Justice Committee on June 3rd, 2010
A recording is available from Parliament.
On the agenda
- Simon Fournel-Laberge As an Individual
- Gaylene Schellenberg Lawyer, Legislation and Law Reform, Canadian Bar Association
- Scott Bergman Section Member, National Criminal Justice Section, Canadian Bar Association
- William Trudell Chair, Canadian Council of Criminal Defence Lawyers
- Julie McAuley Director, Canadian Centre for Justice Statistics, Statistics Canada
- Martha Mackinnon Executive Director, Justice for Children and Youth
- Agnes Samler President, Defence for Children International-Canada
- Les Horne Executive Director, Defence for Children International-Canada
- Mia Dauvergne Senior Analyst, Policing Services Program, Canadian Centre for Justice Statistics, Statistics Canada
- Craig Grimes Chief/Advisor, Courts Program, Canadian Centre for Justice Statistics, Statistics Canada
- Irwin Elman Provincial Advocate, Office of the Provincial Advocate for Children and Youth (Ontario)
- Lee Tustin Advocate for Children and Youth, Office of the Provincial Advocate for Children and Youth (Ontario)
June 3rd, 2010 / 11:05 a.m.
The Chair Ed Fast
I call the meeting to order. This is meeting number 21 of the Standing Committee on Justice and Human Rights. For the record, today is Thursday, June 3, 2010.
Members, you have before you the agenda for today. We're continuing with our review of Bill C-4, Sébastien's Law, an act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other acts.
I was hoping to actually have a planning meeting in camera at the end of today's meeting, but given the fact that we're already starting late and we have three panels to deal with, we may not get to that. If we have some extra time, we'll discuss some committee business.
Today's meeting, as I mentioned, is divided into three panels. We have our first panel with us. First of all, we have William Trudell, representing the Canadian Council of Criminal Defence Lawyers. Welcome back. We have the Canadian Bar Association, represented by Scott Bergman and Gaylene Schellenberg. Welcome back to you, as well. And finally, we have, as an individual, Simon Fournel-Laberge. Welcome.
I think you've been told that each organization, or each individual, has ten minutes to present. Then we'll open the floor to questions. If you can do your presentation in less time, it will leave more room for questions. And given that we have a fairly limited timeframe, I'd appreciate your definitely staying within the ten minutes.
We'll start with Simon.
Simon Fournel-Laberge As an Individual
Good morning everyone.
My name is Simon Fournel-Laberge. I was invited here today following a report in which I participated on CBC Radio and TV. The subject of the show was the changes that the government wishes to make to the Youth Criminal Justice Act.
I want, first of all, very humbly say that I am not an expert in this field and I do not pretend that I have the solution to the dilemma that society faces with this particular problem. However, I can share with you my personal experience with the youth justice system.
In the eyes of many people, I am living proof that the current justice system, that is really focused on making youth aware of the seriousness of their crimes, on rehabilitation and reintegration, is working. In my case, it took three sentences in youth detention centres before acquiring the tools necessary for my reintegration. I am now 24, I am studying, I work, I pay my taxes and I do everything possible to become an acceptable, responsible and productive member of our society.
But what would have happened to me if at the age of 16, when I was still searching for my identity, I had been labelled as a re-offender and if my picture had been published on the front pages of newspapers. What opinion would I have of myself today? Would it have been so easy for me to find a job, to change my circle of friends and to find the courage and the personal self-esteem necessary to go back to school? I really wonder.
I agree totally that the public has to be protected from violent crimes, but statistics are proving that coercive and punitive measures, repression and longer custody sentences will not prevent crimes from being committed and will not decrease the chance of people re-offending. I believe in prevention and education rather than in repression. However, I am not against longer custody sentences. The last sentence that I was handed down was two years and for me, it was the most beneficial of all. It gave me more time to work on myself along with psychoeducators and my parents. I was able to make contacts with victims, make sincere apologies and make restitution the best I could.
