JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, April 25, 2001

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[English]

The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): I declare this meeting open.

Today we have three witnesses: from the Ministry of the Attorney General of Manitoba, Rob A. Finlayson; from Manitoba Corrections, Carolyn Brock; and from the Ministry of the Attorney General of Saskatchewan, Betty Ann Pottruff, QC.

To the witnesses, ordinarily if you're making presentations we allow about 10 minutes. Today I can be a little generous because we're not overly supplied with witnesses or with examiners, but we like the question and answer part better than the statement. Furthermore, the longer you make the statement, the more questions we'll ask you.

I would also like to acknowledge all the young people in the back of the room, who are students from the Forum for Young Canadians. You picked a good committee to come to today because you'll see a well-run, efficient, friendly, happy committee—I'm an optimist, incidentally.

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Mr. Paul DeVillers (Simcoe North, Lib.): What room is that in?

The Vice-Chair (Mr. Ivan Grose): I'm glad to see you here, because of course I'm on the other end of the spectrum; I represent the forum for old Canadians.

Who would like to start?

Mr. Rob A. Finlayson (Assistant Deputy Attorney General, Prosecutions Division, Ministry of the Attorney General (Manitoba)): I will go first, Mr. Chair.

The Vice-Chair (Mr. Ivan Grose): Thank you.

Mr. Rob Finlayson: Thank you, Mr. Chair, and on behalf of Manitoba Justice we would like to thank the committee for the opportunity to make this presentation this afternoon.

The Youth Criminal Justice Act has been a long time in the making. Bill C-7 is the third presentation of the act before Parliament. While the Province of Manitoba recognizes that some of our concerns have been previously addressed respecting the youth legislation, in our view, these steps have not gone far enough to ensure that the laws relating to youth involved in crime are effective, meaningful, and capable of protecting society.

Criminal law in Canada is a partnership between the federal government with its law-making powers and the provincial attorney general with its responsibility for the administration of justice. It is the province that assumes responsibility for crime prevention, prosecutions, policing, and correctional programming in youth facilities and in the community. This unique partnership must respect the limits to which the federal government can intrude into provincial areas of jurisdiction and must recognize that the accountability for the implementation of the legislation falls to the provincial attorney general, not the federal Minister of Justice. In addition, federal law that places a financial burden on a province without an equal sharing of those expenses must be carefully considered.

The Youth Criminal Justice Act imposes a significant financial burden on each of the provinces that must enforce it. Early estimates in Manitoba suggest that the additional cost for enforcement of the YCJA will be in the millions of dollars per year. For example, development of systems to communicate effectively among the stakeholders in the criminal justice system alone is estimated at well over $1 million in Manitoba. Human resource requirements are expected to increase, and in particular, without effective information systems in place, there will be further and significant additional human resource requirements.

Of equal concern to Manitoba is the potential date that the YCJA might come into force. Federal officials have advised the provinces and territories that the proclamation date for the YCJA may be as soon as January 2002. Because of the profound differences between the YCJA and the present Young Offenders Act, and other issues such as the complexity of the legislation and the consequential training and system development requirements, a minimum of one year between the passage of the legislation and the proclamation date is essential.

The proposed Youth Criminal Justice Act fails to respect the relationship that must exist between the federal government and the provinces and territories; therefore, in our view, significant amendments are required in order to restore the appropriate balance for the administration of the youth criminal justice system.

Manitoba's submission identifies general problems or themes with the YCJA, points out particular serious examples that illustrate those themes, and suggests a possible approach or amendment to address the concerns we raise.

The most serious issues we've identified are as follows: public confidence issues; complexity and proceedings in drafting; negative impact on victims; offenders under the age of 12; and management of sentences.

First, on public confidence issues, rather than inspiring confidence, the YCJA will inevitably cause the public to become more critical of the youth justice system. This is because the problems that led first to the criticism of the Young Offenders Act are not cured by this legislation.

The following provision is one major area where public confidence issues are particularly serious: custody and supervision of sentences. The act provides for a maximum youth sentence of three years in cases where an adult could receive a sentence of life imprisonment. For a crime for which an adult can be sentenced to less than a sentence of life imprisonment, a youth can be sentenced to a maximum of two years.

The three-year and two-year maximums are the same maximum penalties that are currently available under the YOA. However, the YCJA further provides that the final one-third of a custody and supervision sentence is to be served in the community, under supervision. The result is that a three-year sentence means a two-year custody sentence. The maximum custody time that can be imposed under the act for these types of offences is therefore actually less than under the YOA.

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The sentencing provisions have the potential to undermine confidence in the court system because they do not afford adequate protection to the public from dangerous young offenders and they give a misleading impression of the length of custody sentence actually imposed. The point is that with the new legislation, the release of many youths will be automatic and without regard to whether the youth has sufficiently progressed in programming, within the custodial institution, to be a lesser or reduced risk upon return to the community.

This fact alone is unlikely to inspire confidence in the act. For many Canadians this will be the first they hear of the operation of the new legislation. I suggest to you, with respect, that this indiscriminate mandatory approach to release will serve to erode the confidence of the public in this statute from the very onset.

The new provisions respecting the retention of the youth in custody until the end of sentence—and these are recent amendments—are far too stringent to meet and will result in very few youths being retained until the end of their sentence. Similarly, the ability to go beyond the two-thirds level of custody for select offences is restrictive and of little effect.

With respect to public confidence in legislation, an additional concern in Manitoba relates to changes made to the preamble and statement of principles that either eliminate or reduce in importance the issues of public protection and meaningful consequences for behaviour. These are significant issues that should be prominent in this legislation. We therefore recommend the following: first, the declaration of principles should be modified to include denunciation of criminal behaviour as a clearly articulated principle; second, for those offences for which an adult could be sentenced to life imprisonment, the maximum youth sentence should be increased to five years less a day; and third, the mandatory statutory release of offenders after two-thirds of the sentence should be removed.

On the complexity in proceedings and drafting, the complexity of the YCJA is perhaps the first thing that strikes a person who attempts to read it. This complexity has two undesirable consequences. It makes the act extremely difficult to understand, and it will create delay and cause court backlogs.

Insofar as complexity in proceedings as it affects delay in backlog is concerned, I submit the proximity of consequences to behaviour is a fundamental principle of child development, and one that must also be reflected in youth criminal justice legislation. The YCJA establishes an elaborate array of police warnings, cautions, referrals, crown cautions, and extrajudicial sanctions. Justice committees can be consulted to obtain information regarding the appropriate action, conferences can be called, and the offender is entitled to be represented at each of these processes.

While the act in its present form enables the production of rules that may govern the use of consequences that are not court ordered, there is no ability to manage its use in a judicial setting. The concept of conferencing is well understood in the youth justice system, but, as conceived in this act, will add substantially to delay. To ensure clarity, further refinement of this concept is necessary.

The numerous off-ramps for a variety of processes, proceedings, hearings, appeals, and reviews are all very counterproductive to the act's principles. While a modification of Bill C-7 has seen the introduction of timelines, as set out in clause 3, they are virtually hidden in the midst of a number of other principles. We therefore recommend the following: the timely resolution of matters should be clearly articulated as a principle guiding the act and the youth criminal justice system. The Youth Criminal Justice Act should be amended to remove or at least to restrict the use of preliminary hearings as currently outlined. And the conference provisions should either be removed or at least be restricted in their scope and frequency.

In terms of complexity in drafting, the YCJA is written in a manner that makes it very difficult to follow. Throughout the act, terminology is difficult, sections are too long, and there are far too many clauses and subclauses. One of the basic principles of plain language writing is to keep sentences short. While it is noted that some plain language principles have been observed in Bill C-7, the efforts fall far short of producing a piece of legislation that can be understood by all Canadians.

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We therefore recommend, in particular, that a difficulty created by faulty definition could be avoided, either by making a schedule of non-violent offences and serious violent offences, or by adopting a definition of “serious violent offence” similar to the one that is outlined for serious personal injury offence currently found in section 752 of the Criminal Code.

Second, we recommend that the act should be redrafted, with its length reduced by one half—simpler wording, more meaningful cross-references, and parenthetical notes.

