Bill C-4 (Historical)

Sébastien's Law (Protecting the Public from Violent Young Offenders)

An Act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other Acts

This enactment amends the sentencing and general principles of the Youth Criminal Justice Act, as well as its provisions relating to judicial interim release, adult and youth sentences, publication bans, and placement in youth custody facilities. It defines the terms “violent offence” and “serious offence”, amends the definition “serious violent offence” and repeals the definition “presumptive offence”. It also requires police forces to keep records of extrajudicial measures used to deal with young persons.

[Bernard Richard, Ombudsman and Child and Youth Advocate, New Brunswick Office of the Ombudsman]

Thank you very much, Mr. Chairman. I'm of course pleased to be taking part in this meeting and in your proceedings on Bill C-4.

I previously sent you a written submission, a brief, and I don't intend to read it or even provide an overview of it. I'm simply going to summarize my concerns about the bill, in order to allow my colleagues as much time as possible and to speak with committee members.

I just want to give you some background, if I could, on the work we do so that you know where we're coming from.

I'm a child and youth advocate, as well as the ombudsman in New Brunswick, and for the time being the Access to Information and Privacy Commissioner as well. Hopefully, there will be a separate Access to Information and Privacy Commissioner soon.

Since about November 2006, I've been dealing with individual cases of youth and children, including youth who have been dealing with the Youth Criminal Justice Act and the justice system. So we have a very hands-on experience day in and day out. I have a number of people who work with me—some lawyers, some social workers, and others as well, with different areas of expertise. We intervene in different cases. We participate in case conferences and meet with families and the youth themselves. So it's very much an on-the-ground experience.

As well, we've published two reports fairly recently. Two years ago we published one report called Connecting the Dots, which really focused on youth with mental health issues and severe behavioural disorders and the experiences they and their families had with the service providers in New Brunswick. We made a series of recommendations. We followed seven youth and their families. The youth suffered from various ailments, including bipolar disorder, autism or autism spectrum disorders, and schizophrenia. Sadly, one committed suicide. But we followed the others over two years. We met with their families and we published a report with recommendations.

We also spent quite a bit of energy and resources reviewing the three years that Ashley Smith—whom you would be familiar with—spent in our New Brunswick Youth Centre. She spent three years in and out—mostly in—the New Brunswick Youth Centre. We reviewed 6,000 pages of documents and 40 hours of video. I assigned five investigators to that specific case. Tragically, as you know, she died in the federal system, but a lot of the issues there were very similar to those in the provincial system.

During those three years, Ashley spent two-thirds of her time in segregation--that is, in solitary confinement in an eight-by-ten cell, 23 hours a day more or less, with lights on 24 hours a day. If she didn't suffer from mental illness when she went in, she certainly did when she came out—and I would have, as well, Mr. Chairman, with respect.

She faced 501 institutional charges during those three years and 70 criminal charges during her lifetime, more than half for incidents inside the institution, not outside. She had 168 self-harm incidents, and she was tasered twice as a youth before she reached the age of 19 in an adult prison while waiting for transfer to a federal institution.

In that report, we made 25 recommendations.

I think we have a fairly good idea or view of how the system works on the ground. It's on that basis that I accepted your invitation to appear.

I know there is a broad range of opinions on the Youth Criminal Justice Act. In fact, in one meeting I heard it described that the Youth Criminal Justice Act, depending on your perspective, might stand for “you can justify anything”, YCJA, or “you can't jail anyone”. I think I'm situated somewhere outside of both of those definitions, but certainly, what I hope we know for sure is this. It's a new piece of legislation. It was meant to address a situation under the Young Offenders Act where Canada had the highest rate of youth incarceration in the world, I'm told. It was extremely high, in any event. At least today, it has worked. According to the research of Nicholas Bala and others, the trend is now definitely towards a reduction of youth crime. There is, as well, a reduction of youth incarceration. That translates to savings, savings financially, obviously, but also savings in emotional costs to families. All of these youth are somebody's son or daughter.

This experience, to me, is still early. It's been seven years in the lifetime of a piece of legislation. Recently I've been working with the Indian Act, which is much older than that; but seven years is a very short time, and I'm very concerned that these changes are premature.

There was a significant consultation in 2008. I participated in it and met Minister Nicholson in August 2008 in New Brunswick. I know that my participation was a small part of the participation nationwide. I have yet to receive the results of that consultation. I think it would be critical information for members of the committee to have access to that. It's hard for you to decide on a piece of legislation without knowing what thousands—well, certainly hundreds—of Canadians had to say about it. The session I attended in Moncton included police, psychiatrists, social workers, and prison guard associations. It was a really diverse group of people, and they had a lot to say. I think you would be very well advised to take advantage of that. Personally, I can say that I know there have been written reports, but none have been published. So I'd love to be able to see what was said during all of those consultations. There was a consultant hired to write a report and to facilitate the sessions. His name was Roger Bilodeau.

As well, we haven't done a really good job of making full use of the Youth Criminal Justice Act. I think that's because it's still a very young piece of legislation.

In the case of New Brunswick, for example, the part of the act that permits the use of case conferences is really not used very much.

Justice Canada recently asked my office to conduct an analysis of the use of the act in New Brunswick to establish a model that would enable us to make better use of the elements that already exist but that are not very well known as a result of the recent nature of the act.

It seems to me we should further explore the opportunities afforded by the act as it currently stands before proceeding with changes that are quite significant.

I won't into the details because my main argument is that we are going way too fast. Instead we should analyze what has already been done and determine whether that's working or not. What interests committee members and the Canadian public, in my view, are the results at the end of the process.

What interests us are outcomes, very real concrete outcomes. So if you don't have the benefit of a complete analysis of what's happened so far under this piece of legislation, I think you take the risk of taking us back in time to the Young Offenders Act, the high incarceration rates, and here we go all over again. That is the concern I am expressing to the committee.

I have a lot of sympathy for Sébastien and his family and for others who are victims of crime. As ombudsman, I often am called upon to advocate on their behalf as well. My concern when I saw it was that it's a very tragic story. But by calling it “Sébastien's Law”, I guess the question I ask myself is when will we have “Ashley's Law”, a law for those who are victims of the criminal justice system? Ashley cried out for help and she became progressively worse while in contact with the system.

There are thousands of young Canadians out there who suffer from mental illness, from severe behaviour disorders, from addiction, who come in contact with the criminal justice system, and they should be diverted, directed towards treatment, not incarceration. Inevitably, incarceration makes their conditions worse. The justice system, including the prison system, is just not equipped to deal with these kinds of youth.

My fear is that while driving more of these youth towards incarceration, we're actually taking youth who are confused, sometimes suffering from all kinds of conditions, or who just make errors in judgment.... And I would say that outside of this room, likely most youth make errors of judgment sometimes, but not as severe as.... I know I have. Although I said “outside of this room”, I can confess that as a teenager.... And I have four sons who have been teenagers, and I am happy they're adults now, but they have made their own mistakes, yes.