That has allowed me to forgive myself over time and to turn the page on my past as a young offender. Would it be the same if, for example, a 17-year-old in the same situation as mine was transferred into an adult institution as soon as he reached the age of majority? I don't think so. I believe that he would have been penalized because of the lack of resources in the prison system. Prison guards are not trained or mandated to come to the assistance of inmates.
So the question is: should we treat young people in the same way as adults if they commit a serious crime? I do not believe so. We do not treat them this way in any other sphere of our society. For instance, minors do not have the right to vote, because society considers that their moral judgment is not developed enough. A youth under 18 cannot buy alcohol, tobacco or lottery tickets because we consider that he is not able to choose or decide what is good or bad for him. Isn't it, therefore, a paradox to want to judge teenagers as adults? However, this in no way minimizes the damage caused to innocent victims by these young offenders. Would it not be better to invest all this money and energy to provide appropriate resources to inmates who, in the majority of cases, have serious addictions or mental health issues, in order to give them a better chance of turning their life around?
During the difficult years of my youth, in spite of my violence, lacks and deficiencies, Quebec society and Canadian society believed in me and gave me the kick-in-the-pants and the help that I needed. Thanks to that, I can speak today before you and I am proud to contribute to building our society for the future.
And don't fool yourself, I am not the only young person in that case. I am also speaking on behalf of many other youths who make it today thanks to the system presently in place.
I thank you for listening to me.
The Chair Ed Fast
Thank you very much.
We'll move on to Ms. Schellenberg. You have up to ten minutes.
Gaylene Schellenberg Lawyer, Legislation and Law Reform, Canadian Bar Association
Good morning. I am Gaylene Schellenberg, a lawyer with the legislation and law reform department of the Canadian Bar Association.
Thank you for the opportunity to present the CBA's views on Bill C-4 to you today.
The CBA is a national association of over 37,000 lawyers, law students, notaries, and academics. An important aspect of the CBA's mandate is seeking improvements in the law and the administration of justice, and it's that aspect of our mandate that brings us to you today.
With me is Scott Bergman, a member of the CBA's national criminal justice section. The section consists of crown and defence lawyers from every part of the country, and Mr. Bergman practises criminal law in Toronto. I'll turn it over to him to address the substance of our brief and respond to your questions.
Scott Bergman Section Member, National Criminal Justice Section, Canadian Bar Association
Good morning, everyone. Thank you for allowing me to be here and the CBA to be here.
I'd like to start off by saying that although the CBA doesn't support passage of the bill in its current form, there are a number of proposed amendments that are positive and ultimately ought to be included in the YCJA. For example, the recognition of diminished moral blameworthiness or culpability of young persons is a very significant step in the right direction. Also, we support the amendment prohibiting youth under the age of 18 from ever being sent to adult institutions.
With that said, on balance, the CBA cannot recommend passage of the bill in its current incarnation. With the emphasis being shifted toward pre-trial and post-conviction incarceration of youth, the bill would be a step backwards for the YCJA. Bill C-4 represents a radical shift from the guiding principles behind the hugely successful YCJA and recognition that most youth come into contact with the law as a result of fairly minor and isolated incidents.
The YCJA recognizes the importance of diverting minors and minor incidents away from the criminal justice system, with an emphasis on extrajudicial measures such as warnings, cautions, referrals, mediation, and also family conferencing. The YCJA stresses the importance of rehabilitation and reintegration of youth offenders throughout the act, including in the preamble and also in the purposes and principles of the act. One of the key objectives is to keep young offenders out of jail except for the worst, most violent, or habitual offenders. For those violent or habitual offenders, the YCJA opened the door to adult sentences and opened it more widely and perhaps rightly so. It was a move in the right direction.
With that said, Bill C-4 is a step back to the dark days of incarceration for youth. It is a movement away from diversion, rehabilitation, and reintegration.
It appears that one impetus for the bill is Mr. Justice Nunn's report, “Spiralling Out of Control: Lessons From a Boy in Trouble”. But Justice Nunn himself has actually spoken out against over-reliance on incarceration of youth, saying recently:
There’s no evidence anywhere in North America that I know of that keeping people in custody longer, punishing them longer, has any fruitful effects for society. Custody should be the last-ditch thing for a child....
