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]

Tuesday, February 15, 2000

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good evening, ladies and gentlemen. I'd like to bring this meeting to order, as we hear witnesses on Bill C-3, an act in respect of criminal justice for young persons and to amend and repeal other acts.

I guess the first order of business has to be our apology for having you wait here while we ran back and forth to vote, but such is the nature of this place.

We will get right to business, and let the record show that we have agreed that we're going to try to get the same block of time in, but we're going to begin at roughly 5.15 p.m. Perhaps we can target 7 o'clock so that people aren't too late. I really don't want to ask the witnesses to pay the price for the fact that they're not going to have the opportunity otherwise.

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With that, the witnesses include the Canadian Criminal Justice Association, represented today by Cécile Toutant, a member of the board of directors, and Kathryn Gregory, also a member of the board of directors. We also have Youth Canada Association's Dave Farthing and Cathy Ann Kelly.

I will first call on the Canadian Criminal Justice Association. As I'm sure you know, having been here before, the way this works is that the witnesses get ten minutes for their organization to present. Both groups will present, and then we'll have a series of questions.

Madame Toutant.

Ms. Cécile Toutant (Member of the Board of Directors, Canadian Criminal Justice Association): Thank you. I think I will speak English, even though it's not my first language, because I think I'm mostly addressing people who are English-speaking.

I have brought some information for you. It's a little package that contains a few letters and a few tables of statistics. I will give them to you personally because they're not bilingual. Some of them are only in French and some of them are only in English. I think they must not be given to you by official people here, but they can be presented by us. Gaston St-Jean, the director of the association, will give you the package so that you can at some time consult the letters that are contained in it.

I'll try to be as fast as I can be.

The Canadian Criminal Justice Association believes, as stated in our comments of November 1998 on the strategy for the renewal of youth justice, that the problems now encountered with the Young Offenders Act are problems of application, perception, and resources. If I can give you an example, I think people are very often appalled at some sentences that are given to young persons for serious crimes, but we must remember that the sentences are given by judges, and very often the judges don't apply the maximum that could be applied. When we complain about the sentence, sometimes we say the law is not good, the law doesn't permit enough time, when it is a fact that the law permits more but the judges decide otherwise. The maximum of five years was used very little when it was brought in, and seven and ten years are there but they're not used. So when we say the law is not tough enough or that the law doesn't permit us to do what we feel should be done, it's very often a problem of application more than of the law.

Also, it's a problem of perception. I think you know as well as I do that very serious violent crimes are “over-mediatized”, and because of that people perceive that the problem is much bigger than it is. When Canadian people are interviewed and we ask them if they believe juvenile crime has gone down, they'll say no. Even if you show them statistics, they're not going to believe the statistics because their perception is different.

I will address resources in a few minutes. Young offenders need to be addressed in a manner that will enhance their capacity to become respectful citizens. Adult measures are in no way capable of doing that. Proper resources can. It takes money and the will to develop an infrastructure that is not copying the adult system, with its disastrous effects on kids.

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The sentencing project produced in the United States underlines the following fact: prosecuting and punishing children as adults harms children and endangers the public. First, it harms the children. Compared to those held in juvenile detention centres, youths held in adult jails are seven times more likely to commit suicide, five times more likely to be sexually assaulted, twice as likely to be beaten by staff, and 50% more likely to be attacked with a weapon. No services appropriate to their needs, like education, are present in those facilities. These facts are more true for girls than boys, because girls are less numerous than boys.

Treating children as adults makes youths more likely to reoffend. I will rapidly summarize two studies done in the States. A Florida study comparing recidivism rates for similar youthful offenders found that juveniles coming out of the adult system were more likely to reoffend, to reoffend earlier, to commit more subsequent offences, and to commit more serious subsequent offences than juveniles retained in the juvenile system. A study of over 500 youths charged in Pennsylvania found that youths transferred to adult court are more likely to be convicted and incarcerated, but their recidivism rates are higher than the rates for those who remain in juvenile court.

All that is to say that taking the kids' specific needs into account is, in our opinion, the real way to protect the public. We should be very worried by the fact that juveniles are so numerous in our prisons and penitentiaries.

You will find in the package that we handed out to you a letter from a New Zealand judge who feels this is the way his country went and that it brought major problems. You also have an article written in French about the situation in English prisons, where they feel they have too many kids in adult facilities. You will also find a letter written by a Canadian correctional investigator who is asking exactly that question to the government or to Canadians, saying there are too many juveniles in institutions for adults.

Yes, custody should be the ultimate measure when no other can be adequately applied. We know this law would like to apply that, but we all know it is what has been said for the adult system in the last thirty years and it hasn't changed anything. Why? We think it's because the will, the philosophy, the training, and the resources are not there. No law will achieve that. We have to find ways to develop a tradition of rehabilitation in this country—and all over the country.

If you want to look at one of the tables I gave you in the package, table 3.2 will show you that the province of Quebec has a very low rate of accusation. I'm sure you knew that, but I wasn't sure if you had it under your eyes recently, so I brought the table for you. I just want to say to you that the philosophy and the infrastructure of rehabilitation were installed in the province of Quebec in the 1950s, around the time when we built Boscoville. It produced training that became university training, and it produced many educators. Not only did it have that philosophy that it installed in the province, but we also tried very much to train the people who could deal with juveniles.

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I brought you that table because I think that even without the new law, some people will say the new law will bring more of a chance for us to use alternative or extrajudiciary measures. I would surely hope that a law could do that, but I have a lot of doubts that only a law can do that. I think we have to push for the provinces to develop another way of thinking of the problems of the juveniles.

