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

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Mr. Speaker, I would first like to congratulate my colleague for presenting the Bloc Québécois position so well. I wish to ask him a question.

Recently, in Quebec, in my riding, a young driver killed little Bianca, whose family lives in Île-Perrot. Citizens of the area mobilized to demand that the youth was incarcerated until the case was heard. However, as a youth, he had undertaken to appear in court.

I would like to hear what my colleague has to say about this case. I would like to know how the Bloc's position would help this youth. His companions, his friends, the people around him could also support him. Can the member tell us why it would be detrimental for his future for the government to make an example of this youth?

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

Mr. Speaker, this is not a case where the young person would be affected by the bill. In the cases presented here, the individual must be accused of a violent crime. In your example, if I am not mistaken, it is the youth's first offence. Thus, he is not a repeat offender and is not subject to any conditions. It appears very likely that he will observe the conditions. I think that the law, as it is currently applied, would be no different in his case.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, I want to ask my colleague a fairly technical question with respect to proposed paragraph 29(2)(c) of the bill, which states:

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 under this Act....

When Mr. Justice Nunn did a comprehensive review of young offenders' bills generally, he made a suggestion that instead of a pattern of findings of guilt there be a pattern of findings of “offences”. I wonder whether this would be appropriate for review by the committee and whether the hon. member has an initial reaction to changing a pattern of findings of guilt to a pattern of findings of offences.

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

Mr. Speaker, first of all, if it involves one of the circumstances proposed in paragraph 29(2)(c), generally, the judges I know would keep that young offender in custody. Once again, this does not change things much.

An important point that I wanted to emphasize and I will continue to emphasize is that young offenders must be sentenced and dealt with on a case-by-case basis. I understand that, in this instance, it is before he or she is convicted, that it is a question of bail, but all decisions must be on a case-by-case basis. It also depends on the young offender's family situation and the family support involved, the circumstances in which the crime was committed, and so on. The major flaw in Ms. McLellan's reform was that the legislation is too objective.

I had prepared an argument, but I did not have the time to discuss it. I remember one judge I know well, a classmate of mine, telling me about a young offender who appeared before her for trafficking in a small amount of drugs. He already had a previous conviction for something else and he had complied with his conditions. He wore designer clothes; he had an apartment, a car, a cell phone, and she knew very well that, in all likelihood, if he was trafficking in small quantities, he was distributing it for others or he was in contact with other dealers. He was seventeen and a half and she therefore had only six months to do something with this young man. Under the McLellan legislation, since he had complied with the conditions that had been imposed and since it was a small quantity of drugs, she was forced to release him, although she would have liked to send him elsewhere.

It must be understood that, when referring to a good system, it is not a question of whether the system is slack or tough, severe or lenient. The system must be appropriate, with the right measure at the right time.

[Serge Cardin, Bloc, Sherbrooke, QC]

Mr. Speaker, first allow me to congratulate my colleague on his speech concerning this bill.

He made reference to sovereignty and sovereignty-association. I remember how in recent months, and even in recent years, there have often been discussions in which people found us a little laughable when we talked about the Quebec model.

I have the impression that in this case it is actually essential to demonstrate that there is a Quebec model, on which the government and the people in this House could base a policy that would be much better for youth and for young people who have committed petty thefts—some of them more serious than others. Under such a policy, young people would have an opportunity to be rehabilitated. We must not try to do things that will place young people in either a too permissive or a too restrictive situation.

We know that some people want to improve society. If they want the social system to perform like an Olympic athlete, they have to become acquainted with the best models. It would therefore ask my colleague why the government would not now want to adopt a model like the one in Quebec, which would mean that our young people would be better protected in future.

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

Mr. Speaker, I can answer in one word: ignorance.

