Justice Committee on June 8th, 2010

[The Chair, Conservative, Ed Fast]

We'll reconvene the meeting.

I'd like to welcome our witnesses to our study of Bill C-4. We're continuing our review of Sebastien's Law, an act to amend the Youth Criminal Justice Act and other consequential and related amendments.

We have with us today, first of all, representing the Saskatoon Police Service, Chief Clive Weighill. Welcome.

[Chief Clive Weighill, Chief of Police, Saskatoon Police Service]

Thank you.

[The Chair, Conservative, Ed Fast]

We also have, representing la Commission des droits de la personne et des droits de la jeunesse, Sylvie Godin, as well as Claire Bernard. Welcome.

Representing the New Brunswick Foster Families Association, Judy Smith and Wendy Galpin. Welcome to you both.

We also have Moncton Youth Residences Inc., represented by Mel Kennah.

Then we have as an individual, Nicholas Bala, Professor of Law, Faculty of Law, Queen's University.

Welcome to all of you. I think you've been told that you have 10 minutes to present as an organization or as an individual, and then we'll open the floor to questions.

Let's start with Chief Weighill.

[Chief Clive Weighill]

Thank you, Mr. Chair.

My name is Clive Weighill and I am the chief of police for the city of Saskatoon. I'd like to thank the committee for allowing me to provide testimony today.

Youth crime, with its possible solutions, is a very serious and much debated issue in Saskatchewan. Although there has been a national trend showing reductions in youth crime in recent years, Saskatchewan has a serious problem related to criminality involving youth. The latest Canadian Centre for Justice statistics comparisons for 2008 clearly show that the youth crime rate is significantly higher in Saskatchewan than in any other province. The rate of youths charged in Saskatchewan sits at 9,255 per 100,000 population, aged 12 to 17. This is double the rate for the next closest province, Manitoba, with a rate of 4,692 per 100,000 population. By comparison, Saskatchewan has almost four times Ontario's rate of 2,718 per 100,000. In real numbers, not rates, Saskatchewan, with a population of only one million people, has charged 8,052 young offenders, compared to British Columbia, with 5,343 young persons charged out of a population of 4.5 million.

To say the least, the practitioners working in the criminal justice system in Saskatchewan have a solid grasp of the Youth Criminal Justice Act. There are positive aspects to the current act and, correspondingly, several problematic areas.

I provided testimony before this committee on March 30, 2010, and I think at that time I shared with the committee that I'm certainly a believer in social justice. I'm not one who believes that you lock people up and throw away the key. Those days are long gone. At that time I suggested to the committee that the primary reason for gang involvement in Saskatchewan is the marginalization faced by the aboriginal population in our province. A large percentage of the aboriginal population is living in poverty and poor housing, facing racism, the continued fallout of residential schools, and a restrictive Indian Act. I further suggest that in Saskatchewan the prevalence of youth crime is primarily predicated on the same factors.

Although marginalization and required social changes help explain the high numbers of youth coming in contact with the criminal justice system, I speak today of the young person who has gone past the entry level and has become entrenched in a lifestyle of criminal activity. As with most crime, the rule of thumb is that 5% of the population creates 95% of the problem. Once people are into a criminal lifestyle, they may be past preventative stages in their lives and they may have become hard core. It is about this 5% that I will direct my comments today.

As a general rule, the Youth Criminal Justice Act does an excellent job in assisting the police with diversion, official warnings, and holding youth accountable. It is within the small 5% of offenders that are habitual repeat and/or violent offenders where I believe changes in the YCJA are required.

As a case in point, recently in Saskatoon a young offender, aged 17, and an adult, aged 18, were arrested for allegedly committing 40 random street robberies and several home invasions while armed with a machete and a handgun. It is alleged that in one evening, leading to their arrest, they shot a 17-year-old male while robbing him on the street, causing the victim to be paralyzed from the chest down; they committed a home invasion, robbing eight people; and they slashed the leg of a street robbery victim with a machete. They are not from the marginalized cohort mentioned earlier; they are from middle-class families.

Other cases in point include the following. Youths engaged in gang activity and committing random street robberies allegedly stabbed a victim to death while stealing a case of beer. Youth and adults stabbed a victim 26 times because the victim made a derogatory comment. Youths involved with stolen autos are continually being released after being charged, only to reoffend and continue their actions in numbers in excess of 40 stolen vehicles. This is known to the community as revolving door justice.