Indeed, Justice Nunn has some disdain for certain aspects of Bill C-4 itself. He is quoted recently as saying “They have gone beyond what I did, and beyond the philosophy I accepted. I don’t think it’s wise.”
In the CBA's view, one area where the bill does go beyond what Justice Nunn recommended is the deletion of long-term protection of the public in favour of the more general concept of protection of the public. Without further insight, one can only assume that the deletion of the words “long-term” before “protection of the public” is intentional. This raises serious concerns about young people being locked up for longer periods of time, situations that should only be reserved for the most serious cases.
Except for those most serious or habitual cases—and I pause parenthetically to note that Dr. Croisdale recently talked about the most serious cases being between 5% and 10%, and I believe he testified before this committee on May 13—it's in the interests of both society and the young person to focus on how rehabilitation can best be achieved. The reality is, the vast majority of young people who come into contact with the justice system do so once or twice and likely never come back again. That's what I took from Dr. Croisdale's evidence, and that's what the CBA took from it.
The proposed addition of denunciation and deterrent as sentencing considerations is of very great concern to the CBA. On the one hand, the bill seeks to amend the YCJA to recognize youth's criminal diminished moral blameworthiness in contrast to adults. On the other hand, what the amendments do is import denunciation and deterrents. These are clearly adult-based sentencing principles. Moreover, the literature has conclusively found that incarceration is generally not an effective deterrent against a young person.
Since the YCJA was proclaimed in force in 2003, rates of youth crime have gone down consistently, while the rates of incarceration of young persons after sentence have also gone down. The empirical evidence seems clear. The YCJA is working as intended. Where is the evidence that such drastic and expensive changes are necessary right now for Canadian society? The CBA hasn't seen any such evidence. Before spending massive amounts of money on what appears to be a structural overhaul of some aspects of the system, one would think that significant and widespread public consultation should be the first order of business.
The government backgrounder on Bill C-4 states, and I quote, “...often the system is powerless to hold violent and reckless youths in custody, even when they pose a danger to society.” Again, the CBA has seen no evidence to support this proposition. In fact, the current YCJA appears to be quite effective in keeping truly violent and dangerous youth in custody pending trial.
The amendments to pre-trial detention, with a focus on the newly created serious offence category, would not serve to keep more violent or dangerous youth off the street. What it would do is widen the net of pre-trial incarceration to include many non-violent and in some cases relatively minor offences, like assault—simple assault, that is—uttering threats, possession over $5,000, possession of a stolen credit card.
Like all Canadians, CBA is of the view that pre-trial detention is necessary for truly violent youth who pose a very serious risk to the safety and security of the public. The difficulty we have with Bill C-4 is that the proposed amendments do not align with that desired goal. In the name of protecting the public, a youth charged with a serious offence, like a schoolyard fight, could potentially find himself or herself in pre-trial detention.
Violent offence is now going to be defined as “an offence that results in bodily harm and includes threats or attempts to commit such offences”. Bill C-4 expands the definition of “violent” to include dangerous acts as well. Even if an act is not violent or does not result in bodily harm, conduct that gives rise only to the risk of bodily harm or endangerment would now be considered violent. At the very least, the CBA takes the position that at least an intent or recklessness component ought to be built into the revised definition of violent offence.
It's incompatible, in our view, to say that young people have diminished moral blameworthiness and to only then create a very serious category of offence that includes endangerment of another by creating a substantial likelihood of causing bodily harm. The very notion of diminished moral blameworthiness is premised on the fact that youth do not think about the consequences or nature of the acts in the same way adults do.
While Bill C-4 contains some important and positive amendments, we cannot support its passage in its current form. In its current form it will undermine, not foster, the long-term protection of society. Practically speaking, the bill means more young people going to jail for longer periods of time. The bill is a move away from a restorative and rehabilitative model of justice toward a more punitive model, which we see as both unnecessary and contrary to sound public policy, which itself is based on well-accepted social science. The social price tag will be hefty, no doubt, but the fiscal costs will really be just as steep.
