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.

[Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

Thank you.

Very briefly—and I appreciate that you haven't had time to digest the information that's included—the summary information at tab 4 with respect to Bill C-4 indicates that the current cost of the youth justice corrections system in Canada is $350 million. Those are not the costs that are associated with Bill C-4 in particular; we've included that for context for the committee.

We have attempted in these templates to respond to the very specific questions you had in your motion. In several circumstances it's not possible to respond to incremental costs and baseline costs and so on, but with respect to your request about baseline costs, we have indicated that the current cost to the federal government—because we cost-share those agreements—is $177.3 million. That is right now, at this moment, and it has nothing to do with incremental costs associated with Bill C-4, so there's no variation between the information on the chart and here.

[Scott Brison, Liberal, Kings—Hants, NS]

Chair, the Minister just said there was no variance between the documents provided today and the documents provided on February 17. I draw his attention to the estimates on Bill C-4 provided on February 17. He said there were no incremental costs for Bill C-4, and today's document says there is a $358-million incremental cost as a result of Bill C-4.

Given the fact there is a variance and the Minister didn't know there was a variance between the two documents--those provided on February 17 and those provided today--I would ask on behalf of the committee that the ministers return tomorrow morning for two hours of discussions on these figures. There's a lot of information here; I'm certain they would not mind that scrutiny, since we've already identified variances between the information provided February 17 and the information dumped on us a few minutes ago here today.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I realize that from that perspective it's different. As we have discussed, there will be an increased cost to the taxpayer flowing from the provisions we're studying in Bill C-4, and I wanted to see the comparison.

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

I think the presentation has been distributed.

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 and has been updated since our June 2010 appearance to inform this bill.

All data sources used are clearly indicated on the slides, as are any pertinent data notes. Distributed for your consideration are the most recent Juristat reports related to youth crime and youth courts.

My colleagues with me, Ms. Mia Dauvergne, Ms. Rebecca Kong, and Mr. Craig Grimes, will help answer any questions.

Please turn to the second slide in the deck. Using data received from police services across Canada, we can examine trends in youth accused of police-reported crimes. Over the last 10 years there has been a substantial shift in the trends of youth accused by police. The rate of youth charged has dropped, while the rate of youth cleared by other means has increased.

In 2009, 45% of youth accused of a police-reported crime were charged or had charges recommended against them. The remaining 55% were cleared by verbal warnings, written cautions, referrals to a community program, referral to an extrajudicial sanctions program, or other means, including incidents where the complainant declined to lay charges.

Crime can be classified into two categories, violent and non-violent. As can be seen on slide 4, most crime committed by youth is non-violent. This has been a consistent trend over the last 10 years. In 2009, seven in ten youth accused of a crime had committed a non-violent offence. The rate of non-violent crime committed by youth in Canada has been decreasing over the last 10 years, while the rate of violent crime has remained relatively stable.

As the youth crime rate is predominately driven by non-violent crimes, the overall crime rate as reported by police services in Canada has also dropped over the last 10 years.

The top 10 offences shown on slide 5 account for approximately 80% of all police-reported offences committed by youth in 2009. Eight of the ten shown are classified as non-violent offences. The most common police-reported offence committed by youth in 2009 was theft under $5,000. This, along with mischief, assault level 1, and administration of justice violations accounted for about half of all police-reported offences committed by youth in 2009.

On slide 6 we turn to what happens once charges laid by police move into Canada's youth courts. In 2008-09, theft was the most common type of case completed in youth courts, followed by Youth Criminal Justice Act infractions, break and enters, and common assaults. These 10 most common offences shown accounted for just over 75% of total youth court cases in 2008-09.

The composition of cases completed 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 robbery, major assault, and uttering threats.

Please turn to the next slide. Since the introduction of the Youth Criminal Justice Act, there has been a 23% 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 the time where we see a decrease in both the total number of cases completed and the number of guilty cases.

Turning to slide 8, of the approximately 58,500 cases heard in youth courts in Canada in 2008-09, 59% resulted in a guilty finding. In half the cases where the youth was found guilty, probation was the most serious sentence imposed.

As seen in slide 9, in recent years, the proportion of violent cases resulting in a custodial sentence has been declining, and in 2008-09 they were at their lowest recorded levels. All provinces and territories have experienced large decreases in both the numbers and proportions of guilty youth cases receiving custodial sentences since the first year of the YCJA. The use of custody has also decreased across all offence categories.

