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]

Thursday, February 10, 2000

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call the meeting to order and ask the witnesses that are assembled to disregard that light. Come forward and take your place. I know what that is.

Mr. Chuck Cadman (Surrey North, Ref.): I'd like to introduce a motion, please.

The Chair: Is it a notice of motion?

Mr. Chuck Cadman: I'd like to introduce a motion requesting unanimous consent to waive the 48 hours.

The Chair: We don't have a quorum.

Mr. Chuck Cadman: Okay.

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The Chair: Today we're hearing witnesses on Bill C-3, an act in respect of criminal justice for young persons and to amend and repeal other acts.

We have with us today, from the London Family Court Clinic, Dr. Alan Leschied, assistant director; and Ned Jackson. We also have with us, from the Canadian Association of Elizabeth Fry Societies, Kim Pate, executive director; and Kami Pozniak.

I'll apologize in advance. For the last couple of days we've been spending a lot of time running back and forth between here and the House in terms of votes and so on. Not to wish ourselves bad luck, but if it happens, it happens.

We'll begin with the London Family Court Clinic. The way the process works is that you're asked to try to keep your comments inside of 10 minutes. Then we'll have the opportunity to hear from the other witnesses today. We'll then have an opportunity for open discussion with my colleagues.

Dr. Leschied.

Dr. Alan W. Leschied (Assistant Director, London Family Court Clinic): Thank you, Mr. Scott.

I'd like to thank this committee for the invitation to come today. It's a privilege to address this committee on this legislation. I have been able to present before this committee during the last almost 18 months since the Young Offenders Act came into being. It's interesting to see the continuity of discussions or the discontinuity at times. So I appreciate this opportunity.

Since we only have 10 minutes, I would like also to introduce Ned Jackson, who is a therapist here in Ottawa with the multi-systemic therapy team.

I'm going to be directing your attention to recommendations five and six in the initial report on renewing youth justice. It talks about looking at alternatives to custody for high-risk kids.

Just to introduce my part of this program, I'm a teacher at the University of Western Ontario. I work at the London Family Court Clinic. We are involved with the evaluation of an alternative to custody program.

Ned Jackson is actually a trained therapist who goes into the homes of families of high-risk kids. These are young people who would have gone to custody had there not been an alternative program in the communities. We now have programs in Ottawa, Barrie, Orillia, Mississauga, and London.

I'd like to give you a little bit of background. First of all, when I talk about multi-systemic therapy, I'll use the acronym MST. It's a short form for a specific, unique approach to dealing with high-risk kids. As per recommendations five and six, when we look at alternatives to custody, we're looking at trying not only to find more effective ways to deal with high-risk kids rather than sending them off to custody, but also to be mindful of creating safer communities and providing service in a cost-effective manner. So the brief I've submitted to you, which I understand you have copies of, is an interim summary of just how that program is going and where the evaluation currently is.

The second thing I'd like you to know is that this is a really unique opportunity for the federal government to be involved in an experimental way with a very innovative approach to dealing with kids in their homes.

First through the Ministry of Justice and then through the National Crime Prevention Centre, the Family Court Clinic receives funds to provide this evaluation, but it's in concert with the Ontario Ministry of Community and Social Services, which actually funds the direct service that takes place in those communities. So Ned is employed with a group in Ottawa called the Eastern Ontario Young Offenders Services. They are part of the Ministry of Community and Social Services.

The other thing you should know is that our teams have been specially trained through the support and cooperation of a group out of the University of South Carolina. They are the ones who have developed the expertise in working with these young people. So starting in 1997, when we began our programs in our four test sites, we actually drew heavily on the support and training of that group and Dr. Scott Henggeler at South Carolina.

When I've talked about this, Mr. Scott, I've talked about it not unlike negotiating the Middle East peace. We've had to negotiate federal funding to evaluate a provincially run program across four different sites that involved almost eight different agencies and to provide training from a major research site in the United States. So that gives you the big picture on what we're doing.

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The debate around whether locking kids up creates safer communities or whether there's an alternative is really at the basis of this program. All of you have heard on numerous occasions that Canada locks up lots of kids, so I don't want to repeat that information to you. But underlying that issue is, do we lock up enough kids, do we lock up too many kids, is it cost-effective, and does it promote community safety? Our data, which we have been looking at since the late 1980s, suggests that locking kids up may not be money well spent. While it maintains an accountability framework, it may not provide a rehabilitative framework.

So what do we do? Through this program we look at kids who aren't going off to custody, and in the brief what we've tried to portray to you is what kids look like who are knocking on the door of a secure custody facility in their home communities. They are not just kids who have committed serious crimes, which they have, but also they are characteristically having difficulties in school, they have come from problematic families, and they tend to deal with peer groups that support high levels of substance use and illegal alcohol use. There's a whole pattern of activity that leads to young people coming into conflict with their communities.

Multi-systemic therapy is a million-dollar expression for understanding that while kids need to be held accountable, in order to be effective in treatment we need to deal with the systems that are involved with them. So rather than seeing kids individually, we see kids within their families, their friendships, and their school. Ned will tell you that he spends most of his time in the community, in a family's home, or out in a school. He doesn't have an office. Actually, I visited Ned and the team this morning here in Ottawa, and their office is like a large closet. They don't spend time in the office. So kids don't come in to see them; they go out to see kids.

We have very small caseloads. The intensity of the service we offer requires our therapists to only manage four families at a time. The average caseload in probation in Ontario hovers around 60 to 70 kids. So you need to have the perspective that our MST therapists are working with only four families at a time. They are intensely involved, which means that our therapists are involved 24 hours a day, seven days a week. They're on call, and they're available when families need them.

Also, what they do with families is try to develop the systemic strengths within each family. Sometimes you look at our kids and you see their behaviours and you wonder, what could be a strength that we could foster within this family? Our therapists try to seize on whatever strengths they can identify and to work with those strengths.

While that's a brief outline, what you need to get a sense of is that high-risk kids who would have gone to custody remain in their home communities and are assigned to the MST program therapists, who are then intensely involved for on average 4.8 months, almost five months. What that corresponds to is that the average length of custody in Ontario right now hovers around six months.

What I've also shared with you is whether we tend to reduce offending within this intensive program. We are running what's called a randomized clinical trial, one of the very few studies that has ever been done in Canada with a randomized component to it, so that the experimental control is probably as high a level of integrity as you can achieve in a human service program like this.

What we're showing in the first year's cases, and that's something I gave you in the brief, is that we're reducing reoffending rates by 20% to 30% for kids in the MST program compared with kids in custody. What that translates into is an average 20% to 30% reduction in new Criminal Code violations. That's not a breach of probation or a letter of warning. That's actual reductions in new offending compared with the group of kids who were housed in custody for a period of time.

The last thing I wish to say before I turn it over to Ned is that we're not only trying to look at whether we can develop the strengths within our systems to deliver effective service, but also whether we can reduce offending and do it in a cost-effective manner. The average cost in Ontario for secure custody is $106,000 a year to house one youth for one year. You've probably heard that data already. The cost of service—and I'll get this in really fast if that light means something, Mr. Scott. Does it?

The Chair: It might, but not yet.

Dr. Alan Leschied: Let me get this in. The cost to service four families at a time with one therapist for an average of almost five months hovers between $7,500 and $9,500 per family. That has been an important part of our evaluation, because frankly we knew that if we could deliver this service, we would reduce offending. What we needed to show is that service utilization rates and the cost of service as well would actually go down.

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For the cost of two custody events per year, we're able to fund an MST team of four therapists—that's three therapists and a supervisor—to see 45 families in a community. Again, that's with a cost reduction of between $7,500 and $9,500 per family, as compared to almost $100,000 for a secure-custody event.

We are going to be completing our four-year clinical trial in the spring of 2001. We will be generating all of the data, including the data on cost-effectiveness, for the National Crime Prevention Centre, and also for the Ontario Ministry of Community and Social Services. This is really an exciting point. I've been involved with criminal justice and youth justice for over twenty years. This is sort of like the thing you hope you can always achieve, and we're now generating the data to support it. That's why it's really exciting to be here today to share this information with you.

I'd like to turn it over briefly to Ned Jackson, who is a therapist, to give you a sense of what a therapist does with these kids and families, and what the day looks like in the life of a therapist.

The Chair: Thank you very much.

Mr. Jackson, proportionately I think you have a little less than half the time left.

Mr. Ned Jackson (Multi-Systemic Therapist, Eastern Ontario Young Offenders Services): I'll try to make it short, then.

Basically I'm in the homes of these families daily, so I'm able to see how I can help parents, who are often very stressed out, to deal with difficult situations of their teenagers achieving what are usually very simple, pragmatic goals, like how Johnny gets on a hockey team. We know that if Johnny gets on a hockey team, he's probably going to be less likely to reoffend.

I also have a legal responsibility. I'm a professional social worker, and I'm in that home every day talking to the parent, talking to the teacher, talking to the probation officer, talking to anybody who usually bumps into that kid very often. I am in the homes daily in a lot of cases, or I'm talking to the families on the phone daily. So I know what I am doing with the family is making a difference.

