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.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair. I just want to address the comments made by Ms. Duncan that there was an agreed agenda. There was not an agreed agenda. I think there was a motion that was passed by the coalition to not deal with SARA, which I disagreed with, and I made that very clear to each of the members.

I think we had a moral responsibility to fufill our first responsibility, which was to finish SARA and to make sure that species that are at risk are being dealt with properly. But that was voted on--the coalition said no, we don't want to deal with SARA--so we're now dealing with Bill C-469.

I'm a little concerned also that the number of witnesses is being very one-sided. We're not hearing from industry. We're not hearing from first nations. We're not hearing from fishermen. We're not hearing from Hydro-Québec; we heard from testimony that Hydro-Québec could be shut down, and yet we're forging ahead with Bill C-469.

I think we need to hear witnesses or we need to proceed to clause-by-clause, but to have this go on, and without an agreement about how long this is going to be, I think it's fruitless.

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

Thank you, Mr. Chair.

Thank you, Minister.

I was relieved that your comments on Bill C-4 were forthcoming, and that there will be a report tabled. We're very happy in that regard, because all of this committee moved in June 2010 to have a report of the round-table discussions that you undertook in 2008. So that's two years, but it's better late than never. So I thank you somewhat for that, Mr. Minister.

Ending Early Release for Criminals and Increasing Offender Accountability Act

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Madam Speaker, I am pleased to speak to this bill, which comes at a very bad time. We will try to deal with this methodically. I want to respond to my colleague who just spoke. The Standing Committee on Justice and Human Rights is currently studying six bills, including Bill C-4 on young offenders. The review of this particular bill is not complete because the government has not yet tabled the necessary documents, as it should have done in June 2010. The bill we are discussing today could also die on the order paper because it may be some time before it is studied in committee.

I do not know whether my colleague, the member for Ahuntsic, is studying as many bills that affect the public in the Standing Committee on Public Safety and National Security. If she is, then we have a serious problem. This government is playing politics and taking a piecemeal approach to justice issues, doing a little bit here and a little bit there. It has introduced a bill that I would say is extremely worthwhile and has been a long time coming. The Bloc Québécois will vote in favour of this bill, and we would like to send it to committee as soon as possible.

Let us look at the dates of this bill. On June 16, 2009, we were examining Bill C-43. Summer arrived, the House adjourned, and then MPs returned. In October 2009, we were examining Bill C-53. Then, the government—not the opposition parties—decided to prorogue. This bill died on the order paper on December 30, 2009. Now, the government has re-introduced the bill as Bill C-39, which is the same as the previous bills C-43 and C-53. I hope this one will not die on the order paper, because it is very important.

The government is accusing the opposition of not looking out for victims, of not caring about them or being interested in them. According to the government, the only thing that the opposition cares about is criminals, and getting them out of jail as soon as possible. I never hear so many blatant lies from the other side of the House as I do when they talk about victims. We absolutely care about victims. The best example is that the Bloc Québécois has been calling for the abolition of the one-sixth of the sentence rule for two years now.

I will give a little legal lesson, more specifically on criminal law, for my colleagues opposite. It is a problem with criminal law that comes up when an individual is sentenced. The best example is the case of Colonel Williams. We can talk about him now, because he will probably be sentenced to life in prison, with no chance of parole for at least 25 years. We can get back to that, because the government just introduced another bill. Let us take the example of someone sentenced to jail time. Bill C-39 applies only to someone sentenced to more than two years. That is extremely important. We are talking about sentences of more than two years in prison. The problem is that in provincial prisons, in Quebec in particular, this service already exists. However, even if the individuals are sentenced to two years less a day, they are still eligible for release after serving one-sixth of their sentence.

In terms of criminal law, let us look only at sentences of at least two years, for example, someone in Quebec who is sentenced to three years in prison. This person is sent to the regional reception centre in Sainte-Anne-des-Plaines, in the Montreal region. Regardless of where that person is from, that is where they are sent.

It takes between three and four months for the case to be dealt with. If the person was sentenced to 36 months in prison, after six months, or one-sixth of the sentence, that person is already eligible for release, and no one will have dealt with the case.

There is a gap there. We have long been saying that parole must be earned and that release after serving one-sixth of a sentence should not exist. I have 30 years of experience as a criminal lawyer. Some of my clients were released after serving one-sixth of their sentence. After having been sentenced to three years, they were released after six months and no program had been established for them, which made it far more likely that they would reoffend.

My colleague, the member for Ahuntsic, who is a criminologist and has worked with these types of people, probably knows what I am talking about. This is exactly what is happening in prisons. They cannot even begin to work with an individual who has one foot out the door if he was sentenced to two or three years in prison. He has practically left before he has arrived. Why? Take the example of one of my clients. We decided that it was better for him to be sentenced to 24 months in prison instead of two years less a day because it would take longer to serve a sentence of two years less a day in a Quebec prison than a 24-month sentence. One-sixth of 24 months is four months, and so he was released after four months. There was not even enough time before he was released for them to deal with his case and have a meeting to discuss a plan for his return to society.

That is the worst possible mistake. As I have been saying in this House for nearly six years now, the problem with the Conservatives is that they do not understand. So, I will try to explain it again. The Conservatives think that minimum prison sentences will solve everything. Nothing could be further from the truth, so far that even the Americans are beginning to realize it. Canada—and especially the Conservatives—seems to be a few years behind. In two or three years, they are going to realize they are on the wrong track.

The public is not shocked when someone receives a four-year sentence, but rather when that individual gets out after one year. The public is shocked by the fact that people are not serving their sentences. That is precisely what the Bloc Québécois has been criticizing for some time.