Thank you for your time.
The Chair Ed Fast
We'll move on to Mr. Trudell, for up to ten minutes.
William Trudell Chair, Canadian Council of Criminal Defence Lawyers
Thank you, Chair, and members of the committee. It's an honour to be asked to come back. And I understand that you have limited time, so my opening remarks will be brief.
I want to recognize Graeme Hamilton, who is sitting behind me. He's a young lawyer from Toronto who was very helpful to us in preparing our submissions today.
I want to share with you a couple of anecdotes that describe the spectrum we're talking about here, but first I would like to congratulate Parliament for what has been accomplished so far. It strikes me that we have a successful piece of legislation that works, and all the studies and work that went into this legislation and all the background information shows that it's working. It is indeed a product of a lot of work, a lot of thought. So in some respects, before you move to really looking at whether the substance of the bill should be changed, you ought to reflect upon the success that has been generated by this piece of legislation, and a shift to denunciation and incarceration is really short-term pain for long-term pain, if I could borrow a phrase.
Let me just read you two things. Our representative in the Yukon sent me this:
In Whitehorse, the Yukon territorial government's department of health and social services created a youth justice panel, unique in Canada, which decides whether a youth is eligible for post-charge extrajudicial sanctions and what the terms will be. The panel includes a probation officer, a representative from the department of education, a member of the RCMP, a youth advocate from the Boys and Girls Club, a first nation representative, someone from Victim Services, the youth's defence lawyer, and a designated crown. It's an example of community resources being used to assist youth who have broken the law to have meaningful consequences in the community at large, rather than only in the courtroom.
While many of the matters diverted are property charges, we have also successfully diverted violent and sexual offences. In addition, there is a person on contract to the government to facilitate victim-offender reconciliation conferences, which bring together the victims of crimes committed by the youthful offender, supported by adults in his life, to repair the harm he caused. These conferences have been successfully used for offences such as break and enters, assaults, and violence in group home situations. It is this type of intervention that will actually reduce crime in the long run. The spirit of the existing legislation gave rise to this very successful program in the Yukon.
In Saskatchewan, our representative talks about this:
It may be useful for a moment to reflect that the characteristics of being far behind in education, of having a disability, of being poor, and of having a psychological or psychiatric disorder are not common among the children of Canada but are definitely common among the children who are held in custody.
There, in my respectful submission, are the two extremes. We have a very successful program in the Yukon where the principles of this legislation are being put into effect, and we have an example from one of our members in Saskatchewan of, in their experience, the type of people who end up in custody. So we know which extreme we want, and I would respectfully submit that you want the same.
So when you look at serious offence, as it's defined, it expands that definition of offences that could catch these types of young people. It doesn't deal specifically with a violent offender we're concerned about. So I would ask you to look at that definition of serious offence and really see whether it's going to punish the people who are targeted and the young persons who don't have the assistance they need.
Young people live in their heads. This is all of our experiences. And when they go to jail, they will withdraw even further unless they are as successful as the gentleman to my right who articulately talked about his experience. Kids withdraw. So if you incarcerate kids, they will withdraw further. They have already withdrawn in the community. And that's not what we want, because what they will do is attach themselves to an identifiable group of criminals in custody. That's not what we want.
I want to say to you that.... I'll leave it for questions, but there are a couple of issues we are very concerned about.
There is a lot of good stuff in this bill. You are reflecting changes that may be necessary; you'll decide it. But in the definition of “serious offence”—and we agree with the submission of the Canadian Bar Association—paragraph 3(c) states,
an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.
This is a direct response of Mr. Justice Nunn's report. And I would respectfully ask you to add this word,
an offence in the commission of which a young person knowingly endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.
“Knowingly”, in the criminal definition, imports a number of degrees. You can know definitely, you can be wilfully blind, or you can be reckless. These are all terms that are embodied in the word “knowingly”.
