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

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

Mr. Speaker, it is not getting it done. It cherry-picks.

The Conservative government will not provide the kind of effective justice system for our young people as it is claiming because if it were interested in that, it would have implemented all six recommendations of Justice Nunn in Bill C-25 and they are not all there. Shame on the government.

[Kevin Sorenson, Conservative, Crowfoot, AB]

Mr. Speaker, since I have been elected to this House of Commons seven years, my constituents have been asking for the Attorney General of Canada, the Minister of Justice, to introduce legislation that would provide for new measures to protect communities from young offenders who pose a significant risk to public safety.

The hon. member across the way said in her speech that it does not list protection of society as a guiding principle.

For seven years, we stood in this House, when the Conservative Party was in opposition, and asked the Liberal government to add protection of society as a guiding principle. Its arguments back were that the rehabilitation of the offender was the guiding principle, that reintegration was the guiding principle.

What this bill would do, among a number of other things, is amend the Youth Criminal Justice Act to ask the courts to consider deterrence as part of the sentencing structure.

Obviously, the Minister of Justice, when he introduced these amendments, also announced that in 2008 there would be a comprehensive review of the Youth Criminal Justice Act. It would be done to address the other concerns and criticisms regarding the Youth Criminal Justice Act that the Liberal government put in place. At that point in time, the Youth Criminal Justice Act would be five years old.

Would this member tell this House today that she, at the time of that review in 2008, next year, will be a strong advocate for the protection of society being the guiding principle of the Youth Criminal Justice Act and to depart from the old Liberal way of reintegration back into society as being the guiding principle? Would she assure the House today that she would support those measures in the upcoming review in 2008?

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

Mr. Speaker, I was here when the debates were going on to replace the Young Offenders Act with the Youth Criminal Justice Act. I participated in those debates. I do not recall one member sitting across that side asking for protection of the public to be part of the primary goals.

What I will say--

[Kevin Sorenson, Conservative, Crowfoot, AB]

Shame on you, Marlene.

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

Mr. Speaker, I said I do not recall. I do not recall that. I would like to see the transcript.

However, I would like to say that our party has called for a full implementation of Justice Nunn's recommendations that are directly related to the Youth Criminal Justice Act. Therefore, that includes adding protection of the public in section 3 of the act, declaration of principle, as one of the primary goals of the act. That is one.

Second, we are also calling on the government to not wait until the end of 2008 to conduct the review. The government can begin the review today if it wishes. We are calling on this government to begin the review of YCJA immediately. Do not wait a year. Do not wait six months. Begin it immediately.

[Myron Thompson, Conservative, Wild Rose, AB]

Mr. Speaker, I listened to the member's speech and I do not exactly understand her definition of safety to the public.

I have a difficult time debating with lawyers at the best of times because I am not one. They seem to use legal jargon to a great extent and I just cannot comprehend a lot of it. Mr. Speaker, I am sure you could share that with me with your background.

I quite often hear about reports from a person by the name of Nunn and other reports from the member and other members of her party, usually concerning the legal aspects. I wonder if the Liberals have ever taken a serious look at some of the reports that come in from victims of crime.

I remember the late Chuck Cadman, a member of my party, who passed away recently. He was here because of his son who was murdered by young offenders, which was a terrible tragedy. I remember how hard he worked, the great suggestions that he brought forward, and the reports he presented from the victims' points of view and not the legal quarters. It was ignored. I have a hard time understanding that.

I also have a hard time understanding when the Liberals talk about prevention. There is no one who wants to see crime prevented more than me. It may not come across that way and I will have to do a little better job of communicating that maybe, but I do not understand it when members say we should get to the cause of crime.

Without a doubt, one of the biggest causes of crime are drugs and alcohol, particularly alcohol. How does alcohol get into the hands of young people under the age of 18? It is against the law. When is the last time we have heard of anybody being arrested or charged for providing liquor to a minor? When is the last time we saw police break up a block party or a house party that was full of booze and people under the age of 18?