I must stress that it is this type of crime and victimization that I make my comments about today, not the 95% of cases handled suitably through the YCJA.

I fully support some of the amendments contemplated by Bill C-4. In many instances, a message of deterrence has to be sent to the habitual offender. Violent crimes all have victims.

Society must be protected from those individuals who commit planned, violent crime, even if the individual committing that crime is a young person. Events such as those involving the young man mentioned earlier, who is now paralyzed, and the man who lost his life over a case of beer taken during a street robbery are not uncommon in Saskatoon.

I agree with the principle found in the current act that pre-trial detention of young offenders in general is a last resort. I do not agree with this, however, when the youth is a habitual property or violent offender. There comes a time in everyone's life when they must become accountable for their actions, and the protection of the general public must be taken into consideration. To continue releasing a habitual offender causes society to lose confidence in the criminal justice system. Unfortunately, when the public loses confidence in the system, it may attempt to force draconian remedies on the entire youth criminal justice system, thereby also penalizing the youth who could utilize the positive aspects of this act.

I take this point even further. We continually see the use of intimidation by gang members in attempts to prevent witnesses and victims from testifying or assisting the police. The acts of intimidation often include pointing a firearm at someone, assaulting someone using physical force, or threatening to use knives and machetes. This intimidation severely compromises the ability of the criminal justice system to protect witnesses and victims. Protecting witnesses and victims so that they may testify safely without intimidation is a cornerstone of our justice system. I believe an intervention is required to prevent violent and habitual offenders from inflicting further harm.

I support Bill C-4 with the notion that a young person's prior findings of guilt and pending charges should be taken into account upon pre-trial release, specifically when the offender has reached the age of 16 or 17. I also support the recommendation in Bill C-4 in relation to releasing the name of a young offender if she or he has been convicted of a violent offence and the prosecutor convinces the court there is substantial likelihood the young offender may commit another violent offence. In fact, I believe it should even be taken one step further. In cases where the police are actively attempting to apprehend a violent young offender who is believed to be a real danger to the public, his or her name could be released in an effort to warn the public of impending danger or assist with a timely apprehension. Once again, this would be used only when a youth had reached the age of 16 or 17.

In relation to sentencing, I do not support the recommendation for the use of extrajudicial sanctions at the time of sentencing. In Saskatoon, we document all extrajudicial measures and sanctions in an effort to guide our officers when they come into contact with a young offender. For instance, a youth may be caught committing a minor mischief offence and be taken home by the police to his or her parents for them to provide proper direction to the youth. Later, the youth might be caught shoplifting and receive an official police warning rather than a criminal charge. Both of these instances are captured in our data banks and will be used when determining whether criminal charges should be laid if the youth commits further offences.

I believe the extrajudicial sanctions are useful for determining charges but not for sentencing. I suggest that only a criminal record based on court findings should be used. Extrajudicial measures and sanctions are a cornerstone of the YCJA and are used only in minor occurrences. They would not be a major factor in the cases of violent or habitual offenders of which I speak today.

I have no comments in relation to the recommendations pertaining to raising youths to adult court or whether they should be placed in a youth or adult detention facility in extreme cases. I have no background in corrections, and I suggest corrections people could provide more clarity on this topic.

Once again, I thank the committee for allowing me to provide input on this issue, and I'll certainly be open to any questions.

[The Chair, Conservative, Ed Fast]

Thank you very much.

Ms. Godin.

[Sylvie Godin, Vice-President, Commission des droits de la personne et des droits de la jeunesse]

Mr. Chairman, ladies and gentlemen members of Parliament, good morning.

I am Sylvie Godin, Vice-President of the Commission des droits de la personne et des droits de la jeunesse of Quebec, and I am accompanied by Ms. Claire Bernard, legal adviser at the Research Branch.

Under the Charter of Rights and Freedoms of Quebec and the Youth Protection Act, the Commission des droits de la personne et des droits de la jeunesse of Quebec is entrusted with ensuring the protection of the interests of the child, and of ensuring through all appropriate means the promotion and respect of the rights that are granted to children under the Youth Protection Act and the Youth Criminal Justice Act.

It is thus the commission's mission to ensure that the amendments to the legislation governing the criminal justice system as it applies to adolescents are in compliance with the rights that are recognized to them. The commission discharges its mission by ensuring that the international commitments that Canada has made in the area of child rights are respected, pursuant to the Convention on the Rights of the Child and other applicable treaties.