I'll close on that, Mr. Chair.

I would ask you to carefully consider looking at where we've come from. I'm afraid that if we look at high-profile cases of violent crime by youth in order to change what I think is groundbreaking, very progressive legislation, we're proceeding on the wrong basis and we'll have the wrong results. That's my concern.

Thank you, Mr. Chair.

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

Thank you. It's a privilege to be invited to appear before you.

I believe you all have copies of a brief that I had submitted. It sets out my views in greater detail.

I am a law professor at Queen's University. I believe I've done more research and writing about the Youth Criminal Justice Act than any other academic in Canada. I was also a witness before the Nunn commission for a couple of days. I've been involved in the education of police, judges, and lawyers about the legislation, and I'm engaged in ongoing research, much of it with criminologists and others, in other disciplines. And I should say that in Kingston, where I live, I also work with victims and young offenders.

In terms of the Youth Criminal Justice Act, I think it's important to remember that this is legislation that deals with adolescents, with teenagers. One of the things we have a better sense of today than we may have had 20 or 30 years ago is brain development. We know that at least until the age of 18, the brain is not fully developed. When people say, “Well, that young person was not acting rationally or responsibly; it seems like he had a hole in his head”, the answer is, “He probably did, and you can actually see where it is.” Unfortunately, it's the part of the brain that deals with judgment and future planning that is often the last part to be developed.

Sometimes young people do commit absolutely horrific offences, but they're not adults. Even if they commit the most serious crimes, they should not be treated in exactly the same way as adults. That doesn't mean they shouldn't be held accountable, or in some cases even receive adult-length sentences.

One of the challenges in this area is that it is true that we can look back--at the age of 20, let's say--and say that a small group of young people became serious and habitual repeat offenders; the difficulty is that when you look at someone who is 14 or 15, you can't accurately predict which of those will end up in that small group. It is much easier to “post-dict” than it is to predict what is going to happen.

I think the Youth Criminal Justice Act has been a success, at least a qualified success. I've set out some diagrams and statistics there, showing that while we have substantially reduced the level of use of custody and courts, we have not experienced an increase in youth crime in this country. We still have a relatively high rate of use of custody compared with New Zealand and some western European countries. Although our rate has gone down, it is still much higher than in some other countries.

Custody clearly has a place, both in terms of accountability and protection of the public, but one also has to be aware of the costs of custody. One of the costs is financial. The cost—there are different estimates—of incarcerating a young person in a youth custody facility ranges from $40,000 to $100,000 a year. It is very expensive. Sometimes it's appropriate.

Furthermore, once a young person is in custody, they will be stigmatized in their community. People talk about gangs, but the number one place where gangs recruit is in custody. One has to be very careful about not overusing or misusing custody.

I think Bill C-4 is certainly a timely review of the act. Certainly some provisions are very appropriate. I have concerns about others.

Speaking about the specifics, with regard to the change in the declaration of principle--in clause 3--I'm concerned that the long-term protection of the public is removed from this version of the bill. While some reworking of the principles may be appropriate, it's very important to keep in mind the long-term protection of the public, which is most likely to be effected by rehabilitation.

As was pointed out almost without exception, young people who are sent into custody, even for adult-length sentences, are going to get out. The question is this: are they going to get out and be a greater risk to the community or a lesser risk to the community? Their rehabilitation has to be a central concern.

I think proposed paragraph 3(1)(b), the proposal to add the presumption of diminished moral blameworthiness, is a very important and worthwhile amendment. I certainly support that.

I'll turn now to the definitions, and I'll talk particularly about the issue of violent offence; I know this was a concern of Justice Nunn in his report. I support this change, although I have some concerns about the specific wording. He was concerned that the Supreme Court of Canada held, in the C.D. case, that a young person who was involved in, among other things, a high-speed police chase through a city, unless there was an accident, was not committing a violent offence and could not be placed in custody. I think those offences that do endanger the public and, for that matter, the young person themselves, should be regarded as violent offences.

Before the Supreme Court decided, there were some other cases. The Alberta Court of Appeal, for example, I think took a broader approach to the concept of violence. I think that this recommendation, which reflects what Justice Nunn was saying, is appropriate, although I would say that there should be some element of knowledge or recklessness or lack of foresight on the part of the young person committing an offence, and I've proposed some specific wording.

The issue of pretrial detention or remand is extremely important. As the graphs that I've included in the materials point out, we are actually now sending more young people into remand custody than we are into custody after findings of guilt. In other words, we are sending more young people who are not guilty or not yet found guilty into custodial facilities than we are young people who've been found guilty. This is a serious concern not only in terms of presumption of innocence but also in terms of the nature of the programming that could be provided.

As I read the amendment to section 29, it will actually somewhat focus on that and may tend to address that problem in a way that Justice Nunn supported, so I support proposed subsection 29(2).

On the issue of extrajudicial sanctions and their use, I was very pleased to hear the words of the chief. I would fully endorse his position and those of other police officers and prosecutors who point out that extrajudicial sanctions are intended not to be findings of guilt and will confuse the process if they are treated the same way. Therefore, I would suggest that those changes should not be made.

Finally, with regard to the issue of the change in the sentencing principles added by proposed paragraph 38(2)(f) on denunciation and deterrence, on some level I can understand why one would want to see both denunciation and deterrence as factors in youth sentencing, but these are words that have a specific meaning and will have an effect on the youth justice system that I think is undesirable.

We would all like to see young people deterred from committing crime, and indeed arresting young people and bringing them to youth court in and of itself will have a deterrent effect, but I'm concerned. In the paper I refer to some other research I did with Professor Cesaroni, and one of the things we know is that if you put the word “deterrence” back into this legislation, it will affect judges. Youth court judges will sentence young people to longer sentences--we know that--but if you think that will deter young people from committing crimes, unfortunately that is not the reality.

There is a wealth of information about the fact that longer sentences do not deter young people. The problem is that the young people who are committing offences are not thinking about the future at all. They're not thinking about getting caught. They're not thinking about the consequences of their act. Knowing that if they get arrested and if they get to court, they might get a sentence that's twice as long six months later is not going to affect their behaviour. It would be wonderful if it did, but there's a huge amount of research proving otherwise.

Rational adults think that sending accountants who defraud companies to jail actually has an effect on the behaviour of accountants. They're rational adults and they're reading what's going on, so their behaviour is affected. The problem is that young people are not affected by longer sentences. There is research that suggests they are affected by, for example, more effective policing, so thinking they're more likely to get caught may affect their behaviour. If sentences go up, it does not affect their behaviour. By the way, that's why the American Supreme Court abolished capital punishment for young people. They realized it was not protecting society.