Obviously they are ignorant of Quebec’s success, and what it results from. I suggest that the member read the answer the minister gave me when I put the question to him. I laid out the figures we had in front of him. I have been unable to determine whether it was still the case, because it is the McLellan legislation that applies. In 1998, however, before it came into force, the juvenile crime rate in Canada was 50% higher than in Quebec. He did not dare to contradict me then, and I certainly felt that it was because he did not know this.

The rest of his answer obviously showed that he did not know how we had done this. He did not know the institutions we have developed, the professionals we have hired, or the training they are given.

It is ignorance, and that is what makes me say, because we are such very distinct societies, that we should lead our own lives, separately.

This is one more argument for sovereignty. Because we speak a different language from the rest of America—obviously, we are aware that we are influenced by it—we therefore have a tendency to look toward Europe and elsewhere to solve our problems. Essentially, that is how we developed our system, in Quebec, while in the rest of Canada there is a tendency to be always looking toward the United States.

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

Mr. Speaker, I wish to advise you that I intend to split my time with the member for Halifax West.

What we have here is a new initiative, which is really not that new, in evergreening and updating the Youth Criminal Justice Act. It is not the first time we have seen an amendment to the Youth Criminal Justice Act and it probably will not be the last.

There will be amendments made to the Criminal Code and criminal justice legislation many times as we work our way into the future. This is because society changes, society's values change the way we deal with social issues, and problems change.

Some have asked why we have a Youth Criminal Justice Act anyway. Why do we not just treat all offenders the same? Some people say that if the government is into setting up mandatory minimum penalties all over the place, so many that we can hardly keep track of them, why do we not just make the sentence for every crime five years or ten years? Then everyone would understand.

Most Canadians realize that this would be crazy. It would not work. We would fill the prisons and we would not accomplish anything.

Why do we have a separate Youth Criminal Justice Act? The answer probably is because it makes a whole lot of sense and this is how we have always done things as Canadians.

Before I was born, which is quite a while ago, there existed the Juvenile Delinquents Act. Then it became the Young Offenders Act. Now it is called the Youth Criminal Justice Act. We have always in this country had a separate youth criminal justice system because society has believed and continues to believe that youth need to be treated differently than adult offenders. The current statute does that and does it quite well.

In case Canadians think there is something radically wrong with the statute, we can refer them to the recent report of Mr. Justice Nunn in the province of Nova Scotia, who did quite a thorough reworking and studying of the act. He found in his report, which is publicly available, that the act actually works quite well overall. He did mention one or two small areas that could be modified. One of those areas is contained in the bill.

The bill does two things. I know that this has been mentioned on the record earlier, but the bill will broaden the scope of circumstances in which pretrial detention of a youth may be considered, including instances where a violent offence has occurred. This is the part that reflects the report of Justice Nunn in Nova Scotia following his commission of inquiry.

The other thing this statute does is add into the principles of sentencing in the Youth Criminal Justice Act the principles or objectives of deterrence and denunciation. There may be a place for that. That is what we are considering here.

I, for one, recognize that these principles were not put into the original Youth Criminal Justice Act because there did not seem to be a need. In other words, the objectives of dealing with youth under the YCJA did not require advertence or reference to principles of deterrence or denunciation because there was a whole constellation of principles that seemed to fill the need.

I would say for those who want to fix this, if they think something is broken--and of course there is an adjustment needed in the statute--and if they think we can fix things by shouting louder or complaining longer or praying harder so that we just keep changing laws by increasing sentences, it does not work. It never has. It never will. What we have to do is be rational in how we are doing this.

The myth out there, and this probably is not just my own view but the view of many, is that by tweaking sentences and changing sentencing we somehow reduce crime.

We have heard the phrases “getting tough on crime” or “getting harder on crime” around here so often it is getting boring. The offences have already been written. The code already exists. We are not, generally speaking, around here in the last while making new criminal codes, new sentences. All we are doing is changing the sentencing.