On the next slide, in 2008-09 the median length of custody for all youth cases in Canada was 36 days, compared with 30 days for adults. When split by violent and non-violent offences, we see that there is a difference in the median lengths of the custodial sentence imposed: 65 days for violent cases versus 30 days for non-violent cases sentenced to custody. By far, the median length of custody was the longest for homicide, at two and a half years, followed by attempted murder and sexual assault.

On any given day in 2009-10, about 835 youth, aged 12 to 17, were in sentenced custody, down 7% from the previous year and down 46% from 2003-04. In fact, the number has been declining annually since 1995-96.

Looking at slide 11, youth in remand outnumbered those in sentenced custody. In 2009-10, 53% of all young people held in custody on any given day were in remand compared with 35% in 2003-04.

Youth continue to spend fairly short periods of time in remand. As seen in slide 12, 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 a halfway house; and closed custody, which means secure facilities and would include detention centres.

As shown in slide 13, 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.

[The Chair, Conservative, Ed Fast]

We reconvene the meeting, and we're continuing our study of Bill C-4.

Our next panel welcomes back representatives from Statistics Canada. We have Julie McAuley back, and we have Craig Grimes, Rebecca Kong, and Mia Dauvergne. Welcome to all of you.

Do you have a presentation to make? You do. Please proceed.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

My understanding is that this wording, this proposal, really flows from the Nunn commission report. My recollection is the case that gave rise to the Nunn commission in the first place was one of a young person who had a history of stealing cars. After he was charged with stealing one car, he stole another car, and in the commission of the second offence he killed somebody. That's theft of property. The car might have been worth only a few hundred dollars, but it was used in a way that ended up killing someone. That's what gave rise to the whole Nunn commission, which resulted in these proposals and Bill C-4.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Let me ask you a question. I'm not sure that I completely followed the discussion when you talked about the vagueness of the words “substantial likelihood”. As I read clause 4 of Bill C-4, which amends subsection 29(2) of the act, it says:

A youth justice court judge or a justice may order that a young person be detained in custody only if the young person has been charged with a serious offence and the judge or justice is satisfied, on a balance of probabilities

(a) that there is a substantial likelihood that [he will flee] or commit [another] serious offence

There's a “serious offence” there again, and there is:

(b) no condition or combination of conditions of release that would reduce...the likelihood of [a secondary offence being committed]

and

(3) the onus of satisfying the youth [judge] is on the Attorney General [or the prosecutor].

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay.

Given that Bill C-4 really concentrates primarily on serious and repeat offenders, the changes we're talking about are going to affect a rather small percentage of young offenders. Isn't that correct?

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

Thank you very much, Mr. Chairman.

Thank you very much to all the witnesses.

I have two questions. My first question is for Professor Bala, but if the other witnesses wish to answer it and there's enough time remaining, I invite them to do so.

Professor Bala, in clause 4 of Bill C-4, the one that would completely replace subsection 29(2) of the YCJA, my understanding is that you are in favour of the Bill C-4 amendment. And I do know that the Quebec Bar Association is also in favour of this. This is where the youth justice court or justice may order that a young person be detained in custody only if the young person has been charged with a serious offence and the judge or justice is satisfied on a balance of probability that there is substantial likelihood.... Do you have an idea as to how the “substantial likelihood” term might be determined? Is there any case law on what constitutes a substantial likelihood? That's my first question.

My second question is on how Bill C-4 would include, in the determination of sentencing, the extrajudicial sanctions in paragraph 39(1)(c) of the YCJA. I have your brief before me here, Professor Bala, and you state:

Judges already have a discretion to use the fact of prior youth participation in extrajudicial sanctions as a factor in youth sentencing [see s. 40(2)(d) (iv)]. Amending s. 39(1)(c) to make further specific reference to extrajudicial sanctions seems contrary to the intent of these programs, which is to give youth a “second chance,” and may be inappropriate since youth usually agree to participate in these programs without an opportunity for having legal advice.

For the benefit of the members sitting around the table and any Canadian who is watching these proceedings, would you explain how extrajudicial sanctions actually come about? Just give us a hypothetical case so that people would understand what you're talking about when you say that it happens before a youth may have access to legal advice, for instance.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much. I'll see what I can do with one minute.

By the way, Professor Bala, it's nice to see you back again, and also Ms. Schellenberg.