Similarly, denunciation is a word that has a legal meaning. While I think accountability is very appropriate, if we are saying that young people are going to have limited accountability reflecting their moral development, as in proposed paragraph 3(1)(b), we should not turn around and denounce their conduct. We should hold them accountable; denunciation has a meaning that will simply result in longer sentences.

Finally, on the issue of publicity for young people who do not receive adult sentences, in some states in the U.S.A. it is not uncommon for there to be identifying publicity as soon as a young person is arrested. Actually some young people who are arrested rather like the publicity. They take the papers around and show them to their friends in custody in the detention facility, saying, “Hey, see what a tough guy I am?” The problem with publicity is that it doesn't deter their behaviour and it doesn't make them more accountable, but when they get out, it does make it more difficult to rehabilitate them and to reintegrate them into the community.

If we impose an adult sentence, it seems fair to say that there's going to be publicity, but if we're treating them as young people and sending them into youth custody, putting their names in the newspaper will not increase the protection of the public. It will simply make it more difficult for them to be rehabilitated.

Thank you.

[Mel Kennah, Executive Director, Moncton Youth Residences Inc.]

I want to thank the committee for this opportunity to provide input to the proposed changes to the Youth Criminal Justice Act.

I am the executive director of Moncton Youth Residences and have worked for this NGO for almost 25 years now. This is the largest non-profit organization of its kind in New Brunswick, and it employs about 180 staff members who provide 19 different services to at-risk youth and their families from around the province. In addition to that, I have been a foster parent for 20 years and have worked with young people in conflict with the law as well as child welfare youth in the permanent care of the Minister of Social Development.

I think it's encouraging that your committee is looking at the YCJA in trying to make it a more effective piece of legislation. The primary goal of the proposed changes is to better protect society, which sounds compelling and well intended. Who wouldn't want to have a safer community? But is getting more punitive the way to accomplish this positive and widely accepted goal?

What concerns me is that although the proposed changes may give the appearance of creating safer communities, the actual consequences of such changes that have an increased reliance on incarceration may indeed have the reverse effect.

The profile of an at-risk youth is someone who is already marginalized and faces numerous barriers between where they are now and becoming a healthy and contributing member of society. Risk factors include, but certainly aren't limited to, mental health issues, substance abuse, issues of homelessness, family and school breakdowns, conflict with the law, prostitution, and a myriad of relationship problems.

The increased reliance on incarceration being proposed cuts the young person off from all of their community support systems and from any important relationships in their lives. It is my belief that a young person with at least one good relationship in their life has a chance for a future. A more punitive approach will further limit the opportunity for meaningful relationships, and I fear it will be at the direct expense of rehabilitation of these young people.

Jail, punishment, and punitive measures all cloud the issue of rehabilitation. Heavier reliance on incarceration, publishing a young person's identity in the press, and trying them as an adult when they are as young as 14 years old does not suggest to me a safer society. These measures will further disengage youth, isolate them from society even more than they are now, and further aggravate their existing challenges.

Labelling a youth in the newspaper may actually influence that youth to accept that label as a permanent part of his or her future. More frequent and longer jail sentences will further reduce opportunities for success in the young person's life. It will most likely magnify and multiply existing risk factors, and it will not assist with skills acquisition. Treating a young person as an adult in these circumstances will not cause them to be any more mature or responsible or effective in their decision-making.

All youth sentenced to secure custody will one day re-enter society. A more punitive approach will help to guarantee that these youth will be ultimately less invested in society and have even less of a chance of achieving their potential.

Placing more emphasis and financial investment on incarceration will have both social and economic costs that may be difficult for society to bear.

I am not aware of any studies that clearly indicate that a young person will be less likely to reoffend because of receiving more time in jail. However, there are many studies that indicate investment in early intervention and community-based services has the best chance of inspiring youth toward more responsible behaviour. Investment in youth-specific community services and fresh options are the way to get young people connected to the necessary services, skills, people, relevant information, and even their own wants and potentials that will assist them in moving forward and also steer them away from ineffective behaviours that lead to a downward spiral.

Creating more community-based services and a heavy reliance on community-based sentences is what is needed to create safer communities. There are too few of these youth services in New Brunswick, especially in the small rural communities. Investing time, energy, and resources on the front end will obtain better results in the long run. With front-ended investment in community-based services for these at-risk youth, pressure will be taken off addiction services, hospitalization, social assistance, and incarceration. Such investment will enhance rehabilitation and will assist in holding youth accountable for their actions. The earlier the intervention, the better chance of success and the greater savings, both socially and economically.

I'm going to tell you a brief story of something that happened to me with my own teenage foster boys last weekend. We had a plugged toilet, which I tried to fix. That didn't work very well. The problem quickly grew into a flood and working with a plumber for the rest of the evening.

The plumber's conclusion was that we had a problem with our main sewer line running from the house to the septic tank. It had collapsed and I was going to have to dig up the yard. So I said, “I'll do that, and you can come back when I have things dug up.”

I then went to my foster children and said, “I could use a hand with this. Would anybody be interested?” They all replied, “Yes, we'd be happy to participate.” So the next Saturday morning we went out there and worked for about three or four hours. I can tell you that after that time they were smiling from ear to ear. I couldn't have created a greater opportunity for happiness or self-satisfaction if I had taken them to the circus for the day. Why was that? I think it was because they gained a sense of making a contribution to resolving a collective and immediate problem. They could see progress because of their efforts. They learned about teamwork and effective communication, and they had a strong sense of achievement.

You need to do esteemable things in order to build self-esteem. I believe increased emphasis on punishment will starve this growth, and emphasis on community-based options and services are the best way to promote this growth. As President Roosevelt once said, “We cannot always build the future for our youth, but we can build our youth for the future.”

In conclusion, I want to make a couple of brief points on Bill C-4, which I certainly support. First, I agree with the provision prohibiting the imprisonment of young persons in an adult correctional facility. I was actually surprised that this didn't already exist.

With some hesitation I mention the second point. Clause 25 of Bill C-4 requires that police keep a record of extrajudicial measures taken to deal with a young person. I think that maintaining a written record of this information would be more useful than not when it comes to decision-making purposes later on.

I have one final almost miscellaneous comment based on some discussions I had with one of our youth court judges and a crown prosecutor. It pertains to young people who are continuously breaching their probation and breaching undertakings to a judge. In those circumstances, in some instances, the intervention of a short, sharp shock of incarceration has proven to be beneficial in the past for some young people.

I hope the committee will give some consideration to my comments, so as to maintain that important balance between protecting society and supporting at-risk youth.

Thanks very much.

[Sylvie Godin]

This change would run counter to a guideline prepared on this topic by the Committee on the Rights of the Child in its general observation.

The committee had indeed insisted on the fact that an admission made by a child in the context of diversion measures must not be “used against him or her in any subsequent legal proceeding”.

