Justice Committee on March 7th, 2011

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting number 52 of the Standing Committee on Justice and Human Rights, and for the record, today is Monday, March 7, 2011.

You have before you the agenda for today. We're continuing our review of Bill C-4, An Act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other Acts.

Again, we have with us a number of witnesses in two separate panels who are standing by to help us with that review. On our first panel we have the Canadian Council of Provincial Child and Youth Advocates, represented by Mary Ellen Turpel-Lafond, who is from my home province of B.C. She is the president. We also have Sylvie Godin, the vice-president. Welcome to both of you.

We also have here, representing the Canadian Resource Centre for Victims of Crime, Heidi Illingworth, who's the executive director. Welcome to you.

As well, we expect that shortly we will have Professor Susan Reid here. She's a professor of criminology and criminal justice, and director of the Centre for Research on Youth at Risk at St. Thomas University.

I think you have all been told the process here. You have 10 minutes to present, and then we'll open the floor to questions.

Why don't we begin with Ms. Mary Ellen Turpel-Lafond?

[Mary Ellen Turpel-Lafond, President, Canadian Council of Child and Youth Advocates]

Thank you, Mr. Chairman, and good afternoon, members. I'm Mary Ellen Turpel-Lafond, B.C.'s representative for children and youth and president of the Canadian Council of Child and Youth Advocates.

As you know, beside me is Sylvie Godin from the Quebec commission. We also have with us in the gallery a number of the individual child and youth advocates from across Canada. We have the child and youth advocate from Manitoba with us today, Bonnie Kocsis. We have representatives from the Ontario child and youth advocate office. We have the child commissioner from Nova Scotia, Dwight Bishop. We have the child advocate from Newfoundland and Labrador, Carol Chafe, and we have the child advocate from the Yukon, Andrew Nieman. I understand we'll be joined shortly by the child and youth advocate from New Brunswick, Bernard Richard.

So we have a bit of a delegation with us here today. Thank you very much for this opportunity. Sylvie and I will share our 10 minutes. Sylvie will speak in French, and I will speak primarily in English.

Our organization is an alliance of the government-appointed child and youth advocates from across Canada. Nine of the 10 members of our organization are independent advocates or independent officers of the legislative assembly; they provide support to children and youth, and particularly have something of a mandate, in the area of either advocacy or review, for youth criminal justice in our respective provinces and territories. I know that a few of our advocates have already made submissions to the committee in writing or have appeared here, including Mr. Bernard Richard and Madame Godin, as well as Mr. Elman. On behalf of B.C., I made a written submission.

We're very pleased to be here on behalf of our national body. Although our roles vary and our statutory mandates vary, we generally provide some direct advocacy supports to children and youth in the justice system, and we also work on systemic advocacy to make improvements to the systems for children and youth. Essentially our organizations promote better outcomes and the use of evidence to inform policy and encourage a more inclusive and responsive system of supports for youth and especially for vulnerable youth. In particular, in our various legislative assemblies where we work, we attempt to give voice to Canadians who by virtue of their age and personal circumstances are often not heard or represented in legislative and policy-making processes.

Through our participation in the council we identify issues of mutual concern. This is the background to our presentation today. Our collective experience as advocates and our review of the evidence leads us to make a strong recommendation that this committee be encouraged to take a position to step back from Bill C-4 and reconsider the impact of the bill on children and youth.

The current Youth Criminal Justice Act recognizes the important and interdependent objectives of protection of the public and rehabilitation of youth, and we strongly concur that both of these objectives are important. We see no evidence that shows that the proposed amendments to the act will decrease youth crime or that they will increase the safety of the Canadian public. We understand that any incident of violent crime is egregious in its devastating effects on families, communities, and the public at large, and as a society we certainly have to do our best to prevent such incidents. However, despite our distress at such incidents, we must not respond by locking up more youth and handing out more adult sentences to youth. Research demonstrates that doing so is not an effective strategy. Jurisdictions that take that approach typically have worse outcomes for children and youth across the spectrum and increase the chances that a youth will become more fixed on, or choose, a criminal path.

[Sylvie Godin, Vice-President, Canadian Council of Child and Youth Advocates]

Research shows that the Youth Criminal Justice Act has been highly effective in diverting youth people away from custodial environments, reducing youth crime rates, and reducing violent youth crime. It promotes an emphasis on rehabilitation and reintegration. It fosters the use of extrajudicial tools to hold youth accountable, and increases the chances for youth to become law-abiding, contributing citizens.