The commission's analysis of Bill C-4 is informed by the convention, as well as the recommendations which the Committee on the Rights of the Child addressed to Canada in 2003, pursuant to the examination of Canada's second report on the implementation of the convention and the general observation the committee made public in 2007 concerning the administration of the justice system applicable to minors.

The Committee on the Rights of the Child recommended that Canada fully integrate into its legislation, policies and practices the provisions and principles of the convention, in particular the articles concerning the child's superior interest, the measures relating to deprivation of liberty, the rights of a child who is suspected, charged or convicted of a criminal offence, and rehabilitation and reinsertion, as well as the other international standards applicable in this area.

More specifically, the committee urged Canada to ensure that no person of less than 18 years of age be judged like an adult, whatever the circumstances or seriousness of the offence committed; to guarantee that the opinions of children be duly taken into consideration and respected in all legal proceedings concerning them; to see to it that the right to privacy of all children in conflict with the law be fully respected; to take the necessary measures, for instance alternate measures to the deprivation of liberty or parole, in order to considerably reduce the number of children being detained, and see to it that detention is only imposed as a last resort and for as brief a period as possible, and that in any case, children always be detained separately from adults.

Moreover, in its general observation in 2007, the Committee on the Rights of the Child addressed guidelines and recommendations to all of the states parties to the convention, so that their system of administration of justice applicable to minors be in compliance with the convention.

Our comments will thus discuss the amendments proposed in clauses 3, 4, 7, 25, 8, 20 and 21 of Bill C-4.

The bill proposes an amendment to section 3 of the act so as to make the protection of the public the priority objective of the act. The Committee on the Rights of the Child recognized that “the preservation of public safety is a legitimate aim of the justice system”. However, it “is of the opinion that this aim is best served by a full respect for and implementation of the leading and overarching principles of juvenile justice as enshrined in CRC”. Moreover, Canada itself recently pointed out in the context of its contribution to a report produced by the Human Rights Council on the Administration of Justice, that the Canadian criminal law applicable to minors guarantees that detention is a measure of last resort and that rehabilitation and reintegration must be taken into account in any decision. The principles of rehabilitation and reintegration must constitute the priority objectives of the law and not only be means, as the bill proposes.

Clause 4 of the bill proposes broadening the possibilities of resorting to pre-trial detention. The commission reminds us that according to the rights guaranteed to children in international law, detention must be a measure of last resort and it must be as brief as possible.

In this regard, the Committee on the Rights of the Child firmly pointed out that “the juvenile justice system should provide for ample opportunities to deal with children in conflict with the law by using social and/or educational measures, and to strictly limit the use of deprivation of liberty, and in particular pre-trial detention, as a measure of last resort.”

Clause 7 of the bill suggests the addition of two new principles to the principles of sentence determination, information and deterrence. Although this is no longer a matter of introducing a general deterrence principle applicable to all juveniles, as was the case in Bill C-25, the fact remains that the specific objectives of information and deterrence contradict the objectives of rehabilitation and reitegration which must remain at the heart of the criminal juvenile justice system. According to the Committee on the Rights of the Child, the protection of the best interests of the child means that: “the traditional objectives of criminal justice such as repression and retribution must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety.” Indeed several studies conclude that measures aimed at deterrence are ineffective.

Clause 25 of the bill proposes obliging police forces to keep a file regarding extrajudicial measures taken with regard to any adolescent. From the perspective of respecting the rules of international law, this change is not problematic as such, on condition however that the provisions governing access to that register and the use of the information it would contain not be modified.

A change suggested in another clause of the bill however, clause 8, concerns precisely the use of the information involving one category of extrajudicial measures, i.e. extrajudicial penalties. The court could in future impose on a juvenile a sentence of committal to custody in light of prior extrajudicial penalties, whereas currently it can only take into account prior convictions.

[The Chair, Conservative, Ed Fast]

Ms. Godin, could you just slow down a little bit?

[Sylvie Godin]

Slow down?

Oh, I'm so sorry. I just wanted to get this within my 10 minutes.

Am I okay on the time?

[The Chair, Conservative, Ed Fast]

Yes.

[Sylvie Godin]

I'll slow down.

[The Chair, Conservative, Ed Fast]

Okay. Go ahead.