I know my time is probably over, so I just want to end by saying that we should remember that children are not our enemies. Sometimes they act like they are, sometimes they have a facade that makes us believe they are very tough, but behind that facade are kids who have different types of problems. They have a very individual pathology that needs to be addressed, and a good law for juveniles should always keep in mind that the offence alone can never be the only variable that we use to intervene. Yes, it brings the intervention, but after we start the intervention we have to take into account who the young person is.

Can I ask my friend from Alberta to say something before we go to the other...?

The Chair: Certainly.

Ms. Cécile Toutant: Thank you.

Ms. Kathryn Gregory (Member of the Board of Directors, Canadian Criminal Justice Association): Thank you. I'll be brief.

I just wanted to summarize CCJA's position very briefly. In our view, the bill likely is unnecessary, because the present legislation is capable of being implemented progressively and is completely actionable. It's costly to consider the new legislation. We feel those dollars should be spent on implementation of programs and quite possibly on public legal education. The bill's application of blurring the lines between adult and young offenders gives us pause.

Thank you.

The Chair: We'll now go to our other witnesses.

Mr. Dave Farthing (Youth Canada Association): Good afternoon. Bon après-midi. My name's Dave Farthing, and I'm from YouCan. We'll explain YouCan just a little bit, and then we'll get into the brief.

With me is Cathy Ann Kelly. She's on our national board of directors. She's from Newfoundland and is studying here in Ottawa at Carleton University.

I'll begin by extending our heartfelt thanks to everyone here for the chance to speak on this issue. It is our first chance to speak, and we're here representing our national board of directors—which is composed of nine youths from across Canada aged 18 to 24—and a network of about 2,000 youth from across Canada who are very interested in violence prevention and conflict resolution.

Over the past year, YouCan, which is completely run for youth by youth, has been able to hold training events on conflict resolution. We've held national conferences, we have facilitated community-based forums, we have developed resource guides, and we have done a lot of things to help youths take initiative and take responsibility for helping to prevent violence and resolve conflicts. Through the years, we have solidified a vision. That vision is a culture of peace here in Canada and around the world.

We believe that although there were some shortcomings in the Young Offenders Act, the YOA, two things we really wanted to get across today came out of the shortcomings. Those were public education—we feel, anyway—and the proper funding of what are now referred to as extrajudiciary measures.

We're going to try to get our brief to you by the end of the week. I think you have the summary of the brief. The brief itself we just had to get translated, but unfortunately they couldn't get it to us in time for today.

In our brief, we've shared some insights just around the importance of reaching youth through youth, through their peers. Youth ownership in the new law is going to be key if the law is going to be successful, effective, and meaningful for youth when it comes to decreasing the amount of youth violence and youth crime, and not just the youth violence and youth crime but the perceived youth violence and crime. There have been a lot of studies saying that most Canadians want to feel safer in their communities, and the youth sometimes are a huge part to them feeling unsafe. We want to try to get youth ownership around this.

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One thing some youth organizations in Canada have done fairly well is effectively involved youth in the ownership of particular issues—doing something about it through forums and events, but also through resources, giving youth decision-making power, involving them in decision-making, and getting them around the table.

There are a lot of really good youth in Canada, and one of the things we found through our training initiatives, when it comes to violence, is that a lot of times you need actual training on how to control anger and break the cycle of violence. They're not often given those opportunities, and in fact in communities across Canada, one thing we hear over and over again is that the kind of funding they need to have these programs continue is often being cut. So one thing we'd like to see, when extrajudicial measures are being funded, is that they're funded well and implemented properly, with youth having a say and being involved in decision-making for those projects.

There are a few more things I'd like to say, but I think I should pass things over to Cathy Ann to continue.

Ms. Cathy Ann Kelly (Treasurer, Member of the Board of Directors, Youth Canada Association): Good evening, members of the committee and fellow members of the panel.

It gives me great pleasure to speak to you today on behalf of Youth Canada concerning Bill C-3, the Youth Criminal Justice Act. We have chosen to focus our response to the Youth Criminal Justice Act on a few areas that we would like the committee to consider, rather than on a clause-by-clause analysis.

Our analysis has been guided by a strong belief in a separate youth justice system. Although we believe the act has many positive provisions that can benefit youth, such as the meticulous attention to due process and conditional sentencing, we fear there is a growing punitive trend in the Canadian justice system and an over-reliance on incarceration.

I'll focus my presentation on four key areas of the act that we believe are in opposition to the principles of rehabilitation and reintegration into communities.

Although the principles of sentencing are fair and focus on rehabilitation, we disagree with the comparison of youth to adults when deciding on appropriate punishment for youth, when their offence is committed under similar circumstances of adults.

We feel very strongly about the issue of presumptive offences and transfers for adult sentencing. We do not agree with lowering the age from 16 to 14 for the eligibility of youth to be transferred for adult sentencing. We do not believe youth should be treated as adults under any circumstances. Furthermore, we disagree with presumptive transfers for 16- to 17-year-olds. We feel the crown should make the initiative to have an adult sentencing hearing and be required to give notice of that intent prior to trial. We find presumptive transfers inconsistent with all of the principles that otherwise apply under the act.

Currently, Canada incarcerates young offenders at four times the rate of its adult offenders. Globally, Canada incarcerates young offenders twice as often as the United States, and 10% to 15% more than Australia or Europe. Clearly, these numbers are astonishingly high and indicate an overuse of incarceration by Canadians.