We strongly believe that the overall effect of the proposed amendments will be detrimental to these improved outcomes. Our views are in significant agreement with the findings of the consultation process carried out across our country, which were tabled with you on December 9, 2010. The report resulting from that process noted that there were consistent messages from all provinces and territories. Two major conclusions outlined in the report are that there is “little support for changes to the Youth Criminal Justice Act at this time”, and that we “need a strong social safety net to support implementation of the Youth Criminal Justice Act”.

We are also concerned about the impact of the proposed amendments on aboriginal youth, who are among the most vulnerable members of Canadian society. On June 23, 2010, we came together as members of council to release a paper entitled “Aboriginal Children and Youth in Canada: Canada Must do Better”, which is one of the documents submitted to you for today's presentation. In that paper, we note that aboriginal youth are grossly overrepresented in the youth criminal justice system beginning at age 12 years.

In Manitoba, for example, aboriginal youth represented 23% of the provincial population aged 12 to 17 in 2006. However, 84% of youth in sentenced custody were aboriginal youth. This pattern is replicated across the country. For aboriginal children and youth in Canada, there is a greater likelihood of involvement in the criminal justice system, including detention in a youth custody facility, than there is for high school graduation.

This is a staggeringly negative outcome, which appears to have increased in some provinces over the past decade, even while youth crime has declined. When policies and changes in criminal law move the system in the direction of more detention, we can only expect that they will have a more immediate negative effect on aboriginal youth than on any other group in Canadian society. And that is unacceptable.

[Mary Ellen Turpel-Lafond]

Here is another important issue that the proposed amendments do not address that the members of the council wish to bring to the committee members' attention. If it's our objective to improve the youth justice system, we must find ways to stop the criminalization of youth who have mental health issues or cognitive impairments or developmental disabilities in particular. That means strengthening treatment outside the justice system, not increasing incarceration.

In August of this past year, the council of the Canadian Bar Association passed a resolution underscoring how persons suffering from fetal alcohol spectrum disorder live with neurological and behavioural challenges. The Canadian Bar Association called on

all levels of government to allocate additional resources for alternatives to the current practices of criminalizing individuals with FASD.

Our council supports that resolution. We understand that the federal Minister of Justice has embraced that resolution and is looking at ways, in discussion with his counterparts federally and provincially, to achieve that, and we think there is great merit in considering that before proceeding with a matter such as Bill C-4.

[Sylvie Godin]

As child and youth advocates, our work is guided by respect for the rights of children and youth in our country. Canada is a signatory of the United Nations Convention on the Rights of the Child; the twentieth anniversary of the convention was marked in 2009. The convention clearly underscores the need for youth justice initiatives that are consistent with the rights and best interests of children and youth. Bill C-4does not meet that test.

[Mary Ellen Turpel-Lafond]

For this reason, we respectfully ask the committee members to step back from Bill C-4 and help instead to promote measures that will further reduce youth crime and promote the safety of the Canadian public. Let's put the emphasis on promoting measures that will give full effect to the Youth Criminal Justice Act, particularly in rehabilitation and reintegration.

In our submission you can see we've made seven recommendations toward that end. We ask for the committee's attention to our recommendations in your deliberations.

We thank you for the opportunity to speak today, and of course we are here to answer any questions you might have.

[The Chair, Conservative, Ed Fast]

Thank you. I'll move on to Ms. Illingworth.

[Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime]

Thank you, and good afternoon.

The Canadian Resource Centre for Victims of Crime, or CRCVC, is a national non-profit advocacy group for victims and survivors of violent crime. We provide direct assistance and support to victims across the country, and we advocate for public safety and improved services and rights for crime victims. We are pleased to appear before you today regarding Bill C-4, also known as Sébastien's law.

In this submission, we examine the proposed amendments and also provide some recommendations we have made in the past with respect to ensuring that the interests of crime victims are fully taken into account.

I wanted to share with you today a little bit about the families we help. At our centre, we receive calls from families affected by youths who commit violent crime against other youths or adults. We frequently hear concerns with respect to the YCJA and the manner in which it responds to both youth who commit crime and the victims of such offenders. As an organization, we are concerned by the effect on victims of violent crimes committed by youth.

According to the Statistics Canada report entitled “Police-reported crime statistics in Canada, 2009”, although youth crime severity has generally been declining since 2001, the youth violent crime rate was 11% higher than in 1999. While many groups have testified before you and have stated that the YCJA has been an unmitigated success, we remain concerned about levels of violent crime committed by youths in Canada.