When it is mentioned in committee or to witnesses that it is a major cause and ask what we are going to do about it, the Liberals do not want to go there. They want to talk about poverty being a major cause. I guess they do not realize that rich kids get into trouble as well. There are excuses for avoiding the real causes of crime and our penitentiaries are full of adults for the very same reasons.

They do not want to hear it and I do not understand. They do not want to hear any real, solid points of view from the general public, from the victims on down. They like to hear the points of view of the legal beagles and they need to change their attitude.

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

Mr. Speaker, the issue of the Nunn commission report was raised by the member's own colleague, the Minister of Justice and Attorney General of Canada. When he made his speech in the House on second reading, he raised the issue of the Nunn commission report. That is the first thing. I suggest if the member for Wild Rose has some issues, he might want to raise them with his own colleague, that is if he is allowed to talk in caucus.

The hon. member raised the issue of whether I as a member of Parliament or even before I was a member of Parliament have ever had any dealings with victims. The answer is yes, I have. I have had dealings with victims and families of victims through the years, both on a personal level and on a professional level. So yes, I do know what many of the issues for victims and families of victims are.

It was in part because of my advocacy and that of many of my colleagues here that the previous Liberal government brought in measures and moneys to help victims. We created a secretariat within the Department of Public Safety, gave moneys to Correctional Service Canada, and changed the Criminal Code amendments so that victim impact statements could be made. There were changes and improvements made. We can always continue to improve. Always. The member's own government can continue to improve.

Possibly the member for Wild Rose was not in his seat when I spoke about why the Nunn commission report came out. It came out of the death of Theresa McEvoy, 52 years old. It came out as a result of her death. Her death can be mirrored across this country. She is not the only one.

Justice Nunn's recommendations as to the Youth Criminal Justice Act have been endorsed not just by the Government of Nova Scotia. The Government of Manitoba, for instance, and the premier of Manitoba asked this government to implement all six of Judge Nunn's recommendations. Other attorneys general and victims groups have asked that as well and the government has not done what they have asked. Unfortunately, this government has again cherry-picked. It is most unfortunate.

[The Deputy Speaker, NDP, Bill Blaikie]

The time for questions and comments has now expired.

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Rimouski-Neigette—Témiscouata—Les Basques, Seasonal Workers; the hon. member for Madawaska—Restigouche, Employment Insurance; the hon. member for West Nova, Airbus.

The House resumed 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.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I would like to begin by calling for calm, just as you did. I do not think that it is useful to shout insults during a debate on this subject.

I was in this House in 1999, when three ministers of justice—Anne McLellan, Allan Rock and Martin Cauchon—introduced the early amendments to what was then the Young Offenders Act, which had been in place since 1907 and is now the Youth Criminal Justice Act.

I am sure that members of this House have fond memories of our colleague from Berthier, who is now putting his talent and experience to work on the bench, and who was in charge of this issue for the Bloc Québécois. At the time, we introduced some 2,700 amendments, which led to changes to the Standing Orders to limit opportunities to introduce amendments in committee at the report stage.

At the time, there was a broad coalition that included the Government of Quebec and hundreds of youth services groups that were concerned about the fact that young people aged 14 or 15 could, in some cases, be tried in adult court and sentenced as adults. That was at the heart of the reforms proposed in 1999.

At the National Assembly, youth justice stakeholders criticized elements that contradicted established practices in Quebec. Not only did the province believe in rehabilitation, its watchword for intervention practices was “the right measure at the right time”. That was our slogan. That means that when intervention is necessary, rehabilitation should be the first choice. We were supposed to abide by that slogan. Quebec's National Assembly and stakeholders in the province have never denied the fact that in some cases, under specific circumstances, pre-trial detention, incarceration and even other penalties may be necessary.

When the minister made the bill public, some of the government members were quick to draw parallels with street gangs. The Bloc Québécois is not complacent. We do not have an idyllic or unrealistic view of youth. We know that young people are involved in crime, and I will talk more about this later. We also know that sometimes tougher measures are needed. However, we must stop comparing action taken under the Youth Criminal Justice Act with the issue of street gangs.