Pursuant to clause 20 of the bill, it would be incumbent upon the Attorney General to convince the court to authorize the publication of information making it possible to identify the adolescents who were given adolescent-specific sentences according to certain defined criteria. Although this change improves to some extent the scope of the protection of the right to privacy, the category of adolescents whose name could be divulged would however be broadened.

Indeed the new provision would apply to adolescents convicted of “a violent offence”, an offence whose scope is broader than the current designated offence. Consequently, this would broaden the category of adolescents who might be deprived of the right to privacy. This protection aims to prevent any stigmatization, which contributes to attaining a priority objective of the distinct legal system put in place to deal with juvenile delinquency, i.e. the adolescent's social reinsertion, as emphasized by the Committee on the Rights of the Child.

Pursuant to clause 21 of the bill, an adolescent of less than 18 years of age could no longer serve his sentence in an adult facility, even when given an adult sentence.

However, other exceptions in the bill such as the one concerning pre-trial detention would not be modified and would continue to apply. Consequently, Canada would continue to not be able to comply with the obligation of detaining children separately from adults.

Since 1996, the Commission des droits de la personne et des droits de la jeunesse has made several representations both before Parliament and the federal government in order to promote the rights recognized by the Convention on the Rights of the Child and by other standards of the United Nations applicable to the juvenile criminal justice system.

The Commission intervened in the reference presented by the government of Quebec before the court of appeal in order to support the position of the Attorney General of Quebec, in particular on the inconsistency of certain provisions of the Youth Criminal Justice Act with the provisions of the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The court of appeal referenced principles of international law to conclude that the provisions of the act relating to the presumption that adolescents charged with a designated infraction were subject to an adult sentence, and the presumption of publication, were unconstitutional. The Supreme Court confirmed the interpretation of the appeal court in 2008 in the R. v. D.B. case, and it also based its decision on the convention and other relevant international standards.

In conclusion, the commission urges legislators to respect the provisions and principles of the Convention on the Rights of the Child. It urges them to take into account in their review of Bill C-4 the recommendations and guidelines submitted by the Committee on the Rights of the Child. The committee emphasized a point that seems fundamental to us in the consideration of some of the grounds expressed to justify several of the changes proposed by Bill C-4.

I will summarize with an excerpt from general observation n^o 10 of the Committee on the Rights of the Child which reads as follows:

“[...] Reintegration requires that no action may be taken that can hamper the child's full participation in his or her community, such as stigmatization, social isolation, or negative publicity of the child. For a child in conflict with the law to be dealt with in a way that promotes reintegration requires that all actions should support the child becoming a full, constructive member of his or her society.”

Thank you for your attention.

[Sylvie Godin, Vice-President, Commission des droits de la personne et des droits de la jeunesse]

Mr. Chairman, ladies and gentlemen members of Parliament, good morning.

I am Sylvie Godin, Vice-President of the Commission des droits de la personne et des droits de la jeunesse of Quebec, and I am accompanied by Ms. Claire Bernard, legal adviser at the Research Branch.

Under the Charter of Rights and Freedoms of Quebec and the Youth Protection Act, the Commission des droits de la personne et des droits de la jeunesse of Quebec is entrusted with ensuring the protection of the interests of the child, and of ensuring through all appropriate means the promotion and respect of the rights that are granted to children under the Youth Protection Act and the Youth Criminal Justice Act.

It is thus the commission's mission to ensure that the amendments to the legislation governing the criminal justice system as it applies to adolescents are in compliance with the rights that are recognized to them. The commission discharges its mission by ensuring that the international commitments that Canada has made in the area of child rights are respected, pursuant to the Convention on the Rights of the Child and other applicable treaties.

The commission's analysis of Bill C-4 is informed by the convention, as well as the recommendations which the Committee on the Rights of the Child addressed to Canada in 2003, pursuant to the examination of Canada's second report on the implementation of the convention and the general observation the committee made public in 2007 concerning the administration of the justice system applicable to minors.

The Committee on the Rights of the Child recommended that Canada fully integrate into its legislation, policies and practices the provisions and principles of the convention, in particular the articles concerning the child's superior interest, the measures relating to deprivation of liberty, the rights of a child who is suspected, charged or convicted of a criminal offence, and rehabilitation and reinsertion, as well as the other international standards applicable in this area.

More specifically, the committee urged Canada to ensure that no person of less than 18 years of age be judged like an adult, whatever the circumstances or seriousness of the offence committed; to guarantee that the opinions of children be duly taken into consideration and respected in all legal proceedings concerning them; to see to it that the right to privacy of all children in conflict with the law be fully respected; to take the necessary measures, for instance alternate measures to the deprivation of liberty or parole, in order to considerably reduce the number of children being detained, and see to it that detention is only imposed as a last resort and for as brief a period as possible, and that in any case, children always be detained separately from adults.

Moreover, in its general observation in 2007, the Committee on the Rights of the Child addressed guidelines and recommendations to all of the states parties to the convention, so that their system of administration of justice applicable to minors be in compliance with the convention.

Our comments will thus discuss the amendments proposed in clauses 3, 4, 7, 25, 8, 20 and 21 of Bill C-4.

The bill proposes an amendment to section 3 of the act so as to make the protection of the public the priority objective of the act. The Committee on the Rights of the Child recognized that “the preservation of public safety is a legitimate aim of the justice system”. However, it “is of the opinion that this aim is best served by a full respect for and implementation of the leading and overarching principles of juvenile justice as enshrined in CRC”. Moreover, Canada itself recently pointed out in the context of its contribution to a report produced by the Human Rights Council on the Administration of Justice, that the Canadian criminal law applicable to minors guarantees that detention is a measure of last resort and that rehabilitation and reintegration must be taken into account in any decision. The principles of rehabilitation and reintegration must constitute the priority objectives of the law and not only be means, as the bill proposes.

Clause 4 of the bill proposes broadening the possibilities of resorting to pre-trial detention. The commission reminds us that according to the rights guaranteed to children in international law, detention must be a measure of last resort and it must be as brief as possible.

In this regard, the Committee on the Rights of the Child firmly pointed out that “the juvenile justice system should provide for ample opportunities to deal with children in conflict with the law by using social and/or educational measures, and to strictly limit the use of deprivation of liberty, and in particular pre-trial detention, as a measure of last resort.”

Clause 7 of the bill suggests the addition of two new principles to the principles of sentence determination, information and deterrence. Although this is no longer a matter of introducing a general deterrence principle applicable to all juveniles, as was the case in Bill C-25, the fact remains that the specific objectives of information and deterrence contradict the objectives of rehabilitation and reitegration which must remain at the heart of the criminal juvenile justice system. According to the Committee on the Rights of the Child, the protection of the best interests of the child means that: “the traditional objectives of criminal justice such as repression and retribution must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety.” Indeed several studies conclude that measures aimed at deterrence are ineffective.