I turn to negative impact on victims. Victims are interested in having legal processes move along expeditiously, so that they can get on with their lives. The YCJA contains many provisions that will result in significant delay. These are a disservice to victims. While the principles speak to victim treatment, minimum degree of inconvenience, and respect for dignity and privacy, the act as currently structured does not support these principles. We therefore recommend changes to ensure that the interests of victims are clearly established.

I would say a brief word about offenders under the age of twelve. Manitoba appeared before the committee considering the last YCJA and submitted that there should be a principle allowing the prosecution of offenders under twelve in exceptional circumstances. We submit that again for your consideration. The youth justice court, on application, should be able to make a determination as to whether a charge is permitted to proceed for those individuals under the age of twelve where the offence is particularly egregious. A test of whether a charge can proceed would involve a consideration of the following factors: the nature of the offence or offences; the circumstances of the offender, including the history and maturity of the offender; and whether it is in the long-term interests of the offender to have the matter dealt with in the courts.

Finally, with respect to the management of custodial sentences, various procedures are created to govern decisions regarding the level of restraint to be imposed, early release, conditions to be imposed when release is granted, etc. The complicated procedures result in a variety of problems and represent the most intrusive elements into areas of traditional provincial responsibility for legislation. From our perspective, quite simply, a sentence imposed by a youth court in Shamattawa, Manitoba, should not be managed in Ottawa.

The act provides that the province establish two levels of custody. Again, this is something that does not take place for adult corrections and, in our view, should be left to the provinces. Almost every decision of the provincial director is subject to an appeal or a review by either the court or the review board. Again, this is something we find unacceptable. It is an intrusion into provincial jurisdiction and should not be included in the act.

One final area of concern that has been brought to our attention is not mentioned in the paper. Clause 35 of the bill, “Referral to Child Welfare Agency”, provides:

In addition to any order that it is authorized to make, a youth justice court may, at any stage of the proceedings against a young person, refer the young person to a child welfare agency for assessment to determine whether the young person is in need of child welfare services.

In our view, this is another intrusion into the area of provincial jurisdiction. It lacks clarity and should either be deleted or amended to address the issues of clarification.

I believe those are the significant points Manitoba wishes to raise during our submission, but we would certainly be willing and able, I would hope, to answer any questions members might have.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Finlayson.

Miss Pottruff, please.

Ms. Betty Ann Pottruff, Q.C. (Director, Policy, Planning and Evaluation, Ministry of the Attorney General (Saskatchewan)): Certainly. Thank you very much. Thank you, members of the committee.

Mr. Chair, I appreciate the opportunity to address the committee on this important subject, and I want to also take the time to express John Whyte's regret that his other commitments would not allow him to attend today.

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First, I want to reaffirm the comments we made before the standing committee when we appeared on February 23, 2000. In large part, those comments still stand, although there have been some minor amendments to the bill that address portions of those comments.

The amendments, though, by and large, have created new concerns rather than allayed our previous concerns. Saskatchewan Justice remains concerned that the federal resources required to implement this legislation—while we appreciate those resources—supplied to this point are inadequate and insufficient. Federal funding for ongoing programming is already very inadequate and nowhere near the 50-50 cost sharing under which we started off engagement jointly with the Young Offenders Act in 1984, and as this act is implemented, the strain on those provincial resources in that cost-sharing arrangement will be even greater and will be aggravated.

Scarce provincial resources will have to be reallocated to meet the complex demands of this legislation, which is very heavy on legal process. Resources that might otherwise go towards programming for youth, whether that's recreation, treatment resources, or education, will have to be reallocated to deal with process and legal needs.

Saskatchewan is concerned that in the rush to pass this legislation, there are a number of things that have not been accommodated. Firstly, there has not been a cost-impact analysis in terms of the cost-benefits in proceeding with this bill. We think the costs will be dramatic for the jurisdictions. The technical problems with the legislation that are being discovered as we have more in-depth conversations about implementation need to be addressed, and I'm not sure there's going to be time to do that.

As Mr. Finlayson has said, the jurisdictions need at least one year from the passage of this legislation, the finalization of the bill, to actually reach implementation—a minimum. There is extensive training needed, new programs that will have to be developed, major systems changes, and new facilities. These all take time. We don't serve the public well at either level of government if in fact we're not able to implement whatever does go forward effectively and efficiently. It's our desire to do that irrespective of whether or not the concerns we have with the bill are addressed; we clearly will do our best efforts to implement it as passed, but we need the time to be able to do that.

Our current costing analysis, which is done within a framework that all jurisdictions are using, indicates to us that one-time costs in Saskatchewan are around the level of $15 million. I know that sounds extreme, but $10 million of that is for systems development. We are in the unfortunate position of having systems that are woefully inadequate for the job they're doing now and are totally incapable of doing the job they will be required to do under this legislation. There's probably $5 million to $6 million in ongoing annual costs for the jurisdictions simply for programming under this legislation—and that deals with health, education, social services, and justice costs, as well as legal aid.

When we were here in February 2000, Mr. Whyte discussed four precepts that he suggested needed to ground youth justice reform. Those are public safety, sympathetic and constructive response to youth offending, efficiency, and public trust and understanding. In our view, Bill C-7 does not go far enough to address any of those requirements or precepts.

I say this respecting the fact that my federal colleagues have worked very hard on this legislation, and this is no comment on their hard work, but rather that on the legislation itself. As my colleague from Manitoba has said, it is so complex and attempts a process of decision control, discretion control, through the drafting of the legislation that makes it extremely complicated. It may appear elegant on its surface, but it will be extremely complicated and difficult to implement and administer.

The first area is public safety. This legislation's criminal law must balance the needs of offenders, victims, and communities. We do not feel the balance was adequate in Bill C-3, and that balance has been further jeopardized by the drafting in Bill C-7. Examples of that are given in the document that was distributed, but clearly the change in the preamble, the change in the section 3 principles, detract from the overall emphasis on public protection. I find this surprising, as this committee at least has indicated the importance of criminal legislation addressing public protection when you deal with adult criminal legislation, such as the Corrections and Conditional Release Act.

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As well, as my colleague noted, denunciation and deterrence are not mentioned in the sentencing principles of this legislation. It may be that they can be read in, as implied within the terms, but I don't believe that is clear and I think this is a flaw in the legislation. It would be difficult to foresee how denunciation and deterrence are relevant and credible sentencing principles for adults 18 and over, while somehow they are absent for those under 18. This is particularly difficult if you think of situations such as youth swarming, youth gangs, those sorts of activities, where denunciation may be something the public clearly expects to hear from the courts in sentencing.

Finally, the principles need to recognize the acceptability of incapacitation or separation of youth from society. This is not done, as it was and is done in the Young Offenders Act, under paragraph 3(1)(b). There are times when incapacitation or separation from society is important for the youth's needs, as well as society's.

I'm pleased that recent amendments to Bill C-7 did recognize the issue of cultural differences. That's very important in dealing particularly with aboriginal offenders in Saskatchewan, and we support that change.

Reforms are needed to put the reference to primacy of public protection back into the preamble, to return to the wording of subparagraph 3(1)(c)(iii), so that public protection is not just a long-term goal, but actually an immediate goal, when you're looking at the sentencing of any individual offender. Include a statement in clause 3 on separation from society, where necessary, and also, in clause 38 refer to denunciation and deterrence as sentencing principles.

The second major theme is sympathetic and constructive responses. Saskatchewan's approach to young offenders and youth offending is clearly sympathetic to the direction the federal government is trying to go. We don't disagree with the fundamental direction of the bill. We disagree with the tools that are in the bill. We have been working since 1993 with a child action plan in Saskatchewan that tries to look holistically at the needs of children, and as well, we adopted in 2000 a comprehensive youth services model, where we learned very much from the Quebec experience, regarding how we would like to develop programming for youth. But we feel that provisions such as presumptive release and classification of offenders by offence type, rather than the needs of the youth, are opposite to what's needed for sympathetic and constructive response to youth. They set an inflexibility that is not helpful either to the administration of justice or to the youth.

Previously Saskatchewan suggested that the definitions and references to non-violent and violent offences be removed from the bill and “serious violent offence” be better defined. The definitions of non-violent and violent have been removed from the bill, but the references are still there, and they cause problems because of their vagueness.