[Sylvie Godin]

This change would run counter to a guideline prepared on this topic by the Committee on the Rights of the Child in its general observation.

The committee had indeed insisted on the fact that an admission made by a child in the context of diversion measures must not be “used against him or her in any subsequent legal proceeding”.

Pursuant to clause 20 of the bill, it would be incumbent upon the Attorney General to convince the court to authorize the publication of information making it possible to identify the adolescents who were given adolescent-specific sentences according to certain defined criteria. Although this change improves to some extent the scope of the protection of the right to privacy, the category of adolescents whose name could be divulged would however be broadened.

Indeed the new provision would apply to adolescents convicted of “a violent offence”, an offence whose scope is broader than the current designated offence. Consequently, this would broaden the category of adolescents who might be deprived of the right to privacy. This protection aims to prevent any stigmatization, which contributes to attaining a priority objective of the distinct legal system put in place to deal with juvenile delinquency, i.e. the adolescent's social reinsertion, as emphasized by the Committee on the Rights of the Child.

Pursuant to clause 21 of the bill, an adolescent of less than 18 years of age could no longer serve his sentence in an adult facility, even when given an adult sentence.

However, other exceptions in the bill such as the one concerning pre-trial detention would not be modified and would continue to apply. Consequently, Canada would continue to not be able to comply with the obligation of detaining children separately from adults.

Since 1996, the Commission des droits de la personne et des droits de la jeunesse has made several representations both before Parliament and the federal government in order to promote the rights recognized by the Convention on the Rights of the Child and by other standards of the United Nations applicable to the juvenile criminal justice system.

The Commission intervened in the reference presented by the government of Quebec before the court of appeal in order to support the position of the Attorney General of Quebec, in particular on the inconsistency of certain provisions of the Youth Criminal Justice Act with the provisions of the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The court of appeal referenced principles of international law to conclude that the provisions of the act relating to the presumption that adolescents charged with a designated infraction were subject to an adult sentence, and the presumption of publication, were unconstitutional. The Supreme Court confirmed the interpretation of the appeal court in 2008 in the R. v. D.B. case, and it also based its decision on the convention and other relevant international standards.

In conclusion, the commission urges legislators to respect the provisions and principles of the Convention on the Rights of the Child. It urges them to take into account in their review of Bill C-4 the recommendations and guidelines submitted by the Committee on the Rights of the Child. The committee emphasized a point that seems fundamental to us in the consideration of some of the grounds expressed to justify several of the changes proposed by Bill C-4.

I will summarize with an excerpt from general observation n^o 10 of the Committee on the Rights of the Child which reads as follows:

“[...] Reintegration requires that no action may be taken that can hamper the child's full participation in his or her community, such as stigmatization, social isolation, or negative publicity of the child. For a child in conflict with the law to be dealt with in a way that promotes reintegration requires that all actions should support the child becoming a full, constructive member of his or her society.”

Thank you for your attention.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Judy Smith for 10 minutes.

[Judy Smith, Director, New Brunswick Foster Families Association]

Good day.

On behalf of the New Brunswick Foster Families Association, we would like to thank the members of the committee for the invitation to speak to you about the proposed changes in the Youth Criminal Justice Act.

The New Brunswick association is a group of foster parents who work closely with our government on behalf of foster families and foster children to make foster care a positive experience. The New Brunswick association can only speak to these changes as they affect youth in New Brunswick and we can only attest to how this would affect the youth we live with, and we live with a variety of children.

Not all provinces have the facilities or the professional community resources to meet the needs of some of these youth, especially taking into account youth with fetal alcohol spectrum disorder--which is a very hard thing to obtain a diagnosis on--and other mental illnesses such as Asperger's, bipolar, etc.

Who determines if a youth is following the rules? This should be monitored by all people involved with that particular youth. If a youth is in a detention centre, he might come in contact with six different guards, psychologists, probation workers, foster parents, and parents. Every one of these professionals has a different connection to that youth, so by having all involved, you would have a more rounded assessment of the youth's progress.

DNA should not be destroyed for serious violent offences. If a youth at the age of 14 or younger has displayed this type of behaviour, the probability of this behaviour crossing over into adulthood is very high, and therefore past DNA samples are required and necessary.

The Youth Criminal Justice Act as a whole is a well-meaning piece of legislation, but there are many loopholes in it that the youth know better than the adults do. As a society, we have allowed behaviours to become normalized, which sends the wrong message to our youth.