I think that makes a tremendous impact. It makes me feel safer living in this community of Ottawa, because I know I am on top of the kids I work with. We work with the highest-risk kids. We look at who is going to reoffend. We get our referrals from probation. That means talking to the vice-principal. That often means working with the family of the single mom or single parent, helping her with parenting skills, getting Johnny to school and bolstering up some of the systems around her, because often it's isolated parents who are struggling with these issues, and they want the help.

When I do go to court, in virtually every court appearance of any of the kids I'm working with—and with a caseload of four I'm able to do this—I can talk to the court, talk to the crown attorney, talk to the defence attorney, talk to the judge, and say what I think is in the best interests of this youth. Often they're looking for direction from somebody. They're desperate for somebody to come up who doesn't have a caseload of sixty in the City of Toronto and maybe thirty in Ottawa, with probation officers who don't even have the time to get to the court. If somebody's there who knows this case intimately and brings the parent there, they have the direction they need to be able to make informed decisions. I don't always get what I want, but at least I'm a player at the table.

The judicial system struggles with this. That has particularly been my experience in Toronto, where I used to live and work with young offenders, and now in Ottawa. They're dying for this kind of information, because they don't want to send kids away who don't need to go away. They want to make sure the community is safe, and sometimes that means they're making a decision to keep the community safe by sending people away. Those people may not need to go away for shoplifting or something like that, but they've run out of options. When the system has options out there, those in the system are happy to grab onto them.

We work with the police department. Ottawa-Carleton has a wonderful police department that is very involved in the community, and we're in contact all the time.

I think that gives you some of the systems, the different players, in the kids' life. These kids don't get to me immediately for a single offence. They get there for repeated offences, and often for violent offences. I think that allows us to target the kids who need help the most, and it gives the community and the body of the judicial system what they need to make the right decisions. It provides them with the information they need to make the decisions about who should go away and who needs to be locked up, and who doesn't.

I think that's one of the big benefits of MST. I think the training and the accountability are wonderful, but I don't want to get into those.

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Just to give you a little picture of what I do, I recently helped a young man get into hockey. He hadn't been playing hockey for two years because his mother couldn't afford hockey. She couldn't afford the money to get in there, and she couldn't afford the equipment. She found some money from the child's grandfather, who was very supportive. She also put in a little bit of money out of her social assistance cheque, she sold raffle tickets, and our agency came up with a little bit of money, $100. That kid hasn't missed a game and he hasn't missed a practice, but he is now stuck in a quandary this weekend because he is going to Scout camp and he has a game on the same weekend. Do you want to bet that guy's going to be a lot less likely to get into drugs, to get into the criminal justice system, to hurt somebody else?

His mother tells me she goes to every game. Her pride is way out there because of the games. She even went to a game when he was staying at his grandfather's overnight. She didn't have to go, she didn't have to take him, but she was so happy to go to his game in order to see her son because she loves him passionately. Only a year ago he was suicidal, and he was taken to a locked setting. It wasn't a criminal justice setting, it was a mental health setting, but she had the police at her house a number of times before MST got together. Now I will be finished with this family soon, and there will be a complete and total...well, not complete and total....

That's a wonderful success story. It's one of the successes that I hold on to. He will be less likely to go to jail. He will be less likely to hurt somebody. He's going to school now. There are all kinds of wonderful things that have happened. This is a very good case scenario, but I think it is a great example of what MST can do for a 14-year-old young man who lives in this community of Ottawa, and who I think is less likely to go into the criminal justice system, where I think the adage of the revolving door is true, as you know very well. He is just that much less likely to go in, go back and go back again, and to become hopeless, hurt himself and hurt somebody else.

This kid's father died of a cocaine addiction. He was a cocaine addict and dealer in Ottawa-Carleton. So that's how harsh things were. This boy saw his father doing cocaine, saw his father on the way down to dying. His mother was addicted to cocaine, but has now been clean for ten years. That's the high level of risk. He has witnessed violence in the home and things like that.

I'm not saying he's cured by any means, but does he have a better shot? Does he have a shot at a lifestyle of not hurting other people, of being a productive member of society, of having a job and not being on social assistance? You bet.

The Chair: Thank you very much.

Ms. Pate, and then Ms. Pozniak.

Ms. Kim Pate (Executive Director, Canadian Association of Elizabeth Fry Societies): Thank you very much. I also want to thank the committee very much for inviting us to appear and for the opportunity to present.

I look forward to submitting our brief. We're hoping that some research that we worked on with some other groups, on young women who have been labelled as violent, will be available soon. We can then include some of those findings in our brief. If that does not in fact occur in the next few weeks, we'll submit the brief and we'll allude to the findings, but obviously it would be very nice to include those for the committee.

I'd also like to introduce Kami Pozniak to you. Kami is a bit nervous, so she has asked that I talk a bit about her at the end of our general comments about the act. However, she's certainly open to answering any questions from the committee members, and she feels that may be a more comfortable way to deal with it.

I'd also like to take the opportunity to introduce our president, Dawn McBride, who was a legal aid lawyer but is now in private practice.

The Chair: She's welcome to come on up to the front and sit down.

Ms. Kim Pate: When the Department of Justice first started talking about amending the Young Offenders Act and Minister McLellan started talking about repealing the Young Offenders Act, we were one of the groups that felt very strongly that this was not a position we wanted to go to. I sit here today, though, saying that with the research that has been done and the work that has gone into the development of Bill C-3, there are a great number of facets of the act that we do support strongly. We think they are a vast improvement over some of the aspects of the juvenile justice system currently found in Canada, and we think they show great promise for the future.

For instance, there are things like providing a preamble. There's the strengthening of the principles. We see the principles right now as more comprehensive and coherent than those currently in the Young Offenders Act.

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We do issue a caution to the committee, however, in that what we've seen with the Young Offenders Act over the past two decades now, nearly, is an evisceration and an obfuscation of the very strong and important principles of the act. So we're concerned that we not see that happen.

We are also pleased to see subparagraph 3(1)(c)(iv), which specifically refers to gender and cultural issues. We would like to suggest that the committee strengthen those provisions, though. In particular, we want to ensure that judges and the system are pushed to look at aboriginal youth and at young women in particular.

We're recommending to the committee that the Youth Criminal Justice Act contain sections similar to those that are currently contained in sections 77, 80, 81, and 84 of the Corrections and Conditional Release Act. Those provisions basically incorporate a duty to consult on issues pertaining to women—or in this case, young women and girls—and aboriginal peoples around issues that impact on aboriginal youth and young women.

We also think that sections 81 and 84, which provide for opportunities to contract directly with aboriginal communities to provide services, are vitally important. When we look at the statistics, particularly from Manitoba and Saskatchewan, we see a vast overrepresentation of our aboriginal youth in custody. We think it's vitally important that we look at ways to provide extrajudicial sanctions, as well as custodial options, as well as releasing options, in aboriginal communities, in both urban and non-urban settings.

We also think it's important to recognize, given the Supreme Court of Canada decision, the Gladue decision, that there is an added responsibility to look at special sentencing considerations for aboriginal youth, particularly for young aboriginal women.

Also, in particular when you look at young women, if you haven't already heard it, then you need to know that in fact most young women are housed in custodial facilities and in residential releasing facilities, group homes, with young men, and that in fact the research I've been talking about shows that the majority of the young women talk about issues of harassment, sexual harassment, sexual assault, and in some cases rape. We're talking about some significant issues.

I'll talk specifically about Kami's situation and some of the challenges that poses. With provisions like sections 81 and 84 provide in the Corrections and Conditional Release Act, you could have provisions whereby specific approaches for individual young women could be set up in the community, so we encourage that.

We also think it's important that the due process protections be protected. The fact that the levels of custody may now be determined by provincial administrations is a step back. In fact, it should be judicial. It should remain as it currently is under the Young Offenders Act: judicial, with discretion as to where a young person is placed. It should not be something that is done within the complete authority of the correctional authorities.

Again, particularly when we talk about young women, what we've seen is that, disproportionately, young women have ended up being housed in secure custody facilities, usually in a unit of a boys' institution or with young men.

We also think that if you in fact do decide to keep the provision that allows for correctional authorities to make that decision, they should only make that decision with a clear accountability to an external body, and there needs to be, built in, an administrative body to do that.

We also think that subclause 30(3) should be amended to indicate that young people should always be held separate and apart from adults. We respectfully submit that no person serving a youth sentence should serve any part of the sentence in an adult prison. We'd like to see that changed.

We also believe that the presumptive adult offences should be removed. At the very least, the section that refers to serious violent offences should be removed. Our particular concern here when we look at the provisions, and again, specifically when we look at young women, particularly young aboriginal women, is that we see young women being jailed for assault charges disproportionately. When we look at the majority of those assault charges, they emanate not from minor situations, but in terms of the results or the injuries, there are certainly not what we often would think of as serious consequences.

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That's in no way to diminish the fact that harm is done, but I think Dr. Marge Reitma-Street's research, which she released last year, showed that in fact, particularly with young women, while there is a relatively low rate of young women committing offences, particularly violent offences, there is a disproportionately high public fear that girls are getting out of control.