We recognize that most youths come in contact with the law as a result of fairly minor incidents and we recognize the importance of diverting these youth away from the formal criminal justice system through the use of warnings, cautions, and referrals to community groups and programs. That being said, we feel the protection of society must be the ultimate goal of the youth criminal justice system. We agree with Mr. Justice Nunn, who recommended that in order to help solve the problem posed by the small group of dangerous and repeat offenders, both short- and long-term protection of the public should be included among the principles set out in section 3 of the YCJA.

Canadian society needs to do a better job of tackling the root causes of crime. We believe that many youth, with the proper social supports, can be steered away from making poor choices that may lead to a criminal lifestyle. We agree that it is necessary for municipal sectors such as schools, housing, municipal planning, and police to identify the roots of crime problems, develop strategies to tackle those problems, and implement and evaluate them.

Focusing particularly on reducing the number of young offenders, the CRCVC strongly calls for providing enriched, subsidized child care for all citizens, along with affordable housing. We favour school programs for anti-bullying, anti-violence, and respect for gender and diversity. In addition, we advocate programs to ensure literacy, to protect children from family violence, to provide after-school care, to make job training and shadowing available to adolescents, to encourage anti-substance abuse in schools, and to offer mental health and addictions treatment to youths in need.

We also see the need to reduce violent victimization in Canada. Working with our clients, we see all too well the devastating impact of violence on individuals and families. It is the victims who too often suffer endlessly in many ways, including emotional, physical, and psychological harm, pain and suffering, and lost productivity.

We support amending paragraph 3(1)(b) to add the principle of "diminished moral blameworthiness or culpability" of young persons. We believe that youths do not have the same amount of experience and knowledge to draw upon in their decision-making. We are pleased to see that the definition of a serious violent offence has been clarified and now includes the acts of first- or second-degree murder, attempts to commit murder, manslaughter, and aggravated sexual assault. We feel that this definition adequately captures the most serious violent offences that are committed, and it removes any uncertainty about which offences should be included.

The creation of a clear definition of these types of offences is in keeping with one of the primary goals of the YCJA—a reduction in the number of youth in custody--while also ensuring that there is a clear definition of the crimes that require more serious sanctions and custodial sentences.

We are also pleased to see the inclusion of a definition of a "serious" offence as it pertains to pretrial detention. We feel that it helps to clarify the provisions in proposed section 29, which in the act cross-referenced section 39. This created complexity in the provisions and implied that the goals and purposes of pretrial detention are the same as for sentencing. This is not always the case.

We acknowledge that the definition they're referring to--offences that carry a maximum adult sentence of five years or more--may seem to cast a wide net, but we would like to point out that this is but one of the criteria a judge or justice uses when determining detention in custody. This definition is necessary to allow judges and justices to hold violent and repeat offenders in custody while awaiting trial.

The addition of the definition of a “violent” offence is designed to attach significance to those behaviours that do not result in harm to any individuals but carry the risk of doing so. A youth leading a high-speed car chase through a residential neighbourhood would be an example of a violent offence under this definition, regardless of whether anyone is hurt. The fact that the chase was carried out in a residential neighbourhood where many people live, including children, makes the behaviour very high risk.

Crimes of this nature pose a significant risk to the public. They need to be acknowledged as such in order to be included in those offences for which a custodial sentence can be considered. This does not say that a custodial sentence is recommended or required in all cases that pose a risk to the public, only that they are eligible.

We are in agreement with the inclusion of deterrence and denunciation in the principles of sentencing. They are both important objectives that are currently missing from the YCJA. While there is evidence that youths do not consider the sentence they may get for committing a crime, the criminal justice system nonetheless must hold them specifically accountable for the harm they have caused, especially when it is serious harm. There is a public expectation that it do so.

There also needs to be a component of the youth justice system that allows judges to specifically denounce very serious crimes. This is not to say that young people should not receive treatment and rehabilitation. We believe that denunciation is important to Canadian society, and especially to the victims and survivors, as it is an expression of the abhorrence of the actions of an individual and the harm that has been caused. We know that it can be healing for victims to hear a judge publicly acknowledge the harm they have suffered. We believe that it may also be beneficial for a young person's understanding of the true impact and consequence of his or her actions to hear the violent act denounced by a judge.