Whether my Conservative friends like it or not, minimum prison sentences do not preclude offenders from being eligible for parole. Even with a mandatory minimum of three years, the individual is still eligible for parole. That is what the Conservatives do not understand. Once again, we will try to explain to them that it is the parole system that needs to change. The parole system needs to be changed so that people who are sent to prison are not released unless they have a plan for their reintegration into society. That is the problem. In the example I gave of someone who has been sentenced to three years, if he is eligible for parole after six months, he will sit back and do nothing.

That is why we are calling for the elimination of parole after one-sixth of a sentence is served. That is also why we hope to vote quickly to pass this bill. I know my Conservative Party colleagues always overreact because of the worst criminals. In the case of Colonel Williams, who has committed a rash of unspeakable crimes in the Belleville and Trenton area, if he is sentenced to life in prison with no chance of parole for 25 years, society will take care of him. He will be sent to prison, as he clearly deserves. I will not try to defend him here, since I am not his lawyer.

That is not the problem. The worst criminals deserve the harshest sentences. That has always been true. The problem lies with individuals who are not criminals, but who are going down a path of crime. If we do not stop them, if we do not take measures to stop them, they will become hardened criminals. Generally they are individuals who are serving their first penitentiary sentence. Obviously it depends on the crime, but in most cases, a person's first penitentiary sentence is somewhere between 3 and 10 years. Those are the people this bill absolutely must catch and as soon as possible.

When I say “catch”, I mean we must encourage them to do what it takes to return to society with a plan in order not to reoffend. The problem is that the parole board does not help. It does not have a chance to work with the individuals. If an individual is eligible for parole after one-sixth of his sentence, what will he do? Take, for example, an individual who has a three-year sentence. When he arrives at the regional reception centre—every province has them—it takes three to four months before his case is reviewed. What do you think he does in the meantime? He plays cards, watches television, drinks Pepsi and waits. No one works with him, at least not very much. Someone needs to work with him as soon as he arrives at the penitentiary.

There is something my Conservative friends do not understand. I will explain it to them yet again. An individual who is sentenced will return to society and if he is not properly prepared to return to society, then, unfortunately, he will reoffend. It is a known fact that the risk of recidivism for this type of person—I am talking about those who receive sentences between 3 and 10 years—is quite high. The risk is there. We have to find ways to correct this.

Quite honestly, this is a good bill. This afternoon, the Standing Committee on Justice and Human Rights is going to study Bill C-22 on Internet child pornography. We all support this bill. It must be passed. Everyone agrees that this legislation needs to be put in place. It must be passed, but the government will have to submit it to us. The same holds true for Bill C-39. We must deal with it as soon as possible because it is a good bill. The parole board needs to be able to implement it. But no work is being done right now because no one knows whether the bill is going to come. The bill might not pass and could die on the order paper because of an election in the spring of 2011, for example, which is not such a far-fetched idea. It could happen. Suppose there is an election in the spring of 2011. If the government has not submitted this bill to us—we have six bills to study—then it is going to have to set priorities for the committee. We have already agreed to study Bill C-22 while we wait for the translation of the report on Bill C-4 on young offenders, as I said earlier. But it is important to pass Bill C-22 on child pornography.

There is the other bill on vehicle theft—I cannot remember the number—that we discussed before the House adjourned a week ago. Everyone supports this bill.

The government should do the sensible thing and say that since the opposition supports a number of bills, they will be sent as soon as possible to be studied, discussed and passed.

Since this bill will likely be studied by the Standing Committee on Public Safety and National Security, I think things should go quickly. But we have to give the penitentiaries the means to prepare release plans. This is the process where an offender is told that he has five years left to serve, for example, and he has to begin, now, to take part in preparing a release plan or serve his last five years.

At least the individual still has the choice in prison. But it is clear that he may leave—and will leave—after five years. There needs to be some follow-up with this person. During the entire prison sentence, the individual offender's treatment needs to be personalized, just as the courts hand down personalized sentences.

The individual must be made aware that their release from prison is as much their responsibility as the crime they committed. The person was found guilty or pleaded guilty to the offence and was given a sentence. However, after they are sentenced, many individuals tend to sit in prison and just wait for the end of the sentence. This bill should put an end to that. We must change the attitudes of people as they enter the prison by asking them about their plans for release and what they want to do. Do they want to finish school? Do they want addiction treatment? Do they want some sort of training? What do they want? That would set the wheels in motion so that they can leave prison better equipped than when they arrived.

Obviously, that is not what is happening right now. The National Parole Board, the prisons and the Correctional Service of Canada are not able to provide these services. That would require many things. The government supports this bill, but it needs to invest the necessary funds. Why invest? Because criminals will eventually be released. Victims need protection. They are always talking about victims.

There is something that we do not understand about the Conservatives. The National Parole Board takes care of victims, especially in terms of the prison system. This organization's main priority is the rehabilitation of an individual who is rejoining society, but the victims must also be protected and every possible step must be taken to keep that individual from reoffending.

I am being told that I have only two minutes left, but I could go on about this for a long time. I would like the Conservatives to remember this: automatic sentences have never solved anything. A minimum prison sentence has never solved anything, and that will not change today. All the studies presented to the Standing Committee on Justice and Human Rights show, beyond a reasonable doubt, that minimum prison sentences have never led to a decrease in crime.

We must ensure that these individuals serve their sentences, keeping in mind that they will one day return to society. It is clear that we will probably never see people like Colonel Williams, who will receive a minimum sentence of 25 years for a double murder, outside the prison walls. But we will see people who were sentenced to five to ten years in prison, and some are already close to being released.