I am pretty sure that if I went out on Wellington Street or out on Shepard Avenue in my riding of Scarborough—Rouge River, I would not find anyone who would actually know how we have adjusted the sentences up or down. If I were to ask them what the penalty was for stealing a magazine from a convenience store, I do not think they would have any idea whether it was a mandatory sentence, a jail sentence or a fine.

The reason I say that is because the whole criminal justice system has recognized that the real deterrence for those who would commit a crime is not the actual sentence they might get, because before they commit the crime they do not know what they are going to get. They do not even think about it. The deterrence almost always lies in the prospect of getting caught and having to deal with it. It is getting caught that is the deterrent component in the criminal justice system. Whether or not they go to jail, whether or not they pay a fine, whether or not they are embarrassed or whether or not they lose their job, getting caught is the most important part, which is why police enforcement and resourcing our police is so important. They must be able to keep up a reasonable effort at catching those who do criminal acts.

I just wanted to debunk the myth that by ratcheting up sentences and changing the way we sentence we will reduce crime.

I will ask the question one more time. If we were to increase the sentence for a bank robbery by three years, does anyone really believe that there would be fewer bank robberies in this country? I do not think so because the guys committing the robbery do not think they will get caught. If they do think about getting caught, they know they will do time. However, when they are planning to do whatever they are going to do to break the law, they do not get out a calculator and do the sentencing math. Almost all of these people are not actually very intelligent. I am sorry to treat them as a class of people, but they actually are not smart enough to go through that exercise. They are into a lifestyle that reflects, perhaps, an absence of thought, an absence of consideration.

I want to now deal with the sentencing principles that are contained in this bill. First, I want to refer to the sentencing principles that are contained in the Criminal Code, generally. As I said earlier, they do not actually apply directly to the Youth Criminal Justice Act but they are contained in the Criminal Code. This House legislated them in the year 1995. That was a first for Canada because it was the courts that generated the principles.

At committee we will consider the sentencing principles of deterrence and denunciation being added in the bill. Those principles exist in adult sentencing. However, I want to point out that there may be a conflict between those principles being inserted into the statute and sections 38(2)(c) and 38(2)(b) of the Youth Criminal Justice Act, which say that proportionality and similarity of sentencing between different youths committing similar crimes need to be there.

If we begin inserting denunciation and deterrence in a particular case, judges may have some difficulty making that fit with the other sentencing principles that already exist within the Youth Criminal Justice Act.

If this bill gets through second reading, I look forward to reviewing it at committee.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, there is almost nothing in my hon. colleague's speech with which I disagree. His analysis is right on.

What is troubling about this particular piece of legislation, as is the myriad of pieces of legislation that seem to flow through this House, is that it is like a bits and pieces approach. It is an emphasis on trees rather than the forest.

I would be interested in my hon. colleague's comments on Mr. Justice Nunn's report, which is actually a comprehensive report, a road map on the changes that do need to be made to the Youth Criminal Justice Act. I invite his comments on why, in heaven's name, we are dealing with picayune pieces of the justice's report rather than dealing with the forest, so to speak, of changes that need to be changed in that act.

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

Mr. Speaker, the inquiry by Mr. Justice Nunn took place following, what so often happens, a tragic series of incidents, in this particular case involving a young offender. The part that Justice Nunn reflected on here is that if the youth court can see a pattern of violence, if violence has occurred and there is some prospect of it continuing if the youth is released, the judge involved should have some statutory ability to maybe flip the thing over a little bit, move the goal posts in a way that is more likely to protect society.

That is like having twenty-twenty hindsight in advance. The judge does not have it. No one has it. However, in cases where the judge sees a pattern of violent behaviour and has a sense that it might continue if the youth is not restrained in custody, then the judge would have an ability to do that.

According to Justice Nunn, that was a conspicuous piece of the YCJA that was missing. All the procedures in the act that were intended to help deal with youth were working quite well except for that one small piece. It is a one-off and I think Mr. Justice Nunn appreciated that it was kind of a one-off, filling in a little gap in the current statute, and it was given in that spirit.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, the member is a very knowledgeable member of both the justice committee and the legislative committee so he has a lot of experience in the justice program.

