Justice Committee on March 7th, 2011

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

Legislation that would reduce youth crime is a good thing for the victims, right?

[Heidi Illingworth]

Yes, certainly.

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

Your recommendation number 4, which is rather long to read, but you are obviously familiar with it, basically talks about a multi-jurisdictional strategy for all of Canada. Is there currently any indication that a strategy like that is being developed?

[Mary Ellen Turpel-Lafond]

On the proposal to have better coordination in the system for young people with mental illness and behavioural and developmental disabilities, we see some aspects of it in some provinces and territories, often in a single centre, such as a town. We don't see it at the national level. There is a lack of clarity.

For example, I'm reviewing a case at the moment of an adolescent with autism who had a very significant psychotic episode. In the context of that, his father was killed. He was found to be not criminally responsible for that act because of a very significant mental disorder. He had gone to a hospital, but he wasn't certified under the provincial legislation and retained. The parents were very afraid to leave him in an adult psychiatric facility, which was mostly for street-involved adults. He was a very vulnerable person; they brought him home, and his father was unfortunately murdered. He has been completely stabilized and is back in the community and living with the terrible consequences of what happened.

Could it have been prevented? I don't know, but the issue is this: what about the supports for an adolescent who has a developmental disability and a mental health challenge? In crime prevention, do we have a consistent approach and adequate mental health supports for kids with dual diagnoses and kids with special needs? As well, we refer in our brief to fetal alcohol spectrum disorder, so we are not seeing effective national standards and strategies. We see a patchwork--

[The Chair, Conservative, Ed Fast]

Thank you--

[Mary Ellen Turpel-Lafond]

We think there is more work to be done.

[The Chair, Conservative, Ed Fast]

We'll go to Mr. Dechert for two and a half minutes.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Ladies, we had some discussion on Justice Merlin Nunn's report earlier today. I'm sure you're all familiar with it. In the report, he concluded that highlighting public safety as one of the goals or principles of the Youth Criminal Justice Act is necessary to improve the handling of violent and repeat young offenders.

From each of your organizations, starting with Ms. Illingworth, could I get your comments on Justice Nunn's statement and whether or not your organization agrees with that statement?

Could I start with Ms. Illingworth and then Ms. Turpel-Lafond?

[Heidi Illingworth]

We agree with the statement. I think I highlighted that in our submission this afternoon.

We feel that public safety must be the most important underlying factor in the bill and going forward. It has to be the top consideration.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay. Thank you.

Ms. Turpel-Lafond, would you comment?

[Mary Ellen Turpel-Lafond]

I think it's important to put Justice Nunn's comments into complete perspective. While he identified areas for some improvement, he also identified that much of the act was working. He was very concerned about the increased incarceration of vulnerable youth.

I think the advocate from New Brunswick, Mr. Richard, in his written brief to this committee, outlined a concern that the advocates certainly have. It wasn't a suggestion that there be a type of broad change to the act, but there were some very specific issues--for instance, the issue of pretrial detention.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Could I ask you a specific question?

In paragraph 3(1)(a) of Bill C-4, the provision inserts the words “protect the public”. In paragraph 3(1)(a), the wording is “the youth criminal justice system is intended to protect the public”.

Do you agree with that statement? Is it an amendment that you would support? Does the amendment flow from the comments of Justice Nunn?

[Mary Ellen Turpel-Lafond]

I think it does. I think public safety is always a very important principle to balance when you're looking at legislation like this.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you very much.

Thank you, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you.

I thank our three witnesses for appearing. Your testimony is helpful as we move forward on our consideration of Bill C-4.

I'll excuse you.

Members, before we suspend for a couple of minutes, could you review the ninth report of our steering committee?

We met earlier today and essentially agreed to add two more days to our consideration of Bill C-4 to accommodate more witnesses, which would be on March 21 and March 23. On March 28, we would then go to the draft report on organized crime to see if we can make some headway there. On March 30, we could tentatively deal with clause-by-clause consideration of Bill C-4, including all of the amendments that I'm sure you have ready for us.

You've had a chance to read it. Is there any discussion?

Do we have someone to move adoption?

It's so moved by Monsieur Ménard.

(Motion agreed to)

Thank you.

We'll suspend for two minutes.

[The Chair, Conservative, Ed Fast]

We'll reconvene the meeting. We're continuing our review of Bill C-4.

