Justice Committee on Oct. 25th, 2011

[The Chair, Conservative, Dave MacKenzie]

I call meeting number 7 to order. This is the Standing Committee on Justice and Human Rights and we are studying Bill C-10.

We have a panel with us this morning. I will reiterate to the panel that opening remarks are five minutes for any organization. When the questioning starts there will be five-minute rounds. In your opening address I'll let you know when you have one minute left.

If you wish to start, go ahead, if you've chosen a spokesperson.

[Pierre Hamel, Director-Advice, Legal Affairs, Association des centres jeunesse du Québec]

Good morning. My name is Pierre Hamel, from the Association des centres jeunesse du Québec. With me is Michèle Goyette from the Centre jeunesse de Montréal

[Michèle Goyette, Director, Special services and Services to Young Offenders, Centre jeunesse de Montréal - Institut universitaire, Association des centres jeunesse du Québec]

Good morning.

[Pierre Hamel]

The Association des centres jeunesse is pleased to have the opportunity to make recommendations to the committee concerning Bill C-10.

The Association des centres jeunesse comprises 16 youth centres in Quebec. The work the youth centres do is governed by the Youth Criminal Justice Act and the Youth Protection Act throughout Quebec. At present, this means they provide psychosocial or rehabilitation services to 112,000 children, in relation to either youth protection or young offenders. The youth centres are parapublic entities under the jurisdiction of the Quebec ministère de la Santé et des Services sociaux and are funded by that department.

I would like to remind you of a particular feature of the Quebec situation. In Quebec, the directors of youth protection, who are responsible for protecting children, are also designated to act as provincial director within the meaning of the Youth Criminal Justice Act. About 13,000 people work in the youth centres, 900 of whom are dedicated to working with young offenders. This tells you how concerned we are with the administration of this act.

[Michèle Goyette]

We would like to make four main recommendations to the committee today in connection with the part of Bill C-10 that relates to young offenders. We are hoping to see amendments made to four aspects.

The first relates to the amendment to paragraph 3(1)(a) of the Youth Criminal Justice Act. The principle of the proportionality of the sentence is introduced as the main principle. We think this is the wrong track. Whether it be for the victim of the offence or for society as a whole, the public is best protected by rehabilitating and reintegrating offenders. Advocating that the proportionality of the sentence take precedence does no service to either offenders or society. Clearly we are opposed to this change.

[Pierre Hamel]

Obviously, we hope to see a separate system for young people maintained, and we are pleased to see this incorporated in the bill. However, for it to be separate and stay that way, it must be dissociated from the principles of adult sentencing as much as possible. The Association des centres jeunesse therefore does not take a favourable view of the introduction of deterrence and denunciation as sentencing principles. Rather, we believe in measures based on the young person's risk factors, based on their needs rather than on deterrence and denunciation.

[Michèle Goyette]

In fact, these principles have proved to be ineffective when it comes to young persons. This principle is not the way to achieve the objectives of rehabilitation and reintegration and thus the long-term protection of the public.

The third objective that we strongly oppose is lifting the ban on publication of the young person's identity. We work with young offenders every day who are making sincere and honest efforts to rehabilitate themselves, and we completely fail to see what society would gain if these young people were branded and stigmatized because their identity had been published in the newspaper. We are completely opposed to this part of the bill and we would like it to be removed.

[Pierre Hamel]

Our experience shows us that we cannot assume the young person's risk of re-offending from the nature of the offence, however serious it may be; nor can we assume that rehabilitation services will have no effect on them.

The final recommendation relates to adult sentencing. We are pleased to see codification of the decisions the Supreme Court has made. However, and again in the spirit of maintaining a separate system, we do not believe there is any need for Parliament to interfere in the exercise of the prosecutor's discretion. The prosecutor is in a position to do a case-by-case assessment of the possibility of adult sentencing. We believe the law regarding adult sentencing is working very well at present to ensure the long-term protection of society and identify young persons for whom the criminal justice system is not working.

As Quebec's experience shows, very few young persons are sentenced as adults, but the rigorous exercise done every time an application is made very clearly shows that there are no flaws in the present system in this regard.

[Michèle Goyette]

That concludes our review of our four main objections to the bill.

[The Chair, Conservative, Dave MacKenzie]

Thank you very much.

[Pierre Chalifoux, General Manager, Parent Secours du Québec inc.]

Mr. Chair, members of the committee, on behalf of Parent-Secours du Québec, thank you for having me here today.

My name is Pierre Chalifoux. I am the general manager of Parent-Secours du Québec, which advocates for the same rights and values as its counterpart in Canada, Block Parent Program of Canada.

I completely agree with the new bill, because we have to deal with the following points, the most important points in this Youth Criminal Justice Act: protecting the public by holding young persons accountable, promoting the rehabilitation and reintegration of young persons who have committed offences, and supporting the prevention of crime by referring young persons to programs or agencies in the community.