Did people like Mr. Jones or Mr. Lacroix, who owned Norbourg, learn their lesson? With all due respect, I think that the only thing they learned was not to get caught.

Unfortunately, with the current system, prisoners learn more about not getting caught than they do about preparing for their release.

Tackling Auto Theft and Property Crime Act

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I am pleased to speak to this bill, but we have a problem at the outset. I am going to say something important, and the members opposite should listen, because if they do not, they are going to make the same mistake again.

Currently, in committee in the room next door, we are trying to finish studying Bill C-4. Some members will say that that has nothing to do with Bill S-9. I am coming to that. Because of the government, we are still waiting for a report on Bill C-4 that should have been tabled on June 16. We have been waiting for three and a half months for this report so that we can finish studying this young offenders bill. The government says that we are dragging our feet. I have good news and bad news for the government. The good news is that we are not the ones dragging our feet. The bad news is that they are the ones dragging their feet. The same is true of Bill S-9. The first iteration of this bill was introduced on April 14, 2008—not last week, not in April 2010 or April 2009, but on April 14, 2008. All the parties said they were prepared to study this bill quickly in committee, as I am saying today.

The problem is that they are introducing so many silly justice bills, so many populist bills as they see it, that we can no longer work. As we speak, the Standing Committee on Justice and Human Rights has already received four bills to study, and the session only resumed on September 20. Does the government think we are going to have the time to consider Bill S-9? Still, the government should not take us for idiots. That is the problem with the Conservative Party, the problem with this government. It thinks it can ram bills through. It is wrong.

Getting back to this bill, I have some trouble calling it S-9 because they tried to pass it through the Senate before bringing it here. It is not moving any more quickly because the problem is that part of the work had already been done on Bill C-26. The committee had already heard from representatives of the Insurance Bureau of Canada and Statistics Canada. It is the party in power, not us, that is delaying the work. I hope that the public will remember this because auto theft is an important issue. Everyone in Quebec and across Canada is asking us to do something. We certainly have no objection. It is an interesting bill. It is a bill that should have been introduced well before Bill C-4, and well before a number of other bills, given that we were probably going to move more quickly on it.

We do not have recent statistics, but just in terms of auto theft—addressed by Bill S-9 before us today—there was a small drop in 2007. However, auto theft remains one of the most common offences in Canada and is committed in particular by youth between the ages of 15 and 18. In 2007, they were responsible for three solved auto thefts in ten. That same year, 146,000 vehicle thefts were reported to police, an average of 400 thefts per day. I imagine that I will be asked about the statistics for 2008, 2009 and 2010. We do not have them. I believe we should have them soon. It is possible that we may not get all the information because the census will not be taken. However, with the Insurance Bureau of Canada, as well as Statistics Canada and the police stations, we should have a good idea and we believe the numbers will be similar. Unfortunately, there will be around 140,000 vehicles stolen per year.

That is a huge number and it is far too high. We need to eliminate this scourge.

We in the Bloc Québécois think that Bill S-9 is not a bad bill. We agree that it should be studied quickly in committee, as was the case with Bill C-22. Perhaps we will set some other bills aside in order to pass Bill C-22 on child pornography. Perhaps the same thing could happen with Bill S-9, but for that to happen, it has to come to us in committee. It seems as though the Conservatives have other bills like this. In fact, we have been told that we will spend the whole week discussing justice bills. We have to be able to work at some point.

I have been looking at what is being done with the bill. I am sorry to say it this bluntly, but there are three types of motor vehicle theft. Three out of ten vehicles are stolen by youth. We call it theft, but the young people take what are known as joy rides. In French we call them des promenades de joie. I know that it is likely not the best term, but no better terms come to mind. They take a vehicle from somewhere and drive around town. They take a vehicle that was “forgotten” at the corner store, with the keys in the ignition, lights on, motor running. They take it for a ride and leave it somewhere else. This type of crime happens a lot with youth.

Where it becomes a bit more dangerous—and this is happening in Manitoba—is when someone takes off with a vehicle and kills someone. Unfortunately, this type of offence happened recently in Abitibi-Témiscamingue when a young man took a motor vehicle from Rouyn-Noranda to Val-d'Or. He stole the vehicle in Rouyn-Noranda and caused an accident that seriously injured two people. This is extremely dangerous and something must be done.

I am not saying that the motor vehicle thefts I just mentioned are not serious. They certainly should be punished, but there are worse kinds. There are several different types of motor vehicle thefts, and there are essentially two main methods. One of them involves stripping the vehicle for parts.

I will read a list. I do not know if my Conservative colleagues have these models, but if they do, they should be careful, because they are the most likely to be stolen: 1999 Honda Civic—this one is a bit old, but it gets stripped for parts; 2000 Honda Civic; Subaru Impreza; Acura Integra; Dodge Grand Caravan or Plymouth Voyager; 1994 Dodge Grand Caravan or Plymouth Voyager with all-wheel-drive; 1998 Acura Integra; Audi TT Quattro and Dodge Shadow or Plymouth Sundance. These vehicles were among the 10 most commonly stolen vehicles in 2006, and I do not think much has changed since then.

We need to take action quickly. These vehicles are generally stripped for parts, and are rarely exported. They are exported, but not much. This is where organized crime comes in. These individuals place orders for certain types of motor vehicles, which are then stripped for parts. The thief is one thing. Yes, he is a criminal, but the ones who place the orders are the worst ones. These types of orders are generally made through organized crime groups. So we must find a way to punish them.