“Non-violent” is used in paragraph 4(c) to talk about when extrajudicial measures should be presumed to be used. We don't disagree at all with the use of extrajudicial measures, and we have a very active alternative measures program already in place, which we hope to expand, with or without this legislation. Nevertheless, the reference to “non-violent” includes within its scope drug trafficking, impaired driving, criminal harassment—we're not sure what all it includes—and it may be that it's setting up something that is an unrealistic expectation in the community and in the legislation.

The reference to “violent” is found in clause 39 in respect of youth being considered for custody. Once again, we don't know what “violent” means. Does it include common assault? Does it include dangerous driving? We're not sure. We're not sure this sort of vagueness is acceptable in the legislation.

The more serious concern is “serious violent offence”, a definition that's important when you're dealing with what the fifth category of presumptive offence would be, as well as dealing with presumptive release and where you can ask for youth to be retained in custody. Right now that definition talks about causing, or attempting to cause, serious bodily harm. That's not terminology found in the Criminal Code in any place. We don't know what it means. It may mean that there has to be actual maiming or permanent injury to a person before you fall within that classification. If that is so, that's a terribly narrow classification of a serious violent offence. It would not include kidnapping. It would not include most sexual assaults. It would not include robbery. It would not include dangerous driving. There are many categories of offences that simply do not seem to fall into that, which in fact are considered generally by the public at large to be very serious. It's not at all clear that this sort of terminology would cover psychological or emotional harm, in cases of sexual assault, for example, or criminal harassment.

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We are also very concerned about presumptive release. We feel it does not encourage reintegration. Indeed, it may serve the opposite, because there is no incentive for the youth to engage in programming and positive activities while in custody, because they are entitled to release without having made any efforts to rehabilitate themselves. This may set up a pattern that they then follow in the community.

We do believe there are ways to address this. We would suggest first that the violent/non-violent terminology in the act actually be deleted, and that the act merely contain a provision directing the courts to consider a level of risk and harm when sentencing, so that they are able to look at the whole panoply of concerns and not be offence-based.

If that's not acceptable, then replace “non-violent” with “property offence” in paragraph 4(c), delete the reference to “violent” in clause 39, and better define “serious violent offence”—as my colleague from Manitoba has suggested—either by using a list of offences, a reference back to section 752 of the code, or at least in the definition that is currently in the act, take out the words “serious bodily harm” and just say “bodily harm”, and then we can rely upon the case law in the code definitions.

Replace presumptive release scheme with one that entitles release at two-thirds of sentence unless the provincial director or crown decides to oppose the release because it does not meet certain set criteria—those criteria being the same criteria that are used now when youth want to be reviewed out of custody, that is, they have to have shown some progress. There has to be some reason to believe that they would be successful on release. Provide that where youth do not agree with the decision of the provincial director, they in fact have access to the crown for a review.

Alternatively, lower the threshold for retaining youth in custody on presumptive release so it's not simply a serious violent offence that they would be at risk of committing, but at least a violent offence prior to expiry of sentence.

In terms of effective and efficient provisions in the bill, the bill does interfere—as my colleague from Manitoba has indicated—and intrude into areas of provincial jurisdiction. This is going to have significant repercussions on provincial resources.

As regards clause 19, which deals with conferencing, while we don't disagree with the concept, once again, of conferencing, the fact that the clause only allows the jurisdiction to govern or set out rules that would govern the practice of the provincial director, but not to govern the practice of the judges or justices of the peace, means that in fact there is no control over this section. It's our estimate that conferencing will cost an average of $1,600 per case when a conference is held, when you talk about the multiple parties that have to be represented. This could play havoc with the system in terms of delay, in terms of the demand on resources, and in terms of case management by those actually charged with case management, which are the provincial officials.

A similar statement can be made regarding clause 35, which proposes the new mechanism for referral to child welfare authorities. It's too vague in whole. It is not effective in the sense that there is no clarity in the section about why it's being referred to child welfare authorities. It may or may not fit within the child welfare criteria in the jurisdiction. It will place new demands on intake resources that are always strained.

So the reforms are then: delete clause 35 or provide greater clarity; make sure clause 19 applies to everyone, including judges and judiciary, or do not include the judiciary within clause 19.

With regard to public confidence and understanding, as I indicated, there are real concerns about the complexity of the legislation. There are terrible concerns amongst those who will have to administer it about the sentence calculation rules. We've been working with federal colleagues and others on a sentence calculation manual that is currently 83 pages of very complex sentence calculation, which Corrections people may understand, but I have little confidence that lawyers, judges, and the general public will be able to understand.

In closing, we believe in a separate youth and adult criminal justice system. We believe in the current age ranges. We believe in a continuum of responses to youth offending. It is not the direction of this bill we object to, but the tools contained within it.

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Thank you.

The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Pottruff.

Ms. Brock, I understand you do not want to testify, but you will be available for questions.

Ms. Carolyn Brock (Acting Executive Director, Manitoba Corrections, Ministry of the Attorney General (Manitoba)): That's correct.

The Vice-Chair (Mr. Ivan Grose): Thank you.

Now we start with a round of seven minutes, and I advise the witnesses that this also includes your answer, so you could talk out the member.

Starting with Mr. Cadman, please, for seven minutes.

Mr. Chuck Cadman (Surrey North, CA): I'll try to keep the questions short to give you an opportunity to answer.

I am a bit confused, because more and more from the provinces now—and we certainly heard it from judges and from the legal profession on Bill C-3—we are hearing things concerning the complexity, and even more often about the funding problems. The minister has repeatedly told us there's been extensive consultation with all the stakeholders—and I'm assuming this must mean the provinces—on these issues. Yet we see this enormous complexity being referred to, and the problem with funding.

I'd like to hear from both of you. Do you think this reflects that there wasn't enough consultation done in the first place, or is it that the government just wasn't listening?

Ms. Betty Ann Pottruff: There certainly have been ongoing meetings during the preparation of the legislation.

There have been numerous suggestions made by the provinces and territories to try to simplify areas of the legislation touching on many of the issues I also referenced. Those suggestions have not been, by and large, adopted by the federal government.

Mr. Rob Finlayson: There have been two major areas of concern to officials, as well as deputies and ministers.

The first is the cost-impact analysis. This has been talked about at the deputy minister's table. In fact, whenever legislators are considering a new piece of legislation, a serious and lengthy process of cost-impact analysis needs to be done. It absolutely needs to be done. And there's agreement around the table that this needs to be done. But I'll tell you, this was not the case with this piece of legislation. I suggest, with the greatest of respect, this is one issue that will continue to come back to the federal government time and time again over the years—the impact of the cost.

The second major issue that again has been raised is about intrusion into provincial jurisdiction. Everyone is in agreement, I believe, that a new piece of legislation governing youth in conflict with the law is needed. It's required. But the downloading of responsibility onto the provincial governments insofar as the cost is of tremendous concern. At the same time, what the federal government wants to do with this legislation is to micromanage how we do our business, and that too is of tremendous concern to jurisdictions.

Mr. Chuck Cadman: Here's something else on extrajudicial measures.

We can all agree they are appropriate. In most jurisdictions they've been around for a long time. I know in B.C. they've been used for some time. The federal government has now decided to put them in as a unit of the statutes now, to refer to them in this way.

We're suggesting—and a lot of people are suggesting—they should only apply to first-time offenders. The way it's worded now, it could apply to any number of times the same young person is dealt with.

Have either of you done any kind of an analysis on some method by which the provinces can track young people as they move from jurisdiction to jurisdiction? Without this, there might have been a cautioning in one case in one jurisdiction, and then the young person moves, and there may be another cautioning in the new jurisdiction without this second jurisdiction even being aware of the first incident of cautioning, or some even more serious measure, like conferencing or some other thing.

How would this need for tracking impact the provinces financially? Or do you intend to do it?

Ms. Betty Ann Pottruff: Certainly in terms of doing our own analysis on system needs, the area of tracking extrajudicial measures, this sort of process is part of looking at the overall need within the jurisdiction, trying to find the capacity to do it. We certainly don't currently have this capacity.

Between jurisdictions we would not currently have this capacity either. This would be a long-term development issue in terms of an integrated justice system, Canada-wide. This is a continuing subject of discussion between jurisdictions, but at this point discussion is primarily where it's at.