I don't think I've met Mr. Stroppel, so welcome.

Are you comforted by the fact that Bill C-4, in clause 3--which in fact amends paragraph 3(1)(a) of the act to move the concept of protection of the public from the last line to the first line--still says that:

(a) the youth criminal justice system is intended to protect the public by

--among other things--

(ii) promoting the rehabilitation and reintegration of young persons

That seems to me to be exactly what you are in agreement with, so I want to be sure that it is of comfort to you and that you haven't overlooked it.

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

If I don't jump into the sort of broad issues, you should take it, witnesses, that we've been around the board on this. There are significant differences on many of the large issues between the government and this side—denunciation. I want to hone in on some very particular items.

First of all, I want to thank you all for coming. I've read your briefs and heard your submissions, and I will be getting to specific questions on the use of extrajudicial sanctions in section 39 of the act as amended.

I first want to say, though, to the CBA representatives that we appreciate your brief. It was thorough. You properly paraphrased Justice Nunn’s recommendations as calling for the protection of the public not as the only and primary goal but as one of the goals and objectives, and that is what the Nunn report is all about. Opposition MPs might try to pigeonhole you into saying something else, so be careful.

I also very much appreciate your discourse, sensitively put, about Sébastien's Law. Of course, we all feel for that family. The fact, however, is that the legal outcome—as you say in your brief—was appropriate in that circumstance, and this serves a little bit to exploit the situation, so the short title of the bill is—we give a shot across the bow to the government—something we might be objecting to.

Now what I want to get into is a matter of legitimate concern, and we could go either way on this one: the use of extrajudicial sanctions in the consideration of the judge and the amendments in Bill C-4 to paragraph 39(1)(c) of the YCJA. Essentially I am paraphrasing here, but it says a judge, in deciding whether to commit the youth to incarceration, can now consider extrajudicial sanctions.

I think, Dr. Bala, you have made the point, and so have you, Ms. White, that the judge already has the ability to consider that in the case where a pre-sentence report is prepared, which shall include the history of extrajudicial sanctions and compliance therewith.

My question for all of you is, why is paragraph 39(1)(c) amended here to include extrajudicial sanctions? Is it necessary? Is it piling on? Is it for greater clarity? What can you see is the purpose for reiterating it? Or is there a legitimate concern that even though the pre-sentence report has to have this history in it, the judge does not have to take into account what's in a pre-sentence report?

Can you comment on that? Maybe we'll start with Ms. White.

[Richard Stroppel, Member, National Criminal Justice Section, Canadian Bar Association]

Thank you, Gaylene.

My name is Rick Stroppel. I've been a lawyer for 27 years. For seven and a half years I've done nothing but youth cases. I work as staff counsel at the Youth Criminal Defence Office in Edmonton. I've done every level of case, everything from shoplifting up to and including murder. I was involved in the CBA's submission and I'm here to support it.

I want to start by saying that the amendments that are proposed to the YCJA are, in some senses, necessary amendments. When one is dealing with a criminal statute, it's very common, one might say almost unavoidable, that as the statute is implemented and put into practice in the real world, issues come up that need to be addressed and dealt with. That's what we had with the Youth Criminal Justice Act.

I must say, with respect to the CBA's submission, that I believe we have attempted to achieve some balance in our submission. That reflects the balance of the CBA itself. Our organization includes not just defence lawyers; it includes prosecutors and judges. So when we respond to legislation like this, we like to pick out the things we see as positive, for instance, the positive changes that are proposed, and we've acknowledged that in our submission.

If I could refer you to page 5 of our submission, we have commended Parliament for including the presumption of diminished moral blameworthiness from the case of R. v. B. (D.). Referring to the top of page 6 of our submission, we agree with the prohibition against youth serving time in adult prisons. We agree with the redefinition of serious violent offence with a view towards clarification. These are some of the things we see in Bill C-4 that are positive and that we agree with. It's obvious to us that the amendments, in general terms, are drafted by people with some familiarity with youth law, with some expertise in those areas, and that a lot of thought has gone into that.