Bill S-9 does contain some interesting elements. We believe we can improve it through further study in committee. It seems to me that we all agree that we need to improve this bill and that we need to find ways to prevent criminals from taking vehicles apart. We need to reduce the incidence of auto theft. We need to create an offence for tampering with an identification number. When certain vehicles are taken apart, some very important parts disappear, such as the engine, the body and the doors, if they do not have a VIN. As we heard in committee, if the thief is really organized, a vehicle like a 1999 Honda Civic, for example, can be taken apart in half an hour. Now that is organized crime. We must absolutely find a way to make it impossible to take vehicles apart.

We also heard in committee that there are small electronic chips placed in secret locations in certain vehicles, and when those vehicles are stolen or taken illegally, they can be found with a certain kind of GPS. We did not take our study any further, which is why we want the bill to be examined in committee. Perhaps we could find a way to encourage manufacturers to install this kind of electronic chip in several specific locations in vehicles without necessarily forcing them to do so. This would allow authorities to find these vehicles or parts quickly, as soon as the theft is reported. We began receiving this information when we started studying the bill.

Today we must absolutely find ways to prevent this crime. To do so, we have to work with Industry Canada. The Criminal Code is not enough. It is used to punish individuals who steal and dismantle automobiles. We will probably invite the departments involved to work on prevention, which is the best way to avoid this type of theft. If someone knows there is an alarm system set up, they might be less likely to commit a break-and-enter. We want to look at the bill from that angle in committee. Even though we are on the Standing Committee on Justice and Human Rights, it is nonetheless important to find ways to prevent crime.

There are some major offences. However, at least there are no minimum prison sentences. That is a step in the right direction. If the bill passes, then we will amend the Criminal Code to ensure that there are maximum prison sentences for trafficking in property obtained by crime. This did not exist before. The bill will create the offence of trafficking in property obtained by crime, specifically parts from stolen vehicles. The offence of possession of stolen goods exists in the Criminal Code, but when a vehicle is dismantled into parts and there is nothing left but the car door, generally speaking, if there is no identification number or electronic chip linked to a GPS, the door cannot be linked to the vehicle stolen a few weeks or months before. The offence that will be created will concern trafficking in property obtained by crime. That is how the parts will be linked to the vehicle. Circumstantial evidence will show that the vehicle was dismantled into separate parts and that some parts were sold to this or that individual.

To traffic will mean to sell, give, transfer, transport, export from Canada, import into Canada, send, deliver or deal with in any other way, or to offer to do any of those acts.

This bill will help border services officers conduct searches. It will tighten the noose around criminals who tend to steal vehicles to resell them quickly or, more importantly, to alter them. We think this is a worthwhile bill, and we will have to come up with ways to put an end to this scourge.

Criminals tend to take the easy route. Why do young people steal cars? Generally, car thefts take place outside a corner store, when the car owner leaves the key in the ignition and steps inside for some milk. How many tens of thousands of thefts sadly result in penalties that may seem light to a young person, but that can have an impact if the offender commits other crimes later?

We support this bill, which we have to say is worthwhile, even though it should have been introduced much sooner. I do not understand the government. We have been waiting for this bill since April 2008, but it seems to have been forgotten when Parliament was prorogued.

Vehicle theft is an easy crime that is often committed by young people. We must find ways to prevent people from falsifying the vehicle identification number or VIN.

The question was put to Criminal Intelligence Service Canada, and this was its reply:

The Insurance Crime Prevention Bureau has identified an increase in four main fraud techniques that are used by organized crime to steal vehicles. These include: the illegal transfer of Vehicle Identification Numbers (VINs) from wrecked vehicles to similar ones that have been stolen; a legitimate VIN is used to change the legal identity of a stolen vehicle of the same make, model, and colour, a process called “twinning”.

Let us consider the example just given. The VIN from a wrecked Honda Civic 1998 can be used for a stolen Honda Civic 1999. This is where we are being asked to take action.

In closing, we want to study this bill quickly. We can work on it in the Standing Committee on Justice and Human Rights, but on the whole, it is a worthwhile bill that the insurance companies and police forces have been calling for. I do not believe that any member of this House will be against having this bill studied quickly in committee.

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

Mr. Speaker, the hon. member raises a valid point. In fact, the requirement that he is referring to is included in Bill C-4, which is currently before this House. It contains an amendment to change the Youth Criminal Justice Act in connection with pretrial detention.

If the member takes a look at Bill C-4, he will find it there. This is the appropriate place for it, because it is an amendment to the Youth Criminal Justice Act.

He also makes the point that Winnipeg has seen a lot of organized auto theft. When the justice committee visited Winnipeg this past spring, we heard from many witnesses, including the chief of police, about the problem of organized auto theft in Winnipeg, which is putting many good citizens of Winnipeg at risk.

I thank the hon. member for raising that in the House. I think it is important. This is why the government is proposing this bill today.

[The Chair, Conservative, Ed Fast]

Yes. Bill C-16 has been referred. There is also a private member's bill, Bill C-389. We are currently dealing with Bill C-4, the amendments to the Youth Criminal Justice Act. Those are the bills at our committee. Then there is the organized crime study.

Perhaps at our next meeting you could come prepared with some ideas with regard to our business moving forward.

The other thing is that I would invite the following motion:That the Committee cover the costs of hospitality incurred from the light lunch on September 28, 2010, at 12:00 p.m. with the Departmental Committee on Justice and Legal Affairs of the National Assembly of the Republic of Kenya.You may recall that we had a meeting with them.

Justice Legislation

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

Mr. Speaker, as the spring session of this House moves toward conclusion, I am relieved that this House has finally found a compromise on Bill C-23 to prevent dangerous offenders convicted of serious crimes from receiving pardons.