In conclusion, the New Brunswick Foster Families Association would like to see earlier intervention with youth, as this may prevent future crime, and more mental health courts, with treatment imposed instead of incarceration. If a probation order or a form is issued, then make the youth accountable to follow the undertaking. If legislation is going to make rules for youth to follow, make sure there is a way to follow through with consequences.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you for staying within your 10 minutes.

Mr. Kennah is next. You have 10 minutes, sir.

[Mel Kennah, Executive Director, Moncton Youth Residences Inc.]

I want to thank the committee for this opportunity to provide input to the proposed changes to the Youth Criminal Justice Act.

I am the executive director of Moncton Youth Residences and have worked for this NGO for almost 25 years now. This is the largest non-profit organization of its kind in New Brunswick, and it employs about 180 staff members who provide 19 different services to at-risk youth and their families from around the province. In addition to that, I have been a foster parent for 20 years and have worked with young people in conflict with the law as well as child welfare youth in the permanent care of the Minister of Social Development.

I think it's encouraging that your committee is looking at the YCJA in trying to make it a more effective piece of legislation. The primary goal of the proposed changes is to better protect society, which sounds compelling and well intended. Who wouldn't want to have a safer community? But is getting more punitive the way to accomplish this positive and widely accepted goal?

What concerns me is that although the proposed changes may give the appearance of creating safer communities, the actual consequences of such changes that have an increased reliance on incarceration may indeed have the reverse effect.

The profile of an at-risk youth is someone who is already marginalized and faces numerous barriers between where they are now and becoming a healthy and contributing member of society. Risk factors include, but certainly aren't limited to, mental health issues, substance abuse, issues of homelessness, family and school breakdowns, conflict with the law, prostitution, and a myriad of relationship problems.

The increased reliance on incarceration being proposed cuts the young person off from all of their community support systems and from any important relationships in their lives. It is my belief that a young person with at least one good relationship in their life has a chance for a future. A more punitive approach will further limit the opportunity for meaningful relationships, and I fear it will be at the direct expense of rehabilitation of these young people.

Jail, punishment, and punitive measures all cloud the issue of rehabilitation. Heavier reliance on incarceration, publishing a young person's identity in the press, and trying them as an adult when they are as young as 14 years old does not suggest to me a safer society. These measures will further disengage youth, isolate them from society even more than they are now, and further aggravate their existing challenges.

Labelling a youth in the newspaper may actually influence that youth to accept that label as a permanent part of his or her future. More frequent and longer jail sentences will further reduce opportunities for success in the young person's life. It will most likely magnify and multiply existing risk factors, and it will not assist with skills acquisition. Treating a young person as an adult in these circumstances will not cause them to be any more mature or responsible or effective in their decision-making.

All youth sentenced to secure custody will one day re-enter society. A more punitive approach will help to guarantee that these youth will be ultimately less invested in society and have even less of a chance of achieving their potential.

Placing more emphasis and financial investment on incarceration will have both social and economic costs that may be difficult for society to bear.

I am not aware of any studies that clearly indicate that a young person will be less likely to reoffend because of receiving more time in jail. However, there are many studies that indicate investment in early intervention and community-based services has the best chance of inspiring youth toward more responsible behaviour. Investment in youth-specific community services and fresh options are the way to get young people connected to the necessary services, skills, people, relevant information, and even their own wants and potentials that will assist them in moving forward and also steer them away from ineffective behaviours that lead to a downward spiral.

Creating more community-based services and a heavy reliance on community-based sentences is what is needed to create safer communities. There are too few of these youth services in New Brunswick, especially in the small rural communities. Investing time, energy, and resources on the front end will obtain better results in the long run. With front-ended investment in community-based services for these at-risk youth, pressure will be taken off addiction services, hospitalization, social assistance, and incarceration. Such investment will enhance rehabilitation and will assist in holding youth accountable for their actions. The earlier the intervention, the better chance of success and the greater savings, both socially and economically.

I'm going to tell you a brief story of something that happened to me with my own teenage foster boys last weekend. We had a plugged toilet, which I tried to fix. That didn't work very well. The problem quickly grew into a flood and working with a plumber for the rest of the evening.

The plumber's conclusion was that we had a problem with our main sewer line running from the house to the septic tank. It had collapsed and I was going to have to dig up the yard. So I said, “I'll do that, and you can come back when I have things dug up.”