Some other learned suggestions were made about “or ought to have known”. I don't think that a young person.... How many times did my mother say to me, “You ought to have known better.” The point is that young people just don't. So I would respectfully submit that if you import “knowingly” into paragraph 3(c), you will catch a deficiency that Mr. Justice Nunn was talking about, and you protect, in my respectful submission, the principle of catching someone who takes a risk. He doesn't have to directly know it. He can be reckless, because that's part of the definition.
Extrajudicial sanctions, extrajudicial measures cannot be used as a trap later on. It's not like a bite at the apple or the criminal.... You are given extrajudicial measures because we want the community to deal with this. As a defence counsel, I am going to be very concerned about allowing extrajudicial measures to go ahead if I know at some point in time it is mandated that they're going to be held against my client if he or she trips up down the line. So to encourage extrajudicial measures and then to use them as a club later on.... And most of these young people don't have lawyers when they entertain this. They're going to want to have lawyers. So I really don't think, in my respectful submission, that's really where you want to go with this.
The last thing is, and I echo the Canadian Bar Association, we don't need to import the principles of denunciation in this legislation. The fact that there is a separate piece of legislation for young people, the fact that this bill, in its wisdom, recognizes a degree of moral responsibility is enough. We do not have to put in.... And I would respectfully submit that it is going to create all kinds of problems, because a judge will look at the principle of denunciation and it will move to the forefront naturally. It will move to the forefront naturally, and that's not what we want.
We want to make sure the holes are plugged where they need to be plugged, but keep the spirit of a very successful piece of legislation that can be held up throughout the world as a good example.
Those are my opening remarks. Thanks very much.
The Chair Ed Fast
We'll move to questions now.
Mr. Murphy, you have seven minutes.
Brian Murphy Moncton—Riverview—Dieppe, NB
Thank you, witnesses,
to you especially, Mr. Fournel-Laberge. You testimony is very important for us and is very touching.
I have a few questions for the Canadian Bar and for Mr. Trudell concerning this specific bill.
Here's just a tiny preamble first. The government clearly overshot Nunn. The government clearly imported its own portable philosophy into this bill and overshot.
However, the CBA brief and even Mr. Trudell suggest that there are serious and important changes that need to be made or could be made to the YCJA. We must do our best as parliamentarians, but not to say it should all be adopted or it should all be rejected. I think there's stuff on the table here that we need to save. I want members of the committee, since we're maybe a week or a month or two away from looking at changes to this law to save it.... Indeed, in the brief of the CBA, on pages 5 and 6, they're admitting that there are some very good things to be implemented here, so I won't spend much time on that.
It's not part of my questioning, but in passing, you might want to talk about the publication bans for youth. I believe these can be saved, because the almost universal comment on our part is that it's good that it rests with the discretion of the judge. That's a positive step. In the four and a half years I've been here, it's good that the government realizes that judicial discretion is important. The criticisms in the brief are very accurate, but it seems to me that they could be fixed by tweaking some words, by making sure the judge only “shall” consider lifting of publication bans in cases where there are serious and violent offences and in dealing with repeated or habitual offenders. That seems to be the crux of the criticism of giving the judge that discretion.
I think what you also you object to, and perhaps I do as well, is the word that the judge “shall” consider lifting the publication ban. Maybe that should be changed to “may”. I don't expect you to respond to that, because I think we're already thinking that we can maybe propose some amendments that might save some of these aspects.
But where the rubber hits the road, where, as Mr. Trudell put it, the real philosophical battleground lies, is with the terms “denunciation” and “deterrence”. And here are my questions for Mr. Bergman and Mr. Trudell. Though it's not much talked about around here, the YCJA already has a preamble that mentions, in general terms, that the youth should become aware of the gravity of his or her offences, and that the youth should take into consideration restitution. There's no word of denunciation and deterrence, but there is an aspect that, combined with the Supreme Court's decision, I think imports a certain element of denunciation and deterrence without using those terms. You will also hear from my friends, if I could in some sense prophesy what they're going to tell you, that there is an aspect of specific deterrence that's very important for the youth, and general deterrence is left on the table for the Criminal Code.