One of the things I wanted to do in my opening comments is to put the problem of youth crime into a context. I was speaking to Professor Bala before we began our appearance here today. He advised me that it's his understanding that about 80% of youth crime is non-violent. As regards the remaining 20%, more than half of that represents I think what we would objectively characterize as relatively minor violent crimes, not beyond simple assault. The people who are coming later this afternoon could give you the exact figures, but it's my understanding that less than 10% of youth crime represents serious violent crime. Whenever you appear in a context like this, you spend 90% of your time talking about the 10% of youth crime that represents serious violent crime. We shouldn't lose sight of the fact that, with respect to this act, when it comes to non-violent offences and relatively minor violent offences, it works like a charm. It's tremendously successful and we should acknowledge that in our consideration of the act.

Another point I'd like to make is that what's built into the legislation as it stands is a very important safety valve, which allows for the imposition of an adult sentence against a young person. There is reference in our submission to the Lacasse case. Certainly, it's a tragic case. The point is made at page 3 of our submission that this young person who was convicted of second-degree murder as an adult, or at least sentenced as an adult, received a sentence of life with no parole for seven years. That's a life sentence. That young person may spend the rest of his life in jail. Another thing that flows from that is that we can say his name here, because when young people receive an adult sentence they are treated in all respects as adults, including the publication of their name.

Some of the issues and problems that the amendments to Bill C-4 are directed at are in fact already solved by the legislation and therefore unnecessary. A sixteen- or seventeen-year-old who is convicted or pleads guilty of first-degree murder can receive up to life with no parole for 10 years, and this is pursuant to section 745.1 of the Criminal Code. That's surely an onerous sentence, so we already have a statute that's been very carefully considered and drafted to allow for the safety valve of the very tiny minority of young people who commit very serious crimes. They can receive already a very onerous sentence.

Ms. White has already talked about the cost savings that are associated with the decreased rate of incarceration of young people as a function of sentence. What's become apparent to us, and this is mentioned in our submission, is that when we consider the history of the act, not only has the rate of incarceration gone down, but the rate of youth crime generally has gone down. So we have to ask a serious question: what were we accomplishing 10 years ago when we were incarcerating young people at one of the highest rates in the western world? Well, one of the things we were accomplishing was we were wasting a lot of money that could have been much better spent on programs that would have helped to rehabilitate young people.

That leads to a concern on our part in that it seems that many of the proposals in Bill C-4 are aimed towards making it easier to incarcerate young people, and also, with respect to subsection 29(2), making it easier to detain them prior to trial. So we disagree with the amendments to subsection 29(2)--and this will be my last point as I see my time is almost up. In the amendments to subsection 29(2), which make it possible for a judge to detain a young person if there's a substantial likelihood that they will commit a serious offence while they're on release, we've made this point in our submission that “serious offence” contains quite a collection of things that we would characterize as frankly relatively innocuous, like cheque fraud and that sort of thing. The other problem we've identified is that “substantial likelihood” is a rather nebulous phrase.

In youth law, of all areas of the law, we would like to have some certainty and predictability, but what troubles us about this is that we're talking now about keeping people in custody who haven't been convicted of anything as of yet. It seems to us that this is contrary, first of all, to the Charter of Rights, paragraph 11(e), which provides that a person cannot be denied bail without just cause, and also to another principle that is enshrined right in the Youth Criminal Justice Act, item 3(1)(b)(iii), which says that young people are entitled to enhanced procedural protection of their rights.

Those are some of the reasons that we're opposed to subsection 29(2). Some of the other amendments that are proposed here we think would have the very negative effect of increasing the number of custodial sentences imposed against young people and the number of young people detained before trial, which, as is noted on page 3 of Professor Bala's submission, unfortunately has gone up since the Youth Criminal Justice Act was proclaimed into force. I'm ashamed to say it has particularly gone up in the prairie provinces. It's almost like we're giving with one hand and taking away with the other. We're imposing fewer custodial sentences but making more young people remain in custody before trial.

Those are my submissions on behalf of the CBA. I'm grateful for this opportunity, and I'd be happy to answer any questions later this afternoon.

[Elizabeth White, Executive Director, St. Leonard's Society of Canada]

Thank you very much, Chair, for the invitation to appear before the committee.

I am speaking on behalf of the St. Leonard's Society of Canada, and as it has been some years since we have presented before you, I would simply note that we have 45 years of experience in criminal justice and social justice, supporting member agencies that provide direct service across this country. While in the past we have been best known for our focus on long-term and life-sentenced individuals and for our residential services, it is our belief and knowledge that youth are key to providing safer communities, and for that reason we are pleased to present on this issue.

