Bill C-25 (Historical)

An Act to amend the Youth Criminal Justice Act

This enactment amends the Youth Criminal Justice Act by adding deterrence and denunciation to the principles that a court must consider when determining a youth sentence. It also clarifies that the presumption against the pre-trial detention of a young person is rebuttable and specifies the circumstances in which the presumption does not apply.

Youth Criminal Justice Act

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I rose initially to speak to what is in effect a motion before the House to close off debate, a motion moved by the member for Edmonton—Sherwood Park. I actually was rising with mixed feelings. On the one hand, because it is important that the debate on this bill continue for an extended period of time, I was going to be critical of my colleague for Edmonton--Sherwood Park. However, on the other hand, since I already spoke once to this matter, the motion now allows me to speak a second time and make additional points. Therefore, I actually want to thank the member for making the motion.

Hopefully, the motion will also give enough time to other members of this House who are bringing forward good points, as we just heard from my colleague from the Bloc and earlier from my colleague from Parkdale, about how we go about strengthening our youth criminal justice system without impairing the steps forward that we have made over the last 20 or 30 years.

I practised law during that entire period of time before I came to the House and a good deal of my early career was spent dealing with youth crime. It was different legislation at that time. It was much more punitive in nature. The law did not have much emphasis on rehabilitation. It recognized the difference between youth and adult crimes but was much more limited.

Over the years, our society, reflected in the legislation that Parliament passed, has moved forward. As that was going on, we saw a continuing reduction, until very recently, in crimes generally, both by adults and youth, and specifically with regard to youth crime, we saw some very substantial drops in the rates of youth crime. This decline corresponded with us reducing the times that youth spent in correctional facilities and emphasized the amount of time they would spend either in the community receiving treatment and counselling, et cetera, or in facilities that were of a psychiatric and psychological nature where very intensive treatment would be available for them.

What happened, and both the federal government and the provincial governments were at fault for this, is we saw in the middle nineties, in budgets that were passed by the former prime minister when he was finance minister, and we saw it in a number of the provinces, most notably in Ontario under the Mike Harris and Ernie Eves administration, substantial cuts to those treatment programs. We also saw cuts that affected the quality of life for those who are more vulnerable in our society.

There has been the commencement of an analysis by sociologists and criminologists to try to explain the spike in crimes that we have seen, the development, as we heard from some of the other speakers, in many more street gangs forming, noticeably over the last four or five years, but which started even earlier than that. It is interesting to go back and look at the increase in the crime rate, particularly among youth and the spike that we have seen in the last three or four years.

Mr. Speaker, I wonder if we could have some order in the House. It is really very distracting to speak when we have conversations going on.

[The Acting Speaker, Conservative, Andrew Scheer]

I think the hon. member raises a good point. If there are any members who wish to carry on conversations with their colleagues could they please use one of the lobbies on either side of the House so we can all hear the hon. member for Windsor—Tecumseh.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, what we have seen is the spike and we have seen it most noticeably in the last three or four years in our crime statistics. We have seen it particularly coming out of crimes committed by youth gangs.

If we go back and study the sociological data, a good number of individuals committing those crimes were in their early to late adolescence or early teens at the time when these financial cuts came about and when the impact of the cuts to those programs, whether it was the treatment programs, affordable housing or basic social assistance, were felt. We saw a 22% cut in social assistance in the province of Ontario in one budget.

Those cuts had a substantial impact on the ability of mostly single parents to provide even the basic necessities. We are seeing this analysis coming at this point, and I think it will be a few more years before we can say whether it is a valid analysis, but at the very least it should say to us that we need to be very careful about how we deal with youth crime. How do we treat it, handle it or reduce it?

A simplistic analysis that we see in the bill, and particularly in the second part of the bill, says that all we need to do is introduce some new sentencing principles, take them from the adult sentencing principles that we have now and say that we need to denunciate these crimes, deter these crimes and use those sentencing principles to do it.

There is overwhelming sociological evidence that deterrence works very little, as does denunciation even in adult crimes. There is even better evidence that it does not work at all in youth crimes.