Reflected as a result of that, we're seeing police charging practices, prosecutorial practices, and sentences following along that line. Her research indicates that we've seen an increase from 1982 to 1996: the use of custody and probation for young women has gone from 7.8% to 23.4% for custody and from 27.9% to 54.8% for probation. That's a huge increase when you look at the sentences proportionately.

We also think it's absolutely vital—and we can't stress this enough—that we preserve the releasing options that have been suggested in Bill C-3. We think that at the very least a two-thirds/one-third releasing option for young people is in the interests of public protection. Ideally we'd like to see it earlier than that, but we think it's particularly important that these provisions exist for the very young people who are seen as the greatest risk and the greatest challenge to public protection and to public safety. To not provide a period of supervised integration into the community is, we think, not only counterintuitive but absolutely counterproductive in terms of the human costs to both other people and those young people themselves.

In fact, if there is any indication that you don't want to look at that kind of measure for all young people, the ones you should absolutely ensure that it exists for are those young people who are identified as being in greatest need, because those young people are the ones that will need the greatest amount of support and intervention when they are released into the community.

We think that the inclusion in the bill of a broad range of sentencing options, including the reprimand, which many police officers... Having worked at training police officers when the Young Offenders Act first came in, we know that many police officers felt they couldn't use those measures. I think it's helpful to point out to them that they can use these measures, and I think the range of options is important.

We are concerned about the most intensive provisions, particularly the intensive rehabilitative custody and supervision orders. They can be very effective, but we also feel that they have the potential to be abused, so we're requesting that there be a mechanism injected into the act that allows for them to be strictly monitored. If the provinces do abuse them, they need to be challenged, and there needs to be a mechanism to ensure that they are used extremely sparingly, as is clearly the intention of the bill, of the drafters of the legislation, at this point.

We think that the abolition of pre-trial transfer hearings in favour of post-trial adult sentencing hearings is an important improvement. As I will talk about in Kami's case, we feel that the placement of young people in adult institutions should not be permitted at all. But at the very least, in regard to the tests for adult sentences that are in Bill C-3 now, we feel that is far better than the provisions currently outlined in the transfer provisions of the Young Offenders Act.

We think there needs to be a restriction on the use of detention prior to trial. Again, I will speak about Kami's situation as an example of that.

We think the lack of a definition of required levels of security could lead only to secure custody facilities being more likely to be built and a continued over-incarceration of young people, particularly those who are lower risk, particularly young women, and particularly young aboriginal women.

We also believe that the publication of names of all young people convicted of offences while under the age of 18 should be prohibited.

We believe that subclause 145(6) should be removed so as not to permit the court to admit evidence that would be otherwise inadmissible. I think it's important to note here that there has been significant work done by people like Rona Abramovitch, Karen Higgins-Biss, and Stephen Biss regarding young people's general lack of understanding of police cautions and waivers, as well as the very serious questions raised with respect to the ability of young people to exercise their rights.

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Also, the clause permitting the recovery of legal aid fees for persons, other than those accused, who are able to pay should be prohibited. We're extremely concerned about that limiting young people having access to counsel, particularly where parents intervene and are fearful that they will be sought after for repayment.

The publication of names generally serves no useful purpose. And as many of you are aware, it's not sanctioned by experts in the field either. It certainly hinders the reintegration of young people.

I apologize for speeding through that a bit.

I first met Kami after she had been in custody in the federal institute and in the segregated maximum-security unit for women in Saskatchewan Penitentiary. She was 18 at the time. Her appeal period had passed in terms of her sentence. Those of you who are lawyers will recognize the illegality of this, and it's something we're currently still working on to try to have rectified. Kami was sentenced to two years in federal custody after being transferred up from the youth system, and three years of probation, 400 hours of community service work, and a strict curfew from 7 p.m. until 7 a.m. The issue of course is linking the federal sentence and the probation. That's the piece we're concerned about.

Kami was first arrested when she was 16 years old. She was then remanded into custody for over two years in a provincial institution, where she was housed in segregation for the majority of that period. When she was initially charged, she was driving a car in which there was a young man who, in a drive-by, shot another young person—a horrible situation, a horrible offence, a horrible result for that young person. Kami can speak for herself in terms of her own feelings about that and her responsibility for that part.

Like many young people, she was charged first with first-degree murder, and that was the provision that was kept in place. As many of you will know, often the charging practices are very high first, and once the transfer hearing has occurred, then the charges are often dropped down, as they were immediately in this case. She was convicted of manslaughter.

The judge in the case initially indicated in his judgment that he would like to give her just one year, but the prospect of sending her back to live one year in segregation in the provincial institution she had been in was not palatable. So her counsel and the crown and the judge agreed she should get two years and go to one of those nice, new regional prisons that were being built for women.

Because of the nature of the charge and the fact that it was initially first-degree, she was not placed in one of the nice, new prisons, such as the Edmonton Institution for Women or the Okimaw Ohci Healing Lodge, but she was sent to the segregated maximum-security unit in the Saskatchewan Penitentiary.

When I first met her, she had just tried to kill herself for the second time. She had never served a prison sentence before she was picked up in this matter. She now sits before you as a 21-year-old young aboriginal woman who is struggling to complete school, is struggling to try to complete the terms of a probation order that we think is not even legal, and is basically struggling to get back on her feet after that.

Not only did she have to spend time in a men's institution, but also then when she was released, initially she was looked at for detention as someone who, because of the nature of her offence, might be detained. After significant arguments, she was not detained but was released on statutory release to a men's halfway house, where she had to spend the period of time on statutory release until the warrant expiry—in a men's halfway house.

She unfortunately has had some of the worst experiences of our system and some of the worst experiences of the current system. When she heard about the act, she asked if there was any way she could help to try to make sure this never happened to other young people. So I was happy to provide this opportunity. It's with some trepidation, however, because obviously it's a hard position for her to be in.

So I introduce Kami. Thank you.

The Chair: Thank you very much.

I'll say this at the onset, before we go to questioning, because we ran into a similar situation yesterday, and I felt a little bad intervening at the time I did, because it was simply following one of the member's questions, and I didn't want to cast aspersions on anybody.

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Welcome. We're glad you came. We would assume that your interest here, Kami, if you don't mind my calling you Kami—I'm Andy, if that makes any difference—is in the best possible legislation we can achieve. We recognize your participation in that way. You're invited to say anything you'd like to say, but don't feel you have to say anything. I think we all understand exactly what motivates you to be here, and that shows a great deal of courage.

Mr. Cadman will begin, with seven minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair.

Thank you all for coming today.

I really just have a short question for you, Dr. Leschied and Mr. Jackson. You say your program, the experiment, is going to be completed in the spring of 2001?

Dr. Alan Leschied: Correct.

Mr. Chuck Cadman: On the completion of that, after you've reported back, where do you hope to see things go? I guess that's kind of a nebulous question, kind of vague. It sounds as if you're having success. Where would you like to see it go, and what do you see as the impact of Bill C-3, or do you see an impact? Could things be changed to help?

Dr. Alan Leschied: It's a great question, Mr. Cadman, and one we're preoccupying ourselves with now.

We have almost three years completed in the four-year project. Of course the concern is always that so much effort and energy in training, developing expertise, and developing a good research protocol to be able to justify the program with data is almost complete. It wouldn't be the first time programs failed.

We've developed a capacity in Ontario.... I'll just talk about Ontario, because that's where the interest was. It could have been in Saskatchewan; it could have been anywhere. We've developed a training capacity in Ontario, with the help of the groups from the University of South Carolina. We have people now who can train others to develop their expertise. We have lots of interest in other communities, but the sense is we want to hold off until all the data is in. But we now have the internal capacity to train other communities to develop programs.

We also have a willingness on the part of other communities. I'm contacted almost regularly, Mr. Cadman, by communities, not just in Ontario, but I was speaking with Saskatoon last year, and there was a tremendous interest because of the high rates of incarceration in the province of Saskatchewan. That's not to single Saskatchewan out, by the way, but that's where I happened to be, and that's where the concern was.

So we can train people. We can develop the expertise in other communities. I'm really hoping we will have the support, and of course it takes funding. Specifically, how do we transfer the money that's currently going into custody into community-based programs that have now demonstrated their increasing effectiveness? That's going to be the one big challenge of this committee. Do you draft that in legislation, or as the recommendations read, is it one of those transfer payment negotiation issues, where the federal government tries to encourage the provinces to redirect their energies into funding programs such as this, which have proven to be effective, rather than expanding a custody system that hasn't shown itself to be effective?

I would like to see us develop a training centre that would develop that expertise in other communities, now that we have that capacity here in our sites in Ontario.

Mr. Chuck Cadman: Mr. Jackson?

Mr. Ned Jackson: I echo Dr. Leschied's words.

Mr. Chuck Cadman: You have had interest expressed from other communities? I could probably think of a few people in British Columbia who would be interested in talking to you.

Dr. Alan Leschied: Actually, yes, one of my colleagues last November was at a conference just outside of Vancouver, and a group there was describing itself as doing an MST program. They don't have the training, but they'd like to get there.

So how do we get them trained, and how do we support their staff to undergo it? It's a fairly rigorous training, by the way, Mr. Cadman. It's taken our teams two to three years to get to our ability to adhere to this model and to our level to get the outcomes we do. We've learned from mistakes.