I then went to my foster children and said, “I could use a hand with this. Would anybody be interested?” They all replied, “Yes, we'd be happy to participate.” So the next Saturday morning we went out there and worked for about three or four hours. I can tell you that after that time they were smiling from ear to ear. I couldn't have created a greater opportunity for happiness or self-satisfaction if I had taken them to the circus for the day. Why was that? I think it was because they gained a sense of making a contribution to resolving a collective and immediate problem. They could see progress because of their efforts. They learned about teamwork and effective communication, and they had a strong sense of achievement.

You need to do esteemable things in order to build self-esteem. I believe increased emphasis on punishment will starve this growth, and emphasis on community-based options and services are the best way to promote this growth. As President Roosevelt once said, “We cannot always build the future for our youth, but we can build our youth for the future.”

In conclusion, I want to make a couple of brief points on Bill C-4, which I certainly support. First, I agree with the provision prohibiting the imprisonment of young persons in an adult correctional facility. I was actually surprised that this didn't already exist.

With some hesitation I mention the second point. Clause 25 of Bill C-4 requires that police keep a record of extrajudicial measures taken to deal with a young person. I think that maintaining a written record of this information would be more useful than not when it comes to decision-making purposes later on.

I have one final almost miscellaneous comment based on some discussions I had with one of our youth court judges and a crown prosecutor. It pertains to young people who are continuously breaching their probation and breaching undertakings to a judge. In those circumstances, in some instances, the intervention of a short, sharp shock of incarceration has proven to be beneficial in the past for some young people.

I hope the committee will give some consideration to my comments, so as to maintain that important balance between protecting society and supporting at-risk youth.

Thanks very much.

[The Chair, Conservative, Ed Fast]

Thank you very much.

We'll move on to Professor Bala for 10 minutes.

[Professor Nicholas Bala, Faculty of Law, Queen's University, As an Individual]

Thank you. It's a privilege to be invited to appear before you.

I believe you all have copies of a brief that I had submitted. It sets out my views in greater detail.

I am a law professor at Queen's University. I believe I've done more research and writing about the Youth Criminal Justice Act than any other academic in Canada. I was also a witness before the Nunn commission for a couple of days. I've been involved in the education of police, judges, and lawyers about the legislation, and I'm engaged in ongoing research, much of it with criminologists and others, in other disciplines. And I should say that in Kingston, where I live, I also work with victims and young offenders.

In terms of the Youth Criminal Justice Act, I think it's important to remember that this is legislation that deals with adolescents, with teenagers. One of the things we have a better sense of today than we may have had 20 or 30 years ago is brain development. We know that at least until the age of 18, the brain is not fully developed. When people say, “Well, that young person was not acting rationally or responsibly; it seems like he had a hole in his head”, the answer is, “He probably did, and you can actually see where it is.” Unfortunately, it's the part of the brain that deals with judgment and future planning that is often the last part to be developed.

Sometimes young people do commit absolutely horrific offences, but they're not adults. Even if they commit the most serious crimes, they should not be treated in exactly the same way as adults. That doesn't mean they shouldn't be held accountable, or in some cases even receive adult-length sentences.

One of the challenges in this area is that it is true that we can look back--at the age of 20, let's say--and say that a small group of young people became serious and habitual repeat offenders; the difficulty is that when you look at someone who is 14 or 15, you can't accurately predict which of those will end up in that small group. It is much easier to “post-dict” than it is to predict what is going to happen.

I think the Youth Criminal Justice Act has been a success, at least a qualified success. I've set out some diagrams and statistics there, showing that while we have substantially reduced the level of use of custody and courts, we have not experienced an increase in youth crime in this country. We still have a relatively high rate of use of custody compared with New Zealand and some western European countries. Although our rate has gone down, it is still much higher than in some other countries.

Custody clearly has a place, both in terms of accountability and protection of the public, but one also has to be aware of the costs of custody. One of the costs is financial. The cost—there are different estimates—of incarcerating a young person in a youth custody facility ranges from $40,000 to $100,000 a year. It is very expensive. Sometimes it's appropriate.

Furthermore, once a young person is in custody, they will be stigmatized in their community. People talk about gangs, but the number one place where gangs recruit is in custody. One has to be very careful about not overusing or misusing custody.