Returning to us are representatives from the Government of Alberta, the Government of Manitoba, and the Government of Nova Scotia.

From Alberta we have Joshua Hawkes, director of policy appeals, education and policy branch, Department of Justice and Attorney General. From the Government of Manitoba we have David Greening, executive director, policy development and analysis, Department of Justice. The Government of Nova Scotia is represented by Ronald MacDonald, senior crown counsel and criminal law policy advisor for policy, planning and research, Department of Justice.

Gentlemen, you've been asked to come back because since your last appearance before us we've had ongoing correspondence with you. You've made suggestions for some amendments to this bill. We're interested to hear what you have to say. We'll give each of you an opportunity to speak, and then we'll open the floor to questions from the members.

Go ahead, Mr. Hawkes.

[Joshua Hawkes, Director of Policy, Appeals, Education and Policy Branch, Department of Justice and Attorney General, Government of Alberta]

Mr. Chair, I wonder if we might reverse the order.

[The Chair, Conservative, Ed Fast]

Absolutely. We can start with Mr. MacDonald, if that works.

[Ronald MacDonald, Senior Crown Counsel and Criminal Law Policy Advisor, Policy, Planning and Research, Department of Justice, Government of Nova Scotia]

Thank you, Mr. Chair. Thank you, again, for the opportunity to explain our concerns about Bill C-4.

The committee has the transcript of our prior appearance. It will remind you of our concerns relating to specific provisions of Bill C-4. They relate to pretrial detention provisions, issues with the definition of deferred custody, and problems relating to the test of having a youth sentenced as an adult.

I again remind the committee, as I did the last time, that we support the general policy directives of the government as stated by Minister Nicholson in Parliament. However, it is our position that the legislative drafting has created the problems we address. I will deal with pretrial detention, Mr. Hawkes will address the adult sentence issue, and Mr. Greening will address the issue of deferred custody.

On the issue of pretrial custody, I remind you that in his report Justice Nunn did not advocate for, and Nova Scotia today is not advocating for, general changes that provide for greater incarceration of youths. Rather, our submissions emphasize that at times there are youths who are out of control, and the courts must therefore have the appropriate tools available to them to protect the public and assist the youth. These tools must, perhaps unfortunately, include at times the practical ability to place the youth in custody, both pretrial--and in particular pretrial--and obviously sometimes post-trial, for the appropriate range of offences and fact circumstances.

Simply put, while it is right to say that in principle we don't want any more youth than necessary in custody, it does not mean the system should have restrictions that effectively block that custody when we suggest it may well be necessary.

After our appearance on June 17 of last year, and further to the request of this committee, we were asked to prepare legislative drafting that we felt would resolve the problems we had identified. We therefore filed a supplementary submission and a chart that outlines that drafting.

I just want to quickly remind you that in its current form, Bill C-4 provides changes to section 29, providing a broader availability for pretrial custody for offences that would net an adult sentence of greater than five years. However, as we stated the last time, it completely precludes the availability of pretrial custody for offences that would net an adult sentence of less than five years.

My colleague, Mr. Greening, referred to those provisions as the “mandatory release” provisions, and I would suggest that is an apt characterization. We are very concerned that without amendment it will create a situation that allows youths to repeatedly commit offences, without any pretrial system that could prevent them from so doing and that could thereby protect the public. In other words, the bill does not preserve the discretion necessary for judges to detain a youth engaged in repeated criminal behaviour that poses a threat to the public or that demonstrates an unwillingness or inability of the youth to comply with conditions designed to protect that community while the youth is awaiting trial.

We have, therefore, filed our suggested changes, which you will find.... I hope you have with you the chart of changes. I will now review it. The suggested wording preserves the courts' discretion while at the same time recognizing that the crown should bear an increased burden when seeking detention for offences not falling within the new definition of “serious offence”.

On the left side of the chart, we have the current drafting of Bill C-4, and on the right side, our suggested alternative wording. I've already outlined our concerns with the current drafting. It broadens it for serious offences and precludes it for what are non-serious offences.

What we are suggesting, first of all, is to maintain the connection between section 29 and section 515 of the Criminal Code, which would allow the system to be familiar with the courts and practitioners in the courts. In other words, the bail hearings would still fall within a similar structure. Other than that, what we are saying is that there ought to be a tougher test for the detention of youths who commit non-serious offences. Therefore, we are suggesting that subsection 29(2) should read instead, as stated in the chart: “In considering whether the detention of a young person is necessary...under paragraph 515(10)(b)...a youth court judge or a justice shall presume that detention is not necessary under that paragraph unless the offence is: (a) a serious offence...”.