My next issue concerns the area of custody of young offenders. YouCan strongly opposes, under any circumstances, youth being housed with adult inmates. We strongly support the principles of separation, and we believe the federal and provincial governments should enforce a provision of separate facilities for adult and youth offenders. Furthermore, we oppose the transfer of any youth under the age of 20 to an adult facility. We believe youth are at a very vulnerable stage in development and would be negatively affected by transfer to an adult facility. We recommend youth stay in the youth correction system until a minimum age of 20.

Concerning the publication of records, under the act, publication of offender names will be allowed under circumstances, and we firmly disagree with this provision. By allowing for the publication of names, the act's principles of rehabilitation and a separate youth justice system will be severely weakened. We believe youth should be allowed to reintegrate into society without the stigmatization.

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In conclusion, we fear this act and any amendments made to this act will be for nothing if the public are not properly informed on the issue of youth crime and the youth justice system. We strongly believe public demands for harsher punishment and the lack of knowledge of the criminal justice system have driven the criminal law reform.

Similar to most areas of life, dramatic and instantaneous change lends the perception of the most effective change. We propose this is not the truth. Real change occurs when thoughtful people make decisions and implement policies that have long-term positive effects on society. YouCan believes real change cannot occur with a youth justice system for non-violent offenders and an adult justice system for violent offenders. Thank you.

The Chair: Thank you very much. Now we'll have the opportunity to have colleagues put some questions and engage in some dialogue. To start, we have Mr. Cadman for seven minutes.

Mr. Chuck Cadman (Surrey North, Ref.): Thank you, Mr. Chair. Our apologies for the delays.

Madame Toutant, you made a comment about the public generally being upset about some sentences, specifically about violent and very serious offences not being long enough. You said it's the fault of the judges because they're not applying the law properly and not giving out the maximums. Well, if the judges aren't giving out the maximums and the appellate courts are upholding that, and the people are coming to their MPs or politicians and saying they're not satisfied with this, what are we to do?

Ms. Cécile Toutant: I would just like to maybe bring a nuance. I hope I didn't make it sound like I thought it was the fault of the judges.

Mr. Chuck Cadman: No, but you were saying the judges can apply—

Ms. Cécile Toutant: It's a decision of the judge.

Mr. Chuck Cadman: Yes, of course.

Ms. Cécile Toutant: The judges have all the facts, plus the history of the young person and the tentative rehabilitation programs he followed or did not follow before. So the judge's decision takes into account many variables, not only the offence. In that sense he gives that sentence, but the law permits more. That's all I'm saying.

I find that people will sometimes say, “This is very little for murder”, or “This is very little for that type of offence”. Very often, probation is given for sexual assaults. But sexual assault is a very large terminology in our code. It can range from very sadistic aggressions to aggressions that are much less serious. When you look at the sentence, you may say it's very light, but the judge would have taken into account many other factors.

I don't think your question means we should tell the judge what to give. I surely hope that this law or any law we have for juveniles will always leave the judge the possibility to think and weigh factors other than the offence only.

I've said this before, but I'll say it again. Some juveniles who commit very serious crimes, who had no type of criminality before, have a very good prognosis. Some others with a life of criminality have a prognosis that is not as good. But when you leave them in the juvenile system, the prognosis, if you think of recidivism in violent offences, is very low.

Mr. Chuck Cadman: In the brief you submitted to us, at the bottom of page 5 you said:

Indeed, it can be argued that under the auspices of C-3, even more youth will be incarcerated either because they are labelled violent offenders, are submitted to adult sentences, or refuse to comply with court orders.

At what point do we use incarceration, if we're talking about somebody who just refuses to comply with court order after court order, whether it's probation or bail conditions? At what point do we draw the line and say, enough is enough?

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Ms. Cécile Toutant: I don't want to answer for every province, but I can tell you that in the province of Quebec—and I've been asked this question—it seems that in spite of our rehabilitation tradition we refer many kids. We are one of the provinces who refer kids to the adult system. I don't have all the numbers here separated by province, but I would have liked to have them to show you that we do refer kids, but we refer kids that we have tried to do something for before.

Let's say, as I said before, that we have a kid with a violent offence and we feel we can't help him because he is the result of fetal alcohol syndrome, has neurological problems, and is very impulsive. We feel we can help and we will try, but if after a few tries we feel that we cannot do anything more for a kid in the juvenile system, we will say it—and the law permits it now. The referral to adult court is possible for any kind of offence.

That would need research. More than ten years ago, we had research done by a criminologist in Quebec who had studied all those who were referred to the adult court. He was very surprised to see that many of them were referred because they have to be referred. They felt that at one point they had repeated so many times that in the juvenile court they were going to get the maximum, and when you have the maximum in the juvenile court you do it from day one to the last day. They felt that if they were going to the adult court, well, they would be seen as young persons, like poor little kids, in a way, and the judge would be more lenient. In that sense, they would have their lawyer say that they wanted to be deferred.

Mr. Chuck Cadman: If I could have just one more...?

The Chair: Yes.

Mr. Chuck Cadman: Let's get away from the violent offence. We'll talk about the property offence. What about the young offender who is committing car theft after car theft after car theft, and gets probation, probation, probation? At what point do you incarcerate a car thief?

Ms. Cécile Toutant: Are you saying at what point do you send him to the adult court?

Mr. Chuck Cadman: No. At what point do you incarcerate him, even in the youth system? I get the—

Ms. Cécile Toutant: Oh, do you mean in custody in the youth system?

