Evidence of meeting #22 for Justice and Human Rights in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was custody.
A recording is available from Parliament.
12:30 p.m.
NDP
Megan Leslie NDP Halifax, NS
Thank you, Mr. Chair.
And thank you all for your testimony. It has been very helpful.
Mr. Bala, I have a pretty quick question, I imagine, for you. We had the African Canadian Legal Clinic testify, and they give a really interesting perspective using a race lens, if you look at the fact that young black men are picked up more often, they're charged more often, and then there is a disproportionate impact on young black men when it comes to pretrial detention, etc.
When Statistics Canada was here, I asked if they had numbers about racialized youth in custody, and charges, and they said they didn't. I'm wondering if in your research you have any of that data.
12:35 p.m.
Prof. Nicholas Bala
Statistics Canada doesn't keep that kind of data.
12:35 p.m.
Prof. Nicholas Bala
It only keeps it by aboriginal status, and by the way, aboriginal youth are vastly overrepresented in the youth justice system.
There are individual studies, population studies, at specific facilities and so on that certainly reveal that the rate of detention of particularly Afro-Canadian youth and some other minorities is very much evident.... There's research that clearly supports that. We don't have nationwide data. As you mentioned, there are a lot of issues, and there have been in Canada about whether we should keep data by race, how we would define race, and so on. But there have been studies of police intervention, detention, and custody, and overrepresentation of visible minority groups clearly occurs at every stage.
There's an argument about all this. Some people say it's because they're committing more crimes. Some people say it's because there's systemic bias. My belief is that there is probably some of both, and you could probably document some of both of those things going on.
12:35 p.m.
NDP
Megan Leslie NDP Halifax, NS
How do you see it, when we consider things like pretrial detention and being able to actually look at a pattern of findings of guilt but perhaps also a pattern of offences, so when no guilt is actually found yet? Do you see the potential of clause 4 having a disproportionate impact on racialized youth?
12:35 p.m.
Prof. Nicholas Bala
I think there is no doubt that some of these changes will disproportionately affect disadvantaged youth broadly, including on the basis of race, aboriginal status, and certain visible minority groups. In fact, one of the tragic ironies of this legislation is that as we've seen rates of custody go down, we've actually seen the portion of aboriginal youth, whom we have the best data on, actually going up.
12:35 p.m.
NDP
Megan Leslie NDP Halifax, NS
Okay. Thank you.
My next question is about relating the Nunn recommendation 22—which I can explain—to clause 4. I'm from Nova Scotia, and the Nunn inquiry really captured the imagination of people in Nova Scotia. With that situation, that inquiry, we had a youth who had..he had not been found guilty, but he had been on a spree. So recommendation 22 says, and I can read it to you, that when you're considering pretrial detention, you should be able to look at a pattern of findings of offences versus patterns of findings of guilt, or some kind of similar wording, to determine the appropriateness of pretrial detention.
I've asked this question of quite a few witnesses, who have said to me that the YCJA works just fine the way it is in that respect and we don't actually need that change. I'm not necessarily convinced of that. I'm wondering what your thoughts are with the balance between this very small group of persistent offenders who we need to address, versus the vast majority of offenders who get caught once or twice and don't do it again.
12:35 p.m.
Prof. Nicholas Bala
As mentioned, I appeared before the Nunn commission, and I actually had the privilege of meeting some members of the McEvoy family--the family of the woman who was killed. By the way, they were very concerned about what happened in that case and they want to see changes, but they recognize very much that real changes to have a safer society are largely in our school system, our social service system, and in working with young people.
On the specific legal question, this bill, in my view, approaches that issue in a somewhat different way than Justice Nunn contemplated, but in a way that I actually think is consistent with the spirit of what he intended. The change in the definition of the word “violence” would I think certainly capture the specific case that he was concerned about, and similar cases. The change to the definition of “violence”, combined with the change in the test for pretrial detention, would cover those situations. It could have been dealt with in a different way, but unless one gets into rewriting a number of sections of the proposed bill now and restructuring the whole thing, it's going to be hard to capture his exact words, in my view.
12:40 p.m.
NDP
Megan Leslie NDP Halifax, NS
My follow-up question was going to be this. If we look at proposed subparagraph 4(2)(a)(i), is there a substantial likelihood that this young person won't appear in court when required by law to do so? I imagine that captures looking at guilt in other cases, but also offences. I'm inserting into there recommendation 22.
12:40 p.m.