It is good that we are continuing to have this debate because it allows us to hear more stories and information from other members of the House that this bill is not the way to go or tinker with the youth criminal justice system because it is not effective and, in fact, we may have unintended consequences.

We know that if we put people who are psychologically vulnerable into certain settings they come out more hardened, experienced and better criminals in the sense that they learn while they are in those custodial facilities from other more hardened criminals how to commit crime better. They oftentimes come out more bitter and more vicious. We know those things from all sorts of studies.

This simplistic analysis of simply saying that we need to denunciate, we need to deter and put those principles into our youth criminal justice system flies in the face of overwhelming factual evidence to the contrary.

We hear from the Conservative government that it is spending money on treatment programs. As I said earlier, the analysis we had from across the country was not $10 million or $20 million a year in additional funding. We have some makeup to do for all those programs that got cut, both federally and provincially, all those funds that stopped flowing to help build a better society, whether it is for recreational or treatment programs. We cut those funds and they have not been put back.

I think one of the speakers earlier this evening talked about $22 million going back in. The analysis we made, in assistance with the network of communities across the country that did the analysis, is that at a minimum we needed $100 million a year. If we could find all that money in the budget to give tax breaks to large corporations in the billions of dollars, could we not have found more money for these programs? Even though the government may be spending $22 million, it actually is not since it has not got around to spending it all. However, it could have spent another $80 million if it had not given those billions of dollars in tax breaks to large corporations that did not need them.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, in his comments, the hon. member referred to words like “denounciate”. I have not found that one, but I am sure he means denounce and deter. He said there is an attempt by this bill to import denunciation and deterrence into the Youth Criminal Justice Act. If I understood him correctly, he would be against the importation of the adult concepts to youth criminal justice principles.

I wonder if he thinks that the two references that I know of by the Quebec Court of Appeal and the Ontario Court of Appeal with respect to the imposition of an adult sentence on a youth being unconstitutional and against section 7 of the charter. Does he think those references anew would lead to a similar result with the importation of adult sentencing principles?

I fully realize that an adult sentence is quite a bit more stiff when it comes to section 7 than adult sentencing principles, but does he not think there might be words of warning in the two court of appeal judgments that might assist us in committee at least, if the bill gets that far, in sculpting away some of these adult concepts to make the law in fact constitutional?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I will start by saying that I recognize my friend in particular because of his Irish ancestry is much more eloquent than I am and may have better pronunciation. The principle is denunciation. It is denouncing certain conduct, so he is correct from that perspective.

More seriously, with regard to the question of the constitutionality, both courts of appeal were dealing with the legislation as it is worded now, which does not permit for there to be adult sentencing principles incorporated into the legislation. Both courts of appeal were very clear and, quite frankly, very forceful in the language they used that lower courts could not incorporate those concepts into the legislation.

If this bill were to get through, and certainly the opposition parties are all feeling that it should not as it is worded with these sentencing principles in it, this bill would be challenged under the charter from a couple of perspectives, at least the issue of proportionality, that youth have to be treated differently and the seriousness that we apportion to those crimes. That will come up.

Overall, the right of a country to expect that youth are going to be treated differently from adults would be very much part of that challenge. As opposed to those two court of appeal decisions which did not deal with the charter issues, we will see that--

[The Acting Speaker, Conservative, Andrew Scheer]

Questions and comments, the hon. member for Edmonton—Sherwood Park.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I would like to begin by simply correcting the record. It was not I, though I could have easily done it, but the member for Lethbridge who made the motion to which the hon. member referred.

I would like to counter some of the comments that have been made, particularly from the Bloc member but also from the member from time to time, though not as strenuously, and that is that we on the government side do not have concern for young people and how to prevent crime. That is a false statement. It is false and I want to set the record straight.