Mr. Chuck Cadman: Yes, because I'm just wondering what—

Ms. Cécile Toutant: When they don't function in community programs, it's useless to leave them there. I can give you very good examples of kids that we tried to put in community programs. They don't get up in the morning, they don't go to the community programs, and they don't do the community work they're supposed to do. When they're not obeying what the court is asking, you find some other way to deal with them. You bring them in.

If you look at the data that we have in the statistics, many of the kids who are brought into mise sous garde or custody are those who don't obey the court orders. It's more than those who are being violent; it's those who don't obey the court orders who finally are brought in. You can't work with them outside. They refuse to participate.

Mr. Chuck Cadman: Then you don't have a problem with bringing a person into custody...?

Ms. Cécile Toutant: Not at all.

Mr. Chuck Cadman: I've heard of some people who have a problem with ever incarcerating somebody for a violation of their probation or a breach of probation.

Ms. Cécile Toutant: I have much more of a problem when we think about children being put in the adult system. That's another thing. But bringing a child or an adolescent inside and saying to them, you're supposed to do work in an old people's home every day for 60 hours or 100 hours, you've presented yourself only once, so we're going to do something else, we're going to change the contract, and either you change your ways or we're going to try some other way....

The Chair: Thank you very much, Mr. Cadman.

Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.

I don't know whether I'm going to be able to add much to this discussion. I think the situation here, to a great degree, especially with me, is that you're preaching to the already converted.

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But we have a situation in Ontario where the Young Offenders Act is in complete disrepute, with the media, with the police, and with the taxpayers. We have a provincial government that's going in exactly the opposite direction to what you're recommending and to what I may believe we should do. Our problem is that if we pass a new bill that bears any resemblance to the Young Offenders Act, we haven't done a thing. What we need is help—I don't know whether you can give us help—on changing the attitudes of people.

I talk to people about how we incarcerate more youth than they do in the United States and they tell me bluntly that they don't believe me. That is the perception. How do we change that perception? I sit here and get terribly frustrated. I think your advice is good—I may disagree with some small points—but how in the world do we get this situation turned around? I can only speak of Ontario because it's the only jurisdiction I know anything about. I'm quite impressed by the figures I hear from Quebec. It sounds to me like you have a completely different situation there.

Earlier today I asked a witness if they had letters to the editor demanding a toughening up of the Young Offenders Act, if they had editorials every day saying we have to toughen up the Young Offenders Act, that the politicians are spineless. I was told no, they don't have that at all; they have support.

We don't have that in Ontario, and until we do, we can pass all the laws we want to and nothing's going to change. Now, have you any advice on how we can get this message across? As elected representatives, we've obviously failed miserably at it so far. How do we get that turned around?

Ms. Cécile Toutant: When I talked before about an infrastructure of rehabilitation, I would say that it didn't change in one day. It took many years before we had educators, institutions, measures in society, and people who would be able to answer when something happens.

I don't know who told you that we don't have editorials in our papers. I can tell you that sometimes we do.

I've been part of many radio programs that people would call in to. The day after the murder of the pastor and his wife in Montreal, I was asked to go on the radio. I was hesitating a lot because it is a horrible crime, it's young juveniles, and you have a feeling that it's a big responsibility. I said I would go and see what it was like. It was a phone-in show.

For one thing, I can tell you that it was one of the best experiences in my life. I would say that a very small minority phoned to say to put them in jail and forget about them. There were very few. Some people phoned and asked me what was happening with those who are supposed to educate in this province, with the parents, with the community, with the schools. They asked, couldn't anybody see that something was going wrong?

I have to tell you that finally I would say.... I don't dare say that it is a Latin way of seeing things; I don't dare say it, but it's a question for me. Do you know why I say that? Recently I met with 30 French people from France, people from Belgium. When they talk about kids their eyes shine, because kids are their life. Kids are not monsters. Kids are not enemies—and they talk about kids that are not necessarily easy kids.

I was talking to a guy responsible for the office of children's rights in Belgium, and he was telling me that in Belgium there's no way a kid would stay in three years like they do in Pinel. He was in my unit. He said “You keep kids three years?” I said yes, but they did very serious crimes. He said there was no way this could happen in Belgium.

I don't say that we should copy Belgium. I'm just saying that they have a way of seeing children, of feeling responsible for education, of feeling responsible for them to mature.

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I can't see your name very well, but I'd like to know the secret—maybe Kathryn knows the secret—of how Ontario could go about changing its ways.

The Chair: It's Ivan Grose, just for the record.

Ms. Cécile Toutant: Okay. I didn't see his name.

Ms. Kathryn Gregory: Mr. Grose, I did—

Mr. Ivan Grose: If I may interject for just a second with regard to what you told me about the call-in show, it would be absolutely opposite to Ontario. I was amazed that you found anyone at all who said “What is wrong with the system?”, because here they would say “Lock them up and throw away the key”, person after person. It's a completely different attitude.

What the answer is, I don't know, but I think maybe you've stumbled onto something about the difference in characteristics in people.

I have to say I'm appalled. I lay awake nights worrying about this thing. How are we ever going to get it solved, in the direction we're going?

I loved hearing your reports on France and Belgium, where obviously what they're doing works. If it didn't work, they wouldn't keep doing it.

Ms. Cécile Toutant: I would say it's mainly education.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): It doesn't work in Ontario and they keep doing it.

Mr. Ivan Grose: True.

The Chair: Mr. Farthing.

Mr. Dave Farthing: I wanted to comment, Mr. Grose, on Ontario, because our organization is headquartered here in Ontario. Some of our seed funding came from the Trillium Foundation, and we're trying to continue stuff.