I wonder if he would comment on the program in general starting with the basis for this bill and the fact that crime is going down, which everyone knows, but there are quotes of some serious offences, which no one disagrees occurs, but the problem is that we have had legislation that does not address that and programs that do not address that in general.

Going down the road, the reason we are in so much trouble and it has been such a mess and so much change had to be made or the bill stopped was that no one had the answer for reducing crime. In fact, as many experts said before committee, some of the changes would have actually lead to more crimes and a less safe society.

Could the member go below the surface a bit, below the gut reactions and get to the science and the evidence of people and the victims who are really on the ground, and tell us what would really help and whether this bill is part of that solution?

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

Fortunately, Mr. Speaker, as a society, we know the causes of crime. We have itemized them and studied them. A parliamentary committee published a report that itemized the causes of crime.

This particular piece of legislation, and some of the others before the House, actually does not address any of those causes. It only attempts to deal with sentencing. I mentioned the myth that tweaking the sentencing will reduce the causes of crime but it will not. This pattern of activity, the increasing of sentences, does not help solve crime. It is a massive employment program for prison constructors and correction officials.

The myth of public protection is attached to it but it is actually a massive federal-provincial download because most of these mandatory minimum sentences we are talking about now will need to be dealt with by the provincial reformatories, not the federal prisons.

We are mandatorially sending all these people into provincial correction institutions and the provinces need to pick up the tab. That is a federal-provincial downloading exercise, one of the biggest ones I have seen.

All of this debating and tweaking of sentencing will not reduce crime because it does not address the real causes.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, my hon. colleague's comments were very thoughtful. I know he is very knowledgeable on issues related to justice, including youth justice, and I certainly enjoyed listening to his views and comments, as well as those of the members who asked questions and added their thoughts to his.

The issue of youth justice and of the Youth Criminal Justice Act is one of concern in Nova Scotia, particularly after the very sad and tragic death of Theresa McEvoy, a teacher who was killed by a young offender out joyriding.

My hon. colleagues referred to the Nunn commission which followed that event. Justice Merlin Nunn of Nova Scotia was asked by the provincial government to look at the whole situation, the administration of youth justice, the act itself, and the services provided for youth in a variety of manners, particularly youth at risk or youth who may be involved with the justice system, and recommend a series of changes.

Justice Nunn, as we have heard, made a lot of recommendations relating to the programs that should be available for rehabilitation, dealing with the issues of poverty and other matters of that sort. He also said that the Youth Criminal Justice Act works very well. He praised it and said that in the vast majority of cases, in relation to the great number of young people who come in contact with the law, the act works extremely well. However, in cases of repeat offenders, particularly with serious crimes, there is a need for changes.

Unfortunately, while the government addresses a little of that, it does not address most of the recommendations that Justice Nunn brought, not just in relation to the whole range of issues but in relation to amendments to the act.

He had a series of recommendations for changes to the act, and I will get to those in a few minutes, which the government has completely ignored. I hope that when this goes to committee as I think it will, members will consider amending it to provide for the kinds of changes that Justice Nunn has very wisely recommended.

This became an issue following the McEvoy case and other occurrences that have happened in Nova Scotia, particularly in the Halifax area. I, like other members, have received emails and phone calls related to issues concerning crime. In fact, in my fall householder, the mail-out to people who live in my riding, I placed a short survey so that I could hear from my constituents about their concerns on this issue.

There was a really significant response from the community. People were very eager to share their thoughts and feelings on what should be done by the Government of Canada to help to mitigate crime in our country. The overwhelming response was to change the Youth Criminal Justice Act, but also to fight poverty and get at the underlying social problems that, as Justice Nunn said, are so often the root causes of crime.