If we take the example of Parent-Secours du Québec, in doing our background checks, we have to check all family members aged 12 and over living at the same address before issuing a window sign, to prove that the home is safe and suitable for people in distress to go to so they are safe.

For that reason, and to dispel any doubt when a good conduct certificate is issued, it is crucial, both for Parent-Secours du Québec and for any organization that applies for one, to get an accurate and true picture of any young person. Before informing the public that a young person, whether or not they have become an adult, is beyond reproach, that they have no record of violence or assault and are fit to work with children or the elderly in centres or institutions, we have to have more than the "young offender" notation in their record when the checks are done, we also have to have specific information about their criminal record. That way, we will be in a better position to assess the risks associated with young persons who have committed offences.

We therefore believe that the youth criminal justice system must systematically inform applicants about any crime committed by the accused, regardless of age and what the charge was.

To conclude, I leave it to the committee to decide on the sentences applicable to offences. For the safety of the public, I only hope we will be given a better picture of any young person when background checks are done.

[The Chair, Conservative, Dave MacKenzie]

Thank you, sir.

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

Thank you, Mr. Chair, members of the committee. I'm pleased to be here. I'm a law professor at Queen's University and a father of four children. For over 30 years I've been involved in doing research around child and youth issues, both for young offenders and for children as victims, and for children as subjects of custody and access disputes.

I've been the observer of changes in Canada's legal regime, first with the Juvenile Delinquents Act, then the Young Offenders Act, and now our present legislation. I've been involved in writing about the acts. Some of my work is cited by the courts. I've been significantly involved in the education of lawyers, judges, probation officers, and police officers.

When I was preparing to come here today my 15-year-old daughter Elizabeth asked me what I hope to accomplish. I told her frankly that I was not optimistic about the committee making any changes. I think the process of the committee is somewhat rushed. I'm particularly concerned about the fact that youth and adult matters have been combined into one piece of legislation. I think there are good reasons for having young people, including in a legislative review context, dealt with separately from adults.

I am, however, here to help bear witness, if you wish, for those who are not able to speak for themselves, in particular for young people and also for the many professionals who work with you and who are concerned about these measures. I'm particularly concerned that they'll be both expensive and not improve the safety of society.

Finally, I'm here to help set out some markers for future assessment of this legislation. I'll talk about that in a moment.

In my view, there are some very good parts to part 4 of Bill C-10, but there are other parts that are affected really by what could be referred to as a politicization of response to youth crime or an ideological response, rather than one that is driven by either research or on-the-ground experienced professionals.

The Youth Criminal Justice Act has been in effect since 2003, and there are certainly some important changes that should be brought to the act. I think Justice Nunn did a very good job of identifying, after a lengthy inquiry in Nova Scotia, some important areas that need to be changed. I would submit to you that the present bill goes significantly beyond his recommendations, and I have therefore some concerns about it.

I think some of the changes are going to help slow down the youth justice process but will not have any effect on outcomes. There are other changes that I think will be potentially negative and may result in increased use of custody for non-violent young offenders without seeing a reduction in youth crime.

I have a brief that I know you have. It deals extensively with all the provisions. I'll be happy to answer questions.

My greatest concerns about the act, about the amendments, are the effects it will have on less serious offenders, non-violent offenders, particularly section 38, the introduction of deterrence and denunciation. While politically it may be popular to introduce these kinds of provisions, I think it is unwise. The reality is that young people who are committing offences are not considering the consequence of getting caught. They lack judgment and forethought, and inserting deterrence into the act will not change their behaviour. It will, however, change the approach of the courts. I think we have a unique opportunity with young people to attempt to rehabilitate them, to refocus their lives, often using community-based responses. It's important not to squander our resources by sending some young people unnecessarily into youth custody.

I'm also very concerned about the provisions around pre-trial detention. I would note that this is one area where actually Bill C-10 is significantly different from the previous legislation, Bill C-4. Bill C-4 provided that for young people committing violent offences, there would be greater possibilities for pre-trial detention. That provision has now been significantly expanded in this legislation. I think pre-trial detention is an enormously important concern, as I discuss in my brief and as is widely known. Young people who are placed in pre-trial detention are especially vulnerable, for example, to being recruited into youth gangs, and this may result in a spiralling increase in their offending.

Finally, I agree with my colleagues here that section 75, about allowing the publication of identifying information especially for any violent offence, is a very broad and unnecessary provision that will tend to slow down the process of the youth courts. There are certainly very real problems in our youth justice system. There's a lack of support for an engagement of victims. There's a lack of resources for prevention. There's a lack of use of restorative justice and community-based responses.