Clause 25 of the bill proposes obliging police forces to keep a file regarding extrajudicial measures taken with regard to any adolescent. From the perspective of respecting the rules of international law, this change is not problematic as such, on condition however that the provisions governing access to that register and the use of the information it would contain not be modified.

A change suggested in another clause of the bill however, clause 8, concerns precisely the use of the information involving one category of extrajudicial measures, i.e. extrajudicial penalties. The court could in future impose on a juvenile a sentence of committal to custody in light of prior extrajudicial penalties, whereas currently it can only take into account prior convictions.

[Chief Clive Weighill]

Thank you, Mr. Chair.

My name is Clive Weighill and I am the chief of police for the city of Saskatoon. I'd like to thank the committee for allowing me to provide testimony today.

Youth crime, with its possible solutions, is a very serious and much debated issue in Saskatchewan. Although there has been a national trend showing reductions in youth crime in recent years, Saskatchewan has a serious problem related to criminality involving youth. The latest Canadian Centre for Justice statistics comparisons for 2008 clearly show that the youth crime rate is significantly higher in Saskatchewan than in any other province. The rate of youths charged in Saskatchewan sits at 9,255 per 100,000 population, aged 12 to 17. This is double the rate for the next closest province, Manitoba, with a rate of 4,692 per 100,000 population. By comparison, Saskatchewan has almost four times Ontario's rate of 2,718 per 100,000. In real numbers, not rates, Saskatchewan, with a population of only one million people, has charged 8,052 young offenders, compared to British Columbia, with 5,343 young persons charged out of a population of 4.5 million.

To say the least, the practitioners working in the criminal justice system in Saskatchewan have a solid grasp of the Youth Criminal Justice Act. There are positive aspects to the current act and, correspondingly, several problematic areas.

I provided testimony before this committee on March 30, 2010, and I think at that time I shared with the committee that I'm certainly a believer in social justice. I'm not one who believes that you lock people up and throw away the key. Those days are long gone. At that time I suggested to the committee that the primary reason for gang involvement in Saskatchewan is the marginalization faced by the aboriginal population in our province. A large percentage of the aboriginal population is living in poverty and poor housing, facing racism, the continued fallout of residential schools, and a restrictive Indian Act. I further suggest that in Saskatchewan the prevalence of youth crime is primarily predicated on the same factors.

Although marginalization and required social changes help explain the high numbers of youth coming in contact with the criminal justice system, I speak today of the young person who has gone past the entry level and has become entrenched in a lifestyle of criminal activity. As with most crime, the rule of thumb is that 5% of the population creates 95% of the problem. Once people are into a criminal lifestyle, they may be past preventative stages in their lives and they may have become hard core. It is about this 5% that I will direct my comments today.

As a general rule, the Youth Criminal Justice Act does an excellent job in assisting the police with diversion, official warnings, and holding youth accountable. It is within the small 5% of offenders that are habitual repeat and/or violent offenders where I believe changes in the YCJA are required.

As a case in point, recently in Saskatoon a young offender, aged 17, and an adult, aged 18, were arrested for allegedly committing 40 random street robberies and several home invasions while armed with a machete and a handgun. It is alleged that in one evening, leading to their arrest, they shot a 17-year-old male while robbing him on the street, causing the victim to be paralyzed from the chest down; they committed a home invasion, robbing eight people; and they slashed the leg of a street robbery victim with a machete. They are not from the marginalized cohort mentioned earlier; they are from middle-class families.

Other cases in point include the following. Youths engaged in gang activity and committing random street robberies allegedly stabbed a victim to death while stealing a case of beer. Youth and adults stabbed a victim 26 times because the victim made a derogatory comment. Youths involved with stolen autos are continually being released after being charged, only to reoffend and continue their actions in numbers in excess of 40 stolen vehicles. This is known to the community as revolving door justice.

I must stress that it is this type of crime and victimization that I make my comments about today, not the 95% of cases handled suitably through the YCJA.

I fully support some of the amendments contemplated by Bill C-4. In many instances, a message of deterrence has to be sent to the habitual offender. Violent crimes all have victims.

Society must be protected from those individuals who commit planned, violent crime, even if the individual committing that crime is a young person. Events such as those involving the young man mentioned earlier, who is now paralyzed, and the man who lost his life over a case of beer taken during a street robbery are not uncommon in Saskatoon.

I agree with the principle found in the current act that pre-trial detention of young offenders in general is a last resort. I do not agree with this, however, when the youth is a habitual property or violent offender. There comes a time in everyone's life when they must become accountable for their actions, and the protection of the general public must be taken into consideration. To continue releasing a habitual offender causes society to lose confidence in the criminal justice system. Unfortunately, when the public loses confidence in the system, it may attempt to force draconian remedies on the entire youth criminal justice system, thereby also penalizing the youth who could utilize the positive aspects of this act.

I take this point even further. We continually see the use of intimidation by gang members in attempts to prevent witnesses and victims from testifying or assisting the police. The acts of intimidation often include pointing a firearm at someone, assaulting someone using physical force, or threatening to use knives and machetes. This intimidation severely compromises the ability of the criminal justice system to protect witnesses and victims. Protecting witnesses and victims so that they may testify safely without intimidation is a cornerstone of our justice system. I believe an intervention is required to prevent violent and habitual offenders from inflicting further harm.

I support Bill C-4 with the notion that a young person's prior findings of guilt and pending charges should be taken into account upon pre-trial release, specifically when the offender has reached the age of 16 or 17. I also support the recommendation in Bill C-4 in relation to releasing the name of a young offender if she or he has been convicted of a violent offence and the prosecutor convinces the court there is substantial likelihood the young offender may commit another violent offence. In fact, I believe it should even be taken one step further. In cases where the police are actively attempting to apprehend a violent young offender who is believed to be a real danger to the public, his or her name could be released in an effort to warn the public of impending danger or assist with a timely apprehension. Once again, this would be used only when a youth had reached the age of 16 or 17.

In relation to sentencing, I do not support the recommendation for the use of extrajudicial sanctions at the time of sentencing. In Saskatoon, we document all extrajudicial measures and sanctions in an effort to guide our officers when they come into contact with a young offender. For instance, a youth may be caught committing a minor mischief offence and be taken home by the police to his or her parents for them to provide proper direction to the youth. Later, the youth might be caught shoplifting and receive an official police warning rather than a criminal charge. Both of these instances are captured in our data banks and will be used when determining whether criminal charges should be laid if the youth commits further offences.

I believe the extrajudicial sanctions are useful for determining charges but not for sentencing. I suggest that only a criminal record based on court findings should be used. Extrajudicial measures and sanctions are a cornerstone of the YCJA and are used only in minor occurrences. They would not be a major factor in the cases of violent or habitual offenders of which I speak today.