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Mr. Chuck Cadman: I'm referring more to tracking within the province, say between Regina and Saskatoon.

Ms. Betty Ann Pottruff: Yes, we certainly have looked at this as an aspect within the province.

We would need to deal with the system's development here to allay exactly the types of concerns you have: that in fact the decisions are required to be made based on previous dealings with the youth, and you need to know what those previous dealings were.

Mr. Rob Finlayson: We need to have a system to track the history. Of course, we have the CPIC system to deal with people convicted of criminal offences.

We're very concerned with the abilities of our police agencies—municipal police forces as well as the RCMP—to track these cases. The onus is on them, as you will note, to alert victims; if a matter has been referred for an extrajudicial sanction, the victim has the right to know what's happened. Well, it may be difficult to let the victim know, if the police can't track it themselves.

Again, it does come back to the issue of costs.

Mr. Chuck Cadman: How much time do I have?

The Vice-Chair (Mr. Ivan Grose): You've got a minute and a half.

Mr. Toews.

Mr. Vic Toews (Provencher, CA): I'm somewhat concerned here.

We've spent a number of years now going through this entire process. You're telling us that this legislation is more complex, more difficult to understand, more difficult to administer, that it intrudes inappropriately on provincial jurisdictions. I haven't heard one advantage it has over the old Young Offenders Act, which had absolutely no credibility.

Can you help me with this issue?

The Vice-Chair (Mr. Ivan Grose): It's likely to go over seven minutes, but go ahead.

Mr. Vic Toews: I want the record to note that the two witnesses looked at each other and laughed.

Ms. Betty Ann Pottruff: We're delighted to have the opportunity, I'm sure.

Obviously, there are areas in the bill where a clear statement of principles, if we get the statement of principles right, would be an advance over the current legislation. There is an expansion of the continuum of sentencing options, and this kind of a menu may be appropriate for the court. Although we could use many of those sentencing options now, having them better defined in the legislation may be a benefit.

It is possible—as my colleague from Manitoba has indicated—that in trying to micromanage the provincial administration of justice, this legislation has become overly complex.

Mr. Rob Finlayson: I'm going to let Ms. Brock handle this question.

Ms. Carolyn Brock: Certainly on the question of the principle of the act, we agree that an overreliance on custody is not a good thing; there are ways of dealing with young offenders other than having them in custody. Emphasizing this is a good thing.

With respect to extrajudicial sanctions in Manitoba, we do have kids appear for alternative measures, as they're referred to, on more than one occasion, and it's still viewed as taking public perception and accountability into account.

The positive aspect of the bill is how it tries to look at alternatives to custody. Jurisdictions have not always been as creative as they could be in looking at other solutions to issues. The bill moves us in this direction, and that's a positive.

Mr. Rob Finlayson: I'd also add, Mr. Toews, the reference to victims is a positive. The incorporation of the need to consider victims' rights is positive.

Our concern again though is that it may simply be lost. It's fine to state it as a principle, but we need to embrace it more with the legislation.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Finlayson.

Monsieur Bellehumeur, you have seven minutes.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Thank you very much. Thank you for agreeing to appear as witnesses. It is very helpful and informative to hear your views.

When the Minister of Justice introduced Bill C-3, which is now Bill C-7, she gave three arguments for comprehensively amending the Young Offenders Act. The first was that it would make the legislation clearer and easier to enforce. The second was that it would speed up legal proceedings and processes involving young offenders. The third was that it would ensure, insofar as possible, greater public confidence in the way young offenders are dealt with.

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The briefs you have presented are very clear, and I thank you for that. Your evidence and your briefs indicate that the cost of implementing these measures is enormous, that there are a lot of questions about definitions, for example as regards to serious violent offences, that lengthier proceedings and delays would ensue, that there is an intrusion into areas of provincial jurisdiction, and that the legislation is very complex. In your view also, it will be very difficult to determine sentences. I am very pleased to hear a witness make that observation, because I have said on a number of occasions that we will need specialists to do that work since the system will be so complicated. The Department of Justice will even have to do the same thing for adult courts, that is have a specific schedule for judges.

In your brief you talk about backlog, of delays and the complexity of proceedings. This impacts on the three objectives sought by the minister in overhauling the bill. I am not saying she has failed, but I would ask just one question: are we to understand from your evidence that the adoption and implementation of Bill C-7 should be suspended pending an in-depth analysis of the costs involved, of the way the legislation is to be implemented in the provinces, and especially of possible intrusion into areas of provincial jurisdiction? Should we not come back after such a study has been carried out and then pass a piece of legislation satisfactory to the provinces? We must remember that it is the provinces who will have to implement this legislation on a daily basis and especially that they are the ones who will have to shoulder the enormous costs related to this bill.

[English]

The Vice-Chair (Mr. Ivan Grose): Who would like to handle that?

Mr. Rob Finlayson: I think the cost analysis is required. I believe it would certainly be beneficial to everyone concerned, including the federal government, to know what the likely cost of this legislation is going to be to the jurisdictions. I say that because, as I said earlier, if it's not done, you're going to be hearing about it for years to come. We already hear arguments at the table about the 50-50 cost split and how that has been an issue of debate for years. So as I say, if this is not done, it's only going to result in further arguments.

In the interim, I would suggest to take advantage of the opportunity to make some of this simpler, to make some of it easier to understand. I don't think we should be rushing. I do believe, as my colleague from Saskatchewan has said, that many good principles are here. The complexity can be addressed through using plain language. If you look at some of these clauses... for example, my colleague has flagged a couple of them, such as subclause 45(2) of the bill. The first sentence is, I believe, 86 words long. That's unacceptable. As I say, I think we could take advantage of the time in order to make it simpler.

At the end of the day, if we have the proper cost analysis, if we simplify it, and if we can reduce the number of off-ramps that will only result in greater delay, then again I think the jurisdictions would be more satisfied.

So there are a number of things we can do, starting with the cost analysis.

Ms. Betty Ann Pottruff: I would echo the words of my colleague from Manitoba. I think the cost impact analysis is an important piece of work that needs to be done. It may be an elegant piece of legislation, but it may not be effective and it may not be functional.

• 1620

We need to determine what would best move us forward in the direction in which this bill has tried to lead us. As I say, Saskatchewan does not disagree with the direction. The tools, the mechanisms within the bill, are what we find very difficult. The concern is not just with the cost of implementation and the ongoing costs of the legislation, but with the fact that we're going to have to take scarce resources away from other areas to do legislative implementation, rather than programming around these youths, which is what we would prefer to do.

So I certainly would second the idea that it needs to have a cost-impact analysis. The deputy and the ministers of justice nationally have spoken to the need for that before major pieces of legislation proceeded in the past. I also think there is time to then take a look at the legislation in a functional sense in terms of what is required, and to build from there rather than trying to cross every “t” and dot every “i”.

The Vice-Chair (Mr. Ivan Grose): Thank you very much, Ms. Pottruff.

Mr. Bellehumeur, you have about 15 seconds left, but I'll add it on to your next round.

[Translation]

Mr. Michel Bellehumeur: I would just like to thank you again for the frankness and honesty of your evidence to the committee, because I know that you have been subject to pressure. I know that the federal department is trying to get quick passage of the bill, and nevertheless you have come here to tell us what you think of it. I would like to express my very sincere thanks to you.

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Bellehumeur.

Mr. MacKay, I wrote you in without your permission. Is that all right?

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

I want to extend my thanks as well for your very succinct and very helpful testimony.

I've been sitting here getting more and more depressed every time I hear the witnesses who have come before us on this bill. I worked in the system under the old Young Offenders Act. One of the inspirations for getting elected was to come here to work on this legislation. What we've heard, and what my colleague Mr. Toews—who has also worked intimately in this process—has heard is that the difficulties that existed with the old Young Offenders Act seem to have been exaggerated and compounded in this legislation. Attempts to simplify have dismally failed. This legislation is not only twice the size of the old YOA, but twice, if not three times, as complex.

I have no hesitation in informing you that previous witnesses, including those who have been there before, including judges, have indicated that they find this cumbersome and inexplicable. One witness phrased it that this was harder than Japanese arithmetic. This doesn't appear to be the type of legislation that is going to renew public confidence, let alone improve a system that has been struggling.