I should also tell you, by the way, the entire country of Norway has just developed their whole system around this program. Ned and his colleagues from Ottawa are spending some time this June training the Norwegian teams. It's ironic, isn't it, that we have that kind of interest? It's really exciting. This isn't just a—

Mr. Chuck Cadman: But you see funding as an issue here.

Dr. Alan Leschied: Funding is the big thing. And it's not just that we need new funding. We need to redirect existing funding to provide support for these kinds of programs, rather than bricks and mortar and new custody centres.

Mr. Chuck Cadman: I have just one other small question for you, Mr. Jackson, since you work with the offenders in the homes. You have daily contact with them. You were talking about some of the ways, such as getting kids interested in hockey. Where do the kids' victims fit into this? You were saying there was violence involved in some of these incidents.

• 1615

Mr. Ned Jackson: Unfortunately, in Ontario right now, they're just getting started. My experience has been in sessions in which victims are playing a bigger role. The only place I see victims is in the courtroom, but I think there's definitely an opportunity of liaising and making sure the proper procedures are held to in order to make sure victims are heard more.

Mr. Chuck Cadman: Do you see them fitting into your program, though, fitting into what you're doing somehow, as opposed to just being something outside of it?

Mr. Ned Jackson: Absolutely. As part of the community, I think the victims of crime, be it a businessman with a broken window or somebody who's experienced violence, should play a part in seeing that the offender isn't just going into incarceration and is maybe coming out worse than before. Victims have to see that there's something positive, something proactive, that's going to stop this from happening again. I see us working with the victims, it's just that there's no mechanism right now to do it safely. You can imagine and appreciate how important it is to make sure the victim's safety is ensured.

Mr. Chuck Cadman: Thank you, Mr. Chairman.

The Chair: Thank you very much.

[Translation]

You have seven minutes, Mr. Bellehumeur.

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Ms. Pate, I've listened closely to your comments, particularly those regarding Kami, who is seated next to you. In what way will Bill C- 3 further assist young persons such as Kami who are in conflict with the law?

[English]

Ms. Kim Pate: In my opinion, as it reads now, I would assume Kami's would proceed in a way that she would first be tried on the evidence. It was pretty clear from the judgment that she was in fact not seen to have the kind of major role that was initially typified in the transfer hearing, as evidenced by the judge wanting to give her a one-year sentence. In fact, she probably would not have spent as much time in pre-trial custody. She probably would have had her trial go through, and it wouldn't have taken as long as it did to have the entire process. My guess is that she would not have been sent into federal custody at all in the end, and she may actually have been able to serve her time in a youth facility.

[Translation]

Mr. Michel Bellehumeur: As I see it, Kami's problems have much more to do with the help that her province extends to young persons in conflict with the law than with the enforcement of the Young Offenders Act. I'm from Quebec and while I have followed this matter quite closely, I haven't heard of anything similar happening. Maybe it's because our province set up institutions and invested more in this area than other provinces. Quebec and Western Canada currently apply the same legislation. However, we don't see this type of problem occurring in Quebec.

If a province is not now investing in this area and hasn't felt the need to invest in the enforcement of the provisions of the Young Offenders Act, what's going to convince it to invest in the enforcement of new, more complex legislative provisions, in particular alternative measures, preventive detention and follow up procedures?

[English]

Ms. Kim Pate: I think your point is important. It's absolutely right that right now we don't see the same sorts of transfers upwards in Quebec that we do in, for instance, Manitoba, where Kami is from, particularly for aboriginal young people. We don't see the same sentencing patterns as we do in Saskatchewan, where Kami ended up serving the bulk of her time.

• 1620

I think your point is an important one, and it's one we have raised as well. In terms of the implementation of these provisions, a lot will rest on the provinces and the manner in which the provinces choose to implement them. That's part of the reason we're suggesting that some of the broadest categories be removed, and why we're both suggesting that there be an ability for judges to override, if you will—for instance, if there haven't been extrajudicial provisions set up in a province, a judge could still order those and it then would be left that the province would be essentially forced to have to implement those—and encouraging that there be a body whereby the administration of justice, obviously in the provinces but also across the country, could be monitored. We've suggested there could be some way for those to be linked to the resources that are applied to the provinces.

[Translation]

Mr. Michel Bellehumeur: My final question is directed either to Mr. Jackson or to his colleague. I haven't yet thoroughly read your submission, but I intend to do so. I listened to your presentation, which I found to be quite interesting, and I took some notes.

Those who argue that the current Young Offenders Act makes it impossible for us to follow through with certain initiatives have certainly not met you.

[English]

Dr. Alan Leschied: I'm not sure whether we can't do it legally, Mr. Bellehumeur, or whether the thrust of the legislation around accountability has driven the system more towards translating accountability as custody.

I think the situation in Quebec is different. In Ontario, for example, with the money in the federal-provincial transfer payments in the young offender system, 80% goes towards locking kids up. That leaves 20% of the money for programs like this. Frankly, Quebec has been an example of how to do it differently in order to keep money in services like Ville-Marie Social Services Centre in Montreal, for example, which I'm very familiar with. They are able to provide community-based programs similar to what we're discussing here.

On whether it's a legislative issue or whether it's a political will issue in terms of shifting the emphasis away from custody, I'm not really sure. When I began, I directed my comments to recommendations five and six, which really aren't legislatively driven but are more in terms of how federal-provincial cost-sharing agreements are established to emphasize community alternatives as opposed to custody.

[Translation]

The Chair: Thank you, Mr. Bellehumeur.

[English]

Mr. Mancini, for seven minutes.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you, Mr. Chairman.

First of all, I apologize to the witnesses for being late. I was tied up across the way, so some of my questions may have been covered in your presentation. If they were, I apologize for that also.

There are a couple of aspects in the proposed legislation that I'd be interested in hearing your thoughts on. The first one is representation by counsel. Clause 25 of the proposed legislation provides for representation where there are no legal aid provisions in the province, it provides for other representation, and it also provides for costs to be recovered from the young person at the end of the trial stage.

Perhaps Kim can answer that, or whoever.

Ms. Kim Pate: We don't support that. We're extremely concerned about the impact in terms of the due process rights of young people as a result of it. In fact, at the end of my presentation, I briefly mentioned that we're concerned that young people will not.... Those of us who have worked with young people through the system know that if there are parents paying for lawyers, or even if there are parents who are expected to come to court, there is often a great deal of pressure applied to young people to plead guilty rather than proceed to a trial in a case in which they may have a defence or in which there may certainly be evidence that does not present a full case against the young person. We're extremely concerned about the due process rights of young people being hindered by that provision.

Dr. Alan Leschied: I would echo what Kim has just said in terms of ensuring that young people have counsel at all stages of the proceedings.

Mr. Peter Mancini: The second question I have is the special sentencing option for serious young offenders who suffer from severe psychological problems. I come at that with some concern that someone who has severe psychological problems is even in the criminal system, and I would wonder what your thoughts are on that.

• 1625

Dr. Alan Leschied: If I can just comment on that, I do a lot of assessments for kids who have serious problems before the courts. Because the bar is so high that constitutes children who aren't able to understand the nature of the proceedings and instruct counsel, those young people proceed through the criminal justice system, but in part they do so because that's the way they can access services for the serious problems they have. We really should have a provincial system that doesn't require young people to go through the young offenders system simply in order to get the appropriate interventions they require.

So I'm of two minds about that. Frankly, we'll get some kids who we know don't understand the proceedings, but they'll get through court, and we'll get them shaped up to understand what's going on, simply because that's where the resources are. We shouldn't have to do that, but that's frankly how we can do it.

In the provincial system they may not fit under the child welfare priority because they may be 15 years old, soon to turn 16, so Children's Aid may not consider their needs serious enough to shift their emphasis away from the younger kids. Frankly, the children's mental health system in Ontario has such a backed-up waiting list that the young offenders system is the only system left open for those young people.

Ms. Kim Pate: As we saw in Kami's case, our concern about it is that we may face the situation, as I think we already do in some jurisdictions, where the mental health services provided to young people under juvenile justice legislation or in juvenile facilities are preferable to, or at least easier to access than, those in the community. This sets up a horrible dilemma of the sort that was faced by the judge in Kami's situation, of thinking that she'll end up getting better treatment by going into a federal institution than she would if she remained in, in that case, a provincial institution. In that case they had already done the transfer hearing, so once the evidence all came out, there was no ability then to send her back to the youth system, as they understood it, which is something I need to underscore.

Our hope would be that because the provisions of the act and the preamble and principles are very clear, in a case like this we wouldn't see a situation where for mental health or psychological services a young person would be referred through the system. In fact, our hope would be that this would provide a very good opportunity for counsel then to say no and argue that this is a case that should be outside the juvenile justice system and in fact should be in the mental health system, and therefore force the mental health system to provide services.

Mr. Peter Mancini: Thank you.

The Chair: Thank you very much.

Peter MacKay.

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

I want to thank the witnesses as well, particularly Kami. We really appreciate your being here. Based on what Kim Pate has told us, I was very sorry to hear about the horrible experience you had with the justice system. As Mr. Scott said, it takes a great deal of courage to be here today.