However, I am convinced that the only reason such a compromise was reached was due to the outcry of thousands of Canadians and their many calls to many MPs' offices demanding immediate action.

It is reassuring to know that members of the soft on crime coalition still occasionally listen to their constituents and act on their wishes.

I hope that those members will pay similar attention to the express wishes of their constituents over the summer and that, come this fall, the soft on crime coalition will stop stalling important pieces of legislation, such as Bill C-4, which would make crucial amendments to the Youth Criminal Justice Act.

I also trust that the 20 opposition members who voted in favour of Bill C-391 will be capable of applying that same democratic deference this fall and finally bring an end to a wasteful and ineffective long gun registry.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

You can count on us. We are going to scrutinize this closely, I promise you. I have always held that rehabilitation, particularly with young offenders, could begin during pre-trial detention. If we cannot manage to get the young offender to stop behaving in this way, we risk facing a real problem at some point in time.

The other subject that interests me is detention. It is referred to in clause 18 of Bill C-4. You had started answering Mr. Woodworth, but personally, I want to understand the Supreme Court decision in R. v. D.B. You say the following about clause 18: “However, clause 18 goes further. It proposes a new test for imposing an adult sentence, and stipulates that the standard of proof in relation to this test is proof beyond a reasonable doubt.”

Are you saying that in order to impose an adult sentence, a standard of proof should not necessarily be beyond a reasonable doubt, but that it could be as it is defined in the current legislation?

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I understood that this is our last day, Mr. Chair, and that you wanted to make my colleagues happy. Mr. Woodworth asked good questions. Having said that, I knew that I would get my turn.

Gentlemen, Mr. Justice, I congratulate you. Thank you for the report. It is going to be very useful to us. Gentlemen, you may tell your respective employers that not only was your presence useful, it was in fact necessary to our understanding of Bill C-4.

I am going to ask you a question while attempting to be very precise. I also worked on the front lines for many years. I am going to give you a practical example and...

[David Greening, Executive Director, Policy Development and Analysis, Department of Justice, Government of Manitoba]

Thank you.

By way of background, I am the executive director of policy development and analysis for Manitoba Justice. I have been doing criminal law policy work now for a bit over 14 years, and prior to that I was defence counsel, dealing with both adult criminal cases and youth court cases for roughly five years.

I'm pleased to be here today to speak to the committee about the Manitoba government's position on YCJA reform and its concerns about Bill C-4 and its approach to reform of the Youth Criminal Justice Act. Manitoba has longstanding concerns about youth crime and the YCJA. Since 2006 it has been advocating for reforms to enhance the bail and sentencing provisions of the YCJA to ensure that serious and repeat young offenders can be more easily held in custody upon arrest and face jail sentences for their crimes.

To clarify, Manitoba is not suggesting that all alleged young offenders should be detained in custody or sentenced to custody, but just that judges be allowed the opportunity to consider the circumstances of each case and to make appropriate decisions based upon the youth's behaviour and the risk they pose to the public, rather than having their hands tied and being prevented from doing so by the existing YCJA presumptions against pre-trial detention and custodial sentences. Being unable to keep out-of-control youth in custody not only creates a public safety risk, but also undermines public confidence in the justice system, as the public begins to see it as a revolving door catch-and-release exercise.

In addition to Manitoba raising its concerns at meetings of federal-provincial-territorial ministers responsible for justice, and in meetings with the federal Minister of Justice, in September 2007 Manitoba's then Premier and Minister of Justice led a non-partisan “Mission to Ottawa” delegation, including Manitoba's opposition leaders, the mayors and chiefs of police of Winnipeg and Brandon, and community leaders to press the Prime Minister, the federal Minister of Justice, the federal Liberal caucus, the federal New Democratic Party caucus, and Manitoba members of Parliament to amend the YCJA to address Manitoba's concerns.

A key impetus for Manitoba's concerns and for the “Mission to Ottawa” delegation was a trend of escalating reckless and dangerous conduct associated with motor vehicle theft, which is one of the offences for which the YCJA currently provides a presumption against denial of bail and a presumption against the imposition of a custodial sentence. In the first seven months of 2007, in Winnipeg, there were four incidents where persons were killed or seriously injured as a result of being struck by vehicles driven by youth motor vehicle thieves.

In fact, one of the participants in the mission to Ottawa was Kelly Van Camp, a jogger who was deliberately targeted by a youth driving a stolen vehicle, was struck by the vehicle, and was hospitalized with broken bones and serious head injuries. There were further serious injuries and fatalities caused by out-of-control youth car thieves in 2008 and 2009 and there have been circumstances in which the police have been targeted for collisions, both while in their vehicles and while on foot. Although we have had great success in reducing the overall incidence of motor vehicle theft--down by over 75%--we still need amendments to the YCJA to address this problem.

Turning to Bill C-4, although the bill implements some of Manitoba's longstanding YCJA reform recommendations, such as recognizing deterrence and denunciation as valid principles for sentencing young offenders, in other respects it does not address Manitoba's concerns but is actually a step backwards that worsens the ability of the youth justice system to deal with serious out-of-control young offenders. I want to clarify, much like previous speakers, that certainly we do support the intent and the policy thrust behind Bill C-4, but there are serious concerns we have about some of the provisions.

Again, this is going to sound a bit repetitious, and I'm going to try to streamline my comments so I don't repeat the fine comments of colleagues to my left. Manitoba definitely shares their view that there are three key problems with Bill C-4. The first one is the amendments related to pre-trial detention, the second is the amendments related to adult sentences, and the third is the amendments related to deferred custody sentences.