I have no comments in relation to the recommendations pertaining to raising youths to adult court or whether they should be placed in a youth or adult detention facility in extreme cases. I have no background in corrections, and I suggest corrections people could provide more clarity on this topic.

Once again, I thank the committee for allowing me to provide input on this issue, and I'll certainly be open to any questions.

[The Chair, Conservative, Ed Fast]

We'll reconvene the meeting.

I'd like to welcome our witnesses to our study of Bill C-4. We're continuing our review of Sebastien's Law, an act to amend the Youth Criminal Justice Act and other consequential and related amendments.

We have with us today, first of all, representing the Saskatoon Police Service, Chief Clive Weighill. Welcome.

Young Offenders

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

Mr. Speaker, with all due respect, I believe that the minister avoided answering my question. However, his refusal or inability to answer are nonetheless significant.

In addition to the National Assembly, the Association des centres jeunesse du Québec, the Barreau du Québec, the Canadian Bar Association, the Association québécoise Plaidoyer-Victimes and many other witnesses have indicated that Bill C-4 would undermine the Quebec method, which gives such good results.

Will the Minister of Justice, who says he cares about the victims, agree to amendments to his law in order to avoid this risk?

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

Mr. Speaker, the National Assembly unanimously adopted a resolution denouncing Bill C-4. The conclusion of the resolution reads as follows:

That the National Assembly reaffirm the validity and the importance of maintaining the Quebec model for treating young offenders, which has been unanimously accepted in Quebec and has allowed Quebec to achieve one of the lowest rates of youth crime in America in the past 25 years.

Does the Minister of Justice also acknowledge that Quebec has one of the lowest rates of youth crime in America?

[Irwin Elman, Provincial Advocate, Office of the Provincial Advocate for Children and Youth (Ontario)]

Thank you.

I want to say that I feel very privileged to be here, particularly in light of the last discussion, about witnesses and time. I feel very privileged because I know many Canadians have a real interest in the work of this committee and this bill, including young people themselves.

As you know, I am the provincial advocate for children and youth in Ontario, and I am joined today by one of my advocates, Lee Tustin, who I can tell you is one of the foremost experts on the Youth Criminal Justice Act in the country and has done some work on it. She's also modest. I hope our presentation can be helpful to you.

I want to begin my comments by saying something about process. As you know, when the YCJA was created there was quite a process of consultation and participation at all levels, including the House of Commons committee. What was created was a youth justice renewal strategy. That became the YCJA in 2003, with several years of studying, consulting, and talking to people before making any changes to our youth justice system. I would guess that even in that process few young people were consulted about what they thought might be helpful in terms of changes. Yet there was a consultation process.

In 2008 Bill C-25, which had changes similar to Bill C-4, was introduced without any prior consultation. I'm told by other provincial advocates, as I wasn't in my position at the time, that round-table discussions were held throughout the country on Bill C-25 after it was introduced. I've heard again today and I think I've seen on websites that the report from those consultations has not been made public. Certainly I haven't seen it, or any of my staff. I think that certainly is curious when you're contemplating Bill C-4, which again I feel has not had any true consultation. This is true particularly because the consultations haven't been open and public, and my understanding is there has not been consultation with young people who might be affected by the bill you're speaking to.

I think it's really important that young people and the people who work with your legislation be consulted. I spent the last 25 years working with young people in child welfare and youth justice systems, and I can tell you that the most important things I learned did not come from a lecture or professor I was listening to or from a book I read. It came from the lived experience and wisdom of young people. I urge you, before you make any decisions, to find out what that lived experience and wisdom can say to you. People are saying this act is to some extent about public safety. I want to remind you that young people are every bit as much members of the public as I am or you are, the same way your children are members of the public, and they have a right to be consulted too.

I also understand there's been some discussion of the Nunn commission report about how protection of society should be a primary goal of the act and that a tool should be given to courts to ensure that the protection of society is taken into account. But the Nunn commission also said the Youth Criminal Justice Act is sound legislation, and the report expressed concern about deviating from the sound underlying principles that are enshrined in the act. This is exactly why I think we need a true consultation process before we change what basically seems to be, as people are saying, a sound piece of legislation.

Even some of the questions I've heard you asking today, and I know you have limited time.... It strikes me that to consider changing a piece of legislation fundamentally without knowing some of the information that you need to know—for instance, statistics with regard to racialized members of our community entering into the youth justice system—is a little bit, and perhaps this is too harsh a word, irresponsible without knowing and understanding. So I urge you to take your time and consult widely.

I've thought a great deal about what I wanted to say. I know that I'm one of a group of characters you're going to meet, and probably because of my position and where I've worked, you could probably guess the kinds of things I'm going to say. I want to get beyond that.

Recently in Ontario, we've had quite a debate about a particular youth justice facility outside Toronto. Because we've been on one end of the debate raising the voices of children and youth, particularly youth who have been involved in that facility, people have said there is--and these are their words, not mine--the “hug-a-thug” group, and somebody referred to it as “bleeding hearts” earlier. And then there's the “law and order camp”. I think the polarization of those two camps is particularly difficult, and I want to find another way of having a discourse about youth justice. I think it comes from the voices of young people themselves. My act, which governs what I'm supposed to do, tells me I'm supposed to elevate the voices of children and youth, in this case in conflict with the law.

I spent, and have spent in the last year or two years, quite a bit of time in youth justice facilities in Ontario speaking to young people, meeting them when the veneer of their lives is stripped away, meeting them in these facilities. When I meet them, I don't know why they're there, but I'm talking to them. They're kids. As somebody said, they're every bit as much children or youths as is the child of anybody sitting around this table. You get to understand that they have hopes and dreams. And you get to understand that they are our future. You ask them what they want to do in the future, and they want to be a plumber, a doctor, a parent. They're somebody's sons or daughters. They are people.

To understand the issue with that in the forefront, with them in the centre of this room, you might make different decisions about the act you're contemplating. I really believe that. It also provides us with common ground, because I believe that people in my so-called “camp”, people who are the characters coming to tell you what's wrong with that, believe as much as you do that we want the best for our children and youth. We want public safety too. Speaking about these young people and understanding them will allow us to act differently, I think. That means also listening to them.

I want to say something else, and I'm thinking about what they might want me to say. In one of the places I was visiting--and it's happened many times--I was with young people in their unit, and suddenly there was a call for a lock-down, what the institution called a “code blue”. So all the young people had to go to their rooms, and they were locked in. This is not atypical from any other province. After they came out, I was able to talk to a young person again, and I said, “What happened?” He said, “Well, we were locked down. We have three CDs we're allowed to listen to on our unit, and one of the CDs was missing, and they needed to lock down all the units in the institution--not just this one--to try to find the CD.” It seemed curious to me. By the way, when they tried to find the CD, there were strip searches. They take everybody's clothes off, one at a time. They go in the rooms and look for the CD.