I would like to start, Ms. Pate, with a comment you made that I was a little concerned about with regard to publication of any young person's name. Perhaps I misheard you, but I thought you said that you felt it served no useful purpose whatsoever. I would suggest that there are instances where a young person is fleeing and efforts are being made by authorities to locate them for their own protection or, similarly, where they pose a real danger to the public because of an act or a state of mind they may be in. Do you not agree that there could be a situation where a judge would order a disclosure, given that within the clauses there is a process that has to be followed?

Ms. Kim Pate: I was speaking specifically to the publication of names in terms of young people who have been released or once they were facing an adult sentence. In my opinion, no, in those cases there should be no reason for their names to be published.

In the case where there is an investigation, that provision has existed. To my knowledge it has been used very sparingly. That wasn't what I was speaking to in my comments.

But if you are talking about when someone is being released from custody, again, if in fact they are being released without any kind of supervision, then the bigger issue is not naming. In fact, I think the naming, as we've seen in the adult system, can often lead to people basically fleeing from community to community.

I think the interest, particularly for young people, is that, one, they have been held to account for their actions; they have paid their dues in terms of their sentence to the community, which in many cases has involved some payback to the community and/or to victims; and they are now in a position where they should be trying to integrate into the community.

• 1630

Maybe, Kami, you can talk about what it's like—as you said, not being able to get a job or to go to school without people knowing who you are because your face and name were plastered all over.

Mr. Peter MacKay: I would be interested to hear from Kami. I think there's no question that all of us would acknowledge that with the naming comes an element of shaming.

However, again, I harken back to this element of the protection of the public. Certainly, Kami, I'm not referring to you at all here. But if the young person who has served their sentence—and I agree with the efforts toward reintegration—has, for example, displayed a significant amount of anti-social behaviour, and I'm thinking particularly of sexual assaults against children or a propensity for that, there is an element of the need to know on the part of neighbours and community members.

We also, I think, have to recognize that regardless of whether the name has been published and regardless of whether it's a family court and specific efforts have been made not to make the name public, in smaller communities people know—for example, in the case of a young person who's attending school and is suddenly absent for a period of time. I think sometimes we get far too caught up in this idea that we can keep that knowledge from the community.

But I'd be interested to hear from Kami about her experience.

Ms. Kami Pozniak (Individual Presentation): Every day when I go out, lots of people recognize my name when I get introduced to people. I have a hard time getting a job. When I attended school, the teachers knew who I was, and my law teacher knew who I was. I find it very difficult to be known just as that instead of being known as me, being known as something I was labelled for in the past. It still reflects in my face every day I live out in the community.

Mr. Peter MacKay: Kami, I'd like to ask you about the concept of restorative justice, which of course came very much from aboriginal culture. I think what they're trying to accomplish with this bill is to differentiate between violent and non-violent offences, and I think it tries to reconcile a person with their community. Would it have helped you in your healing process to have met with the victim's family? I don't know the outcome. I assume that the victim was killed in this instance. Would it have helped you to meet with the family of that victim?

Ms. Kami Pozniak: Actually, I've always wanted to meet with them. At my sentencing I apologized to the family for my responsibility in taking part in it. But the family isn't ready for me, I guess, so I'm just waiting until that perspective comes. Then I will sit down with them, and I would be willing to speak with them and say what I have to say and listen to what they have to say.

Mr. Peter MacKay: Do you feel that would help you in your recovery process and in your ability to move past this incident?

Ms. Kami Pozniak: Yes.

Mr. Peter MacKay: Thank you.

Thank you, Mr. Chairman.

The Chair: Thank you very much, Peter.

Kim.

Ms. Kim Pate: Perhaps I could just add, because you asked about disclosure in communities, that I agree that in small communities everybody knows who the young people are. In the larger communities—and not just in my work capacity but as a mother of small children—I see very much that the approach of working at other measures.... There are many more young people, and adults, for that matter, who haven't been convicted who as well may pose a risk to my children. As opposed to a naming approach or publicizing those we've happened to apprehend, convict, imprison, and now name, certainly my preference is to work on having young people and my own children understand better how to identify their own safety and how to take care of those sorts of issues.

When I was on the board of the child care centre where my son went, in that setting we worked to ensure that safety measures were in place. This is as opposed to the false sense of security that can be gained from thinking that the ones we're really at risk from are the one or two who have been convicted and released from prison.

• 1635

If someone moves in, generally the community knows, even in the larger communities, that you have a neighbour living next door. That provision has always existed in terms of prevention, in terms of police responsibilities in preventing offences. We all know that the police can do and will do that kind of work; they will go and meet with people in the community.

Mr. Peter MacKay: Should the police have the discretion to make it known? I don't mean to press the issue or use you as an example, but if a young person who went in at 17 and came out at 21, having served their time, had committed a string of offences and there were tendencies towards pedophilia, and you had young children, would you want the police to have the ability to let you know, to warn you, essentially?

Ms. Kim Pate: No, I wouldn't want the police to be coming to me and naming young people. The reason I wouldn't is that I would want to be operating under the understanding and the reality that this could be happening by a number of young people, just by virtue of.... I don't pretend to go into the area of Alan and Ned in terms of their expertise, but in terms of experimentation and with young babysitters and all the issues that we know of in terms of adolescents, as their hormones are popping and what they get up to....

There are precautions we all need to take as parents of those children, as parents of children they may come into contact with, and as parents of children who may come in contact with children going through that process. I think we need to focus more on some of those preventative aspects instead.

The Chair: Thank you.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you, Mr. Chairman.

[English]

Thank you all for coming here. As I was saying to Kim before we sat down, she is so regularly here that she is almost a honorary member of this committee.

Mr. John McKay (Scarborough East, Lib.): She has our sympathies.

Mr. Jacques Saada: Yes. Thank you very much.

[Translation]

I'd like to ask two or three important questions.

[English]

Dr. Leschied, Mr. Jackson, concretely speaking, how do judges know you exist?

Dr. Alan Leschied: We did a lot of work in the four communities prior to the program starting up. We worked with the police, the defence, the crown, and the judiciary to make sure they knew we were there and to train them initially, not on how to do the services but to know how to make referrals, to know what the program was going to be about. It takes a lot of work in the community to create awareness.

One of the things judges will tell you is that they are loath to send kids off to custody, that they didn't realize there were alternatives available. Frankly, they aren't available. It's not that judges aren't aware of them; they just don't exist. So one of the things we had to do in Ottawa, Mississauga, Barrie, Orillia, and London was to spend a lot of time with the bench to make sure the judges knew this wasn't a program for every young person. We were really looking at the highest-risk kids, the kids they were looking at sending off to custody, to give this program a try. It was a lot of training.

Mr. Jacques Saada: You work mainly in larger communities, I understand, like London, Barrie—

Dr. Alan Leschied: The communities were selected to show diversity. Our Mississauga program, while it works out of Mississauga, is also in the county of Halton, which is a rural-based community that stretches up towards north Toronto. Our Orillia-Barrie program was chosen because it also draws on a first nations reserve just north of Orillia, the Rama reserve, and it was chosen purposely so that we could look at servicing the native youth as well. We're not just looking at urban-based kids, and that's part of what's reflected in this.

Mr. Ned Jackson: Mr. Saada, I just wanted to answer from my daily experience.

Mr. Jacques Saada: Sure.

Mr. Ned Jackson: Every time I go to the courtroom, I'm talking to the crown counsel, the defence counsel, and the probation officer if he's there. I have made submissions to the court to bring the awareness to them of what's available, of what I can provide, about the fact that I'm there in the community and about the level of supervision, the level of help, that I can provide to the family, particularly, and to the youth. So as much as we did that at the beginning, we do it virtually every time we go to court, and we are at pretty much every court appearance, I think, when we're working with the family.

Mr. Jacques Saada: I have just one comment, more so than a question, to Kim and Kami, and then I'll get back to you with another question.

• 1640

I simply want to say that I fully share your concerns about the publication of names. I still fail to see what we achieve with that false sense of security. I also have some reservations about the impact it has on some of the parents of those kids who are affected by that. I noticed that when you were talking about it, Kami nodded. She couldn't say all her experience in one shot here, but it meant a lot.

One of the problems I have in understanding what's going on here is the following. You are very much an example of an organization that works at alternative measures during incarceration, alternative measures to rehabilitate, to help, and to promote. It's actually a leap of faith and it's working.

Dr. Alan Leschied: It's not a leap of faith. It was based upon experience and the data that was generated out of other programs.

[Translation]

Mr. Jacques Saada: Perhaps I should have spoken in French. What I meant to say is that you are totally convinced that this is the way of the future.

You say that in Ontario 80 per cent of these transfer payments go to locking young persons up and, at the same time, you claim that the Ontario government is supportive of your efforts. I don't quite understand what you're saying. Either the government is confident in the contribution you can make or it's not and it favours custody. Could you explain this apparent inconsistency to me?

[English]

Dr. Alan Leschied: Other than.... Mr. Saada, it's a dilemma for us too. It is ironic, isn't it? I'll be honest with you: sometimes I think we're the best-kept secret in Ontario, because perhaps we do, for many, fly in the face of where the formal system in Ontario is going in terms of increased custody and incarceration.