I think Bill C-4 is certainly a timely review of the act. Certainly some provisions are very appropriate. I have concerns about others.

Speaking about the specifics, with regard to the change in the declaration of principle--in clause 3--I'm concerned that the long-term protection of the public is removed from this version of the bill. While some reworking of the principles may be appropriate, it's very important to keep in mind the long-term protection of the public, which is most likely to be effected by rehabilitation.

As was pointed out almost without exception, young people who are sent into custody, even for adult-length sentences, are going to get out. The question is this: are they going to get out and be a greater risk to the community or a lesser risk to the community? Their rehabilitation has to be a central concern.

I think proposed paragraph 3(1)(b), the proposal to add the presumption of diminished moral blameworthiness, is a very important and worthwhile amendment. I certainly support that.

I'll turn now to the definitions, and I'll talk particularly about the issue of violent offence; I know this was a concern of Justice Nunn in his report. I support this change, although I have some concerns about the specific wording. He was concerned that the Supreme Court of Canada held, in the C.D. case, that a young person who was involved in, among other things, a high-speed police chase through a city, unless there was an accident, was not committing a violent offence and could not be placed in custody. I think those offences that do endanger the public and, for that matter, the young person themselves, should be regarded as violent offences.

Before the Supreme Court decided, there were some other cases. The Alberta Court of Appeal, for example, I think took a broader approach to the concept of violence. I think that this recommendation, which reflects what Justice Nunn was saying, is appropriate, although I would say that there should be some element of knowledge or recklessness or lack of foresight on the part of the young person committing an offence, and I've proposed some specific wording.

The issue of pretrial detention or remand is extremely important. As the graphs that I've included in the materials point out, we are actually now sending more young people into remand custody than we are into custody after findings of guilt. In other words, we are sending more young people who are not guilty or not yet found guilty into custodial facilities than we are young people who've been found guilty. This is a serious concern not only in terms of presumption of innocence but also in terms of the nature of the programming that could be provided.

As I read the amendment to section 29, it will actually somewhat focus on that and may tend to address that problem in a way that Justice Nunn supported, so I support proposed subsection 29(2).

On the issue of extrajudicial sanctions and their use, I was very pleased to hear the words of the chief. I would fully endorse his position and those of other police officers and prosecutors who point out that extrajudicial sanctions are intended not to be findings of guilt and will confuse the process if they are treated the same way. Therefore, I would suggest that those changes should not be made.

Finally, with regard to the issue of the change in the sentencing principles added by proposed paragraph 38(2)(f) on denunciation and deterrence, on some level I can understand why one would want to see both denunciation and deterrence as factors in youth sentencing, but these are words that have a specific meaning and will have an effect on the youth justice system that I think is undesirable.

We would all like to see young people deterred from committing crime, and indeed arresting young people and bringing them to youth court in and of itself will have a deterrent effect, but I'm concerned. In the paper I refer to some other research I did with Professor Cesaroni, and one of the things we know is that if you put the word “deterrence” back into this legislation, it will affect judges. Youth court judges will sentence young people to longer sentences--we know that--but if you think that will deter young people from committing crimes, unfortunately that is not the reality.

There is a wealth of information about the fact that longer sentences do not deter young people. The problem is that the young people who are committing offences are not thinking about the future at all. They're not thinking about getting caught. They're not thinking about the consequences of their act. Knowing that if they get arrested and if they get to court, they might get a sentence that's twice as long six months later is not going to affect their behaviour. It would be wonderful if it did, but there's a huge amount of research proving otherwise.

Rational adults think that sending accountants who defraud companies to jail actually has an effect on the behaviour of accountants. They're rational adults and they're reading what's going on, so their behaviour is affected. The problem is that young people are not affected by longer sentences. There is research that suggests they are affected by, for example, more effective policing, so thinking they're more likely to get caught may affect their behaviour. If sentences go up, it does not affect their behaviour. By the way, that's why the American Supreme Court abolished capital punishment for young people. They realized it was not protecting society.

Similarly, denunciation is a word that has a legal meaning. While I think accountability is very appropriate, if we are saying that young people are going to have limited accountability reflecting their moral development, as in proposed paragraph 3(1)(b), we should not turn around and denounce their conduct. We should hold them accountable; denunciation has a meaning that will simply result in longer sentences.