With regard to record-keeping, we believe that the provisions in the amendments will allow a judge or a justice to take into account a youth's full criminal history when considering a sentence and to thus determine what sentence is appropriate and if a custodial sentence is warranted. This amendment should not interfere with the discretionary powers of police or deter them from considering extrajudicial sanctions as an option for keeping a youth out of the justice system. Rather, it allows the youth court to pinpoint patterns of escalating frequency or severity of criminal behaviour.

Subclause 11(1) of Bill C-4 adds proposed subsection 64(1.1), which requires crown counsel to consider whether it would be appropriate to apply for an adult sentence in a particular case. If the crown decides not to apply for an adult sentence, they must inform the court that they are not doing so. We feel that this does not encroach on prosecutorial discretion; rather, it creates more openness and accountability in crown decision-making, something that victims and the public in general often request.

Regarding publication bans for youth, the provision that allows a judge to consider lifting a publication ban for a conviction in a violent offence is something we have long advocated. There has been an assumption that by not identifying youths, we are somehow protecting them. We have always questioned the wisdom of doing so for repeat serious young offenders. Part of accountability and responsibility is facing the community. Also, what protection are we offering innocent citizens who may not know of a young person's record of violence or sexual assault? As a society, we must remain cognizant of why we are protecting a young person and whether such protection is in keeping with the broader protection of all of society.

To conclude, I would like to say that we generally support the proposed amendments to the Youth Criminal Justice Act. Unfortunately, the YCJA can only be reactive. It can only deal with people who have already broken the law. As a society, we must invest more strongly in social development programs to ensure that all children benefit. Schools, housing, social services, municipal planning, and other municipal services all have key roles to play in addressing local crime and community safety problems.

We must also remember that not all communities are able to provide social services equally. The YCJA must address some of those gaps legislatively, and it must recognize that there are offenders who require more serious interventions.

As I said previously, we support diversion programs to keep youths out of custody for non-violent offences. However, when we are dealing with serious violent crime, youths must be held accountable for their actions. For some who are very dangerous and/or out of control, the use of incarceration is necessary to protect the public.

Justice must be seen to be done, even when we are dealing with young offenders. When the justice system does not respond in a serious manner to serious harm no matter what the age of the perpetrator, the public loses confidence in the justice system.

We urge that the committee support this bill and the amendments to the YCJA as they are proposed.

At the end of our presentation, you'll find a couple of recommendations we've made in the past, specifically regarding the rights of victims in the YCJA.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

I note that Ms. Reid isn't here yet. When she does appear, we'll let her make her presentation. I understand she was travelling, and her plane may have been delayed.

We'll move to questions from our members.

First of all we'll go to Mr. Lee. You have seven minutes.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

My first question will be to Ms. Illingworth of the Canadian Resource Centre for Victims of Crime.

I understand the perspective of the centre, and I understand your advocacy on behalf of victims. I would like to ask if in all of that work you do, which would generate the perspective your centre has, whether you have any contact with offenders, particularly young offenders. Do you have experience within that envelope of activity? I'm asking whether you have had influence in that area of activity in generating your advocacy on behalf of victims.

[Heidi Illingworth]

Generally our work is with victims and survivors of violent crime. When we're providing support during a case or following sentencing, there are issues having to do with the offender that arise at all instances of the processes, but our work is generally for survivors, not for people who are accused or convicted.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

So you don't have that much contact with the so-called “bad guy”?

[Heidi Illingworth]

Right.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Okay.

Now, this question is a little bit technical. I'm going to ask the other witnesses too.

At some point in our hearings, it suddenly hit me that I was starting to see things over again, a kind of déjà vu. At some point it hit me what the déjà vu was. It was back when Parliament adopted the principles of sentencing, the first time we codified them. It was back at some point in the early nineties, 1990-something. The committee did a substantial amount of work at that time.

Ms. Illingworth, what I was remembering, as we go about amending the YCJA, is we're starting to see the general sentencing principles of the Criminal Code show up here almost word for word in the YCJA. As I recall, it was never the purpose of the YCJA. If all we're going to do under the Youth Criminal Justice Act is readopt the provisions in the Criminal Code, what's the point of having separate sentencing principles for young people? What's the sense of having a separate system?

I'm going to go through this by chapter and verse so you can understand my perspective. In the YCJA now, subsection 38(3) lists about six principles in determining sentencing. If you just read them in reverse, it starts to look an awful lot like section 718 of the Criminal Code, which is the purpose of sentencing. You just read them in reverse. I'll go through it.

Paragraph 38(3)(b) looks like subsection 718(f) in the main code.