Here in Ontario it's been very difficult for us through the Ontario government. I was actually given the opportunity to do some conflict resolution training for the officers who were in charge of the first boot camp they had. I can tell you, from first-hand experience, I was a little shocked at who they had, in some regards, working with these youth. They weren't necessarily what I perceived as being youth workers.

Since that time—that was around 1997 or 1998—we've been trying to move forward and promote restorative justice and conflict resolution. We've been very fortunate in that we've had federal funding to do these kinds of programs, because provincially it's been tough.

So we've been talking a lot about engaging young people. It's interesting, because in some parts of Ontario we can actually train a young person on how to listen, how to respect, how to control their anger, how to resolve conflicts. Then when you ask people, okay, what do we do with young offenders, the answer is to lock them up.

Then when you get to the young people, if you really explore where they want to go, well, yes, they'd rather resolve it than go through the court system and end up in jail. Do you know what I mean?

Really, then, they believe in what we're promoting, restorative justice, but their first reaction sometimes is to lock them up, because that's what they hear a lot, and that's what the media is promoting. That's what the public....

We've done a lot of work on it in the last little while. We have a national conference in Toronto. We've been asked to do a couple of things coming up in September with the Canadian Bar Association. They have a restorative justice department. But from talking with police departments and with lawyers, it's clear it's a very small community of people who are promoting restorative justice. As young people, we're an even smaller community who aren't given a voice to try to influence perhaps the Ontario government and other groups.

So I guess your frustration is our frustration. I wish I was an expert and could say what could happen, but I know one of the things we are doing a pretty good job of is looking at the youth culture as a youth culture, looking into such organizations as UNESCO, which is talking about this notion of the culture of peace, about this being the international decade of culture of peace and all these different things.

If you want to influence a culture, you have to understand the culture, so for the youth culture, we're looking at public education along the lines of getting MuchMusic on board: getting stickers; getting albums cut; or getting more artists on board, whether it's Maestro or some cool hip-hop groups in the Toronto area or whatever.

I don't know if you can apply that to the adult culture. I imagine you can. But we sit around tables and talk about education and stuff. I know the National Crime Prevention Centre has a small pot of money. When you look at what we're spending on crime prevention compared with what we're spending on our correctional facilities and our police services and all those things, it's appalling.

For example, the amount of incarcerated youth really upsets me, but then you look at the National Crime Prevention Centre, and I know they're struggling. So how do we educate? They could spend that entire $32 million—well, I think it's $32 million—without giving anything out to groups and just put that into public education and they would barely crack the surface, probably, as far as getting Canadians on board this notion of treating our kids with respect.

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One of the things we sometimes do is get adults and youth in a room together and start talking about respect. Take people in grade 5, grade 4, grade 3—everyone knows what respect is, but how do you show it? How do you educate people on how to show it? How do you get the dollars to do that type of thing? Those are things we too are struggling with.

The Chair: Ms. Gregory, perhaps some perspective from Alberta.

Ms. Kathryn Gregory: I should say, I am from Calgary, and I have been in public legal education of both youth and adults for the past 11 years or so.

Mr. Grose, I would like to respond to your concerns, because we share them in Alberta. Ontario is experiencing something we have gone through ever since the original YOA was implemented. It was roundly criticized. It was always misunderstood. I think that's probably true federally.

One of the problems we have had in our culture out west is a growing conservative mentality coupled with misinformation, even, I would suggest to Mr. Grose, concerted myth-making through the media.

For example, when Juristat reports that youth crime has been receding in every category, it's buried somewhere on page 65 in a little, tiny column, indicating to most Albertans that when they suggest to you that's not true, they've not even read it. So I think a decent campaign by the federal government of real information and real statistics would be ultimately helpful.

Having said that, however, I believe what you've said is true. Going further with what Dave Farthing said, it is attitudinal. I think people should recognize the limits of any legislation in that respect.

We could offer curriculum-based programs, which we do now, at least in Calgary. Most legal courses are optional or in senior high are even considered an adjunct to business. There isn't an inherent responsibility of the curriculum, of the Alberta educators, or of the general public to commit themselves to this type of knowledge and therefore make a balanced or at least an informed judgment.

The Chair: Thank you very much, Mr. Grose.

Can I go to Mr. Saada, please.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Ms. Toutant, I am going to ask you a rather complicated question. I will begin by thanking everyone for being here.

[English]

Thank you so much for having been so patient. I'm sure you enjoyed your time much more than we did over there, voting.

[Translation]

Ms. Toutant, my question is a rather delicate one. It is true that in Quebec there has long been an approach to youth issues that has lead to increasing integration of mechanisms in the fields of social services, education, youth protection, the legal system, etc. A whole philosophy has developed, even though there are still gaps, of course. The situation is not necessarily the same everywhere else, and the reason for that may be that the political decisions were made differently according to the province.

Do you feel that this bill, because it formalizes and broadens the set of extrajudicial measures that can be used, because it resurrects the principle that custody should be a last resort, because it brings in the whole notion of alternative measures, might be a political incentive for those who have not yet discovered the benefits of this approach?

If I may, I will tell you why I am asking this question. It is very simple and I have said this a number of times. I have been struck by the fact that, basing themselves on the same principle and citing the same goals, that is, rehabilitation, reintegration, assistance, etc. representatives of the British Columbia Ministry of Justice have told us that they support this bill. People with the same philosophy and approach, although the degree might vary, people have told us that the bill will help them move in that direction. Yet here you are telling us that the bill will move things in the other direction. Please explain that to me a bit.