I should also note that those three concerns have also been identified and championed in terms of trying to find a solution by the western Attorneys General and Solicitors General in Canada.

In terms of pre-trial detention, instead of eliminating the presumption against pre-trial detention outright, Bill C-4 actually creates what is in effect a mandatory release provision that prevents judges from denying bail for offences that do not fall within the new limited category of serious offences and offences such as committing an indecent act, damage to property, theft of a vehicle worth less than $5,000. Unless Bill S-9 is passed and proclaimed—it creates a new offence—violating bail conditions or other court orders, or escaping from custody or failing to return to a custody facility when required to do so, regardless of how many times this conduct is repeated, won't fall within the definition. At a minimum, the definition of “serious offence” in Bill C-4 needs to be removed or changed to allow a broader range of offences to be considered for denial of bail and thereby prevent re-offending with impunity.

In terms of the adult sentencing provisions, Manitoba shares the view expressed today that Bill C-4 goes beyond what is necessary to address the Supreme Court of Canada's concerns in the R. v. D.B. case and that the proposed new proof beyond a reasonable doubt standard for determining when an adult sentence should be imposed will make obtaining an adult sentence virtually impossible except in the rarest of cases. The adult sentence provision of Bill C-4 should be amended to remove the reasonable doubt standard of proof requirement and restore the existing list of factors in terms of providing guidance to the court about when an adult sentence should be imposed, such as age, maturity, background and prior record of the offender, and circumstances of the offence. All of those should be considered by the court in determining whether an adult sentence should be imposed.

In terms of deferred custody, Manitoba's view—and again, this is the same as my colleagues' from Alberta and Nova Scotia—is that there is no justification for allowing the YCJA equivalent of conditional sentences to be available for serious violent offences that are now excluded from consideration. Doing so jeopardizes both public safety and public confidence in the justice system. Bill C-4 should be changed to ensure that the deferred custody sentences remain unavailable for situations in which a young person causes or attempts to cause serious bodily harm. Also, at the very least, there is a need for consistency with the legislation on the adult side in relation to where conditional sentences are prohibited.

In conclusion, I would ask the committee to give serious consideration to the concerns I have identified about Bill C-4 and to amend the bill to rectify them before the bill proceeds any further.

Thank you, and I will take whatever questions you have.

[Ronald MacDonald]

Sorry; I'm too cognizant of the ten minutes. Thank you.

Justice Nunn made a total of 34 recommendations, seven of which related specifically to the YCJA. One passage that I think should stand out for all of us is this one:

Aside from the misunderstandings and missteps that occurred in relation to AB, many of which were procedural in nature, the real culprit, which failed to provide an adequate response to AB's behaviour and, indeed, to society's rightful expectations, was the Youth Criminal Justice Act itself.

As a result of that, Mr. Justice Nunn made seven specific recommendations related to the act, including these: to make protection of the public a primary goal; to change the definition of violent offence; to make pretrial detention provisions stand alone; and to allow courts to consider a youth's prior findings of guilt and outstanding charges in pretrial detention.

There were a few other ones as well, including those relevant to “responsible person” undertakings and attendance at non-residential community centres. This was the tweaking that Justice Nunn today spoke about.

The recommendations related to pretrial detention and the definition of violent offence have been a particular focus of Nova Scotia's representations. Justice Nunn didn't advocate, and Nova Scotia isn't advocating, changes that necessarily call for greater incarceration of youths. Rather, our submissions emphasize that sometimes youths are out of control, and courts must have the appropriate tools available to them to protect the public and assist the youths. These tools must include the practical ability to place a youth in custody, both pretrial and post-trial, for an appropriate range of offences and fact circumstances.

A failure to give the courts these tools leads to increased risk to public safety and the public's loss of respect for the administration of justice. It also results in the loss of an opportunity to intervene into the life of an out-of-control youth, an intervention that could well make a great difference in the life of a youth--I have seen that personally on several different occasions--simply as a result of short periods of pretrial custody.

In general, Nova Scotia supports the statements of policy made by Minister Nicholson in Parliament when speaking to Bill C-4. For example, he said:

Sébastien's law will make the protection of society a primary goal of our youth criminal justice system, and it will give Canadians greater confidence that violent and repeat young offenders will be held accountable through sentences that are proportionate to the severity of their crimes.

He later also talks about violent and repeat offenders needing to be kept off the streets while awaiting trial when necessary, and about reducing barriers to custody for those violent and repeat offenders where appropriate.

Nova Scotia supports those policy goals and suggests that they reflect some of the comments of Justice Nunn in his report--for example, on page 230 of his report, where he indeed talks about “enlarging the gateways to custody”.

Justice Nunn also states:

I cannot overestimate the importance of taking a balanced approach. Parts of the YCJA must be changed in order to create a workable and effective approach to handling repeat young offenders in a manner based upon protection of the public as a primary concern, as well as providing a means to step in to halt unacceptable criminal behaviour in a timely manner. This is not an option. It is crucial.

Simply put, while it is right to say that in principle we don't want any more youths than necessary in custody, it does not mean the system should have restrictions that effectively block that custody when it's necessary. I will be speaking today primarily about pretrial detention and how that can occur.

First of all, Nova Scotia would like to note that the changes intended to be made to the principles of the act by Bill C-4, to provide that protection of the public is an immediate goal of the act, is supported by Nova Scotia and is indeed consistent with Justice Nunn's recommendation.

We also support the changes planned to the definition of violent offence--namely, to include offences that have bodily harm as an element or where life is endangered by substantial risk of bodily harm. Those too are consistent, we suggest, with Justice Nunn's recommendations.