Prof. Nicholas Bala
I think that is probably correct.
One of the things I would say is that it's always interesting. As a researcher, I've been invited to a number of these hearings, and Parliament...as a group, you have a certain set of ideas. Judges may, five years later, find that it's not going to be.... That's why I think probably a periodic review is very good.
To be candid, my own view was that the Supreme Court of Canada in C.D., and that's a big part of the problem, took a too narrow approach. Whatever words are used, you'll have to see how they're interpreted by the courts, both by the appellate courts and by the trial courts, on what's going to be the overall impact of these kinds of legislative changes.
12:40 p.m.
Conservative
12:40 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much, Mr. Chair.
And thank you to all the witnesses today.
This is an important piece of legislation. I know the focus is often on critiquing the provisions in the bill, but I want to invite any of the witnesses who may wish to propose amendments that would deal with the existing deficiencies of the existing act to send them to me for consideration.
I want to address some questions to Chief Weighill. I thank you, Chief, for your presentation, which I thought was refreshingly balanced, looking at some of the good things in the act and some things that you might do differently. I was particularly interested in your comments about the problem of intimidation of victims and witnesses. That rang a bell with me because we heard from a mother whose son was beaten to death. She had a second son who was terrified because on at least one occasion someone pulled up in a car and started shooting from it in his vicinity.
Now we've heard from some witnesses whose position is that no matter how much violence might exist in a person's conduct or how dangerous a person's conduct is, unless you can prove an intention, we shouldn't consider it violent. As was pointed out by another witness, young people's brains aren't fully formed until age 18, so we don't even know if we can prove that they knew or should have known that something was going to endanger someone. But without that proof, witnesses have said we shouldn't say that an act or a conduct is violent.
The mother of the victim I mentioned to you earlier had a different view and felt that whether or not the person who shot the gun in her son's vicinity intended...or should have known it was a danger, and she felt this was a violent act. Consequently, she would like to give a judge the discretion to impose a custodial disposition.
I tend to lean toward the mother's point of view, but I wonder how you view that, from your experience, particularly around issues of proving intent.
12:40 p.m.
Chief of Police, Saskatoon Police Service
I agree with everything that everybody has said about the impulses of youth, which I think has caused some of the problems. And I would like to see judges have some discretion when they're dealing with youthful offenders.
A lot of times I don't base my thoughts on a one-time incident. I'm basing them more on a pattern in life of a youth where these changes have to come. Obviously if it's a one-time thing, we always have to be thinking about the victim. But I'm more concerned that I'm seeing this every day--the intimidation, the violence that's going on among youth--and it's continuing, provoked over and over again by the same people, and those are the ones we have to work with.
12:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
In terms of the definition of what's violent, do you think it's acceptable to allow a judge the discretion to consider a custodial sentence where there is no reasonable alternative for somebody who commits a violent act, whether or not they intended violence?
12:45 p.m.
Chief of Police, Saskatoon Police Service
No, I think there has to be some kind of intent. I believe in that fundamental philosophy of law.
12:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Mr. Kennah, I notice you are from a youth residence organization. It's been a few years for me, but we used to have open custody, closed custody. Does your organization offer residences for youth on a custodial basis?
12:45 p.m.
Executive Director, Moncton Youth Residences Inc.
We have only one home for youth serving an open custody disposition.
12:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Do you think it assists young people in improving their rehabilitation and reintegration?
12:45 p.m.
Executive Director, Moncton Youth Residences Inc.
Very much so. It turns out that this particular home--and there is another one in Saint John--has become more a provincial resource than a local community resource, because of reductions in funding by the Department of Public Safety.
Nonetheless, by maintaining youth--ideally in their community of origin, but at least maintaining youth--the advantages are that the youth are linked with so many different support systems and are still able to serve their sentence. We see much greater and better results than having a young person going to secure custody and being cut off from all of these. In some cases it's almost like going to a school for crime, when they can come out more disengaged, having learned the wrong set of skills.
12:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
So what kinds of young offenders would benefit from a custodial disposition in the home that you're referring to?
12:45 p.m.
Executive Director, Moncton Youth Residences Inc.
Well, we've had people with a variety of different conflicts with the law that have been there--in some cases very severe conflicts with the law. In some cases it's used as a step-down facility, where people are actually leaving secure custody. That's a good way to reintegrate them back into the community.
I suppose the largest number of related crimes would be theft-related crimes, but almost anything you can imagine.
12:45 p.m.
Conservative