To give an example very quickly, one of the saddest visits I ever made was to the youth detention centre in Edmonton. It is incredibly sad to walk in there and see young people who have been found guilty of crimes, such as knifing fellow students in the school yard or using a weapon to commit crimes, maybe theft at a store or something. I have a great deal of compassion and concern for how we keep those kids out of there in the first place. If I ever had a chance to make a speech, I could enlarge on that.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I want to apologize to the member for Edmonton—Sherwood Park for that misinformation. It was done in all honesty. I understood he had moved the motion.

I have been in those kinds of institutions as well. I sat on the boards of a number of institutions that dealt with individuals. I have also dealt with the victims of youth crime. The bottom line is that simplistic solutions are not the answer and there are parts of this bill that are introducing simplistic solutions that will not move this forward at all.

Back to my basic point, the government needs to be spending more money if we are going to deal with the spike in youth crime in this country.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, I am very happy to rise today to speak on Bill C-25, An Act to amend the Youth Criminal Justice Act. With this debate, I feel as though I am reliving some previous debates we had here in the House of Commons. A few years ago, the Bloc Québécois waged a strong offensive against the then Liberal government regarding the Young Offenders Act. I remember that my colleague from Berthier—Montcalm, Michel Bellehumeur, who was the Bloc Québécois justice critic, voiced what the legal community and the National Assembly were calling for. What is more, my colleague defended the Quebec model against the repressive model put forward by the federal government at the time. We were proposing and defending rehabilitative and preventive approach.

Essentially, quite apart from Bill C-25, the real problem lies there. Before we debate the bills we should adopt in the House of Commons, we need to take a long, hard look at the approach and the model we are using when, in our justice system, some people, groups and governments are trying to shift the burden of proof to adolescents and use pretrial detention, with the effects that can have on adolescents. That is where the problem lies.

Quebec made a choice to work with adolescents. It decided not to simply view detention as the only way to respond to acts that could be criminal, but to bring together social stakeholders who work with our young people and involve educators and families so that young people can have a healthy environment. If adolescents do things that are not acceptable, it is because they are being seriously affected by various social problems. It is because they are in an environment where poverty is a reality for them. It is because young people are having more and more difficulty in finding jobs. It is because they feel they have no future.

When these young people commit a wrongdoing, it is because there is a fundamental problem, a societal problem upstream. What do we have here to deal with this situation? We have a government which is using the stick to deal with these social issues, with the problems relating to youth employment, or with the deadlock that young Quebeckers and Canadians are facing. We must ask ourselves whether this is the proper approach to put young people back on the right track. We, on this side of the House, do not believe it is.

We believe that rehabilitation and prevention must prevail. Inequalities are getting worse. Delinquency is becoming a way of life for an increasing number of young people. The exclusion of young people in the workplace, and in their environment, is becoming a major issue. Rather than coming up with a justice system that uses the stick against young people, we should provide adequate assistance to this generation, whose members often no longer hold any hopes.

What we are promoting today is a model that has proven successful, that has allowed us to have a homicide rate that is three times lower than that of the United States.

Of course, because we read major newspapers, every now and then we see that some young people committed a wrongdoing. In fact, what the federal government is trying to implement here in Canada is an approach similar to the one used in the United States, whose effectiveness has not been demonstrated.

For example, the homicide rate is three times higher in the United States than it is here, in Canada. So, did this approach based on repression help improve the situation? Of course not.

It is the same thing with violent crimes committed by young people. It is true that, in Quebec, the latest figures for 2006 point to an increase in violent crimes committed by young people. However, that is the only such data. All the other available data show that this type of violence is not increasing. Come to think of it, the government's approach is not aimed at the proper group.

What is the purpose of Bill C-25? According to clause 1, a judge must presume that the pretrial detention of a young person is necessary if:

1(2)(a) the young person is charged with a violent offence or an offence that otherwise endangered the public by creating a substantial likelihood of serious bodily harm to another person;

1(2)(b) the young person has been found guilty of failing to comply with non-custodial sentences or conditions of release; or

1(2)(c) the young person is charged with an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt—

What is the government trying to accomplish with clause 1? Two things. First, it is trying to use presumption against young people and transfer the burden and the responsibility to them even though the problem is a genuine, social one.