They recognize that an offence that involves a substantial risk of bodily harm to someone is as serious and significant as when a youth takes actions to intentionally cause bodily harm. In some ways they place the general public more at risk, because general dangerous behaviour can affect the public, whereas intentional violent behaviour is more often directed at persons known to the accused.

We strongly suggest, however, that the actual wording, the legislative wording of Bill C-4, does not meet the stated policy goals in three significant areas: pre-trial detention, deferred custody, and adult sentencing. These drafting issues, we suggest, must be corrected to ensure the government's intent is met and to ensure the amendments do not create what we believe will be very crucial problems to the youth justice system.

With respect to pre-trial detention, the bill provides clause 29 as stand-alone provisions, which we support. We note that the test the crown will have to meet will still be very significant, and we support that as well. However, we suggest the current wording of the bill contains a very serious problem. While it provides that pre-trial custody is available should the strict test be met, it is only with cases that could carry a maximum sentence of five years or more for adults. What this means is that offences such as theft under $5,000, breach of dispositions, failure to comply, escape from lawful custody, committing an indecent act, damage to property, fraud under $5,000, inciting hatred, corrupting children, etc., are offences that are completely ineligible for custody. These are the very offences that youth are most prone to commit. This means that the bill does not deal with the repeat offenders, as the justice minister had hoped. It allows youths to repeatedly commit these offences, be arrested, and be released again. There would be no remedy for the public, pre-trial. It would allow an out-of-control youth to continue in a downward spiral without the system being able to step in and impose the needed control.

The amendments fail to consider that less serious offences, which on their own should not justify pre-trial custody, when committed in conjunction with many others can give you a very serious situation. Let me give you an example. A youth walks down Sparks Street, breaks every single pane of window glass on a block, is picked up by the police, and is taken to court. They must release him; they have no choice. He gets out. He tells the judge he has no intention of following the rules and does it again the next day. This type of behaviour could continue. While you might say that's an extreme example, what we know about human and indeed youth behaviour is that those types of examples are out there.

Currently the act provides that those offences are eligible for detention, although there's a presumption against detention. We suggest that this portion of the bill must be amended or the act will contain provisions that will allow a youth to commit offences with no pre-trial consequence available. There does not appear to have been any case law or other explanation for this change, as currently these cases are eligible for detention, as I've mentioned, albeit subject to a presumption against detention. We are very concerned that this will create a situation where the community will lose confidence in the very system designed to protect it.

On the issues of deferred custody and adult sentencing, my colleague Josh Hawkes will be discussing those details.

I just wish to say this in closing. You've heard from many witnesses who have suggested the proposed changes to the act will result in greater incarceration of youth. We come before you today to indicate that in fact the changes that Mr. Hawkes will discuss do the opposite. They will greatly increase the opportunities for youth to avoid custody in situations of crimes of serious violence by being granted a deferred sentence, which is the same effect as a conditional sentence for an adult. They'll also make having a youth sentenced as an adult much less likely. Our comments are not based on a general concern about policy; rather, they're based on the impact from legislative drafting.

I come before you as a person who works with legislative drafting and has done so on the ground. These changes will take a current practice, about which no one was concerned, and will make it more difficult to have youth placed in custody in the context of acts the public already sees as being too difficult. We are submitting that this is contrary to the submitted intent of the government and is in effect an error that must be corrected before these amendments become law.

I will leave it to Mr. Hawkes to explain those details.

Thank you, Mr. Chair. I am pleased to answer any questions.

[The Chair, Conservative, Ed Fast]

All right.

Is there any other discussion? Seeing none, I'll call the question.

(Motion agreed to) [See Minutes of Proceedings]

Excellent.

We'll get back to Bill C-4. To help us with our review, we have a number of witnesses.

As an individual, we have Merlin Nunn, a retired justice of the Supreme Court of Nova Scotia. Welcome.

We also have the Government of Alberta, represented by Joshua Hawkes, director of policy for the appeals, education and policy branch of the Department of Justice and Attorney General. Welcome.

We have the Government of Nova Scotia, represented by Ronald MacDonald, senior crown counsel and criminal law policy adviser in the policy, planning, and research branch in the Department of Justice. Welcome.

Finally, we have the Government of Manitoba, represented by David Greening, who is executive director of policy development and analysis in the Department of Justice.

Welcome to all four of you. I think you've been told that you each have ten minutes to present, and then we'll open the floor to questions.

I'll ask those who have cellphones or other hand-held devices to please put them on vibrate or turn them off completely and to please take any telephone calls outside the room.

Why don't we start with Justice Nunn?

[The Chair, Conservative, Ed Fast]

Thank you.

I want to thank each one of our witnesses for appearing today. Your evidence is helpful as we complete our review of Bill C-4. Again, thank you.

There is a point of order from Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Okay. You are an analyst and you have looked at existing subsection 29(2) of Bill C-4. Correct? That's the pretrial detention.

[Jonathan Rudin, Program Director, Aboriginal Legal Services of Toronto]

Thank you very much.

Aboriginal Legal Services of Toronto appreciates the opportunity to present our position on Bill C-4 to the justice committee.

ALST earlier appeared before the House and Senate justice committees regarding the development of the YCJA, and we're proud to say that our appearances contributed to having the wording of paragraph 718.2(e) of the Criminal Code explicitly placed in the YCJA.

In addition, we were an intervenor at the Supreme Court of Canada in the case of R. v. B.W.P., which is the case that confirmed that deterrence does not have a role in the sentencing of young offenders. The bill before you, if passed, will overturn that decision.