Street gangs are a real phenomenon in all large Canadian cities. Montreal, where my constituency is, is no exception. Neither is Quebec City or other cities, such as Vancouver, Toronto and Halifax. As recent statistics show, individuals involved in street gangs, or at least the well-known leaders who might find themselves in court, are not 12- or 13-year-olds.

My colleague from Notre-Dame-de-Grâce—Lachine sat on the justice committee with me when the Bloc Québécois introduced a motion to invite Randall Richmond, a civil servant in Quebec City with the Organized Crimes Prosecution Bureau, also known as BLACO, who has thoroughly examined this issue. He told us the average age of individuals who had recently been arrested and brought before the court. At the time, there was much talk about the Pelletier street gang in Montreal and the arrest which first established a link between street gangs and criminal organizations. The average age of these individuals was 19 years and 2 months.

That said, the Bloc Québécois is very concerned about this bill and will not support it. We will use our energy to speak out and take action to show the public that the government is on the wrong track. We have two main concerns.

First of all, in the 1999 reform, we wanted to amend this legislation, which we had criticized. We disagreed with one of the provisions, namely, the widespread use of pretrial detention.

Once again, we are not saying that pretrial detention should never be used. Section 515 of the Criminal Code already set outs circumstances in which adults must be detained before their trial. First there are the serious offences listed in section 469 of the Criminal Code: murder, attempted murder and the most serious offences. Of course, an offender is remanded for pretrial detention when it is believed that he or she may not report for their trial, that evidence could be destroyed or when the offender is not a Canadian resident.

In some situations, pretrial detention is of course necessary in order to ensure the proper functioning of the legal system and the administration of justice. This is also true for young offenders. We understand this.

I was speaking with my colleague from Pointe-aux-Trembles earlier about the consultation paper. Last night, I read the consultation paper released by the Department of Justice in June 2007, which gives an overview of the situation since the act was proclaimed in 2003. The document indicates that, before 2003, under the Young Offenders Act, police and other law enforcement agencies incarcerated young offenders before their trial in 45% of cases. When we look at the most recent statistics available, under the Youth Criminal Justice Act, pretrial detention has risen to 55%. Thus, a trend that we wanted to reverse is actually increasing.

Why is widespread pretrial detention not desirable as a general rule? As we all know, this is the period before sentencing and before the trial. The presumption of innocence must therefore apply.

Yesterday I was talking to Mr. Trépanier, a leading expert in Quebec, who has studied this issue the most. He is a professor in the criminology department at the Université de Montréal. I was talking to him about statistics. He has, by the way, been contracted by various government departments to study this issue. He told me that pretrial detention is not desirable. First, because even if that detention could offer some form of support, youth will never engage seriously in treatment and rehabilitation, or measures that could help them become better citizens. Second, there is the presumption of innocence. Third, there is the whole machinery that is reluctant to invest in resources before the final status of that youth is known. It is therefore wrong to want to see this principle used more widely.

Of course, in the bill, which has just two clauses, we are looking at a reverse onus of proof. Should we not be worried about this tendency toward more widespread reliance on the reverse onus of proof?

The Bloc Québécois has accepted that this is for the toughest criminals. I am thinking, among other things, of the former Bill C-27, which was incorporated in Bill C-2. We are talking about dangerous offenders—not even 500 people across Canada. These are people who have committed serious crimes.

In section 753 of the Criminal Code there is a very specific definition. We have accepted it, even though it flies in the face of a principle important to the Bloc Québécois when it comes to the administration of justice, and that is not to reverse the onus of proof. We realize that in some situations, there are people who are a true threat to public safety.

In my opinion, even though three paragraphs in the first part of Bill C-25 suggest reverse onus of proof, and although they are serious, they are too general. I am anxious to see what the experts will say about this in committee.

Obviously, we are talking about a young person who is charged with an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and who has a history that indicates a pattern of findings of guilt. However, you will agree that the list of potential offences is extremely lengthy. I have even heard some people say that in Bill C-25, reverse onus was even more in evidence than in Bill C-27. This first issue makes us extremely skeptical about this bill.