Second, the bill seeks pretrial detention of adolescents even though we know that trials often result in not guilty verdicts. Adolescents would be kept in jail even though the verdict could turn out not to be a guilty one. Imagine the impact of that on adolescents in their formative years.

The battle we are fighting today over Bill C-25 is the same battle my colleague from Berthier—Montcalm fought several years ago over the Young Offenders Act.

In conclusion, we are defending the Quebec model here, a model that promotes prevention and the rehabilitation of our young people, as opposed to the federal government's approach, which is about repression and detention, and which is not at all the approach that should be used when young people need help.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I mean no bad ideas about this, but I cannot resist asking a question of members of the Bloc, who are always saying they would like us to adopt the Quebec model. I just wonder about the facts. I do not believe that Quebec is crime free. I believe there are substantial problems in Quebec, at least there have been in the past, unless it has changed recently, with organized crime and with biker gangs just like in the rest of the country.

I would like to know why, in the member's opinion, the Quebec model is so superior when the results do not seem to show, to me at least, that things are substantially better.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, in this House, we do not claim that the Quebec model is better than another. The Quebec model is simply different. We see how the Conservative member is attempting to standardize the penal approach here in Canada. He confuses motorcycle gangs with youth under 18. That is basically what he has just said, and that is completely different.

Can we allow minors, adolescents—even though they committed reprehensible acts—to be put into the same system as consenting individuals over 18?

We have to work with our youth to put them on the right track, first of all by understanding them, being there for them and helping them develop. We will not help them by throwing them in jail.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I would like to know whether the Bloc Québécois member will support the first part of this bill.

As you know, the bill has two parts. The second part will not have the support of all opposition members. However, in our opinion, we can come to an agreement on the first part because it results from the recommendation by Justice Nunn from Nova Scotia.

I would quite simply like to ask whether the member and the Bloc Québécois support the first part of the bill.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, I thought I was clear. The problem with this bill is not a few clauses. The problem is the actual principle and basis of this bill, as well as the approach it takes.

For us, it is clear that it is not a question of supporting the principle itself or negotiating based on one part compared to another. We do not agree with the approach taken in this bill. We will defend the Quebec model because it gives the best results and has been proven.

The House resumed from November 26, 2007, consideration of the motion that Bill C-25, An Act to amend the Youth Criminal Justice Act, be read the second time and referred to a committee, and of the motion that this question be now put.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Mr. Speaker, I am extremely pleased to rise in this House to speak to a bill as important as Bill C-25, An Act to amend the Youth Criminal Justice Act.

A few months ago, my colleagues in the Liberal caucus, especially the hon. member for Notre-Dame-de-Grâce—Lachine and the hon. member for Yukon, spoke in this House about the Liberal Party's serious concerns about the direction this government is taking by adding denunciation and deterrence as sentencing principles that a court may consider when imposing a sentence on someone convicted under the Youth Criminal Justice Act.

In previous debates, the House has heard a lot of discussion around how the Youth Criminal Justice Act could be improved.

I think all members would acknowledge that the Youth Criminal Justice Act is a significant improvement over previous legislation, the Young Offenders Act, for example. Legislation as important for the protection of the public, as the Youth Criminal Justice Act, from time to time needs to be examined, to be updated and to reflect the different circumstances that may lead Parliament in its wisdom to make amendments.

This bill proposes to do two things. It proposes to add denunciation and deterrence as sentencing principles that a court may consider when it imposes a sentence on someone convicted under the Youth Criminal Justice Act. It also facilitates the use of pretrial detention in cases where a youth has committed a violent crime, has breached current conditions of release or has been charged with an indictable offence for which an adult would be liable for a term of imprisonment for more than two years and has a history which would lead the court to conclude that there is a pattern of findings of guilt.

Those of us in the Liberal caucus, who have looked at the legislation, have concluded that the government has gone a considerable distance, and in a positive way, to deal with the breakdown in the system, particularly around pretrial detention of some of the most violent young offenders.