I'm not criticizing, and I don't work in the justice system, and maybe they're thinking--and I think they were--that the CD could be used as a weapon, and that it was a matter of safety. But I asked the young person how often this happened. “Well, two or three times a week”.

It occurred to me that if at any moment the guards who guard the Parliament Buildings could come in here and tell us to go to our rooms, take our clothes off because they had to look for something that was missing.... If that happened three times, and we didn't know it was going to happen, but we just got used to it happening, we might even think we understood why it was going to happen. When you're in custody in that situation, that's a common situation, and it's just one common element of what it means to be in custody. That's punishment enough in terms of what we need to do to young people if we're going to think we're punishing them. But--and young people will say this--it doesn't do a lot. It's common sense when you think about it.

When you think about your children, it doesn't do a lot in terms of rehabilitation and possibilities for reintegration. So the fewer young people, our children, we can put in that situation.... It's kind of obvious that we shouldn't be doing that.

That's the piece I wanted to say. I also wanted to say a little more about some of the pieces in the act, and I think that with Lee, during questions, we can speak specifically to those.

To me, the declaration principle that people have talked about that shifts the philosophy is really important, because I believe it blatantly ignores parts of the UN Convention on the Rights of the Child, which is also mentioned in the act and which the Canadian Parliament and Ontario's legislature have adopted.

I know there's been some discussion here to the effect of what good is that convention anyway, how enforceable is it, and that maybe that's the reason not to worry about it so much in the act. But what a message that is. It's particularly ironic when we're considering youth justice legislation and are honouring what we as a society say we need to commit to as people, and are teaching our young people how important laws are, that in regard to an act and a convention that Parliament and provincial legislatures have agreed to, we say that because it can't be enforced, it doesn't matter. What an irony it is to take that position.

My time is up. There is so much I wanted to say. There is a group of young people here from children in care. Yesterday they were speaking to Senators Pépin and Munson, talking about their struggles to make it through the child welfare system, how difficult it was. They had made it or were making it, but some of them were in group homes too. Under this legislation, they could be charged and end up in custody and have a completely different path, if they threw a glass at someone in a group home because the abuse they had suffered was triggered by something in that home. I want them to be remembered here too.

I know I'm out of time, but that's my message.

[The Chair, Conservative, Ed Fast]

Thank you.

I'm going to use my discretion and cut it off here. I know that the government typically gets a question, but we are running short of time. We want to hear from Mr. Elman and Mr. Tustin as well.

I'm going to thank the witnesses for appearing. Your evidence will form part of the considerations.

While the witnesses are moving out and we're having Monsieurs Elman and Tustin take their places, there are a couple of items of committee business that are really important.

First, we circulated the budget for this review of Bill C-4. I need approval of that.

[Martha Mackinnon]

The submission I sent says “Justice for Children and Youth's Submissions re: Bill C-4” at the top. It is the last sentence under the subtitle “Endangers or is likely to endanger the life or safety of another person” in a section entitled “Expanded Grounds for Pre-trial Detention”.

[Julie McAuley, Director, Canadian Centre for Justice Statistics, Statistics Canada]

Thank you for the opportunity to present to the committee regarding Bill C-4.

Statistics Canada does not take a position on the proposed amendments in the bill. The presentation we have prepared contains our most recent data on youth criminal justice. All data sources used are clearly indicated as are any pertinent data notes. Distributed for your consideration are the most recent Juristats related to youth crime, youth courts, and youth corrections. Furthermore, in July, Statistics Canada will be releasing new crime and youth court data, which may also be of assistance during your examination of Bill C-4. My colleagues Ms. Mia Dauvergne, Ms. Rebecca Kong, and Mr. Craig Grimes will help to answer any questions.

Using data received from police services across Canada, we can examine trends in youth accused of police-reported crimes. Over the last ten years, there has been a substantial shift in the trends regarding youth aged 12 to 17 accused by police. The rate of youth charged has dropped while the rate of youth cleared by other means has increased. Cleared by other means includes, for example, judicial sanctions and police discretion.

Crime can be classified into two categories: violent and non-violent. Most crime committed by youth is non-violent. This has been a consistent trend over the last ten years. In 2008, seven in ten youth accused of crime had committed a non-violent offence. The rate of non-violent crime committed by youth in Canada has been decreasing over the last ten years, while the rate of violent crime has remained relatively stable. As the youth crime rate is predominantly driven by non-violent crimes, the overall crime rate as reported by police services in Canada has also dropped over the last ten years.

The top ten offences accounted for 93% of all police-reported offences committed by youth aged 12 to 17 in 2008. Seven of the ten shown are classified as non-violent crimes. The most common police-reported offence committed by youth in 2008 was theft under $5,000. This along with mischief and assault level one accounted for about half of all police-reported offences committed by youth in 2008.

I will now turn to what happens once charges laid by police move into Canada's youth courts. In 2006-07, theft was the most common type of case completed in youth court, followed by assault level one and break-and-enters. The composition of cases being heard in youth court is changing. We are seeing fewer cases involving less serious offences, such as possession of stolen property, and an increase in more serious offences, such as uttering threats and weapons offences. Since the introduction of the YCJA there has been a 26% decline in the cases completed in youth court. While there is variability in the magnitude of the decline in caseload, all provinces and territories have experienced a decline since the YCJA.

In addition to the decrease in the total number of cases, there has also been a decrease in the number of guilty cases stemming from youth courts. While the decline began in the early 1990s, the introduction of the YCJA coincides with a decrease in both the total number of cases completed and the number of guilty cases.

Of the approximately 56,500 cases heard in youth courts in Canada in 2006-07, 60% resulted in a guilty finding. For those cases where the youth was found guilty, the most frequent sentence was probation. In recent years the proportion of violent cases resulting in a custodial sentence has been declining. In 2006-07, these cases were at their lowest levels in 15 years. Since the first year of the YCJA, all provinces and territories have experienced large decreases in both the numbers and proportions of guilty youth cases receiving custodial sentences. The use of custody has also decreased across all offence categories.

The average length of custody for all youth cases in Canada was 72 days, compared with 124 for adults. When split by violent and non-violent offences, we see that there is a difference in the length of the custodial sentence imposed: 117 days for violent cases versus 54 days for non-violent cases.

By far, the average length of custody was the longest for homicides, at 1,084 days, which is almost three years, followed by attempted murder and other crimes against persons. On any given day in 2008-09, about 900 youths aged 12 to 17 were in sentence custody, which was down 8% from the previous year and down 42% from 2003-04. In fact, the number has been declining annually since 1995-96.

Looking at slide ten, we see that the youth in remand outnumber those in sentence custody. In 2008-09, 52% of all young people held in custody on any given day were in remand.