• 1800

[English]

Ms. Cécile Toutant: I think I'll go back to English.

[Translation]

Mr. Jacques Saada: [Editor's Note: Inaudible]

Ms. Cécile Toutant: Yes.

[English]

I don't know why, but I have the feeling that the ones I have to convince here are English-speaking.

Voices: Oh, oh!

Ms. Cécile Toutant: I'm probably wrong; surely I'm wrong.

The Chair: She doesn't know Mr. Grose.

[Translation]

Ms. Cécile Toutant: I will speak in French, since you asked your question in French.

I think that there are still a lot of questions that remain unanswered. If you are asking me if I am sure that this bill will not contribute to the development of alternative measures or extrajudicial measures, I would have to say that it may help, because the bill will provide money to support the development of extrajudicial measures.

I would have to say that, without this new legislation, but with the money that could very well have been provided anyway, it would certainly have been possible to move in that direction because the Young Offenders Act already proposed alternative measures. However, some provinces never developed them.

If you want more information on this area, you could look at the Supreme Court ruling in the Sheldon case. You have no doubt heard about it. This was the case of the Ontario youth who felt that he had been treated unfairly because had he been in Quebec, he would have had access to alternative measures to deal with the crime he had committed; in Ontario, however, he was put in detention. The case went right up to the Supreme Court. The Supreme Court ruled that, unfortunately, he could not claim unfair treatment because, in the province where the crime occurred and where he lived, there were no alternative measures in place for that crime. That was the ruling of our highest court.

It seems to me that this law that suggested that the provinces develop alternative measures has not worked. And even if they were developed, they would need to stay in place. That is my concern. A province has to be determined to take that approach.

Mr. Jacques Saada: I am sorry, but I think that you have not really answered my question. Legislation cannot solve all the problems, and I think we both agree on that. Legislation cannot dictate these things, especially since all alternative measures, funding, etc., is mainly the responsibility of the provinces. I believe that the funding is provided on a fifty-fifty basis, is it not?

[English]

I think that's what the provinces put in, but maybe the experts can help us.

A voice: Yes, that's what it is.

Mr. Jacques Saada: Okay.

It happens, though, that in terms of education, in terms of social responsibilities, in terms of family law and everything else, it's provincial jurisdiction. So we can go as far as we can with our bill but we're not going to be able to resolve everything.

The point is, are we pushing provinces in the right direction with this bill as compared with what we had before? I'm asking you to think not only in terms of one province. I'm a member of Parliament, and I'm supposed to try to work for all Canadians. Is this going to help me implement what is good, what may be good both in the province of Quebec and throughout the country? Are we pushing the provincial governments to take that philosophy into consideration?

Ms. Cécile Toutant: If you are asking me the question in terms of the whole bill of law, I would say no, because I find the tone of this bill brings the juvenile justice system much too close to the adult justice system. If you are talking only about extrajudicial measures, I would say to you that it doesn't surprise me that B.C. is happy, in a way, because you know as well as I do that money is coming with that law.

We have to remember that the provinces who had a maximum age of 18 for juveniles in 1984 and who had the resources to deal with juveniles up to the age of 18 were only Quebec and Manitoba. Two provinces had age 17—B.C. and New Brunswick, if I'm not wrong. The rest of Canada had a maximum of 16. So these other provinces or jurisdictions had the resources there for those they were considering juveniles. They had not developed the resources for those who were dealt with by the adult system.

• 1805

I can't answer why B.C. would be happy with this law now, because I know that B.C. and the people I know from B.C. were trying very hard to implement a protection law and a way to deal with young offenders that was very similar to what they had seen in the province of Quebec.

[Translation]

The Chair: Thank you, Mr. Saada.

[English]

Mr. Cadman.

Mr. Chuck Cadman: Mr. Chair, I'd just like to direct a question to the folks from the Youth Canada Association.

Perhaps you can explain to me why it is that when I go and talk to young people in schools and community groups, they tell me they don't believe the statistics, that their own experience—and I'm talking about their own experience in the schools and on the streets—is that there's a lot more violence and crime than what's actually being reported.

Ms. Cathy Ann Kelly: We believe they're reacting to the fear around them and the media reports. There's this overwhelming sense of fear among Canadians about our youth, and they react to that. That's the impression they get from that.

Mr. Chuck Cadman: So you're basically telling me they're not smart enough to make up their own minds.

Ms. Cathy Ann Kelly: No—

Mr. Chuck Cadman: They're telling me this is their own experience; they're not telling me what they hear. When I ask them how many have been involved in incidents of violence, how many of them have been violated, a huge majority will usually put up their hands. I'm just wondering why that is, why that seems to fly in the face of the statistics.

Ms. Cathy Ann Kelly: To that we would say there aren't a huge number of violent offences, and that maybe in that certain school, or that certain area you're speaking of—I don't know what areas you're speaking of—they might have a high crime rate. But on the whole, in Canada, there isn't a high violence rate of young offenders. It has been increasing over a number of years, but that's largely due to common assaults. Perhaps we could address their fears by going into their schools and teaching them about conflict resolution, peer mediation, and how to deal with this fear and the violence they experience.

We don't believe you will create an effective change by reacting to this and saying, we're going to give you legislation and we're going to enable you to have harsher sentences. We don't feel that is going to create an effective change. It's more of a reactive approach than a proactive approach, in our opinion.

Mr. Chuck Cadman: Do I take it then that you oppose an adult sentence for any youth for any offence?