One of the things that jumped out at me in terms of the practical implications—and you've touched on this—is the inability of the police to perform this new assignment they have in terms of the extrajudicial measures, the new role that will be thrust upon them in terms of their counselling responsibilities and the tracking system that has been referred to as well.

I wonder if any of you have noted the inability of courts to hear evidence of these extrajudicial sanctions for bail hearings. That was traditionally the most useful method the crown had to deny custody or to make a case before a judge when they had a youth who appeared to be at a point in their activities that required removing them from their community. This type of collection of evidence is no longer admissible in a court of law. Therefore, the ability to deny bail based on prior behaviour that resulted in extrajudicial sanctions is inadmissible in a court. I wonder if you would comment on that.

Ms. Betty Ann Pottruff: I think there are always ways to get some information before the court, but clearly the use of information that results from something said during the extrajudicial measures or sanctions cannot be used.

I think there is a concern that the whole area of interim judicial release has been significantly narrowed and made more complicated by the reference to the fact you can't have remand unless the person would have prospectively been entitled to get custody. That becomes a circular argument. I'm not quite sure how the courts, the crown, or defence counsel will deal with leading evidence about whether or not, in the ultimate situation of all the facts being known to the court, this individual might have been entitled to custody given the limitations on custody.

• 1625

Certainly one of the issues calculated into the cost analysis is that this will make for more extensive and longer remand hearings.

Mr. Peter MacKay: I'm just restating, I believe, what you've already said. Is it fair to say the increased complexity, the introduction of new procedures that will be subject to new appeals, will also significantly add to the length of time from arrest to disposition if in fact it results in a guilty finding?

These new procedures seem to me to be incredibly problematic, not only because they're new, but because of the subject-to-appeal aspect. I remember one of the most complex things under the old system was a transfer hearing. Some of those problems, I would say, have been alleviated.

This, again, goes into a whole new realm of making the final analysis as to whether the disposition will be as an adult or a youth at the end of the trial. Again, I find it to be somewhat problematic at the end of the day in terms of how long it's going to take to get to that point.

Again, I would invite comment.

Mr. Rob Finlayson: We would even focus our comments particularly on the conferences that are referred to under clause 19. That's a particular area of concern for jurisdictions from the standpoint that it is so broad. It basically says anybody can convene a conference at any time to make any decision that's required.

You tell a lawyer they can get a conference, they'll take advantage of that. Maybe not all of them, but some of them who want to drag out the case will do it. There doesn't appear to be any way to bring that in. There need to be some really strict guidelines within the legislation itself that restrict the use of conferences. Our concern is that this doesn't, and the result will be delays.

Mr. Peter MacKay: There's no mechanism you see in the current act that places any limitation on lawyers convening even numerous conferences if they're able to justify that before a judge.

Mr. Rob Finlayson: That's correct.

Mr. Peter MacKay: I have a final comment or inquiry for request for comment. Some of the language here itself is going to be very problematic in the sense that—I think again I'm echoing what was said—lawyers, judges, caseworkers, and police officers are having difficulty following some of the cross-references and even the language itself.

Shouldn't we, as an overall theme in drafting an act intended to address youth, be looking at ways to make this a common parlance in language that is going to make sense not only to the untrained, but to the youths themselves? I think we've gone sadly astray in the way in which this legislation is drafted.

Finally, some of the worst working mechanisms in the adult system are superimposed for the first time in this act. I'm talking in particular about the use of conditional sentencing that is now being co-opted into the youth justice system, and statutory release, which we just finished a study on in our adult system, which appears to be failing us and at times jeopardizing public safety. Now we have the same thing thrust upon us in this legislation.

Do you agree with that? I'm not trying to put words in your mouth, but do you see those as difficulties as well?

Mr. Rob Finlayson: I'll let my colleague Ms. Brock deal with the statutory release part.

Let me just say that I think there are two pieces of legislation that are passed provincially or federally that need to be as clear as they possibly can to Canadians. One is the Highway Traffic Act. The second is the Young Offenders Act or the Youth Criminal Justice Act, because you have parents who want to know what the consequences are going to be for their child.

Mr. Peter MacKay: Sure.

Mr. Rob Finlayson: So as I say, the Highway Traffic Act we all know about. If there's one thing that people tend to get into trouble with it's speeding, going through stop signs, or whatever else. If you make your Highway Traffic Act too complex, people don't understand it and they come back asking what they're charged with.

• 1630

The Young Offenders Act is equally as important. We need to make it as simple as we possibly can for citizens of this country. Parents and children pick it up and need to be able to know what they're charged with, what the consequences are, and what the likely future is going to be for them.

As I say, I'll let Ms. Brock deal with the statutory release part.

Ms. Carolyn Brock: I'd like to make one comment based on the question of whether there is something good about this act. There are a number of things. One of them is the emphasis on rehabilitation and reintegration. Certainly in Manitoba, we've tried to move that into our current system right now, where we're looking at rehabilitating and reintegrating youth at the earliest possible time.

What the statutory release doesn't consider is the youth readiness for reintegration. It's going to be fairly mandatory—arbitrary. You could have a youth at any point say—and I won't use any terminology that I am used to hearing kids say—“I'm not participating in your program because I'm going to be getting out.” We will have no jurisdiction to do anything different from letting them out. When they do come out, it will be very difficult for us to enforce some of the supervisions with those particular youth.

With the reintegration leave, I think we could have probably worked with that a little bit more and really looked at that provision to try to reintegrate youth at the earliest possible time, using the reintegration leave there and using the reintegration potential that's available to us. Most jurisdictions have instruments now that clearly help them do assessments of young offenders. We know which ones are high risk, which ones are medium risk, and which ones are at low risk to reoffend. So we really would like to put the resources to the highest and the medium risk and not widen the net in terms of having to give some of that supervision to the lower-risk kids.

Mr. Peter MacKay: Ms. Brock, just so I understand it, are you saying this will actually be less effective?

The Vice-Chair (Mr. Ivan Grose): This is it.

Mr. Peter MacKay: Yes, that's fine, Mr. Chair.

You're saying this system will actually be less effective in determining those goals and the appropriateness of release?

Ms. Carolyn Brock: I believe in some circumstances it will be, because those young offenders who are very non-compliant and not willing to look at their behaviours will still be able to be released without us having any say in that. Taking them back to court, with the argument to keep them in and the continuation of custody, is too great in most circumstances, I think.

The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Brock.

I have one more to go in this round. I have no indications of anyone in the next round.

Mr. DeVillers, please.

Mr. Paul DeVillers: Thank you, Mr. Chair. I want to refer to clause 35, on which both witnesses made comment. That's the referral to a child welfare agency for assessment. Mr. Finlayson, you described it as an intrusion into provincial jurisdiction in your comments. Ms. Pottruff, your brief says the bill overreaches federal criminal law authority by instituting that provision.

I can understand how it could maybe add a financial burden on the child welfare offices of the provinces if in fact the courts were making many referrals. I don't really see the jurisdictional argument when it's the youth justice courts, which are administered by the provinces, making referrals to the child welfare assessment agencies of the provinces. I'm just having a little difficulty understanding how it's a jurisdictional problem. I can see the financial and the fiscal repercussions if it's used an awful lot.

Maybe you could just explain a little bit how you see it as a jurisdictional intrusion.

Ms. Betty Ann Pottruff: The section itself, as a section in a criminal law statute, is of course a federal statute. The argument is that use of child protection authorities—the legislation around that—is property and civil rights in the province, which we deal with through our Child and Family Services Act, which already has a mandatory requirement that anyone who has a concern about a child protection issue must report that to a child protection authority. This is in fact a duplication of an obligation that already exists in provincial legislation. It is a federal intrusion into provincial jurisdiction in the sense that this would appear to allow the court to order that a referral be made. The expectation would be that some assessment would be done whether or not that youth fits into the child welfare criteria of the province.

• 1635

For example, in Saskatchewan our child welfare legislation basically deals with youth under age 16. We could expect to get referrals here of youths 16 and 17 years old, which is outside the scope of our legislation. This would be an intake responsibility imposed on the child protection authority because while it doesn't say that a report back to the court is required, it would be my expectation that there would be members of the judiciary who would expect to see some report back on what had been done. In that sense it's a duplication in terms of provincial legislation. It's also a direct intrusion in that it makes requirements over and above what our provincial legislation requires.