When I hosted my 78th “Let's talk” meeting, a series of local meetings that I hold in my riding, at the beginning of this month I had guests from a variety of areas of the criminal justice system, including the Halifax regional municipality's chief of police. I was very pleased that he could attend. There were defence lawyers, a retired police officer, probation officers, members of families of victims of crime, including, very sadly, three families who have had loved ones murdered.

It was very powerful to hear their words and concerns. It was interesting to note they were not just saying that we should lock up young criminals and throw away the key. They were certainly concerned that the system should function well, that there be good investigation and prosecution of crimes, and proper systems of punishment, deterrence and rehabilitation.

However, these same people were also concerned that we address the causes of crime, such as poverty and other kinds of social problems in our country, whether it be fetal alcohol syndrome, as an example, that are other causes of crime.

I remember that the parents of Jonathan Reader, who tragically was found murdered on the corner of Lacewood Drive and Dunbrack Street in my riding, were present and argued that the first thing we have to do is to be good neighbours, to be aware of what is going on in our neighbourhoods, to keep an eye on things, to know who our neighbours are and be in touch with them. W must be more aware of what is going on, so that we have more of a texture and fabric of a society that will be strong, will prevent these kinds of things from arising, and prevent people from going in the wrong direction as much as possible.

We also heard at this meeting that the role of the federal government, in their view, was to integrate the expertise and research that has been done on so many of these areas, and to get different levels of government working together in a much better way.

People are certainly impressed with the knowledge and research that has been done in relation to crime and youth crime. I saw that they were clearly frustrated with the weak cooperation they found between the different levels of government, between the administration of justice, the police, the crown prosecutors and the people who make the laws, the Department of Justice, the drafters of the laws in Ottawa, that do not always respond to the reality on the ground or on the street, so to speak. That was clearly a concern. Also, the need to support the kinds of community groups that provide programming for youth that is so important in getting kids off the streets and keeping them active and worthwhile, and in meaningful activities where they are growing and learning and developing in a positive way.

There is no question that I also heard that youth need to be held accountable for their actions through meaningful consequences, through rehabilitative change, and through rehabilitative programs. I do not disagree at all that there needs to be changes to the Youth Criminal Justice Act as Justice Nunn has recommended, particularly to deal with those youths who are repeat violent offenders, the more serious offenders.

One of the problems I see with this bill is it does not address an absolutely key recommendation of Justice Nunn's commission and his report, which said that we have to amend the definition of violent offender. At the moment the act treats violent offenders differently than other offenders, and with good reason. The majority of youth are not involved in serious violent crimes and should not be treated as if they are.

Where they are it is a different matter and should be treated seriously. The problem in the case of Theresa McEvoy was that the young joyrider had stolen a car and was driving the car. That was not treated as a violent offence, but clearly what happened to her was violent and reckless. It should be treated in a very serious manner.

I think Justice Nunn had a very good point in relation to how that should be changed. We do not see any sign of that in this bill and that is very disappointing.

Also, enhancing measures for pre-trial detention. It is important that those be paired with the enormous increases in the resources available to the courts to deal with these young people. Currently, they can wait for up to a year and longer for sentencing.

If they are on remand and being held waiting for a trial and they have not even been found guilty yet, that is a problem. That is why judges want to have them left with a responsible person, such as their parent for example. What the government has again failed to do is deal with recommendations that Justice Nunn made in terms of what happens, for example, when a responsible person such as a parent says, “Look, I agreed back in court a few weeks ago to be responsible for this person and I made an undertaking to look after this and make sure he or she does not get into trouble, but now I've got a problem. I can't control him or her and I want to give up. I want to be released from my undertaking”. There is not a good system now for when that happens.

The judge recommended that system be put in the act but the government has failed to do so. Again, another failure of the government to respond to the recommendations by Justice Nunn.

I do not see why the government could not understand what was being recommended and see that those were good recommendations, reasonable, sensible changes to this act which would have made a real difference and helped to prevent another death such as Theresa McEvoy's.