There is a second issue, which is the most important. Do we believe that at 13, 14 or 15, an individual can be treated as an adult? Do we believe that the life of a youth of 12, 13 14 or 15 can be the same as that of a person of 38, 39, 40 or 45? This was the logic behind the call for a criminal justice system tailored to young people. Such a system recognizes that people are entitled to make mistakes and calls for individualized treatment.

Once again, we in the Bloc Québécois are not soft on crime. We know that some young people commit crimes that are so serious that they need to be isolated from society. We agree with that. But we should be guided by a basic principle: treatments and help for young people must be available as early as possible and for as long as possible.

That is why, until this bill was introduced, this sort of obligation was not among the principles in section 3 of the Young Offenders Act. The act does not call for deterrents, which set an example for others. Such penalties tend more toward incarceration. Why does the act not call for such an approach? I cannot provide a better quote than the one I found in a judgment of the Supreme Court, which had heard two cases. As you know, the full names of individuals under the age of 18 are never given; offenders are always identified by their initials. Consequently, the Supreme Court had handed down decisions in Her Majesty v. B.W.P. and Her Majesty v. B.V.N. An aboriginal youth had killed another person. These young people had committed a serious crime. I am not denying that. The court handed down a unanimous decision, and Judge Chars, on behalf of the majority, wrote the following:

The application of general deterrence as a sentencing principle, of course, does not always result in a custodial sentence; however, it can only contribute to the increased use of incarceration, not its reduction. Hence, the exclusion of general deterrence from the new regime...

This refers, of course, to the Youth Criminal Justice Act. Continuing on:

The exclusion of general deterrence from the new regime is consistent with Parliament’s express intention—“Parliament” referring to us, and I was also a member in 1999—to reduce the over-reliance of incarceration for non-violent young persons. I am not persuaded by the Crown’s argument that the words of the preamble referring to the public availability of information indicate that Parliament somehow intended by those words to include general deterrence as part of the new regime.

I do not wish to repeat all the arguments presented by the Crown, but I think it is worth noting that the Crown basically wanted to restore the principle and logic that existed in the Criminal Code, but through the back door. Anyone can consult section 718 of the Criminal Code and see that deterrence is one of the objectives pursued by judges during sentencing. There are other as well. I would also remind the House that there is a specific provision for aboriginal offenders, when it comes to sentencing.

To sum up, this government is making a very serious mistake and that is the subject of the second clause. The bill before us is such a small one, but so very important, given its devastating potential.

Clause 2 of this bill seeks to amend section 38 of the legislation in order to include, in matters of youth criminal justice, the principles of denouncing unlawful conduct and deterring the young person.

Clearly we cannot go down this path. When any sentence is handed down—in Quebec's case in the youth court component of the Quebec court—the judge naturally bears in mind that it is desirable that the individual not reoffend. However, the desire to set down, to codify, in a bill the principle of deterrence, promotes pretrial detention and assigns secondary importance to the principles of treatment, rehabilitation, assistance, significant individuals, or community involvement, in other words, a philosophy of intervention that Quebec has adopted.

This move by the government is even more surprising given that its discussion paper, which I read yesterday, provides some very conclusive figures. They indicate how far we are, despite the 2003 amendments to the Young Offenders Act, from achieving this objective.

I would also like to say that in reading the department's document, I discovered some very interesting facts. A study of police discretion examined how law enforcement officers, thus police, who are peace officers and the first to come in contact with youth, behave when arresting youth. This study revealed three reasons why the police do not release adolescents and detain them until the hearing, that is until the trial.

The first reason is law enforcement, that is to establish the identity of the offenders and to ensure they appear, as I stated earlier. Once again, according to the code, there are situations where releasing an individual is not an option. The second reason—and I find this surprising— is that detention is for the good of the youth. The study gives the example of a police officer who arrests a homeless prostitute or other homeless individuals who do not give the impression that they will find shelter. According to this study, the police officer's usual practice is to hold them for trial. The third reason is to use detention as a means of repression.

The document states that two of these three types of reasons are illegal. Under the reform of the Youth Criminal Justice Act, it is prohibited to detain an individual for these reasons.