This means there would be no presumption against detention for a serious offence, but, of course, the courts would still have to apply all of the tests that are currently in place with respect to pretrial detention.

You don't simply detain someone unless the crown has met the burden to convince the court that it is necessary for the variety of tests that currently exist under section 515 in the relevant case law.

However, with respect to non-serious offences, what we are saying is that detention would continue, unless—and this is where you go to proposed paragraph 29(2)(b) of our legislative drafting, which deals with the offence being one “where the circumstances of the offence and the youth” and with the circumstances of “the youth's prior conduct”.

That would allow the court to consider not just their record, but perhaps previous offences committed without their having been found guilty, and Justice Nunn specifically spoke about that. Those circumstances and that conduct would have to “demonstrate on a balance of probabilities”—in other words, the crown would have to show that either the youth “is engaged in repeated criminal behaviour”--so that in effect the crown would have to show, if it's a non-serious offence, that the youth is out of control and is engaged in repeated criminal behaviour--or that there “is a threat to the safety of the public”--which I would suggest makes good sense--or that the youth “has demonstrated an unwillingness or inability to comply with conditions to secure good conduct”.

In other words, they've repeated a bunch of offences, you've released them on conditions, and they've demonstrated their unwillingness or perhaps inability to comply with those conditions that were designed to keep them out of trouble and protect society. Essentially, what those clauses are getting at is two things.

One is that they, in our view, capture the current state of the case law of courts that have interpreted the current presumption against detention provisions of the Youth Criminal Justice Act; we have taken that case law and have codified it for the benefit of the court. The other is that they essentially define the out-of-control youths who are committing the non-serious offences.

Let me give some examples. You have a youth who commits a “theft under” the first time, and that's all they've done; they would not meet this test. There's a presumption against detention, and one would hope they would not be detained.

They commit a few more shopliftings here and there, or perhaps they steal a car that's only worth a few thousand dollars, but they haven't done any additional damage. Again, are they engaged in repeated criminal behaviour? That would be for the court to determine, if it has risen to that level. Are they otherwise a threat? It would again be to the court to determine. Have they demonstrated an unwillingness? Again, it is up to the court to determine.

I would suggest that what we've attempted to capture here is our desire to continue a presumption against detention, unless it has risen to the level at which the youth is essentially out of control and the court really should have no option but to hold them.

So, as today, there would still be the presumption against detention. The court would be given clear direction and would have the ability to hold those youths who commit those types of offences that out-of-control youths will commit over and over again, offences that unfortunately we have seen lead them to more serious offences. It would still maintain the current provision of the act that serious offences would not be subject to the presumption.

That's our suggested alternative wording. It would make it harder for the crown to hold them for those offences but would still make it possible, whereas it would not be possible now with the present provisions.

Those are my comments on pretrial detention.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Mr. Hawkes.

[Joshua Hawkes]

The provisions I will speak about are the provisions dealing with the ability to obtain an adult sentence. In the time I have available to recap both our submissions and to provide some explanation for our position in the supplemental submissions, they are as follows.

It is clear that the ability to obtain an adult sentence is an integral part of any youth justice regime. These provisions are used exceptionally and sparingly, but they have been part of Canadian criminal justice and youth criminal justice since 1908. They are a part of virtually every other regime internationally to deal with youth criminal justice. It's critical that they continue to be available and to work in a manner that is functionally satisfactory.

The problem with the bill you have before you is that clause 18 effectively removes that ability. In our review of legislation from Commonwealth countries and from all of the states in the United States, we were able to find no provision anywhere that raised the test to proof beyond a reasonable doubt for obtaining an adult sentence. That's simply because the nature of the factors that must be considered really requires a balancing of factors that aren't susceptible to that level of proof.

You're talking about the maturity of the young person, their development, their background, their history, the nature of the offence—meaning whether it rises to that level of seriousness or not--and whether or not the sanctions that are available under the Youth Criminal Justice Act are of a sufficient length both to bring home a sense of accountability to the young person and to provide the best opportunity for rehabilitation. You're simply not able to prove those things beyond a reasonable doubt.