Mr. Paul DeVillers: But does the fact that the act would be administered by the provinces even though it's a federal statute... There is still the administration of it—

Ms. Betty Ann Pottruff: The judges are still administering it as criminal law.

Mr. Paul DeVillers: Okay. That's the crux of the problem here.

Also, when both officials from the provinces of Manitoba and Saskatchewan were here previously on Bill C-3, there were a number of concerns raised that we have attempted to address here. Mr. Finlayson said in his comments that they caused more difficulties than they alleviated. When I think of changes that provide for more judicial discretion in determining custody and supervision as well as determining portions of the sentence to be served for serious violent offences; of provisions that allow the provinces to establish rules for convening and conducting most conferences; of the changes to the definition of serious violent offences... None of those changes have been drafted, I understand, in response to the concerns expressed previously. None of them have had the desired effect on you, from what I am hearing from you.

Ms. Betty Ann Pottruff: That would be accurate in the sense that they have not been given the desired direction or scope with respect to the request that was made. A half measure perhaps provides us with no more benefit than does no measure, and in some cases it does us some harm.

Mr. Rob Finlayson: We perceive particular problems with the definitions of violent, non-violent, and serious violent offences. We think that what has been done may be more troublesome because the definitions of the first two have been taken out and nothing has been done with respect to either a definition for the third or a schedule of offences. That is our concern with respect to that part of it, so we would suggest that yes, to some degree some of the attempts have not gone far enough.

Mr. Paul DeVillers: Thank you, Mr. Chair.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. DeVillers.

Mr. Spencer, please. You have three minutes in this round.

Mr. Larry Spencer (Regina—Lumsden—Lake Centre, CA): My questions are simple because I believe in simplicity, so I want to perhaps cut to the bottom line. I have three or four quick questions.

I know I am asking you for an opinion, but I understand that's why you're here. You're the expert opinion givers, and I want that from you. If you were in our position, where we have to make a decision on voting or not voting for something... My first question is this. We want to teach our young people responsibility and to be responsible as a part of what we're doing on this. If we passed this bill in its present form, would you consider this to have been a responsible act of government?

The Vice-Chair (Mr. Ivan Grose): I'm going to allow this question, but I have a little problem with it. I don't think the witnesses are really in a position to answer that. If they want to answer it, I will allow it.

Mr. Rob Finlayson: I was simply going to say again that with respect to the legislation in its present form there are certain key things that in our view are irresponsible. That is not to say the whole package is irresponsible, but certainly there are certain things that are going to cause tremendous problems.

Mr. Larry Spencer: Obviously that would not apply to the whole thing.

Mr. Rob Finlayson: Right.

Mr. Larry Spencer: My second question is, if you had to choose between Bill C-7 in its present form and the Young Offenders Act we already have, which would you choose?

Ms. Betty Ann Pottruff: Although I don't have jurisdictional sanction for this, I'll say it anyway.

• 1640

We asked for some specific amendments to the YOA in 1998. That was the ministerial position in Saskatchewan. We did not ask for an entirely new bill. I think we would still be satisfied with the YOA with those changes we'd addressed, and we feel that the approach Quebec has taken in terms of implementing young offenders services is the direction we want to go. We can go in that direction whether or not we have this legislation.

Mr. Rob Finlayson: I would say the issue of cost is so great with this new legislation that for this reason alone we'd probably prefer the present scheme to continue.

Mr. Larry Spencer: But if cost were not a factor, which would you choose?

Ms. Carolyn Brock: I think that for the principles this bill is trying to achieve the current legislation already allows us to go there. I think that as jurisdictions we haven't gone as far as we could have gone with it in terms of meeting some of those objectives.

The Vice-Chair (Mr. Ivan Grose): Mr. Spencer, have you finished?

Thank you.

Next will be Mr. Myers. You have three minutes.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you very much, Mr. Chairman.

First of all, I want to thank the witnesses. I think it's very appropriate and very important that you be here today to fill us in on your views and to present the kinds of perspective you bring to this table.

As you know, this is a very important piece of legislation. As a government, the federal government, we're most interested in seeing that we move in a manner consistent with the values of all Canadians. It behooves us to make a good and concerted effort to hear your views.

I wondered if you could tell me a bit about detention prior to sentencing for our young people in your respective provinces. I believe it's in clauses 28 through 31 in the new bill, and it was probably clause 7 or perhaps 30 in the old bill with respect to young people being detained with adults. I wonder if that happened in either of your provinces, and if so, how often does that occur and what kind of implications does that have? I'd be interested in hearing your response, and after that I'll have a supplementary question, Mr. Chairman.

Ms. Carolyn Brock: With respect to young people being detained with adults, there's a section under the Young Offenders Act where they can be detained with adults, and it has been used on a number of occasions in Manitoba. It hasn't been used recently since we have a more secure facility to house some of those youth in situations where they're presenting serious behaviour problems.

Mr. Lynn Myers: How about Saskatchewan?

Ms. Betty Ann Pottruff: Generally it would rarely happen that you'd have detention of youth and adults together. When it happens, it's normally a case of remote locations or transportation problems that require that sort of handling, but it's certainly not the preferred solution or a long-term solution.

Mr. Lynn Myers: Would you have numbers for the last three years as an example?

Ms. Betty Ann Pottruff: Not in my head. I can try to find them for you. I'm not sure whether we'll be able to get them or not, but instances would be rare.

Mr. Lynn Myers: I have a supplementary question, Mr. Chairman.

Would you recommend changes to clause 30 of the new bill in relation to this? I think it's subclause 30(3).

I'm asking if there is any other advice you could give us on this clause.

Ms. Betty Ann Pottruff: To my knowledge we're relatively satisfied that the clause gives us the flexibility we need.

Mr. Lynn Myers: Does that apply to Manitoba?

Mr. Rob Finlayson: I believe that's the case for Manitoba as well with regard to our current reading.

Mr. Lynn Myers: Good. Thank you very much.

The Chair: Thank you, Mr. Myers.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: My question will be very short. To some small degree, it follows up on Mr. Spencer's last question.

We know that the federal government is nevertheless budgeting for an amount of $200 million over five years, although they may be underestimating the amount involved, to implement Bill C-7. My question is a very simple one. In view of your answer to Mr. Spencer, if this amount of $200 million is available and used to enforce the Young Offenders Act, do you think that the legislation can be better implemented and perhaps brought closer to the way young offenders are dealt with in Quebec?

• 1645

[English]

Ms. Betty Ann Pottruff: Briefly, yes, I think that's certainly true, and in fact some of those resources are currently being used in that sense, because the moneys available for custodial programs and correctional programs are flowing already to the jurisdictions. So we are able to do some readjustment of programming. I think it's also true that one of the concerns jurisdictions have is the lack of adequate federal funding across the board, which has been a restraint on moving in directions you would want to go. So certainly more money can be used more productively to meet the goals of the YOA.

Mr. Rob Finlayson: I would concur with that.

[Translation]

Mr. Michel Bellehumeur: I have no other questions.

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Bellehumeur.

Mr. Peter MacKay: So you would rather the money and not the legislation. Further to that, is it fair to say there is nothing preventing you from accomplishing the very laudable, noble goals of this act and putting greater emphasis on reformation, rehabilitation, and distinguishing between violent and non-violent offences? Is there anything in the current YOA, given an increase in resources, that would prevent you from achieving these very laudable goals?

Ms. Betty Ann Pottruff: I think there are a couple of areas of refinement we have supported, and one is the change in the transfer approach, which we think will actually streamline those cases better. That would continue to be an area of some concern, although there are so few cases that it's not a major impediment.

We are actually quite supportive of the idea of a deferred custody sentence, for which we don't currently have the capacity. Saskatchewan has used the conditional sentence quite actively with adults, and we are relatively satisfied that it's a good addition to the sentencing menu. Those are the two I can think of that we would currently not be able to do under the YOA. Most of the other changes we believe we could implement.

Mr. Rob Finlayson: I would simply say that I believe there are a number of amendments provinces would still want to put forward to the YOA to make it better.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. MacKay. Ms. Allard.

