House of Commons Hansard #150 of the 35th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was public.

Topics

The House proceeded to the consideration of Bill C-37, an act to amend the Young Offenders Act and the Criminal Code, as reported (with amendments) from the committee.

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February 10th, 1995 / 10 a.m.

The Speaker

My colleagues, with regard to Bill C-37, an act to amend the Young Offenders Act and the Criminal Code, there are seven motions in amendment standing on the Notice Paper for the report stage of this bill.

Motion No. 1 will be debated and voted on separately. Motions Nos. 2, 3 and 4 will be grouped for debate but voted on separately.

Motion Nos. 5, 6 and 7 will be grouped for debate but voted on separately.

I shall now propose Motion No. 1 to the House.

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10 a.m.

Etobicoke Centre
Ontario

Liberal

Allan Rock Minister of Justice and Attorney General of Canada

moved:

Motion No. 1

That Bill C-37, in Clause 12, be amended by replacing lines 13 to 18, on page 10 with the following:

"(5.1) Where a young person elects or is deemed to have elected to be tried by a judge of a superior court of criminal jurisdiction with a jury, the youth court shall conduct a preliminary inquiry and if, on its conclusion, the young person is ordered to stand trial, the proceedings shall be before a judge of the superior court of criminal jurisdiction with a jury.

(5.2) A preliminary inquiry referred to in subsection (5.1) shall be conducted in accordance with the provisions of Part XVIII of the Criminal Code, except to the extent that they are inconsistent with this act.

(6) Proceedings under this act before a judge of a superior court of criminal jurisdiction with a jury shall be conducted, with such modifications as the circumstances require, in accordance with the provisions of Parts XIX and XX of the Criminal Code, except that".

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10 a.m.

Cape Breton—The Sydneys
Nova Scotia

Liberal

Russell MacLellan Parliamentary Secretary to Minister of Justice and Attorney General of Canada

Mr. Speaker, I am pleased to have this opportunity to speak on Bill C-37 regarding the amendments that are before the House today.

As members are aware undoubtedly, numerous motions were passed by the Standing Committee on Justice and Legal Affairs following very lengthy testimony on Bill C-37. We had before the committee approximately 40 witnesses.

The government today has tabled further motions, eight to be exact, to which I would like to speak. Seven of these motions involve technical improvements to the bill and one addresses a more substantive issue.

These suggestions have arisen as a result of further review of the bill and from recent consultations with the provinces, the territories and youth justice professionals.

The Minister of Justice recently met with his counterparts, provincial and territorial, in Victoria, B.C. The provinces, as members know, administer large aspects of the Young Offenders Act. They requested changes that would be in their interests primarily in the administration of this act. We were most willing to comply because we want the act to work as well as it possibly can.

Motion No. 1 serves to clarify which provisions of the code will apply dealing with the preliminary inquiries where a youth is charged with murder and the matter is going to be dealt with in youth court.

The existing language of Bill C-37 speaks to proceedings being regulated by the provisions of the Criminal Code relating to juries and trials of indictable offences. The revised language is specific as to the relevant provisions of preliminary inquiries as well as the initiation and conduct of jury trials.

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10:05 a.m.

The Deputy Speaker

The first group is dealing with Motion No. 1. Ten minute speeches.

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10:05 a.m.

Bloc

François Langlois Bellechasse, QC

Mr. Speaker, before I start my comments on Motion No. 1, I would like to say once again that the Bloc Quebecois has always been opposed to Bill C-37, an act to amend the Young Offenders Act.

It has always been our position, both in this House and in committee, that Canada, and especially Quebec, where the focus of Bill C-37 has no specific application, do not need this kind of legislation.

Since the Young Offenders Act was first implemented a little over ten years ago, the authorities in Quebec have done a good job of harmonizing provincial legislation with the Young Offenders Act. The Youth Protection Act is a case in point. The same people are responsible for enforcing the same laws. I feel that this particular measure is entirely unnecessary and constitutes an unexpected shift to the right.

However, when we see 70 Liberal members rise to vote on Bill C-226, we realize why this kind of bill was introduced. Our young people need jobs far more than they need sentencing. If they had jobs, if their future was not a dead end, there would be no need for legislation to lock them up and refer them to adult court so they will get longer sentences. What we have here is a society that is running scared and a government that will not admit it.

As for Motion No. 1, since that is our topic, it raises far more questions than it answers. Perhaps I may touch on a few points.

The young person's right to elect is provided in the Act, except in the case of murder charges. However, there is no indication when the right to elect to be judged before a jury or before a judge or a magistrate may be exercised. Will a young person exercise his right when he first appears in court? Will he exercise it at the preliminary hearing? Will he exercise it when he applies for bail or release from custody? There is no indication at all. There is absolutely nothing to go by. Does this mean we go by the jurisprudence already established in adult court? There is no indication where the law stands.

I think the government will have to redo its homework on this one. The steamroller approach may have to be moderated a bit.