In the old Young Offenders Act, the Supreme Court of Canada explicitly recognized that and said that these kinds of matters simply aren't susceptible to that level of proof. Subsequent to the adoption of this act, the Ontario Court of Appeal confirmed that this was in fact the case.

You've heard witnesses testify that clause 18 is an attempt to codify what the Supreme Court of Canada required in R. v. D.B. With respect, we take the view that clause 18 goes too far; that D.B. in fact requires the onus to be upon the crown; that D.B. also indicates that proof of aggravating factual circumstances needs to be on the crown. That's already the case in the case law. That's already the case because of the provisions in the Criminal Code, which are well understood, that apply to adults. Although they haven't been codified in the Youth Criminal Justice Act, they're recognized as constitutional principles.

For example, in the case law as it currently exists, if I were to seek an adult sentence and one of the aggravating circumstances that I was relying on was that the accused used a knife and attempted to slash at the victim's face—and this is from a reported case—and the offender denied that, I as the crown would be put to prove beyond a reasonable doubt that this fact occurred. That's how the law operates today, and that is entirely appropriate. There's no need to codify it or to make any changes to the Youth Criminal Justice Act for this to happen, nor was there when, in another circumstance, there was a dispute about whether the person was over the age of 14 at the time the offence occurred. That, of course, is a threshold factual determination that makes an adult sentence available. If they're under 14, it is not available, so the crown was put to strict proof. We had to prove beyond a reasonable doubt the age of the young person at the time of the offence. That's fair enough. Those are factual matters that are susceptible to that level of direct proof. We've always had that burden and we're happy to continue to bear it.

To put the matter in context with respect to adult sentences, realistically what we're talking about with an adult sentence is not the length of incarceration. That's because under the Youth Criminal Justice Act, the maximum periods of incarceration for a youth sentence are fairly similar to the period of incarceration prior to parole ineligibility that will kick in under the Criminal Code. Under the Youth Criminal Justice Act, they are maximums of 10 years or seven years, consisting respectively of six years of custody followed by four years of community supervision or else of four years of custody followed by three years of community supervision.

In the Criminal Code, section 745.1 provides that for an offender under the age of 18, if they're under 16, the period of parole ineligibility varies from five to seven years--and a court will determine within that range--while for first degree murder specifically it is a period of 10 years for a person over 16 and seven years for a person under 16.

The other section of the code that's significant is section 746, which provides that the period of time begins to run from the date the offender is incarcerated, so it counts pretrial custody as part of the sentence, so you'll find that by the time the adult sentence is completed, what we're really talking about is the period of supervision under parole. If the offender is given an adult sentence, they'll be subject to that supervision for life. That's what we're talking about: whether that supervision and assistance is necessary both to protect the public and to rehabilitate the offender. In the rare circumstances in which an adult sentence is appropriate, we think that type of protection for that period of time is necessary, and I would suggest that you haven't heard any witnesses say otherwise. In my review of all the evidence before this committee, there hasn't been anybody who has said the adult sentencing provisions aren't working, that somehow they're either too tough or too lenient. In my submission, they strike the right balance.

What the bill unfortunately does is radically alter that balance. What our suggested wording attempts to do is preserve the balance as it exists today: to arm the courts with the right to consider all the background factors and consider all the circumstances in making the determination as to whether an adult sentence should apply. Essentially, the difference between our suggested wording and the wording currently in the bill is that we include the contextual factors that are removed by the bill and we remove the reference to proof beyond a reasonable doubt. Those are essentially the changes we would suggest. That's the reason we suggest them.

Thank you very much.

[The Chair, Conservative, Ed Fast]

Thank you.

We go to Mr. Greening.

[David Greening, Executive Director, Policy Development and Analysis, Department of Justice, Government of Manitoba]

Thank you.

I will address the issue of deferred custody sentences.

By way of background, paragraph 42(5)(a) of the Youth Criminal Justice Act provides that an offender may receive a deferred custody sentence for any offence “that is not a serious violent offence”. Paragraph 42(2)(p) provides that those sentences cannot exceed a maximum of six months. Essentially, the deferred custody sentences are the equivalent of the conditional sentences that are provided for under the Criminal Code for adults and that the media often refer to as house arrest.