[Translation]

Ms. Carole-Marie Allard (Laval East, Lib.): I would also like to thank you for coming here to Ottawa to appear before the committee. I am particularly pleased to hear your evidence because it is the first time I have had the opportunity to do so. I was elected in the last federal election. As a lawyer in private practice, I also worked with the current Young Offenders Act.

I think that Mr. Bellehumeur and I must not have heard the same objectives expressed by the minister. I think that through this bill the minister clearly wanted to update the system and guarantee to young people the same fundamental freedoms that adults enjoy. She also wanted to ensure that more young people would not be treated as criminals. In other words, I think that the objective is to provide special measures before cases are taken to court and young people put on trial. I believe that in this regard the objectives of the bill are quite clear. I also think that the bill seeks to ensure public protection while also meeting the government's objectives of rehabilitating and reintegrating young people into society.

I note, particularly in the brief submitted by Saskatchewan, that you feel the bill does not sufficiently ensure public protection. On pages 10 and 11 you in fact state:

The imposition of the proposed scheme for presumptive release of youth from custody for the final third of their sentence interferes with the ability of the youth justice system to support effective reintegration and ensure public protection.

Do you in fact think that there is an imbalance in this bill as regards ensuring public protection? Would you give priority to public protection over the rehabilitation or social reintegration of young people? I realize my question seems a little complicated, particularly when it is translated.

[English]

Ms. Betty Ann Pottruff: Yes, I did. Thank you.

• 1650

The explanation we're trying to give in the document is that public safety is comprised of three elements: the offender's needs, the victim's needs, and the community's needs. Our concern is that with the drafting of the legislation that balance is not there. In fact, we don't disagree with the references to reintegration and rehabilitation. We think all the factors mentioned in the bill are in fact appropriate factors.

What we think is that there is not sufficient reference as well to public safety in a way that makes it clear that what the courts are doing is traditional criminal law process and balancing all those factors together. The concern is that because that's not entirely clear, as for example in clause 3, which says that these various factors are all to promote long-term public protection but not immediate public protection with this offender, in this instance, in this situation, we may be doing something in the legislation that the courts will interpret much differently than any of us thought they would in the sense that that will not ensure that balance. So we're saying let's reflect the criminal law as we understand it and make sure the balance is there front and centre for everyone.

We are not saying public protection in the sense of the victim's or the community's needs overriding the offender's needs. That's not it at all. We're simply asking for a good balance to make sure it's clear.

The Vice-Chair (Mr. Ivan Grose): We're over time. Can you make it short?

[Translation]

Ms. Carole-Marie Allard: In your view, is there a good balance in the current Young Offenders Act?

[English]

Ms. Betty Ann Pottruff: I prefer to see three because I think the current principles do provide actually a better balance than what is in Bill C-7. I thought Bill C-3 was an improvement over the current legislation.

The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Pottruff.

Mr. Maloney, please.

Mr. John Maloney (Erie—Lincoln, Lib.): Resources have been a real concern for both provinces. Currently, I understand that Manitoba receives roughly $5 million a year and Saskatchewan roughly $6.5 million. In the transition funds over the next five years or after the act is implemented, Saskatchewan will receive roughly $8 million and Manitoba, I believe, roughly $8.8 million. How would your respective provinces intend to utilize these funds, which is considerable money looking at what you are already getting?

Ms. Carolyn Brock: With respect to the cost sharing that's occurring—I'll speak to Manitoba—the way it's set up right now, we're getting a 50-cent dollar on high-priority areas and lesser amounts if it's a low-priority area. For example, for custody we're not getting a 50-cent dollar. We'll get closer to a 20-cent dollar on those areas.

So what the federal government has set up is that you will get your money according to whether or not you put it in the right areas. Manitoba and I think Saskatchewan as well have both set up systems where we're taking the interim bridge funding and really trying to address the principles of the federal strategy, which includes the act. We are using those moneys for enhancing our alternative measures or extrajudicial sanctions, looking at the issues of conferencing and alternatives to custody, and enhancing our intensive support and supervision programs so that we can have alternatives to the court, as well as reintegration provisions for kids coming out after and post-custody.

So most of the jurisdictions are looking at using that money to target those areas that the legislation and the federal strategy are moving us in the direction of, because we agree with it for the most part. We're putting very little into custody. We're trying to bring our custody numbers down to ensure that the appropriate kids are in custody. We're trying to come up with as many alternatives as we can, so that judges have an option when you go before them to give something other than a custody sentence, even for those situations where the public may view the impact as more serious than what we believe it may be. I think we're really trying to be very cognizant of what the federal strategy says, and we've each developed our own strategy. Manitoba has a youth strategy that's quite in line with the federal strategy because we believe it to be the right direction.

But we are very conscious of the public safety element and are trying to enhance our supervision situations in the community, so that where those young offenders are violent and need to be held in custody, we can move on those cases as quickly as possible and bring them back before the court.

• 1655

Mr. John Maloney: And in Saskatchewan?

Ms. Betty Ann Pottruff: Basically, it's as Carolyn has indicated. We are trying to work with the money to expand alternative measures, extrajudicial measures, and look at other ways of doing enhanced supervision of offenders in the community, risk needs assessment tools to better allocate the decisions in terms of where offenders should be. So, yes, we are working with the funding in that sense.

Mr. John Maloney: In Saskatchewan I understand the custody rate for youth is roughly twice the national average, or more than twice the national average. Do you anticipate these levels dropping significantly?

Ms. Betty Ann Pottruff: The short answer is probably not in the short term. You have to appreciate that Saskatchewan's reported crime rate is 57% higher than the national crime rate. Our actual use of custody per case is less than the average national rate of use of custody per case. What we are dealing with is volumes, and we don't currently anticipate that those volumes will decrease. We have a high-risk category of 14- to 24-year-olds that we foresee in the future we're going to need to deal with continuously in terms of trying to find appropriate programming to deal with the needs of the high-risk communities.

The Vice-Chair (Mr. Ivan Grose): Mr. Cadman, please.

Mr. Chuck Cadman: With respect to young persons serving adult sentences in provincial institutions, I am going to this issue because of the case in B.C. where a young person was convicted of multiple counts of murder and was serving time, because of his age, in a youth facility. The problem was that within a couple of years of starting his sentence he was out on a number of skiing trips and parties and all kinds of things. Of course, you can imagine the “proverbial”... hit the fan when that became public knowledge. I understand now that B.C. is working towards some kind of a dialogue with Corrections Canada, giving Corrections Canada a little more control over what goes on with young offenders serving federal time in a provincial institution. I wonder if you have any comment on that, and is there anything that you can see in this legislation that would cause problems in that area?

Ms. Betty Ann Pottruff: Generally, I think we've seen as beneficial the provisions that deal with more flexibility in terms of placement. We have more flexibility now in terms of placing youth on remand in adult facilities under this legislation, which has been an issue in previous situations where there have been serious offences and we have been looking at transfer. There's also more flexibility now in terms of dealing with youth who may actually end up having to serve a penitentiary sentence. So we see the range of flexibility in this bill, better than we currently have in the YOA.

Mr. Rob Finlayson: I also believe that we would agree with that position.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Cadman.

Mr. Owen.

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you all for attending before us today. I have some appreciation for the difficulty of your job, in just the responsibilities you have, in any event, but including sometimes the unintended or at least uncompensated extra burdens that are imposed on you by federal legislation.

I am a little confused though by the arithmetic around what is being presented as extra costs presented by this legislation. I do appreciate your concurrence in the principles of this legislation. I have variously heard the words “elegant” as well as “complex”, but I have also heard of a streamlining that the removal of the current transfer provisions can provide, and that obviously will be translated into an expense in terms of the administration of the courts.

Generally, with respect to the non-violent offender and perhaps first-time offender and diversion programs out of the court system altogether, or at least alternative to expensive custodial sentencing—all of which costs are now borne by provincial governments, both youth court and correctional facilities—where we're diverting cases or where there are alternatives to custodial sentencing, clearly there is going to be a saving to the provincial governments. One must, if you're going to be honouring the principles of the legislation, not simply take a cost-saving and save it. You've got to put it into programming, as you've identified.