One wonders also, in the case of a young person charged with murder, to which court his request would have to be submitted for release on bail while proceedings are pending. Would it be a superior court, as is the case presently for adults, or would it be a youth court? The rules are different.

If a young person must appear before a superior court judge to request release on bail for the duration of the proceedings, there are no safeguards against possible information leaks resulting from the presentation of such a request. It might be covered by a journalist, names might be published, although the Young Offenders Act includes specific provisions to protect the young person's identity, in large measure at least.

So the young person may very well appear before a youth court, but be required to appear before a superior court judge to request a release, just as adults must, and then the matter would be disclosed even though it is maintained that the preliminary inquiry would take place before a youth court. This poses a serious problem. I think this needs to be reworked. I also think it was done in a bit of a rush because it was only in a parliamentary committee that the official opposition pointed out that, with longer sentences, the young person would then acquire the choice of proceeding to trial by judge and jury. This aspect has evidently not been thoroughly investigated.

An attempt was made, of course, to link the right to trial by jury, guaranteed by the Canadian constitution even for young persons liable to a prison term of more than five years and Bill C-37, which, originally, made no reference to it at all. Departmental lawyers will have to look at the question more to avoid having the courts establish jurisprudence on procedure over the years.

I understand that, in substantive law, the courts have considerable power to establish rights, but the procedure should be established by the legislator in as safe and certain a context as possible. Vague provisions such as these cannot be ignored. Provision must be made at least for a ban on the publication of the name of the applicant in an application for release, if the application is to be heard by a justice of the superior court, because this is absolutely not clear.

Currently, appearance is made before a youth court justice, and the preliminary inquiry takes place in a youth court. What happens, though, if a bail application is made in between the two; where is it heard? It could be claimed that, since, at least until this point, proceedings are held in a youth court, all proceedings could take place there, but the legislation does not speak on this. Provision must be made to permit everything to remain in youth court, even the application for release on bail, since it is made generally between the appearance and the preliminary inquiry, which takes place in youth court.

Guidelines must be established and limits set on motions for a referral order by the Crown. When can the Crown make such motions? At any point before the trial? Immediately before appearance is made? Following the preliminary inquiry? Between the time of appearance and the preliminary inquiry? Here again it is vague. We will have to rely on the precedents that will be set to determine at what point the Crown will be able to do it under the new legislation. I think it should occur between the appearance and the preliminary inquiry or very shortly after the appearance. Certainly not any longer than the three days that the Crown already has to request that the release from custody hearing be delayed. The legislation is not specific. This must

absolutely be clarified, and surely the department's jurists could help out in this area.

Since Part XVIII of the Criminal Code is referred to specifically, in relation to Motion No. 1, as much for what it says as for what it fails to say, I ask myself the following question: Does the crown have the right to evoke preferred indictment in cases involving young adolescents or is preferred indictment out of the question?

If preferred indictment can be used, young people will be treated exactly like adults, at each stage. If the crown decides to proceed by preferred indictment, the young person will appear before a justice and then will be sent directly to trial by judge and jury, without any preliminary inquiry.

At the very least, there must be a provision ensuring that preferred indictment cannot be invoked for a young person accused of a criminal act which is punishable by a prison term of over five years, or, if it is used, certain procedures must be put in place for the youth court, otherwise the Young Offenders Act will have lost all meaning. By proceeding by preferred indictment the crown will be able to sidestep the Young Offenders Act and to send the young person directly to criminal court.

I was already of the opinion that bill C-37 was extremely regressive, considering all of the improvements made to criminal law between 1969 and 1980. I believe that Motion No. 1 makes it worse and the opposition will vote against the motion.

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10:15 a.m.

Reform

Mike Scott Skeena, BC

Mr. Speaker, I rise today to speak to Motion No. 1. We in this party recognize it is a step in the right direction, but it is a small step. It does not accomplish what the Canadian people want to see accomplished. It does not accomplish what we in this party recognize needs to be accomplished.

I will draw what may be a poor analogy. If you wanted to head from Ottawa to Vancouver and you got on the 401 heading west, you would say that you were going in the right direction but you would not pat yourself on the back because you hit the outskirts of town here. People do not want us to drive on a highway in first gear. They want us to get to Vancouver in a hurry. They want us to get on a jet and get there overnight.

That is what we find wrong with this legislation. It does not begin to accomplish what we know needs to be accomplished. For that reason my party and I have a great deal of difficulty with this amendment.

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10:15 a.m.

The Deputy Speaker

Is the House ready for the question?

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10:15 a.m.

Some hon. members

Question.

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10:15 a.m.

The Deputy Speaker

The question is on Motion No. 1. Is it the pleasure of the House to adopt the motion?

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10:15 a.m.

Some hon. members

Agreed.

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10:15 a.m.

Some hon. members

No.

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10:15 a.m.

The Deputy Speaker

All those in favour of the motion will please say yea.

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10:15 a.m.

Some hon. members

Yea.

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10:15 a.m.

The Deputy Speaker

All those opposed will please say nay.