I guess what I'm getting at is, how far can we go in changing the preamble--not as far as the government wants, of course, but far enough to take into account one of Justice Nunn's considerations about making the protection of the public a primary goal? How far can we go to beef up the aspect of the personal responsibility of youth, without crossing over, as I've said here many times, to the whole adult notion of criminal justice? As I said to one witness, why don't we just have the Criminal Code, because we're almost getting rid of the Youth Criminal Justice Act by making it a matter of total denunciation and deterrence, like section 718 of the Criminal Code.
How far can we go, Mr. Trudell, if we can perhaps start with you, to nudge it a little further along the road in wording? How can you help us with specific wording?
Chair, Canadian Council of Criminal Defence Lawyers
I think what you're all looking for is a balance. So I think you take the words that you find are missing and you try to incorporate them in the preamble. Accountability is part of the act. It's already there, holding young people accountable. You can import “protection of the public” as long as you understand that “protection of the public” is not a narrow term. “Protection of the public” includes looking at the individual offender and their individual needs.
I would suggest that what you could do is change the preamble to find a balance. You could say that it reflects that young people should be held accountable for the protection of the public, in keeping with the presumption that young persons are to be held to a less.... You know exactly what the words are. You can put it all in there so that it's balanced.
What happens is, if you use just the word “denunciation”, what you're doing is denouncing the crime and you're taking away from the spirit of the act, which is a reflection that these are young people, and before we move to the ultimate incarceration we have to look at the balance.
I would respectfully submit that might be the way to do it. Put all the principles that we're trying to protect in your preamble, not just add “deterrence” and “denunciation”, reflecting the spirit of why we have this legislation. If that's what you do, then when a judge looks at it, a judge can say, “Okay, we have to protect the public”. What that means is we not only protect the public by throwing away a key, we have to protect the public by looking at the spirit of the act and how the accountability of this young person fits in.
If you take the preamble and the emphasis on denunciation, and you take it and you do not give as much emphasis to the uniqueness of this legislation, then you gut the spirit and you take away the discretion that's really important. It's not only the discretion of the judge, but it's the discretion of the crown attorney, for instance, to be able to make the decision.
Rigid terms translate into a rigid system, and I think the collective wisdom around this table should be able to find a balance in the preamble that reflects everyone's concerns.
The Chair Ed Fast
We'll move on to Monsieur Ménard for seven minutes.
Serge Ménard Marc-Aurèle-Fortin, QC
Your presentation was very interesting, but unfortunately too short as usual. I do not understand why, in the name of efficiency, we only give a limited time to witnesses who appear before us. I wish we could give everyone of them the time they deserve given the time they put into preparing for their appearance. I shall then feel compelled to be very brief.
Mr. Fournel-Laberge, first of all, congratulations for having come here. Most of the people who have gone through the same thing as you want to remain anonymous for the rest of their lives. Consequently, the general public is only aware of the failures of the system. So, I am happy to hear that there is a great deal of success, but unfortunately those cases remain anonymous in our society.
You seem to have the necessary education, and certainly the intelligence to have identified the difference in attitude between prison guards and the psychoeducators that were in the detention centres. Could you be a little more specific on that?
As an Individual
The psychoeducators that I had the opportunity to work with were role models for me. They were the people who had the keys and who locked the doors, but that it is only part of their work. They bent over backwards to help young people and they went so far as to putting in extra hours. They have all kind of activities and programs that are individually suited to each youth. They completed specialized studies for doing that work. They identify what a youth requires. They channelled my energies and identified my potential so that I would exploit this to the maximum. They acted differently with youth who had different abilities and different potential. They don't work in the same ways with each person. They adapt their work methods to the youth in question.
I made such strong bonds with these people that we are still in touch today. This is how I had that interview with the CBC. We worked hard, and it is a source of pride for myself and for them. These people believed in young people, they believe in rehabilitation and reintegration or they wouldn't do that work.
Serge Ménard Marc-Aurèle-Fortin, QC
We do not have much time, but could I summarize your comments by saying that they were really devoted and that they had received special training?
As an Individual