I was fortunate enough to participate in the round table in Toronto on youth justice in 2008, and now that the report from that has become available, I am struck by how similar its findings are to the matters we raised in the brief we submitted to you some months ago.

At St. Leonard's Canada, we believe it is important to note that since the enactment of the YCJA in 2003, there has been a significant decrease in youth incarceration without a significant increase in youth crime. Something clearly is working very well.

Turning to Bill C-4, we are in support of the inclusion in clause 3 of “diminished moral blameworthiness or culpability” as a principle, and we also wish to express support for clause 21 on the prohibition against the imprisonment of young persons in adult correctional facilities. On the other hand, St. Leonard's has serious concerns about clauses 4, 7, 8, 11, 18, 20, and 24. I would like to take a few moments on those. We are also concerned about the broadening of the definition of violent offence through the inclusion of sweeping wording, which we believe is cause for grave concern.

We would also like to note that the act did give this country the opportunity to overcome its dubious distinction of having the highest western incarceration rate for youth. That is a big achievement.

We believe these amendments respond to isolated and somewhat sensationalized cases, not the best basis on which to reform legislation. We believe that a more thorough examination and a longer-term opportunity for this act to continue to prove itself should occur before changes are made. We find many of the issues raised by Bill C-4 to be already appropriately addressed.

Deterrence as a sentencing principle would not be useful. There is no substantive support of its effectiveness in crime prevention. We submit that the YCJA deliberately omits deterrence as a sentencing principle with good reason and that it currently addresses the needs of the court in providing appropriate sentencing for youth that offers the best chance for rehabilitation and reintegration. Based on the lack of substantive evidence to show that deterrence is effective, we are concerned about amending the rules for pre-sentence detention. The current guidance from the act regarding pre-trial detention does not lack the necessary focus. The authority to detain a young person is already included if such an action can be justified in the youth court. We believe the proposed amendment places the onus on courts to focus on detention for so much broader a spectrum of offences that very few will remain unconsidered.

Extrajudicial sanctions support the key values of the YCJA in its aim to avoid custodial sentences unless those are required, and they support more viable alternatives that increase the likelihood of positive impact on the youth. The current approach allows the youth's admission of guilt to be a basis on which to move forward rather than a means of embroiling the youth further in the system. The youth will take responsibility. Expanding the criteria to allow them as admissible evidence for custodial sentencing will reduce the attractiveness of admissions of guilt for extrajudicial sanctions for the youth, but will also deter police, we believe, from using them.

On publication bans, the act currently allows a ban to be lifted when it is justified to do so in the interest of the youth or public safety. We know that publication leads to stigma. We know that stigma leads to reduced opportunity and often to recidivism. That's simply not consistent with the principles of the act. As Professor Doob noted in his appearance last week, if publication is to be broadened, it ought not to occur until all appeal processes are complete.

I would like to turn briefly to the relationship between mental health and youth crime. It is suggested that about 10% of youths involved in the criminal justice system have mental health disorders. I note this because in our view the attention in youth criminality should be addressing the needs--and yes, therefore the risks--of the many youth who have mental disorders. Ensuring that supports are in place to help them avoid conflict with the law is essential. Given that more than 70% of adults with mental health diagnoses who are in the criminal justice system had pre-age-18 onsets, it is clear that addressing youth mental wellness is key to minimizing long-term health costs and human distress.

Further to this, we are concerned with recent reports of a 70% co-morbidity rate among incarcerated youth who have mental health and substance abuse problems. Additionally, it has been found that more than 30% of youth with major medical issues also have mental health issues. So it's evident that there need to be more good mental health results, which will ensure good justice results. We're not sure that these proposed amendments get at this very serious issue, and we are very sure that punitive measures will not do a great deal to address it.

There is strong evidence supporting the need to reduce the criminalization of youth with mental health disorders in order to increase rehabilitation, reintegration, public safety, and greater cost-effectiveness overall.

I want to reference an example from London, Ontario, where the St. Leonard's community services in that region have an attendance centre program. They supervise around 150 youths over a six-month period, with a high rate of success through diversion programs. In six years of operation it is estimated that the savings between custody and the attendance centre are in the neighbourhood of $7 million to $10 million. That kind of money can go a long way to assisting youth.

I also want to reference the IRCS sentence. This excellent measure is still not being used to its full potential. Indeed, this week we heard that there are many judges in this country who are not aware that it is possible to use it. So despite allocations of funding that would allow 50 sentences of this type a year, since 2003 there have been less than 80. We need to give an opportunity for this very effective intervention to become known and used to further decrease ongoing criminalization.