So the government has reinforced an undesirable practice. It has supported police officers or law enforcement agencies who tend not to release youth. Yet according to the Quebec code, it is much better to remand young people to youth centres so they can receive institutional support. The bill provides for the possibility of not necessarily releasing them to their parents, but to responsible adults.

Since my time will soon expire, I would like to tell the government how disappointed I am; it would have been much better to address other problems. For several months the Bloc Québécois has been calling for a review of the parole system and accelerated parole review. We would have helped the government if it had been interested. Instead, it is ideologically driven to please its voters and it encourages and promotes prejudices that are not supported by statistics or reality.

Again, the Bloc Québécois will do everything it can to ensure that this ill-advised bill never receives royal assent.

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

Mr. Speaker, I have a lot of respect for the Bloc Québécois member's opinions and his experience in the Standing Committee on Justice and Human Rights and in this House. As I understand it, he and the Bloc are completely opposed to clause 2 of the bill, which would add deterrence and denunciation to the principles to be considered in the Youth Criminal Justice Act. I understand his position on the issue.

I want to ask a more specific question. As we all know, the principles of deterrence and denunciation are in the Criminal Code. Section 718 of the Criminal Code includes a number of other principles. Section 718.1 sets out the crucial principle of sentencing proportionality.

I asked the minister if this bill included a principle of proportionality. He said that it did. Does the Bloc Québécois member think that the bill before us includes a principle of sentencing proportionality?

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I thank my colleague for his question.

I absolutely agree with his comments. The Criminal Code does set out a number of principles, the most important being the principle of proportionality. There is no trace of this principle in this bill. On the contrary, the bill promotes denunciation and deterrence. Once again, why is this not desirable?

It is significant that from 1907 to date, including the 1999 reform, we have never made the principle of deterrence part of the youth justice system when we have studied it. Deterrence is not the prime objective. Once again, this does not mean that a judge—in the case of Quebec, we are talking about a judge of the Court of Québec’s Youth Division—will not ensure that the offender receives treatment so as not to reoffend. Preventing the offender from reoffending is always the goal of the judiciary and the stakeholders. However, we do not believe that deterrence should be part of this bill, because it will only lead to increased incarceration.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, I have heard this debate many times before. I was in this place when it was taking place with respect to the change from the Young Offenders Act to the Youth Criminal Justice Act.

Maybe in my neck of the woods it is different from Quebec, maybe it is different from Hochelaga, but in my neck of the woods, many people have lost faith in the justice system, particularly with young offenders. That is just an observation. We are talking legal principles here.

I have heard young offenders say, “I cannot be touched. Nothing is going to happen to me”. The member for Hochelaga may disagree that the public in his community has lost faith in the justice system, but I bet that if he listened to a few people in his neck of the woods, they would agree with me that the public has lost faith in the justice system with respect to young offenders.

We look at the principles of deterrence, rehabilitation and penalties. My question for the member is, has too much emphasis under the Youth Criminal Justice Act, which most people say is worse than the Young Offenders Act which was a piece of mush, been put on rehabilitation as opposed to deterrence and penalty?

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I would like to thank my colleague for his question.

I am not denying the fact that some of our fellow citizens have lost faith in the justice system. I think that the way to renew that faith is to address parole. Does it make sense that when a court, a judge, hands down a sentence, when the principles of natural justice prevail, a person can be paroled after serving one sixth of his or her sentence? I am much more worried about the fact that a person can be paroled after serving one sixth of a sentence than about the possibility of pretrial detention for a 13, 14, 15 or 16 year old under the conditions set out in the bill.

We know that this is justified in certain cases. We are not denying that. However, I do not think that we need a bill like the one the government has introduced to achieve the goals we all want to achieve for the administration of justice.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, I listened as well with interest to the member's speech. He seems to have some disagreement with the principle of pretrial detention. I am wondering if he would agree that it would be reasonable for a person who has been charged with and is guilty of committing a violent crime which may have resulted in the death of another person to be held in custody prior to trial.