Finally, on the issue of publicity for young people who do not receive adult sentences, in some states in the U.S.A. it is not uncommon for there to be identifying publicity as soon as a young person is arrested. Actually some young people who are arrested rather like the publicity. They take the papers around and show them to their friends in custody in the detention facility, saying, “Hey, see what a tough guy I am?” The problem with publicity is that it doesn't deter their behaviour and it doesn't make them more accountable, but when they get out, it does make it more difficult to rehabilitate them and to reintegrate them into the community.

If we impose an adult sentence, it seems fair to say that there's going to be publicity, but if we're treating them as young people and sending them into youth custody, putting their names in the newspaper will not increase the protection of the public. It will simply make it more difficult for them to be rehabilitated.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you. You were right on the mark at 10 minutes.

We're going to open the floor to questions. I'm going to use my discretion and say that we do one round of six minutes and then a second round of four minutes. Is that acceptable?

Seeing no objection, we'll move to Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

I want to thank all of the witnesses for their testimony.

I want to say, first off, Mr. Kennah, that you made me, as a former mayor, a little nervous when you started talking about faulty sewage systems. I was ready to understand that it was a private septic well, and not part of the system that I think I left intact.

To tie that together, in this bill we see some good and necessary parts, and we see some parts that are quite questionable. I want to zero in on some of those elements that were on the bubble, as it were, so that the whole bill doesn't go down the drain, Mr. Kennah. That goes to two points: the record keeping on the use of extrajudicial sanctions and the lifting or not of the publicity ban.

I want to say to the witnesses that we have a significant philosophical difference on the big issues, like denunciation and deterrence. So don't think for a minute that we're not cognizant of that. But I want to zero in on some of the things. If you compare the position of Professor Bala with the position of Chief Weighill, there may be some common ground.

First of all, on record keeping, the quick question I have, Chief, is about the fact that there is some discretion currently in departments across the country about whether or not to keep records in cases where, I suppose, you must think they would be useful for the protection of society. The bill as proposed suggests this should be mandatory. Do you see that as an improvement? When is that discretion used to keep or not keep records, and why would it be necessary to make it mandatory?

[Chief Clive Weighill]

I can only speak for the Saskatoon Police Service. Any time we come into contact with anybody, we enter that into our data banks so that we have a record of it. I think it's useful for us in our work. If there are future occasions where we come across that youth, we know the background of that youth, and we can, I think, deal with it more appropriately because we then actually have a written, documented background. You're not going by hearsay or what somebody thinks or somebody knows, but you actually have some proof to say, this is what happened with the youth before. It helps us work with the social agencies when we're trying to get the youth help. Once again, if it gets that serious that we must lay a criminal charge, it helps us put a background to it.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I recall, Mr. Kennah, that you suggested it wasn't a bad idea.

But, Professor Bala, I think you suggested that wasn't necessary, that the discretion in place was fine. Do you hold to that? Do you have any evidence that police departments are using it with some discretion?

[Prof. Nicholas Bala]

First of all, I think that practice varies to some extent across the country in terms of the kinds of records that are being kept, particularly around extrajudicial measures and, to a lesser extent, about extrajudicial sanctions. They're the two categories. And there are questions about how that information is shared between police forces and how it is kept.

One concern I have, if you will, is philosophical. Why are we singling out this provision and why are we telling police forces that we don't think they're doing their job properly and that we think they must have it there? I think in principle it is desirable for forces to keep those kinds of records. Of course, increasingly with computers they have records of all kinds of things, not just of extrajudicial sanctions. Every time they talk to someone on the street, it's in their data bank.

I worry about the symbolic message this sends, first of all, by telling police forces what they're doing, and, secondly, about the nature of programs intended to divert young people and not to treat their offences as criminal. It sends a very mixed message. That's my biggest concern.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I get that.

Just on the publicity aspect then, this bill suggests that the judge “shall” consider whether it be lifted. In my view, that still leaves it to the discretion of the judges.

Mr. Kennah, you should know that Mr. Bala suggests that sometimes youth use this as a badge of honour, but that it rolls back on the families and is anti the impetus, in that it doesn't help reintegration. I think Chief Weighill would suggest that it might be a bit of an improvement for the purposes of public security in some cases. You're in the trenches, you people.

How much time do I have left in total? I'd like each of the three witnesses to respond to the idea of leaving judicial discretion with the judges to lift the publication ban in certain cases.

[The Chair, Conservative, Ed Fast]

You have a minute and a half.