.
And in addition to all that, it is important that the criminal justice system offer various forms of intervention, ranging from alternative justice methods and mechanisms, mediation with victims and community service to rehabilitation on probation and open or secure custody, all of which is currently possible under the YCJA, without amending it.
As an educator, I worked for 20 years as a psychoeducator at Boscoville in Montreal. For several decades, Boscoville has been a beacon in the rehabilitation of young offenders. The institution has had tremendous influence not only in Quebec, but also internationally, to an extraordinary extent. My experience in that institution involved working with and getting to know a large number of young people who had extremely positive experiences with rehabilitation and social reintegration. That is the case for most of the ones I have known. Of course there are very sad cases that failed. For the most part, they became responsible, well integrated citizens. They are now labourers, business people, teachers, company managers and artists in various fields. Some of them are have families of their own and are happy and proud to come and introduce their offspring to us, their former teachers. Most of the young people who successfully completed rehabilitation have also taken action to make reparation to their victims, during or after the rehabilitation process. I think full rehabilitation necessarily requires some effort to make reparations to the victims, directly or indirectly.
Fifty years ago, educators in the vanguard went and got young people who had been placed in Bordeaux prison in Montreal to give them a chance to take part in a new rehabilitation program they were creating. Personally, over the years, I have had the opportunity to visit young teenagers placed in adult prisons in the United States, in Chile and in other countries. Every time, I saw how terrible a situation it was, how degrading and how disrespectful of the fundamental rights of those young people. Those consequences are terrible for them, for their victims and for society. For these young people in prison, one of the worst consequences is to find themselves in a situation in which they are in despair, and that can only exacerbate their delinquency and violence.
For the victims, the human degradation of the young offender provides no real relief and may even heighten their fear of a recurrence of the violence committed by the young person when they get out of prison. The same is true for society in general.
A just law therefore must not base the assessment of the act and the sentence imposed on a young person exclusively on the seriousness of the offence. That is where this bill goes wrong. A just law must be based on a complex youth criminal justice system that is constantly trying to strike the difficult balance between the needs of society and victims and the needs of the young offender. That complex system, and this is where the government may have a job to do, should include a system for administering the law in which there is a series of components: first, a differential assessment process based on the principle that each young person is different, that each case is different; second, a multimodal system of intervention that includes the possibility of alternative justice measures, mediation, reparations to the victim, etc., and rehabilitation; third, a process that allows victims to participate and provides them with the support they need; fourth, a structure that encourages parents to participate and be involved; fifth, rehabilitation programs while under supervision, while being intensively monitored in the community, and while in open and secure custody, administered by competent personnel; and sixth, an investment in research to promote the development of best practices and to evaluate the effects of the law.
To conclude, as a member of the public and a grandfather, I am concerned that our laws be just, both for the welfare of society and for the protection and development of my grandchildren and other people's grandchildren. If one of my grandchildren commits an offence, I would fervently hope that not only the seriousness of their offence, but also their needs, will be taken into account. My fondest wish would be that we help them to rehabilitate themselves and make reparation for their criminal act or acts. In the event that one of my grandchildren was a victim, I think my first reaction would be a desire for revenge, but once that passed, I would sincerely hope that whoever assaulted them would get help and be able to rehabilitate themselves. In holding this dialogue about Bill , we must not lose sight of the fact that the future welfare of our society depends on the welfare of our children and grandchildren.