But I think there was enough political will, beginning four years ago, to start out with pilot projects in order to be able to say that maybe there is something different we could do that would be more effective than the current system that's based on custody. Of course, as you know, we have a boot camp in Ontario as well. I think this is one of those things that our government, at different levels, decided we needed to take a look at.

Again, what can I say? I think that in some respects we do fly in the face of what is a popular notion out of Ontario—that it's a get-tough province, with the rates of incarceration, and I'll just leave it at that.

Mr. Jacques Saada: Kim, I have some—

The Chair: You have one more minute.

Mr. Jacques Saada: Kim, if I look at clause 38 of the bill, especially subclause 38(2), it says, and I'm going to quote in French:

[Translation]

(2) A youth justice court shall not impose a custodial sentence [...] unless the court has considered all alternatives to custody...

[English]

It goes on. I'll go to subclause 38(5):

[Translation]

(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other...

Subclause 38(9) states the following:

(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why...

[English]

All these items are things that I understand you are very much in favour of. The question to you is, do you feel that with these kinds of clauses in this bill we can achieve more than what we can achieve under the existing act?

Ms. Kim Pate: Yes. That's part of why our position changed in terms of our initial position of arguing for retention of the act. I think these provisions do significantly strengthen the situation. More than just strengthening them, they clearly identify that the court should, first and foremost, be looking outside of the juvenile justice system or the youth criminal justice system. While that was the starting point of the Young Offenders Act, the place we've come to now is so far from there that I think we need....

Also, the provisions were never this strong. They were never this clearly articulated, in my opinion. It was always said that custody should be used as the last resort and that alternatives to the young offender system should be looked at, but I don't think it was ever so clearly articulated that the judge has to actually outline reasons why he or she would not be looking to other systems or to measures other than custody. I think this is much clearer. I think it would be more difficult. I worry because of the basket categories that do exist and that it's still possible to weasel in through them, but I think it will be much more difficult to do than it has been under the current system.

Dr. Alan Leschied: If I can add—

The Chair: Go ahead.

Dr. Alan Leschied: —something just briefly, if we put it in legislation it won't be enough unless we actually have those resources for judges to look to. What a judge will say is, “Well, I had to, because there was no other choice for me.” That's what many judges will say.

• 1645

The Chair: Thank you very much.

Mr. Cadman for three minutes.

Mr. Chuck Cadman: I have a quick question on the issue of publication and identification—and I want to stress identification, not publication. I'm not talking about broad publication.

This is directed to you, Ms. Pate. You said to Mr. MacKay that you would not want to know if the person next door was a potential risk to your child. You would rather rely on being able to teach your child how to recognize or how to prevent it in the first place. How do you go about telling a five- or a six-year-old not to play with the young man next door?

Ms. Kim Pate: The reality is the young man next door may be that risk to my child right now, without a record and without my knowing.

Mr. Chuck Cadman: But how do you go about...?

Ms. Kim Pate: Part of it is by ensuring that little children aren't left with someone you don't know well, in an unsupervised setting.

Mr. Chuck Cadman: But we're talking about just playing out in front of the house.

Ms. Kim Pate: Unfortunately, and sadly, certainly my little children don't play outside of the house without some supervision, whether it's me or neighbours or whoever. We have an idea of where they are, and we also make sure they're playing in groups.

There are sadly some realities we've all come to terms with over the years about how we have to ensure our children are more aware of some of those areas, and that we're more aware to be concerned, because as we know, this is not new. These sorts of things happened to our contemporaries when we were children. We often just didn't know about it. It happened without those kinds of precautions being taken.

So it's by things such as having supervised and structured settings for young people, as well as ensuring that young people aren't left in isolation for periods of time with someone you don't know. Those are some of the measures. Certainly I'm the first to admit there are probably lots of other means, which I'm happy to hear about, that other people use. But the reality is that today, living beside me, there could be someone who could abuse my child. That doesn't necessarily increase or decrease depending on whether they've been convicted of a sex offence.

Mr. Chuck Cadman: Okay. In terms of babysitting, how would you recognize...? Would you not have an older teenager or a teenage boy babysit your daughter? Would that just be a rule, that you wouldn't do it?

Ms. Kim Pate: For some people it has been. For us, we've certainly had young people work together, had two young people take care of children, if they're ones we don't know really well. Measures have been taken.

Certainly when I worked on the board of the child care centre, we would do things such as ensure there were better training packages, and we had a policy that no one staff would ever be left alone with the children, as opposed to a policy of merely checking records, which is one of the policies that some of the centres have, assuming they would catch everybody by going through their records.

Mr. Chuck Cadman: I guess that works fine in a day care centre, but not too well in a townhouse complex when somebody needs a babysitter for a couple of hours in an evening.

Ms. Kim Pate: Yes, and in cooperative situations or other things. In working with women, particularly single moms, one of the things we did was very much stress using a more cooperative model, so that they trade off sitting, as opposed to then relying on someone in exactly the sort of situation you're suggesting.

It's also not wanting to be suspicious of everybody you come in contact with, obviously, but when it's someone you don't know, it's ensuring there are some precautions, whether it's somebody who would be supervising or someone checking in regularly—those kinds of measures.

Mr. Chuck Cadman: Thank you, Mr. Chair.

The Chair: Thank you very much.

Let the record show that Ms. Pate was presenting as an expert witness, as a mother.

Voices: Oh, oh!

The Chair: Having met her son, I'll vouch for that.

Mr. McKay.

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

I wanted to ask Kami and Ms. Pate about the transfer. I'm assuming that after the charge, there was a decision to move it up to adult court. Is that correct? Is that what happened in this particular instance? And how long did that take?

• 1650

Ms. Kami Pozniak: Before I got a transfer hearing, I was in custody for about one year. I was raised to adult court on the grounds that I was streetwise. I didn't cooperate with the police, so that made me a hard-core streetwise person. Those are basically the grounds that I was raised to adult court on.

But it took about a year and a half, because they made a new law in that time, so I had to go back to Queen's Bench and try to fight to have a transfer hearing, and then I had to go through the transfer hearing. So it took quite a while.

Mr. John McKay: Did you have a co-accused with you?

Ms. Kami Pozniak: I had three.

Mr. John McKay: Were they juveniles as well?

Ms. Kami Pozniak: Yes.

Mr. John McKay: So there was a period of an entire year before the trial as such started?

Ms. Kami Pozniak: It was two years before a trial.

The Chair: Excuse me. Before we go too much farther, I have to repeat, Kami, that you are at liberty here to discuss this as you see fit. We want to make sure you don't feel any compulsion to tell us any more than you want to.

Ms. Kami Pozniak: No, I won't.

The Chair: Okay.

Mr. John McKay: She seems to be able to do that.

I agree with the chairman. If my questions are probing, please feel free to say so.

Sorry, I missed the answer. You said it took at least a year?

Ms. Kami Pozniak: It took two years before I ended up really getting sentenced. I went to my transfer hearing with a first-degree murder charge, so I was looked at even more harshly. When it came down to it, I was only convicted of manslaughter.

If I had gone to the transfer hearing with the manslaughter charge and the evidence that did come out after the preliminary hearing—my transfer was before my preliminary hearing.... When they had really clear the stuff I was involved in and what I wasn't, I wasn't guilty of first-degree murder to begin with, and that's why I was raised to adult court.

Mr. John McKay: Ms. Pate, I take it that under the proposal in this bill, we arguably would have cut two years off her incarceration. Is that a fair conclusion?

Ms. Kim Pate: Well, it's certainly our conclusion that at the very least it would have cut a year off. There was pre-trial detention for one year prior to the transfer hearing, and then the wrangling, because it was when the provisions were brought in, if you remember, to change to a presumptive transfer.

Mr. John McKay: Yes.

Ms. Kim Pate: Those are the provisions Kami's referring to. So she was caught up in that struggle as well.

If it had been as the bill exists now, my understanding of how this would be implemented is that the evidence against Kami would first be heard.

Mr. John McKay: Yes.

Ms. Kim Pate: And the extent to which she was seen to be involved in the death would be examined, and then based on that, a determination would be made of whether it warranted an adult sentence.

Mr. John McKay: That's pretty significant.

The Chair: Thank you, Mr. McKay.

Monsieur Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: I have no further questions.

The Chair: Mr. Saada.

Mr. Jacques Saada: I have but one question for the representatives of the two organizations.

[English]

In the Young Offenders Act as we have it now, victims could ask for access to the files. In this bill, it is recognized as a right. What do you feel about that?

Ms. Kim Pate: Our fear about that, having worked on doing programs—-

Mr. Jacques Saada: Sorry, my question was not what do you fear about it, but what do you feel about it?

Ms. Kim Pate: I know, but I have a fear about it.

Mr. John McKay: Fear is a feeling.

Ms. Kim Pate: Having worked with women and children who have been victimized, and with victim offender programs and mediation programs and the like, I fear it will create an expectation of involvement that may not exist. That's my fear about it.

People who have been victimized have some very real needs, and there will be an assumption, I think, that based on these provisions, those needs may get met through this act, which I think will not occur.

In order to meet the needs of victims, we need to be looking at some provisions—extrajudicial provisions, if you will—in terms of ensuring there are supports in place and that sort of thing. I think the restorative justice pieces allow for victims to participate. As Kami talked about, and as others in their own experiences can talk about, for some people that will be helpful. It will be what they want to do because they want to participate. For some, it won't be.