The issue we have is that currently the serious personal injury offence definition is one that focuses on the circumstances of the offence, and its application is to an offender who commits an offence during which he or she causes or attempts to cause serious bodily harm. In our view, this makes good sense, as a deferred custody sentence--a deferred custody offence--allows the youth to effectively serve at home what would otherwise be a custodial sentence and limits the sentence to six months. It's not a sentence that's intended for offences that are serious and violent.

In terms of the concern we have, it appears that there may have been an unintended consequence as a result of the change in the definition of “serious violent offence” in relation to the adult sentencing provisions that are contained in the amendments in Bill C-4. By operation of the new definition in subclause 2(2) of Bill C-4, deferred custody sentences will now be available for all offences except murder, attempted murder, manslaughter, and aggravated sexual assault.

This broadens the availability of these sentences to a wide range of offences for which this type of sentence is not available currently. Basically, a youth would now be allowed or be able to serve their sentence at home, and only for a maximum of six months, for such serious offences as aggravated assault, assault causing bodily harm, criminal negligence causing death or bodily harm, and impaired or dangerous driving causing death or bodily harm. The availability of such a short sentence option for these serious offences is a matter of significant concern.

We also, I think, are concerned that this would appear to be directly contrary to the stated policy objectives of the government in terms of trying to strengthen the provisions of the Youth Criminal Justice Act and reduce barriers to custody for violent and repeat young offenders. It would also appear to be contrary to the policy behind Bill C-16, currently before Parliament, which is designed to remove conditional sentences as an option for serious adult offences.

In our view, there is no justification for allowing the YCJA equivalent of conditional sentences to be available for serious violent offences that are now excluded from consideration. Doing so jeopardizes both public safety and public confidence in the justice system. It is our view that Bill C-4 should be changed to ensure that deferred custody sentences remain unavailable for situations in which a young person causes or attempts to cause serious bodily harm.

In terms of the proposed approach that we've suggested, the fix or the change that we're proposing for Bill C-4 is actually very simple and straightforward and reflects our view that this is an unintended consequence. Essentially, all that we're proposing is that the current wording in paragraph 42(5)(a) be changed, so that instead of relying on the definition of serious violent offence that has been proposed in Bill C-4, we instead use the existing wording that is the status quo right now, basically providing that these types of sentences would not be available for a youth who commits an offence during which he or she causes or attempts to cause serious bodily harm.

The proposed change has been outlined in our chart. You can see in comparison what the change would be. It's a very simple change, but again, in our view, it would be something that's important to remedy what would be an unintended consequence that has serious consequences and could undermine public confidence in the justice system.

As a closing note, I'm not aware of and haven't seen any arguments or evidence in support of a need to reduce the scope of the prohibition on the sentences to the very narrow scope that's contained in the proposed definition of “serious violent offence”.

In summary, it appears that this is an unintended consequence. A very simple change to the bill could be made to address the issue. We ask the committee to give serious consideration to this change.

[The Chair, Conservative, Ed Fast]

Thank you. That was very helpful.

Go ahead, Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Chair.

Thank you so much for your presentations today and for appearing before this committee.

From the briefs you have jointly prepared it's quite clear that you're very familiar with Justice Nunn's commission of inquiry, his report, and the specific recommendations he made with regard to the YCJA. It's also very clear that you've looked very carefully at Bill C-4.

You have noted that there are sections that appear to create unintended consequences, and you propose amendments to fix them. There are other areas of the proposed amendments contained in Bill C-4 where you appear to not consider they should be done. If we take, for instance, adult sentences, there seems to be a real problem with Bill C-4 in that the crown would have to prove “beyond a reasonable doubt”, whereas from a complete reading and understanding of current jurisprudence that has been developed on this issue, it's clearly the aggravating circumstances, as you've just mentioned.

Do you feel that amendments can be brought to Bill C-4 that would correct all of the unintended consequences that you don't believe should happen because they would not be to the benefit of the youth criminal justice system? Can those sections of Bill C-4 that you feel are just wrong be salvaged through the amendments you're proposing? That's my first question.

Second, the federal government—or should I say the Harper government—has not in any way, to our knowledge, caused to be carried out any kind of serious study of the actual impacts of the YCJA across Canada in the different jurisdictions, with the assistance of the provincial governments, in order to have actual empirical data, actual evidence, as to what's working and what's not working. Do you feel that it might have been more appropriate to wait for such studies and the five-year review of the bill before moving on amendments?

If you tell me that's a political question and you don't feel comfortable answering it, I'll understand completely.