In our submission we do not wish to go over the amendments line by line. Rather, we'd like to focus on the overall impact of the amendments, and that impact will clearly be that more youth will be jailed either on sentence or on remand. Before embarking on such an approach, however, we would ask that this committee look beyond the rhetoric and consider the realities of the youth justice system today.

In April of this year, Statistics Canada released a Juristat study entitled “Youth custody and community services in Canada, 2008/2009”. This report makes clear what has been a very disturbing trend over the years since the enactment of the YCJA, and that trend has been for youth jails to become the increasing preserve of aboriginal youth. Indeed the overrepresentation of aboriginal youth in custodial facilities today far outstrips the overrepresentation of aboriginal adults in prison, and this bill will only make a very, very bad situation even worse.

In 2008-09, aboriginal youth made up 36% of all youth in sentenced custody, despite the fact that aboriginal youth are only 6% of the youth population. This overrepresentation is not some geographic anomaly. The report indicates that all jurisdictions showed evidence of overrepresentation. If we look simply at the situation of the overrepresentation of aboriginal girls, the figure is even more striking. Forty-four percent of girls in sentenced custody in Canada are aboriginal.

In 1999, the Supreme Court of Canada, in the decision of R. v. Gladue, referred to aboriginal overrepresentation as “a crisis in the Canadian criminal justice system”. The current figures for aboriginal overrepresentation in youth jails are much higher than the figures were for adults in 1999, at the time Gladue was decided. If overrepresentation was a crisis in 1999, what words can describe the situation today?

Among the problems with this bill, in our opinion, is that it will allow judges to rely on deterrence to justify jailing youth. You have already heard today, and I know you've heard earlier, that there are studies that illustrate that deterrence, both general and specific, does not work. While we agree with these studies, we would suggest that levels of aboriginal overrepresentation themselves show that deterrence is not effective.

Ever-increasing levels of aboriginal overrepresentation in the adult and youth justice systems mean that aboriginal people know better than most that if you break the law, you will go to jail, yet those same, ever-increasing levels of aboriginal overrepresentation show that this fact does not stop the phenomenon. If deterrence worked, we would see a decreasing proportion of aboriginal youth and adults in jail, but we don't see that. This bill will contribute to ever-increasing levels of overrepresentation by allowing judges to send young people to jail to send a message that no one will get.

Let’s be clear. Allowing deterrence into the sentencing equation will mean that youth, and disproportionately aboriginal youth, will be sent to jail, not because it will serve any purpose for them, but to satisfy a mistaken and wrong-headed belief that someone else will be dissuaded from criminal activity as a result of those sentences.

It is cruel to punish a person by taking away their liberty in order to send a message to someone else. It is beyond cruel to do so when we know that no one will get that message.

This bill will also make it easier to detain young people before trial, and this too will have a disproportionate impact on aboriginal youth, who, not surprisingly, are also overrepresented among those on remand.

Why is there such a great need to increase the youth remand population? If we look again to the Juristat article, we find that in 2008-09, for the second year in a row, there were more youth in Canada on remand than there were in sentenced custody.

The idea that it is difficult to remand a young person in custody is belied by the facts. Indeed, one quarter of the youth detained on remand were there for offences against property only. Making it even easier to rely on remand will increase those numbers even more. Reliance on remand means that sections of the YCJA that look to alternatives to custody are made irrelevant because young people will already have served their sentence before they're actually sentenced.

In his appearance before this committee, the Minister of Justice referred to consultations he undertook in 2008 on the YCJA. ALST attended the consultations that were held in Toronto on July 16, 2008, with the minister and with the Attorney General of Ontario. At that meeting, there were representatives of many different organizations, including the police. While minutes of those meetings were not released, I can tell you, as a participant, that no one in the Toronto consultations advocated that deterrence be added to the YCJA. No one argued for more reliance on remand. No one felt the YCJA was too lenient.

We would never make the mistake of saying that what people in Toronto think is necessarily representative of what the whole country thinks, but it is significant that the amendments being advanced here are not addressing the concerns that were expressed at that meeting.

As I mentioned, we are already seeing that youth jails in Canada are really aboriginal youth jails. In some provinces this has already occurred. In Manitoba, 87% of boys and 91% of girls in custody are aboriginal. In Saskatchewan, 73% of boys and 93% of girls in custody are aboriginal. This is an incredibly disturbing trend. If these amendments are passed, this trend will just accelerate.

Is this development going to make communities safer? Is it going to address the root causes of aboriginal offending? No. We need to recognize in Canada, in both our adult and youth systems, that we increasingly reserve incarceration, our harshest penalty, for aboriginal people. Almost always when legislators toughen up the criminal justice system, that translates into more aboriginal people going to jail, and these amendments are no exception.

When important decisions are made in the aboriginal community, people are often reminded by the elders to think seven generations ahead. We realize that it's often difficult for politicians who must regularly run for re-election to think 10 or 15 years down the line, much less seven generations. The sad reality, the tragedy, of aboriginal overrepresentation can at least be partially understood by the fact that decision-makers have often not looked at the impact of their decisions on aboriginal communities.

We urge you to resist the pressures of those who believe the problem with youth justice is that we have not been tough enough. Resist those pressures, because bowing to them will result in the perpetuation of practices that do not work, practices that lead to the continued over-incarceration of aboriginal people, practices that do nothing to change the behaviour of those who commit offences, practices that, in their short-sightedness, do not increase community safety but rather make communities more dangerous by placing aboriginal young people into the revolving door of the prison system.

Thank you, merci, meegwetch.