Youth continue to spend fairly short periods of time in remand. Four of the eight jurisdictions that provided data in 2008-09 indicated that youth spent, as a median number of days, one week or less in custody. Since the implementation of the YCJA, the median number of days spent in remand has varied across jurisdictions. Overall, in 2008-09, 54% of youth released from remand had spent one week or less in remand. This proportion has fluctuated between 53% and 56% since 2004-05.

For youth there are operationally two levels of custody: open custody, which is less restrictive, such as halfway houses; and closed custody, which are secured facilities and would include detention centres. Among the reporting jurisdictions, the trend in time spent in open and secure custody has fluctuated.

Once again, thank you for the opportunity to present to the committee. This ends my presentation.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Merci. I thank you for that.

Mr. Bergman, how do you feel about that? In your presentation, you believe that if Bill C-4 passes, young persons will be going away for a longer period of time. Well, Mr. Fournel-Laberge just indicated that going away for a longer period of time was what made the difference in his rehabilitation.

[Scott Bergman, Section Member, National Criminal Justice Section, Canadian Bar Association]

Good morning, everyone. Thank you for allowing me to be here and the CBA to be here.

I'd like to start off by saying that although the CBA doesn't support passage of the bill in its current form, there are a number of proposed amendments that are positive and ultimately ought to be included in the YCJA. For example, the recognition of diminished moral blameworthiness or culpability of young persons is a very significant step in the right direction. Also, we support the amendment prohibiting youth under the age of 18 from ever being sent to adult institutions.

With that said, on balance, the CBA cannot recommend passage of the bill in its current incarnation. With the emphasis being shifted toward pre-trial and post-conviction incarceration of youth, the bill would be a step backwards for the YCJA. Bill C-4 represents a radical shift from the guiding principles behind the hugely successful YCJA and recognition that most youth come into contact with the law as a result of fairly minor and isolated incidents.

The YCJA recognizes the importance of diverting minors and minor incidents away from the criminal justice system, with an emphasis on extrajudicial measures such as warnings, cautions, referrals, mediation, and also family conferencing. The YCJA stresses the importance of rehabilitation and reintegration of youth offenders throughout the act, including in the preamble and also in the purposes and principles of the act. One of the key objectives is to keep young offenders out of jail except for the worst, most violent, or habitual offenders. For those violent or habitual offenders, the YCJA opened the door to adult sentences and opened it more widely and perhaps rightly so. It was a move in the right direction.

With that said, Bill C-4 is a step back to the dark days of incarceration for youth. It is a movement away from diversion, rehabilitation, and reintegration.

It appears that one impetus for the bill is Mr. Justice Nunn's report, “Spiralling Out of Control: Lessons From a Boy in Trouble”. But Justice Nunn himself has actually spoken out against over-reliance on incarceration of youth, saying recently:

There’s no evidence anywhere in North America that I know of that keeping people in custody longer, punishing them longer, has any fruitful effects for society. Custody should be the last-ditch thing for a child....

Indeed, Justice Nunn has some disdain for certain aspects of Bill C-4 itself. He is quoted recently as saying “They have gone beyond what I did, and beyond the philosophy I accepted. I don’t think it’s wise.”

In the CBA's view, one area where the bill does go beyond what Justice Nunn recommended is the deletion of long-term protection of the public in favour of the more general concept of protection of the public. Without further insight, one can only assume that the deletion of the words “long-term” before “protection of the public” is intentional. This raises serious concerns about young people being locked up for longer periods of time, situations that should only be reserved for the most serious cases.

Except for those most serious or habitual cases—and I pause parenthetically to note that Dr. Croisdale recently talked about the most serious cases being between 5% and 10%, and I believe he testified before this committee on May 13—it's in the interests of both society and the young person to focus on how rehabilitation can best be achieved. The reality is, the vast majority of young people who come into contact with the justice system do so once or twice and likely never come back again. That's what I took from Dr. Croisdale's evidence, and that's what the CBA took from it.

The proposed addition of denunciation and deterrent as sentencing considerations is of very great concern to the CBA. On the one hand, the bill seeks to amend the YCJA to recognize youth's criminal diminished moral blameworthiness in contrast to adults. On the other hand, what the amendments do is import denunciation and deterrents. These are clearly adult-based sentencing principles. Moreover, the literature has conclusively found that incarceration is generally not an effective deterrent against a young person.

Since the YCJA was proclaimed in force in 2003, rates of youth crime have gone down consistently, while the rates of incarceration of young persons after sentence have also gone down. The empirical evidence seems clear. The YCJA is working as intended. Where is the evidence that such drastic and expensive changes are necessary right now for Canadian society? The CBA hasn't seen any such evidence. Before spending massive amounts of money on what appears to be a structural overhaul of some aspects of the system, one would think that significant and widespread public consultation should be the first order of business.

The government backgrounder on Bill C-4 states, and I quote, “...often the system is powerless to hold violent and reckless youths in custody, even when they pose a danger to society.” Again, the CBA has seen no evidence to support this proposition. In fact, the current YCJA appears to be quite effective in keeping truly violent and dangerous youth in custody pending trial.

The amendments to pre-trial detention, with a focus on the newly created serious offence category, would not serve to keep more violent or dangerous youth off the street. What it would do is widen the net of pre-trial incarceration to include many non-violent and in some cases relatively minor offences, like assault—simple assault, that is—uttering threats, possession over $5,000, possession of a stolen credit card.

Like all Canadians, CBA is of the view that pre-trial detention is necessary for truly violent youth who pose a very serious risk to the safety and security of the public. The difficulty we have with Bill C-4 is that the proposed amendments do not align with that desired goal. In the name of protecting the public, a youth charged with a serious offence, like a schoolyard fight, could potentially find himself or herself in pre-trial detention.

Violent offence is now going to be defined as “an offence that results in bodily harm and includes threats or attempts to commit such offences”. Bill C-4 expands the definition of “violent” to include dangerous acts as well. Even if an act is not violent or does not result in bodily harm, conduct that gives rise only to the risk of bodily harm or endangerment would now be considered violent. At the very least, the CBA takes the position that at least an intent or recklessness component ought to be built into the revised definition of violent offence.

It's incompatible, in our view, to say that young people have diminished moral blameworthiness and to only then create a very serious category of offence that includes endangerment of another by creating a substantial likelihood of causing bodily harm. The very notion of diminished moral blameworthiness is premised on the fact that youth do not think about the consequences or nature of the acts in the same way adults do.

While Bill C-4 contains some important and positive amendments, we cannot support its passage in its current form. In its current form it will undermine, not foster, the long-term protection of society. Practically speaking, the bill means more young people going to jail for longer periods of time. The bill is a move away from a restorative and rehabilitative model of justice toward a more punitive model, which we see as both unnecessary and contrary to sound public policy, which itself is based on well-accepted social science. The social price tag will be hefty, no doubt, but the fiscal costs will really be just as steep.

Thank you for your time.