Ms. Cathy Ann Kelly: We oppose the trend in Canada as it pushes closer to an adult system for violent offenders. We believe the YOA had provisions and safeguards within it that could deal with violent offenders as they were and the provisions for transfers for adult court in the YOA were adequate. We do not—

Mr. Chuck Cadman: So you're saying that an adult sentence is appropriate in some cases?

Ms. Cathy Ann Kelly: In a limited amount of cases.

Mr. Chuck Cadman: For instance?

Ms. Cathy Ann Kelly: For instance...I could say to you for first degree murder right now, but then you'd have to take that under consideration depending on the individuality of the crime, the offender, and the situation. I wouldn't be able to give you a blanket.... In our brief, we've said that we disagree with presumptive offences. We disagree with the presumption that 16- and 17-year-olds are automatically transferred for adult sentencing under the new act. That is our position.

The Chair: Thank you, Mr. Cadman.

Mr. Chuck Cadman: Thank you.

The Chair: Madame Carroll.

Ms. Aileen Carroll: I know, Mr. Chair, you're feeling guilty because you didn't let me get my question in during the last day, but actually I don't think I could ask anything that isn't coming out in the discussion right now.

The Chair: Mr. McKay.

• 1810

Mr. John McKay (Scarborough East, Lib.): I want to question you with respect to your statement concerning paragraph 37(2)(a). You said you disagree with paragraph 37(2)(a) and believe adults and youth should not be compared or contrasted when determining sentencing.

Paragraph 37(2)(a) basically says that under no circumstances can a judge impose a sentence that is greater than what would be appropriate for an adult.

I would have thought, given your views, that you would prefer to see something of that kind in the bill, because essentially it sets the ceilings. If it were taken out of the bill—which appears to be part of your submission—you could arrive at a strange anomaly whereby youth justices give more harsh sentences to youth than would otherwise be given to adults.

Ms. Cathy Ann Kelly: We feel that paragraph 37(2)(a), in our opinion, is a provision that the youth would be compared to an adult when considering the sentence. Again, it is our view that the further we stay away from the adult model of justice, the better the justice system for youth will be. To be consistent with the rehabilitation principles of the act, we feel that comparing the youth to the adult system would be inadequate.

Mr. John McKay: You take my point, though, that you may well achieve that which you don't intend to achieve. I understand that you don't wish adults and kids to be compared for purposes of sentencing. That's your essential point.

However, if this isn't in there, you may end up with the ironical result that a kid may get a harsher sentence for a similar crime than would an adult. So aren't you in effect arguing against yourself?

Ms. Cathy Ann Kelly: No, I don't believe I am. I believe what I'm arguing for is that the youth and adults will not be compared with the same culpability of committing an offence.

Mr. John McKay: Okay. The second question has to do with the imposition of an adult sentence. You said further on in your brief:

We feel that the crown should take the initiative to have an adult sentence hearing and be required to give notice of intent prior to trial.

Isn't that exactly the scheme of the act, namely, that if the crown is going to be seeking an adult sentence on a given offence, they have to give notice of the trial?

Ms. Cathy Ann Kelly: But what we're arguing is this point of presumptive transfers for adult sentencing, I believe for 16- and 17-year-olds. I understand that the crown does give the intent prior to the youth trial, but what we are saying is that a 16- or 17-year-old shouldn't be assumed to be transferred for adult sentencing if they have been found guilty of the presumptive offences included in the act.

Mr. John McKay: Then I don't understand your point. Is it that they shouldn't be assumed for sentencing purposes? I thought the scheme of the act was pretty straightforward, namely that the crown had to establish a case for the imposition of an adult sentence on the six categories of offences.

Ms. Cathy Ann Kelly: Yes.

Mr. John McKay: I therefore don't understand your point.

Ms. Cathy Ann Kelly: I don't know if I've effectively gotten my point across to you.

Mr. John McKay: Well, it's 5.30 p.m., close to 6 o'clock, and we might all be passing each other in the night here. But I just want to clarify your submission so that I understand it.

• 1815

Ms. Cathy Ann Kelly: What we're saying with this point is that we do not agree with the change from the YOA to the Youth Criminal Justice Act so that 14- and 15-year-olds are included in transfers for adult sentencing.

Mr. John McKay: It's the issue of the 14- and 15-year-olds.

Ms. Cathy Ann Kelly: Yes, in addition to the issue of the continuation from the YOA of 16- and 17-year-olds being assumed for transfers for adult sentencing. As the act stands now, if a youth is found guilty, they're transferred for adult sentencing. We would disagree with that. We feel it would be up to the crown to make the submission that the 16- and 17-year-olds—

Mr. John McKay: I thought that was the scheme of the act. Am I—

Ms. Cécile Toutant: I think I understand. Can I just try to help?

Mr. John McKay: Yes, please.

Ms. Cécile Toutant: I think what they're saying is the presumption is useless there. Just leave it to the crown. If the crown feels it wants to demand that the 16- and 17-year-olds be transferred to the adult system, it could demand so at the beginning of the trial, but we would have no presumptive offences in the law. There would be no automatic deferral that we would have to fight during the process.

Is that what you meant?

Ms. Cathy Ann Kelly: Yes.

Mr. John McKay: Okay, that's helpful.

The Chair: I think we're about done, unless witnesses have something they feel they need to impress upon us. We also have other business we have to conduct tonight, so I suspect that's having some impact on our ability to put a quorum together. But I would make an invitation in return for your patience with us, if there's anything else that you think you have not expressed to this point and would like to.