One of the things we heard from a retired police officer at the meeting I had was that “young people involved in crime are victims of their lives”. It is the nature of their lives. This is about poverty which I mentioned earlier.

In fact, one of his main concerns, and he is a retired police officer who has worked with people and crime all his life, was that the underlying issue of poverty remains unresolved. Although there was a good understanding that people living in poverty are not the only people involved in crime, they are a big proportion of the people who are involved. That is why I am so pleased that our leader, the Liberal leader, has come out with a whole series of recommendations and a platform proposal in relation to dealing with poverty.

I am sure many members in this House will agree that we have to address this problem in our country. We can do better in this regard. I think the plan that our leader has put forward is a good measure in that regard. I also think that we need to make changes to this bill to improve it along the lines of what Justice Nunn has recommended.

If we do that and combine it with real efforts to fight poverty, we can make real progress.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I listened with great interest to the comments just made by my colleague. I certainly would agree that one of the biggest and best predictors of success for children is linked to poverty rates.

We all know there is a need for a solid foundation, whether it comes from education programs or skills development programs through recreation. There also needs to be support for parents because we know that children are not poor, that it is their parents who are poor. So by examining things like living wage programs, programs for affordable housing, and making sure that jobs are available to those parents, we can really make a difference in the lives of children.

Yet, I note with interest also that the member from that party sat down when we had the debate on the budget and, more importantly, the vote on the budget, where we gave away $190 billion of fiscal capacity to address the very issues that the member spoke about with respect to the need for addressing poverty.

I wonder whether the member could explain to us why his party chose to sit that out to allow the corporate giveaways to go to the oil and gas industry instead of going where they should have gone, which is to help children in our communities.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, I appreciate parts of the hon. member's question which I thought were important to hear and I appreciate the comments she had.

However, when people watch the House of Commons, one of the things that frustrates them so much is that they look to us to be deliberative in the nature of our discussions. Unfortunately, we are all guilty from time to time of being political, when we should be deliberative.

We all know that question period is the time when the government is to be held to account. We also know that the only way to get it held to account effectively is to put pressure on government members by being effective and strong in our questions and getting media coverage so the public will be concerned and put pressure on the government as well. We recognize that and it is not surprising that question period will be a time when we have that kind of heightened atmosphere.

I do not think it is reasonable, unfortunately, to expect a deliberative process to take place during question period, but I would think that more and more we should look for it in debate here in the House on bills, for example. We should try to be more deliberative.

To get into the question about why we voted or did not vote on the question of the mini budget, for example, I think we know the answer to that. That is clearly trying to be political. It is making a political attack, a partisan attack, and my hon. colleague knows full well that in the past there have been times when the NDP has not voted to avoid an election.

We also know, we have seen the polls, that the likely result, if the polls are accurate lately, would mean a very similar House. We would have $300 million spent at taxpayers' expense to have an election to have basically the same result.

I would not be all that surprised if Canadians said that they have all kinds of reasons to be unhappy with the government, and being reminded of that in an election, they might make a change, but the chances were at that time that we would have the same results.

My hon. colleague is being unreasonable and being a little bit partisan and political when it is an appropriate moment for us to look at the bill, to look at how it can be improved, and focus on this very important issue of youth justice and how we can work at it. That is the key here, not being partisan.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, returning now to the bill as opposed to the previous question.

I would be interested in the hon. member's comments with respect to the report of Mr. Justice Nunn. There are about 34 recommendations that were made, 19 of which were of an administrative nature, but six, which were actually substantive, were specific suggestions to the amendment of the legislation.

I am looking in the bill, and I might be able to find one, but I am pretty sure I will not. We have six recommendations from the justice, none of which appear to be incorporated in the bill, one of which appears to have some general support in the House and the others seem to be off in some la la land as to what needs to be done here.

I would like to ask the hon. member, why in heaven's name does the government choose to approach this particularly important area of legislation in such a piecemeal fashion?