This aspect of the bill merits considerable approval in the House. It attempts to strike the right balance between protecting the public and also recognizing that the objectives of rehabilitation and integration are obviously important when dealing with a young offender.

Where we have some considerable difficulty, however, is with respect to the government's intention to introduce deterrence and denunciation as principles in sentencing of young offenders.

Many colleagues have spoken in the House about a report done in Nova Scotia by Justice Merlin Nunn, following a tragic incident in the province in 2004 involving the death of a woman, Theresa McEvoy, who was killed in her vehicle by a 16-year-old person joyriding in a stolen car at the time of this tragic incident. At the time, the particular young offender had been released by a court despite having 38 criminal charges filed against him.

In June 2005 the Government of Nova Scotia called a public inquiry to look at how the charges against that youth were handled and issues relating to why he was in fact released, which led to the tragic death of Ms. McEvoy. Justice Merlin Nunn was named by the Government of Nova Scotia to conduct this important inquiry.

Those of us in the Liberal caucus, who have spoken previously on the legislation, have urged the government not to simply cherry-pick from Justice Nunn's report, as it has attempted to do in the bill, but to look in a comprehensive way at all the recommendations made by this eminent Nova Scotia judge, who had extensive public hearings and who considered a wide range of issues. From our perspective, Justice Nunn made a number of very thoughtful recommendations to rebalance the legislation to deal with such difficult issues as pretrial detention of violent, repeat young offenders.

The bill focuses only on a partial response to some of the recommendations made by Justice Nunn.

In his report Justice Nunn talked about finding a better balance in the Youth Criminal Justice Act in terms of focusing on rehabilitation and integration. Justice Nunn does not believe that the concept of having denunciation and deterrence as important sentencing principles will lead to a better balance and to modernizing the Youth Criminal Justice Act. The Conservatives are attempting to introduce these elements in sentencing, which to some extent import adult sentencing principles into youth criminal justice legislation.

Section 718.1 of the Criminal Code, dealing with adult sentencing, addresses the issue of proportionality. The Youth Criminal Justice Act has had a different set of values when considering sentencing, and we have some hesitancy in seeing the government move toward adult sentencing principles of the Criminal Code as they would apply to the Youth Criminal Justice Act.

As I said a minute ago, of the two elements in the bill, there should be broad support, and certainly in our caucus, around the issue of pretrial detention, allowing the court to impose pretrial detention on some of the most violent, repeat young offenders.

The Supreme Court of Canada, in a decision on June 22, 2006, said that deterrence and denunciation with respect to sentencing were not principles found in the Youth Criminal Justice Act. The court's opinion was persuasive with respect to the need to focus on rehabilitation and reintegration when one was dealing with a young offender.

Many experts in the youth criminal justice field have expressed concerns that the two particular principles the government is attempting to import into this legislation have not proven to be effective in dealing with youth criminal justice matters.

Jail time for young offenders is obviously an issue that is very complicated. Many observers have said, and I think correctly, that it should be a last resort in incarcerating a young person. All too often prison time and jail time can be the best training ground for crime. Prisons have often been referred to as schools for criminal activity. As much as possible, young persons should be put into a system that focuses on rehabilitation and reintegration in the community. We should not simply lock them up and throw away the key.

In his report Justice Nunn directs his attention very appropriately to the issue of jail time. He says, and I will quote from his report: “Many of these critics believe that jail is the answer: “There they’ll learn the error of their ways”. He goes on to say:

These critics pay little attention to contrary evidence, nor do they understand that [for a youngh person] jail [is often not recommended and] does not correct or rehabilitate, but rather often turns out a person whose behaviour is much worse than it was. Others espouse the vengeful adage “adult crime—adult time,” paying no attention to the fact that it is a youth crime and not an adult crime.

As debate on second reading continues, we will be listening and looking forward to making amendments at committee. We believe the other recommendations of Justice Nunn, which my colleague, the member for Notre-Dame-de-Grâce—Lachine, identified in her speech, need to be added into the legislation.