• 1655

So as I say, my fear about it is that it'll create an expectation on the one hand that there will be more involvement, and on the other hand it may create an expectation that the victims should be involved in cases when they may not want to be.

Mr. Jacques Saada: It's a right. They are free to exercise it or not.

Ms. Kim Pate: Exactly.

Dr. Alan Leschied: Just to add to that, in the way the justice circles are currently functioning in our community, they include victims who have access not to file-based information, but to information just in an exchange in which the victims are brought into part of that justice circle and reconciliation is brought through that. A lot of training takes place in order to get to that point. The training takes place from the community members who are part of the justice circle.

I don't think victims, without a lot of support, would really be able to manage that information. Again, it takes a lot of support and training to get people to a point at which they can access information so that they can make it relevant.

The Chair: Thank you very much.

Mr. Mancini.

Mr. Peter Mancini: I have a couple of questions, Dr. Leschied.

Earlier you said—and I would concur with you—that there was some support for the new legislation providing the resources were there. Having been a legal aid lawyer, I share your experience about when there are no resources and the judge is faced with the difficult task of saying he'd like to do it but it's not there. I don't want to put words in your mouth, but I would suggest that your support is contingent on the fact that the appropriate resources are provided to the provinces to ensure that the act can be complied with.

Dr. Alan Leschied: Correct, and maybe if I can just say it for the record, Mr. Mancini, the new sentencing options that include intensive rehabilitation programs are also coupled with recommendations on transfer payments that provide resources. One without the other just won't work.

Mr. Peter Mancini: Essentially, just two areas—and maybe you would be interested in commenting on these, Kim—are changes to the Criminal Code. I think they actually come from a private member's bill presented by Mr. Cadman, dealing with the jail sentence increasing for those who failed to supervise. I think that's part and parcel of the act for those who sign an undertaking to supervise the child or the young person. If they don't do so appropriately, there's an increase in penalty. I'd be interested in hearing your thoughts on that change to the Criminal Code.

Secondly, what are your thoughts on what I would call the loosening up of the restrictions on the admissibility of statements by young people?

Ms. Kim Pate: We would certainly have concerns about that provision in terms of potentially punishing people if someone in their care didn't abide by the conditions, primarily because it means very much limiting who would be willing to take responsibility, particularly if it's a youth facility or child care worker, or a social worker. They are often the adults involved with the young people who pose the greatest challenges to the system in terms of getting them out of the system, so I would certainly have some concerns about that. Also, in a context in which they have very few resources to assist them, certainly some parents may then be on the hook. I think those are some concerns we have.

To look at the parents in isolation, particularly when I think of some of the single moms who would be struggling to try to make sure the kids are in court when they're supposed to be and who are also trying to get to work themselves, it could be extremely penalizing for them. I think they'd be left in a situation in which putting their other children at risk potentially would mean they might forfeit assisting one child. I think that would be a really horrible situation for them to be in.

Sorry, but could you repeat your second question?

Mr. Peter Mancini: It had to do with the admissibility of statements.

Ms. Kim Pate: As I mentioned in my presentation, we have some real concerns about those provisions. In fact, we feel they should be removed from the act.

The Chair: Thank you.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): Ms. Pate indicated in her testimony that her group is concerned about the provision of recovery of legal aid fees, I think on the basis that parents would perhaps dissuade their child from applying for legal aid because they don't want that financial responsibility. Dr. Leschied, is that your same experience? Would it be the same thing?

Dr. Alan Leschied: Yes.

• 1700

Mr. John Maloney: Again, those provisions were part of the consequences that are a factor in this legislation. How can we massage them so as to bring them around to something that may be more palatable, or can we?

Ms. Kim Pate: I don't know that you can. Part of my experience in that comes from working with young people who were being referred, if you think of it in terms of the least intrusive of the measures under the Young Offenders Act, meaning alternative measures. When I was responsible for implementing and then monitoring some programs, what we found was that we were referring at least one in every ten kids back to the court in cases in which they wanted to go through alternative measures, because their parents were urging them to do that rather than go to trial. The current provisions are that if you don't accept responsibility, then you go through the system. In most of those cases, the parents were often the ones saying, “So what if you didn't do it? I'm not going to court.” We'd face this situation in the least intrusive situation of parents taking that kind of approach, when we'd be pointing out that what we were suggesting was that this go back to the crown. In most cases, the crown would not proceed with charges, because they'd be for things like accomplice to shoplifting and those sorts of things.

We'd still have parents arguing for all kinds of reasons in those cases. I'd see this with young people when I was doing legal aid work. This was when I was just out of law school, just as the act was just coming in. You'd have parents who, while knowing we were students who would spend umpteen hours on a case, would still be saying they were not going to be spending this amount of time, and would say to the kids to plead guilty and face the music.

It's not to say in any way that those young people shouldn't be held accountable for their actions, but in some cases we're talking about situations in which the young person should not in fact be held accountable. They hadn't actually committed any offence, yet the parents were assuming that because they were hanging out with the kids who had been convicted, they should face the music as well.

I think there are real issues there, and I think having anything like that provision in here will push parents in that way, because the reality is that many of the parents can't afford the risk. They're working, but they're working poor, and it puts them at risk financially. That's not a condemnation of the parents, necessarily, but I think it's a reality that we need to.... If we're going to treat young people increasingly as responsible and hold them criminally responsible, then I think we also have to have the due process protections.

Mr. John Maloney: You also indicated that you felt a youth should not spend any part of a sentence in an adult facility. There are some good, compelling reasons for why that was the case, but what do we do in a situation in which we have a youth facility with a 21-, 22- or 23-year-old mixing with a 14- or 15-year-old? Do you have any concerns in that respect?

Ms. Kim Pate: Absolutely, I do have concerns. I have concerns about what those 14- and 15-year-olds are doing in there as well. In fact, under the way the provisions are worded in Bill C-3, our hope—and I say “hope” because, as others have mentioned, I think there's a lot in terms of implementation—is that a lot will rest on what resources are put into the community, and how much authority judges are willing to take in terms of pushing the envelope in saying they will not send these young people into pre-trial custody and that they will demand that there be extrajudicial options for young people.

Before the Young Offenders Act came in, when we were all looking at what would be in the new legislation, in many jurisdictions the ages were 16 to 24, not 12 to 18, so I think there are some very real issues around having those young people in custody to start with. But as young people age.... Kami is 21 now, and I think she should no more be back in Saskatchewan Penitentiary than she should have been when I first met her there three years ago. She hasn't talked about some of the issues, about self-injurious behaviour and all the things that happen there and what that experience was like for her. I don't think those are things we want our young people to be facing.

The Chair: Thank you very much.

Peter MacKay.

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

I can't tell you how frustrating it is when we only have three minutes to ask you questions. We barely have time to ask you how your day was.

Hearing you say you don't think any 14-year-old should be in there either, I can't help but be stumped by that type of response. Do you not foresee situations where it is really in the interest not only of society, but of the young person, that they be incarcerated? I noted that you didn't really answer the question as to whether there should be instances where a 21-year-old is taken out of the population where they are going to be interacting with a 14-year-old.

• 1705

Ms. Kim Pate: I'm sorry if I wasn't answering it clearly then. In my experience working with young people in secure-custody settings, the 14-year-old should never, ever be there. In every single case where I've seen a 12-, 13-, or 14-year-old either temporarily held or being held as a custodial option, in my opinion, those were child welfare issues.

Mr. Peter MacKay: Regardless of the crime?

Ms. Kim Pate: There were certainly issues around what they were doing, and they were involved in offences that obviously allowed the court to put them there. The reality is those were situations that in my opinion should have been, and could have been, handled in a properly resourced child welfare system or, in some cases, mental health system.

Mr. Peter MacKay: In a non-custodial sentence?

Ms. Kim Pate: Not necessarily. One of the difficulties under the Young Offenders Act was that we had an option for secure treatment, but it wasn't used well, not because it couldn't be used, but because there weren't resources established. It's my understanding that one of the realities with the new provisions is there will be resources attached to that, so a difference will be that we'll have those options available.

I remember meeting with a number of therapists and my colleagues and contemporaries when I was working in Alberta, sitting down with them, and initially they came saying they wanted to have mandatory treatment for young people. We talked about it, and what they were really wanting was young people to be coming into their treatment facilities. So we worked at it.

When we started providing young people and the courts with the option of secure treatment over secure custody, young people would choose it. So they would go into an institutional setting, if you will, but it was a secure treatment option, not a secure custody option. They then got some support and assistance for the very real needs they had. So that's the kind of thing I'd like to see.

Mr. Peter MacKay: The common theme we're hearing from every witness, almost without exception, is that this new act is certainly a step in the right direction; however, the concern has been voiced that the resources are not there. If the resources are not there under the current system, and if the expectation is that this new legislation will in fact give police greater discretion but more work, give case workers and those in counselling fields and individuals like you who are working in an alternative justice model....

If all of the expectations are raised by this legislation and the resources are not coming, and the resources are not adequate under the old system, this is very problematic, in my opinion. This is going to lead to an even greater cynicism about our justice system, not only by those involved, but by the Canadian public at large.