You've also identified, from both provinces, not only agreement with the principles of diversion and alternatives and extrajudicial measures, but your lengthy experience with these practices. On the one hand, they're to save provincial costs that are now being incurred. In addition, you're already well advanced in terms of both appreciating the success Quebec has had over the years in its provisions and in mirroring the experience in British Columbia that has been mentioned. You're already well advanced, yourselves, towards this programming.

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I'm having a hard time understanding why there will be significant extra costs given the court and correctional savings. You're already involved in having implemented many of these programs because you agree with the principles and are getting extra federal money. I don't understand the arithmetic. Perhaps you could help me with that.

Ms. Betty Ann Pottruff: Simply stated, extrajudicial measures, while a good approach and one that may give better justice to the victim, the offender, and the community, do not come without a cost in terms of administration. Most of the cases, as well, that will flow into extrajudicial measures, even under generous guidelines such as ours, are not cases that would have ended up in custody. They would have ended up perhaps in probation, a fine, or community service.

The cost of dealing with those cases through extrajudicial measures, where in fact the result may be community service, is not a saved cost to the system. It is, as I say, an appropriate direction to go, but it is nevertheless a cost that is a transfer. We're seeing a shift with the legislation, a shift from the community sanctions to the alternative measures area. We hope to see a shift from custody down to more community services.

There are still enhanced costs within the legislation for actually processing those cases through the courts that have to go there. They will be the majority of cases. We'll still need to go through the system.

We have done detailed costing. Yes, the systems cost. I mentioned the conferencing costs and the mere administration of the new sentences. Administering a deferred custody system is an expensive process. You have to have very intensive supervision for the people out on those sentences, because of the provisions in the legislation that deal with how you supervise and deal with breaches in other provisions. While we appreciate the shift in cost, the overall cost will not be reduced and in fact will be enhanced because of the new provisions.

An example would be if we're not going to use custody to deal with those situations where youth are in very unstable living conditions. We don't disagree that that's not a good reason for custody, but these youth still need stable living conditions. We will have to instead have a community residence component where in fact they can have stable living conditions outside the custody. That comes no more cheaply than putting them in the community homes we now have. The costs are enhanced.

The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Pottruff.

Mr. Toews, please.

Mr. Vic Toews: Commenting very briefly, I think both the question from Mr. Owen and your response underline Mr. Finlayson's concern that there be a cost analysis to demonstrate the real costs. Unfortunately, the federal government has chosen not to disclose to the public by conducting that kind of cost analysis.

However, my question is a very narrow one. Presently, the bill provides for the discretionary disclosure of the identity of young offenders to certain authorities. The Canadian School Boards Association has called for a mandatory release of this information to school authorities. I've met with the representatives from the board. They certainly impressed on me the need for school authorities to be entitled to know if there are, for example, dangerous individuals among them. Again, we're not talking about a broad publication, as I understand their position, but simply that the school authorities should know.

The way I look at a school, a school is not simply there in our society to deal with the strict reading, writing, and arithmetic, but in fact to provide other social benefits. I can't help but agree with the School Boards Association that it would be in the interest of these authorities to know, for example, whether there is a dangerous offender, or someone who may not be dangerous, but needs assistance.

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If we have these resources in the schools—and I'm thinking of particular workers and teachers who specifically have to deal with those types of children, or have the abilities and the resources to deal with them—should they not be identified? Would you not agree with the Canadian School Boards Association on that point?

Mr. Rob Finlayson: We have received a brief submission from them as well, Mr. Toews, over the last few days. I think it's fair to say that we're concerned about the aspect of mandatory referral, and we would probably want a little time to consider that. The concern we have is with the need to protect information in certain cases, and whether that should be a mandatory or a discretionary right is something I think may need a little more consideration from authorities. But certainly we've heard them as well. I think it's a good point they make, one that does need serious consideration. We're concerned about all the ramifications of a mandatory reporting system.

Mr. Vic Toews: With all the consultation that has gone on, hasn't that issue been examined by the various groups?

Mr. Rob Finlayson: Perhaps Ms. Pottruff could answer that.

Ms. Betty Ann Pottruff: Certainly there has been discussion about the information sharing area, perhaps not in the detail that would have been desirable. But we too have received a brief from the school trustees, etc., and they raise an important point about information sharing. It is one we thought perhaps had been addressed through amendments that had been made previously through the legislation, but obviously that has not gone far enough to satisfy school authorities. It's not clear whether it's the legislation or the practice and the protocols that need to be in place.

Our sense is that the recommendation they've put forward for amendment will not achieve the purpose they're after and that the real purpose lies somewhere between the drafting of the legislation and actual practice, protocols, and training, so that in fact you do get appropriate levels of information sharing, because there will always be issues, as Mr. Finlayson has noted, where police discretion is going to be required as to whether you share information and how much you share, and with whom.

Mr. Vic Toews: So you would agree with them, while you may disagree on the issue of mandatory—and you're not coming to that conclusion—that the present legislation doesn't appear to deal with that appropriately? You said it lies somewhere—

Ms. Betty Ann Pottruff: It doesn't appear to satisfy the school authorities. Whether the solution is legislation or the solution is practice, I think we need to explore further, certainly in Saskatchewan. We've indicated to them that we're willing to explore that.

The Vice-Chair (Mr. Ivan Grose): I apologize for messing up your name last time. I'm from a union town, and at 5 o'clock you turn your brain off.

Mr. Cotler.

Mr. Irwin Cotler (Mount Royal, Lib.): I have a question for Ms. Brock and another one for Ms. Pottruff. One has already been covered by my colleague Mr. Owen, so I won't put that one to you.

Ms. Brock, you've been critical of the custody and supervision senses, particularly the mandatory release of young offenders after two-thirds of the sentence has been served, which you've characterized as arbitrary and prejudicial to the public protection and community interest. Apart from your critique on the merits, I have two questions. The first is, would you have in your jurisdiction the financial and other resources, as well as the necessary and experienced personnel, to provide the supervision that would be required by the community portion of such sentencing orders as do exist in the present proposed legislation? Second, are there any circumstances, in your view, in which less than a third of the sentence could be served in the community under supervision, and if so what would they be?

Ms. Carolyn Brock: We currently have an intensive support and supervision program in place. We view it as an extremely valuable program and as very effective in dealing with youth as they're coming out of custody and post-custody. We have been able to put that in place under the current legislation, and both the bench, the crown, and our own staff feel that it's a very positive program. It provides a 24-hour, 7-day-a-week approach to responding to these particular types of youths.

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Part of putting a youth on the intensive supervision program and allowing them to come out under temporary release is based on the time the youth has spent in custody—we would look at two-thirds at the current time. But the piece that's missing in the current legislation is the attitude, behaviour, and progress of the youth in custody. It's very difficult to say to a youth, you deserve to go out in the last one-third, if they're being totally non-compliant, are not participating in intervention programs, have not accepted any responsibility for their offences, and have not made any commitment to changing their behaviour once they get out.

So that's the piece that's in place right now. We take that into account right now, whereas the new act does not take that into account. That's our major issue in particular concerning this. We believe in moving the kids out as soon as they're able to move out, because we believe in reintegration as being beneficial both to the community and to the youth.

Mr. Irwin Cotler: So you don't exclude the principle, it's the application of the principle.

Ms. Carolyn Brock: Yes, the application.

Mr. Irwin Cotler: I have a second question, which I'll put to either of the two witnesses. I didn't notice reference to this in your briefs, so I would appreciate any reaction on these matters.

Clause 24 of the legislation provides that prosecutions of young people are to be carried out by the provincial attorney general or with his or her consent. This would appear to contract the capacity for... Private prosecutions are generally available in the criminal law. My question is, what experience, if any, do you have with the question of private prosecutions of young offenders? Do you, therefore, agree with this clause? If not, are there any amendments you would suggest to it?

Mr. Rob Finlayson: We agree with that particular clause. Prosecutions generally, in our view, should be taken by the attorney general or the agent acting on behalf of the attorney general. That is equally true for adults as for young offenders. So we support this particular clause.

Mr. Irwin Cotler: Thank you very much.

The Vice-Chair (Mr. Ivan Grose): I perceive no more questions.

I would like to thank the witnesses very much. I'd also like to mention that you're among our last witnesses, so your testimony will be, I think, best remembered when we get to the next stage of the bill. Thank you very much. Have a safe trip home.

The meeting is adjourned.