We believe that the extended costs of further custodial measures are not necessary or appropriate for the Canadian public. We must give this act time to work, in the view of the St. Leonard's Society. There is overwhelming consensus from the report on the round tables that the flaws are not with the legislation; they're in the system. Implementation needs more and better work.

We submit there is indeed a need for action on youth justice: not legislation or incarceration, but vastly enhanced access to interventions and support through collaborative federal-provincial-territorial initiatives that overcome the silos of governance and address what is needed.

Thank you.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I also took note, by the way--and I say this with the utmost respect and levity--that Mr. Comartin has admitted that he does think that judges make mistakes, at least when they don't agree with his policy. I appreciate that. I mean that with respect, Mr. Comartin, and you know that.

I want to thank these witnesses in particular, because I regard them as being in a different class, if I may use that word, from many of the witnesses we see.

I'm assuming you are all lawyers, and I see from your credentials that you all hold senior positions. Without imputing too much to your age, I'm going to assume that you've probably all practised law for at least 10 years or more and that you are very familiar with the details of the Youth Criminal Justice Act, which therefore gives you a position of expertise that many of the witnesses we see here don't have.

I would like to just briefly go back to something you said, Mr. Hawkes, because when you were here last, we had an exchange about section 3. I asked you if I was right in my reading of the current section as including protection of the public and in reading the amendments as not changing the fact that there are four factors in section 3, and that paragraph 3(1)(a) has no greater or lesser priority than paragraphs 3(1)(b), 3(1)(c), or 3(1)(d). You did agree with me at that time on those things, and I think today when you said that the amendments add protection of the public to section 3(1)(a), you were misspeaking. In fact, if you look at the existing provision, you'll see that it is there, albeit referring to “long-term protection” rather than just “protection.”

I feel it's important to make that clarification, because so many of the witnesses we have heard from seem to be drinking from water that makes them think that protection of the public isn't already there, and I wish to dispel that notion. However, I would like to ask all of you, as serious and experienced counsel, about what my colleague Derek Lee was talking about earlier.

He was suggesting that somehow there has been creep, which makes the sentencing principles for youth criminal justice or the principles of the Youth Criminal Justice Act come very close to the sentencing principles in the Criminal Code proper. I noticed that at the time, he wasn't actually reading from Bill C-4; he was reading from the existing provisions of the Youth Criminal Justice Act and suggesting that they were already too close to the adult provisions of the Criminal Code.

I would like to get your opinion generally on whether you think that the Youth Criminal Justice Act, with the amendments in Bill C-4, does still preserve the necessary distinction and the necessary separation between youth criminal justice and adult justice principles.

Perhaps, Mr. Hawkes, I'll start with you, since I was picking on you earlier.

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

Thank you, Chair.

Thank you so much for your presentations today and for appearing before this committee.

From the briefs you have jointly prepared it's quite clear that you're very familiar with Justice Nunn's commission of inquiry, his report, and the specific recommendations he made with regard to the YCJA. It's also very clear that you've looked very carefully at Bill C-4.

You have noted that there are sections that appear to create unintended consequences, and you propose amendments to fix them. There are other areas of the proposed amendments contained in Bill C-4 where you appear to not consider they should be done. If we take, for instance, adult sentences, there seems to be a real problem with Bill C-4 in that the crown would have to prove “beyond a reasonable doubt”, whereas from a complete reading and understanding of current jurisprudence that has been developed on this issue, it's clearly the aggravating circumstances, as you've just mentioned.

Do you feel that amendments can be brought to Bill C-4 that would correct all of the unintended consequences that you don't believe should happen because they would not be to the benefit of the youth criminal justice system? Can those sections of Bill C-4 that you feel are just wrong be salvaged through the amendments you're proposing? That's my first question.

Second, the federal government—or should I say the Harper government—has not in any way, to our knowledge, caused to be carried out any kind of serious study of the actual impacts of the YCJA across Canada in the different jurisdictions, with the assistance of the provincial governments, in order to have actual empirical data, actual evidence, as to what's working and what's not working. Do you feel that it might have been more appropriate to wait for such studies and the five-year review of the bill before moving on amendments?

If you tell me that's a political question and you don't feel comfortable answering it, I'll understand completely.