Ms. Kim Pate: I agree that there are some real resource issues. I think the wording of the legislation will make it tougher for the provinces to wiggle out of their responsibility. My guess is the provinces are trying to wiggle out of some of those responsibilities, just as we saw when the Young Offenders Act came in, the most progressive pieces. The legislation was stalled for two years before being proclaimed, because the provinces wanted to build jails for kids, when the focus of the legislation was very clearly community-based options. They won on that front and the resources went to building jails, and we now are faced with that legacy. We need to very clearly see the will also on the part of the judiciary to implement the provisions.

So I'm not taking the Pollyannaish view that this is all going to be rosy, but the legislation is tighter. I've mentioned the provisions that aren't tight and need to be dropped, but the legislation is tighter. And if we have judges such as the aboriginal judge in Saskatchewan who basically adjourned proceedings, demanding that she be given a list of resources that were available for this young aboriginal woman who had FAS or FAE, fetal alcohol syndrome or fetal alcohol effect, and demanding to know what resources were available before she was sentenced, that kind of move by the judiciary will also advance the potential.

The Chair: Thank you.

John.

Mr. John McKay: This is to you, Dr. Leschied. It wasn't clear to me the kind of individual you're attempting to serve. Is there a profile of the kind of person you're trying to target?

• 1710

Dr. Alan Leschied: That's a good question.

Actually, in the brief we submitted, we gave a profile of the first approximately 150 kids we've had through the program. But if I can just say so briefly, they're the most serious offenders in the community, they're kids who are knocking on the door of custody. They're violent offenders, as well as serious, chronic, persistent property offenders. Beyond that, almost two-thirds of our kids referred come from single-parent, mother-led households. Poverty is a real issue, and educational needs are a real issue, and we're finding that maternal depression is a real issue. A lot of the time that we spend with our therapists is spent with moms and with families. We don't see the kids a whole lot, which may come as a surprise, but that's because the profile of the needs of kids extends to their school, their families and their friends, as much as it does to them. We're really tracking closely who these kids are, and we're trying to reflect that in all the reports we're generating.

Mr. John McKay: Are all the referrals court referrals?

Dr. Alan Leschied: Yes, except in Ottawa, where we also service kids under 12, who obviously don't come through the court. They come directly through police referrals or the Children's Aid Society.

One of the things I should tell you is that in the Ottawa program, because of the mandate of one of the agencies that works with conduct-disordered kids under 12 who are not yet offenders formally, all of our referrals come through probation and judges.

The Chair: Thank you very much. We've run out of time.

I think Kami wants to say something, and I think we should give her the chance.

Ms. Kami Pozniak: Before I ended up going to prison, I was a ward of CFS, so I basically had no family support. I went to jail as a youth and was an adult when I got out of prison. What kinds of resources do you have for somebody now? I still don't have family support. I'm an adult now, and I have to pay bills and I have to rent an apartment. What kinds of supports would you have for the youth in the future who are getting out of prison as adults but don't have any support?

The Chair: I think that's probably the largest part of this equation, and perhaps the fact that we're discussing the criminal justice system around kids is an indication of our failure to meet those very real needs. I don't think we're going to fix that problem here, unfortunately, but at least we're hoping not to make it any worse.

Michel wants to comment.

[Translation]

Mr. Michel Bellehumeur: I don't really have a question; it's more of a comment. The two witnesses alluded to the bill's preamble, noting that it was extremely important and that they would like the provinces to be bound somewhat more by the legislation.

I would point out that there is a great deal more in section 3 of the existing Young Offenders Act, under “Declaration of Principle” and that in law, a real distinction must be drawn between an existing preamble and a legislative provision subject to interpretation by the courts. Despite the Declaration of Principle in section 3, a number of provinces haven't invested as they should have. I caution you that perhaps this preamble was included merely to ease people's conscience. Time will tell.

To answer Peter's question, I would like to say that many witnesses have told us that they don't support Bill C-3, not the majority of witnesses, mind you, but mainly witnesses from Quebec.

[English]

The Chair: Are there any more responses? Mr. Cadman.

Mr. Chuck Cadman: It's just a quick point on the information about the issue that Mr. Mancini raised, the parental accountability. I think the members realize we're not talking about trying to penalize, to make it an offence or to punish the parent for the crime of the child. The offence itself is the wilful failure on the part of a parent to comply with a court order. That does not try to punish the parent for the offence committed by the child. It's the parent's wilful failure to comply with a signed court undertaking that is the offence, and that's what that section addresses.

Thank you, Mr. Chair.

The Chair: Thank you very much.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair. I had a question for Kami, and maybe Kim can answer as well.

The way I understand the process worked is that you had your transfer hearing, then you had your preliminary in adult court, and then there was a plea bargain. I prosecuted a case that sounds remarkably similar just on the face of it, involving a first-degree murder. The transfer hearing was incredibly detailed in terms of the evidence that emerged, far more detailed, and there was far more leeway given to both crown and defence in terms of disclosing the facts. I'm trying to understand how it was that it wasn't until after the transfer hearing that it came out that your involvement was far less, to the point where they would accept a manslaughter plea.

• 1715

Ms. Kami Pozniak: It was that there were seven of us involved in the case; four took deals to testify against us, so there was a lot of lying in the statements—

Mr. Peter MacKay: Okay.

Ms. Kami Pozniak: —and there was a missing homicide investigation. A whole bunch of things ended up falling together at the preliminary hearings—

Mr. Peter MacKay: So the transfer hearing turned out to be quite flawed in terms of the evidence.

Ms. Kami Pozniak: Yes.

Mr. Peter MacKay: I see.

Ms. Kim Pate: This is perhaps minor, but it is an important correction, I think: it wasn't a plea bargain down. The charge was then changed and it was dropped to manslaughter.

Ms. Kami Pozniak: No, it was plea-bargained.

Ms. Kim Pate: Was it plea-bargained? I thought it was dropped down.

Ms. Kim Pozniak: No, I took a deal.

Ms. Kim Pate: Okay. I apologize. My mistake. Thank you.

The Chair: Thank you very much.

I thank the witnesses for being here. You've informed us. I think all members very much appreciate your being here.

Could I ask members to stick around for just a moment? We don't have the bells yet. We will release the witnesses.

Members, as a matter of business, on Tuesday at the end of hearings we're going to conduct some business. We have one item that we might be able to resolve today. That has to do with the witness list we have received—without necessarily getting into distribution, because if we debate the list, we'll have to do it Tuesday. As you may recall, earlier in the process we decided we would not hear additional witnesses; we would hear the list of witnesses that we have, and at the end of the process we would decide whether we had heard much of what there is to hear.

The clerk advises, of course, that there's a bit of a delay between the time you decide that you're going to ask someone to be here and the time it takes for them to prepare. We made one adjustment in this process already, and I would be prepared to accept a motion that would ask the clerk to advise the list of some 12 additional people who have been in contact that we in fact do not expect to be calling new witnesses beyond the list we're already engaging at this time. This is for purposes of his advising them so that they're not waiting. I think we owe them that kind of courtesy.

Now, in the event that we want to discuss this further, we can wait until Tuesday. If we have unanimity tonight, we could decide it.

[Translation]

Mr. Michel Bellehumeur: Why would we cancel the appearance of the twelve other witnesses?

The Clerk of the Committee: We're not doing that.

[English]

The Chair: We're not cancelling any of the witnesses. What I'm saying is that we made a decision early on that we were going to hear from the list of witnesses that we all know; it's our list of witnesses from now until the end of the month. In addition, since that time, we have received additional interventions of people who would like to appear. We have on record a decision that this would not necessarily be the case. We can discuss this further Tuesday if there is in fact a point of debate here. I was trying to check the water to see if we could agree that we would not have to entertain any more.

[Translation]

Mr. Michel Bellehumeur: I don't have with me the list of the witnesses we submitted to you. I believe some of the witnesses whose name appeared on the initial list have yet to appear. I just happened to be discussing that yesterday with the clerk. Among others, there's Mr. Lamarche, the coalition and so forth. I'll let you know on Tuesday which witnesses have been omitted. I will probably have been in touch with them to find out if they still want to testify. I want some assurances that we can still hear from those persons whose name was on the first list.

• 1720

[English]

The Chair: Could I explain? I apologize. I have not explained this very well. All of the people we agreed to hear, we are going to hear. All of the people we agreed to hear, we—

[Translation]

Mr. Michel Bellehumeur: Their names aren't on the list.

[English]

The Chair: There are new people who have contacted the office—

The Clerk: May I speak?

The Chair: Mr. Clerk.

The Clerk: Mr. Bellehumeur raises a concern that some of them are not on the proposed schedule. It is because either we haven't received an answer from them...

[Translation]

We have invited all persons whose name appeared on the list originally approved to testify, but some have yet to respond to our invitation. The Chair is now referring to a list of witnesses who contacted us after we approved the original list.

[English]

The Chair: We'll discuss this further on Tuesday. Take it as notice that we'll discuss it Tuesday. We'll also take as notice that we have to discuss the budget and future business as it unfolds before us. That will be discussed at the end of the day on Tuesday.

Thank you.