Ms. Cécile Toutant: I would say to you that I feel we've been saying the same things over and over again and you've been hearing them. We would like it very much if we were not all politically bound in here in some way. I would surely hope that if we forgot all politics, we would say today that the best thing to do is to do away with the law, because we then wouldn't have to implement the law. You could then take the money that would be saved and use it to develop resources that are needed not only for the beginning of the scope, the extrajudiciary measures, but for very specialized treatment.

We have kids who are more and more disorganized. At a meeting we had at the Ministry of Justice for those who were in mental health fields, I think we were all agreeing that the problem is resources. Somebody told me the other day to forget about the resources and answer their question. I don't want to forget about the resources, because we can say everything. We can say kids should be doing this and kids should be doing better. If we don't evaluate them properly, we don't treat them properly. If we don't have the proper resources to do that, it's not going to work. This law will be in disrepute more rapidly than the one before it, and if I'm still working at that time and you're still members of Parliament, I'll come back and tell you “See what I said?”

The Chair: Madame Toutant, I think your position is very clear.

Youth Canada, do you have anything you would like to leave us with?

Mr. Dave Farthing: Yes, thank you for the opportunity.

I guess there are just a couple of last words, if we can. I think public education and the attitude changes we talked a little bit about just a little while ago are going to be a big part of this. Whether a law is introduced or not, it doesn't change that. Whatever happens, there has to be a huge amount of public education, as much as possible. The research is there to back it. Provinces like Ontario, Alberta to a certain degree, and maybe other provinces may not be going that way, but restorative justice needs to be a big part of our future goals for justice in Canada. There are probably a lot of people who would disagree with me.

• 1820

For an organization such as ours, in which our expertise is more around empowering young people, getting youth excited, and taking on issues, it's amazing. I wish we had time just to go through the stories of the amazing things that young people have done just simply by getting them together, giving them a little bit of training, and letting them go out while giving them some resources to back them up. But I can also tell you of the difficulties we have even getting around tables like this, where decisions are being made about youth but not with youth.

I think one of the issues we're going to constantly go against with the introduction of this law or the implementation of this law is what happens if youth aren't onboard, if you're not showing youth the respect of including them in our process. In my experience, and again I'm not an expert, if you show any sort of non-respect to someone, it turns into disrespect. If you show respect, you often get respect—not always, but there's a better chance of getting respect if you show it.

As an organization, getting the kind of funding needed to do even public education, which helps the government and which could help in the case of Ontario, is impossible. We have to write proposals but are competing against other adult consultants, other adult groups, and we could never produce the kinds of proposals they can. We could never produce the kind of context or research that we need to back up what we do. We know what we do works, we know it's effective, yet the support we need to do these kinds of things is just not there.

It kind of gets frustrating, because if this is where you guys want to go, if you want to take our justice system to another level, if you want to reduce the incarceration of young people, let's get youth involved and let's get youth working on the issue, and you'll see amazing changes. I can guarantee you that. I can say that with the utmost confidence.

At the same time, we're not necessarily being asked. Even though we have all this energy and all this passion and all this insight on how to get youth involved, what do we do with that? We go and we hit our heads against the wall. We try to get meetings with these people or those people, but it just doesn't happen.

I don't want to sound like I'm coming down on anyone or anything like that, but when we have the opportunity to work together on things, we should be working together. When you look at the heart of it, as far as looking at common ground is concerned, most people in Canada really want to feel safe and they want this culture of peace. At the same time, you're mentioning about going into schools. You know, if young people aren't feeling it, then there's a conflict there, and our way of doing justice doesn't necessarily resolve the issues.

We pulled together youth from across the country and put together a great conference last year. We had 400 young people, representing every province and every territory. We had huge amounts of aboriginal youth there. It was an amazing event. When we asked youth what they wanted to call it, they said “Resolve It”. I thought “Resolve It” was kind of a cool name when we went into it, but it was picked because they're tired of talking about issues. They're tired of people saying to do this or that on the issues. Let's just resolve the issues. Let's work towards actually getting at the heart of it and doing something about it. We don't have to be experts. We don't have to have all the solutions. Let's just resolve things. If we can do that, I think that would be great.

The last comment I'm going to make is that, as a youth organization, even in putting together this brief it was amazing that Cathy Ann put so much energy into this and so much effort. I think she should get a lot of credit for that, because even reading this thing took a lot of effort.

If you want to really involve young people in the Youth Criminal Justice Act if it becomes law, I think one great example of what you need to use—and I brought it just in case it came up—is the Convention on the Rights of the Child. A great group, including Cassandra, one of the youths I actually worked with, put together a youth version, a youth convention. Whatever comes out of this thing, if we all work together to get youth empowered, I think the government should take this—it would take an incredible team of lawyers to completely understand it—and draw it up in a language that youth can understand. It would help in achieving some of the goals.

That's the last thing I have to say.

Do you have anything to say, Cathy Ann?

Ms. Cathy Ann Kelly: No.

Mr. Dave Farthing: Thanks for the opportunity.

The Chair: Thank you very much.

One point I would make is that twice in the course of the last intervention you said you weren't an expert. By definition of being here, you are, so when you make your proposals to the government for funding in the future, put in that you're an expert.

Thank you very much for your patience.

• 1825

Now we have business to do, gang. There are a couple of items that don't require motions, so we'll do some business first, hoping that Mr. Cadman can produce some live bodies.

Mr. Chuck Cadman: No, I've already tried that.

The Chair: Then let's do a little bit of business for which we don't require motions.

The Clerk of the Committee: Do you want this to be in camera?

The Chair: Yes.

[Proceedings continue in camera]