I worry, however, that this bill, in part, will increase the use of custody for less violent youth offenders, and as a result be a costly undertaking and not increase the protection of society. Certainly, this bill has some positive features, and one thing I'm pleased to see is that it retains significant discretion for youth justice judges and youth justice courts. I think as a result of the continued discretion—

[The Chair, Conservative, Dave MacKenzie]

We're just a little bit over time.

We'll begin with Mr. Harris for five minutes.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

Thank you to all the witnesses for coming to join us this morning.

Professor Bala, I read your entire brief and I welcome your insightful comments on some of the issues. In particular, you've supported certain of the changes and recommendations and also proposed others. I suppose you did touch on deterrence as a problem in the sense of using individual deterrence as a principle of sentencing, and I think denunciation is related to that.

I was struck by one of your comments here, which was that, “studies show that the principle of 'deterrence' affects judges, but not youth”. That seems to me to be capturing a criticism of using deterrence as a method to deal with youth crime. Would you explain what you mean by that and how that affects this legislation and your recommendations?

[Prof. Nicholas Bala]

Thank you for the question.

I think there's no doubt that young people in some sense can be and need to be deterred from committing crimes so that if they think they're likely to be caught they will be less likely to commit offences. From a social point of view, the existence of the youth justice system obviously deters young people from committing offences. If they know they're going to be caught, they're less likely to commit offences. The concern is that when you add deterrence as a new factor, when it has not been in the current act, the message to judges is that they should be imposing longer sentences in the hopes of deterring future youth crime. It will affect judicial behaviour, and in particular sentences.

On the other hand, for young people, the possibility that if they get caught and convicted and sentenced and the sentence is going to be six months rather than three months does not affect their behaviour. The reality is that young people who are committing offences, unfortunately, because of their immature state, are not considering the consequences of what the sentence might be.

Similarly, in the United States, they used to think they should have capital punishment for young people, but it was not deterring youth crime. The United States Supreme Court in the case of Roper v. Simmons specifically addressed that kind of issue and said they were not going to have capital punishment for young people, specifically in part because of the fact that the young people were not going to be deterred.

Unfortunately, young people committing offences are not considering the long-term consequences, whether of smoking, of using drugs, or certainly of offending behaviour. Their behaviour can be changed. We can rehabilitate them. But imposing longer sentences will not change their behaviour. It will, however, result in more of them serving longer periods of time in custody.

For some young people, custody is appropriate or even necessary. I'm worried that we're going to be sending the wrong young people into custody for longer periods of time.

[Jack Harris, NDP, St. John's East, NL]

Can you tell me, first of all, what the effect of that is?

Second, you talked about denunciation as an additional principle, but I believe you argue in this brief that denunciation is already really included when a judge considers the societal impacts of a particular individual criminal act. Could you elaborate on that?

[Prof. Nicholas Bala]

Yes.

I think there's a lot to be said, from a lay perspective, for wanting to hold young people accountable. The present act talks about accountability and societal values.

It's very important that young people know they're being held accountable. Indeed, if anything, I'd like to see more victim involvement in the process so young people can hear from victims what they have done.

If we add the word “denunciation”, as the courts have said, it means if you in Parliament are telling us to denounce this conduct, you presumably want longer sentences. We're already holding them accountable. That must be the message you're sending out there.

Again, I worry that it's going to affect the behaviour of the courts without affecting the behaviour of young people or changing society.

[Jack Harris, NDP, St. John's East, NL]

You are also concerned about the change in the definition of violent crime, with regard to what is violent and what is not. You do explain it here and say that it's not defined in the Youth Criminal Justice Act but is able to be used by judges. Now the definition included here talks about endangerment of others without any element of knowledge by the individual.

Could you explain the problem with that and why that should be changed?

[Prof. Nicholas Bala]

I think there is some value to changing the definition of violent offence, and Justice Nunn, in his report in Nova Scotia, addressed that issue and did suggest there are cases where a young person might be endangering the public. There was a celebrated case, for example, where a young person was driving a car involved in a high-speed police chase and didn't hit anybody. They said that wasn't a violent offence because they hadn't actually injured anyone.

So I think some expansion of the definition is appropriate, but the way it's defined in this legislation does not suggest there's any requirement for a young person to understand or even have reasonable grounds to believe his conduct is endangering the public. I would like to see that added to the definition.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Just before you start, I should say that we do have one other witness coming, and she's been unavoidably detained. The clerk has gone downstairs to try to speed the process to get her through security. When she comes in, we'll give her an opportunity to make her opening remarks. We'll do it between rounds.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Okay, thank you, Mr. Chair.

First off, thank you to all the witnesses for attending.

Thank you all for coming.

My question is for Mr. Chalifoux.

You are surely aware of the report Spiralling Out of Control by the Honourable Justice Merlin Nunn.

[Pierre Chalifoux]

Unfortunately, no.