Paragraph 38(3)(c), dealing with reparations, looks like paragraph 718(e) in the Criminal Code.

Paragraph 38(3)(d), with the same words changed around a little bit, looks just like paragraphs 718.2(b) and 718.2(c).

Paragraph 38(3)(e), on previous findings of guilt, and paragraph 38(3)(f) relate to paragraph 718.2(a), which deals with aggravating and mitigating circumstances.

Then we add denunciation, which is just like paragraph (a) of section 718.

Then you add deterrence, which is the same as paragraph 718(b).

It's as if we've gone right back to square one with our sentencing principles.

I'll put this to all the witnesses: is this what we've done as a society--gone full circle and come back to where the sentencing principles for young people are now starting to emulate the principles that we use to sentence adults? Is that where we are? Is that where you want to be? I'll ask you that as witnesses, and I'll stop there.

[Heidi Illingworth]

I think, as I said in my submission and on behalf of the people we work for, some of those principles are very important. Though taken from the adult system, if you will, some are currently missing from the youth system. It doesn't mean that you can't still treat youth in an age-appropriate way, and the system is much more focused in rehabilitation and reintegration. These are just some considerations that our centre thinks are necessary, especially when we're talking about the commission of serious violent crimes.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Ms. Turpel-Lafond, would you comment?

[Mary Ellen Turpel-Lafond]

I think the view of the council is that there is a creep into the Youth Criminal Justice Act of concepts that are really more appropriate for adults and not appropriate for youth.

In particular, some of us participated in a national consultation on the YCJA that led to the development of a background paper that I know was released to the committee in December. It was a national consultation process in each of our provinces and territories. In that consultation paper there was a very strong view taken that the summary of that national consultation was that the YCJA should not be changed just for the sake of change, and that the flaws are not in the legislation but in the services and supports that need to be there in the system.

I participated in British Columbia, Ms. Godin in Quebec, and others of us participated in our provincial consultations. We found that there was no appetite in our consultation process for this change to adopt the adult sentencing principles into the YCJA.

Obviously, I have the additional benefit of eight years as a provincial court judge in applying the YCJA in the youth court. We do apply the offences in the Criminal Code when we're dealing with offenders who are young people, but the procedure is different on purpose, which is that it reflects the best evidence we have with respect to the cognitive and developmental circumstances of adolescents.

For instance, on the issue of deterrence there is scant, if any, evidence that it is effective with respect to young people. There is evidence with respect to adults--that's different--but not with respect to young people.

Certainly as a council we're very concerned about converting the Youth Criminal Justice Act into an adult regime, which it wasn't supposed to be. We're very supportive of holding young people to account and for their being responsible, and for having a successful reintegration and rehabilitation of young people when there has been antisocial behaviour, but we don't see evidence that placing them essentially into an adult system will work.

[The Chair, Conservative, Ed Fast]

Thank you.

Now we'll go to Monsieur Ménard for seven minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I would first like to ask Ms. Turpel-Lafond a question.

My understanding is that you were a judge in juvenile court for some time. Is that right?

[Mary Ellen Turpel-Lafond]

I am a judge on leave from the Provincial Court of Saskatchewan, performing the role as representative for children and youth in B.C., so I have a position I'll go back to.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I thought you looked too young to be retired. If I understood correctly, you have eight years experience. Have you worked under the current act only?

[Mary Ellen Turpel-Lafond]

Yes, I sat as a judge under the Young Offenders Act. I worked as a lawyer with the Juvenile Delinquents Act, and then I was there when we brought in the Youth Criminal Justice Act in the Province of Saskatchewan and nationally. I've seen the changes through the different systems.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Like Ms. Godin, you have all participated in the hearings held by the Minister of Justice across Canada. You are familiar with the results and with the position of other organizations. So if anything had to be improved, it's not the act itself, but the resources. The resources have not lived up to the expectations people had when the legislation was passed.

[Sylvie Godin]

Yes, absolutely. That's actually in our recommendations. In addition, based on the findings of our report in general, a new trend is on the rise, which includes mental health issues. We talk about it in the recommendations. These new problems are definitely on the rise. We need to pay attention to them, take concrete action and provide the appropriate resources.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Some of the changes made to the legislation have to do with publishing the names of the young offenders. According to some of the people who testified before us—and I will just refer to them for now, even though I know many others who share the same opinion—young people in gangs seem to think that having their names published in newspapers is something to be proud of rather than something to deter them from committing offences. Is that the feeling you are getting too? Have you also been experiencing this?