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.

[Else Marie Knudsen, Policy Analyst, John Howard Society of Ontario]

Thank you.

The amendments proposed in Bill C-4 give us significant cause for concern, due to the negative impact they will have on young people who come into contact with the criminal justice system. These proposed amendments to the YCJA do not advance the goal of improved community safety. They will also be very expensive.

I'll briefly discuss our three main concerns about the bill and ask that you refer to our brief for a more comprehensive analysis.

One of our primary concerns about this bill is its expansion of the grounds for holding a youth in pretrial detention. Pretrial detention should be used as a measure of very last resort with young people and for the shortest possible time. Significant justification for restraint in the use of remand is found in a range of sources, from the research literature, to human rights principles, to arguments for fiscal responsibility. The research shows that time spent incarcerated is actually a criminogenic factor. To be clear, that means that the incarceration of a young person actually increases the likelihood that they will reoffend. The reports on the death of Ashley Smith speak to the profoundly negative impact of custodial settings on young people, particularly those with mental health concerns, as well as the dangerous spiral of pretrial detention, institutional charges, and around again, that can result from unnecessary entrance into the carceral system.

The likelihood of harsher sentences also increases. A Department of Justice study found that the detention experiences of young people, when all other factors such as prior record are controlled for, affect the likelihood of pleading guilty and receiving the most severe sentence. Those who are not released by a court after being detained at their first arrest are disproportionally sentenced to custody, as are those who have multiple stays in pretrial detention. Thus, if the goal of the youth criminal justice system includes reducing recidivism, protecting the public, and even saving money, then pretrial detention should never be used unless it's the very least restrictive measure available.

By relaxing the conditions under which a young person can be detained prior to trial, there's also an increased risk of police and the courts using remand to deliver a sort of wake-up call or short, sharp shock to youth. But pretrial detention decisions must never be made with the goal of modifying a young person's behaviour prior to their conviction for a crime. Young Canadians have the constitutional right, as we all do, to not be punished for a crime for which we've not been found guilty. Despite these concerns, Bill C-4 actually seeks to increase and expand the use of pretrial detention, and we strongly oppose this proposal.

Bill C-4 also seeks to add general deterrence and denunciation of sentencing principles. To this, the John Howard Society also strongly objects. This amendment is not supported by evidence and will not prevent crime or reduce reoffending. It will also inevitably increase the use of custodial sentences and may contradict the legal principle of proportionality. As you're aware, people who commit crimes typically do not consider the length of the sentence they might face when they're making the often split-second decision to commit a crime. Young people in particular are characterized by immaturity, spontaneity, and a sense of infallibility. Deterrence and denunciation are, unsurprisingly, without support in the academic literature as a means of preventing or reducing crime or improving public safety. There is, in fact, literature to suggest that the very issues that are correlated with criminality and young people, things like family conflict, low self-control, and school disruption, are also correlated with high impulsivity, low self-control, mental health concerns, and addictions, all issues that reduce one's capacity to perform the careful cost-benefit calculation that is required if general deterrence is to be effective.

Finally, the John Howard Society strongly opposes the amendments contained in clause 8, namely, the provision that participation in extrajudicial sanctions be considered in sentencing and contribute to the likelihood of a custodial sentence. This amendment is counterproductive and it undermines the rehabilitative focus of the YCJA. The proposed amendment can only effect a decrease in the use of EJSs by youth, which would be extremely regrettable. The focus on EJSs in the YCJA has been a wide success, and this process is effective at meeting goals of reparation and lowering recidivism in a much more inexpensive and effective way than custodial or other traditional interventions.

This amendment also raises concerns with regard to the legal rights of youth. The requirement that youth “take responsibility” when agreeing to undertake an EJS cannot be equated with a finding of guilt under the law, and to conflate the two is dangerous. The Convention on the Rights of the Child mandates that youth be presumed innocent until proven guilty, and participation in an EJS does not equate to legally proven guilt.

This amendment threatens to dilute the YCJA's important focus on not unnecessarily propelling young people into the criminal justice system and on not unnecessarily criminalizing what are often very minor acts.

In summary, we urge the committee to abandon or make significant amendments to the bill, which will undermine aspects of a well-functioning youth criminal justice system.

Thank you for the opportunity to speak today.

[Paula Osmok, Executive Director, John Howard Society of Ontario]

Thank you, Mr. Chairperson and members of the committee, for the opportunity to speak with you today.

My name is Paula Osmok, and I'm the executive director of the John Howard Society of Ontario. I'm here today on behalf of the John Howard Society of Ontario and the John Howard Society of Canada. Our national executive director is out of the country and not available today.

Also, we have a written submission for you today, and it will be forwarded to you, I understand, once it's translated.

As you know, the John Howard Society is an agency with 65 offices across the country that helps improve the safety of Canadian communities by working with those who are at risk of becoming involved or are involved in the criminal justice system.

Our mission is effective, just, and humane responses to crime and its causes, and our work is grounded in the research on what works to prevent crime and recidivism.

As an agency with literally decades of experience working with youth involved in the criminal justice system, as well as communities affected by crime, we have what we believe is the unique and important vantage point from which to consider the success and the challenges of the Youth Criminal Justice Act and to comment on the potential benefits and harms of the proposed amendments.

It's with this background that we speak to you today on the matter of Bill C-4, an act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other acts. We oppose the majority of amendments that this bill would make to the YCJA.

The introduction of the YCJA led to many positive changes to the youth criminal justice system, such as the significant decrease in the incarceration rates of young people, and, as you heard previously, without a substantial increase in the crime rate as well.

It's important to be reminded that prior to the introduction of the YCJA, Canada had the poor distinction of having the highest rate of incarcerated youth in the western industrialized world, even higher than the United States. These changes were achieved as a result of the firm and sound focus on rehabilitation, reintegration, and prevention in the act.

We believe Bill C-4 seeks to dismantle this foundation and shift the focus of the youth criminal system to a punitive approach. In the words of the Montreal Gazette editorial board, “The thrust of this bill, unfortunately, is to move away from rehabilitation and toward retribution.”

Punitivism and retribution are incompatible with sound, research-based criminal justice approaches that work to reduce crime and its causes.

Instead of preventing youth crime or reoffending, this bill would actually increase rates of youth in custody, leading to harsher and more adult sentences for youth, reduce the use of extrajudicial sanctions, and increase the cost of the youth criminal justice system to Canadian taxpayers overall. Most importantly, the proposed amendments will do nothing to improve community safety.

Youth crime, as all of you should know, is best prevented by tackling the root causes of crime: poverty, lack of quality education in early childhood education, employment services, and recreation, to name a few. While clearly slower, the approach of preventing crime through social development is the best and most cost-effective way to improve the safety of Canadian communities.

At this point, I would like to call on my colleague, policy analyst Else Marie Knudsen, to speak to some of the specific amendments in Bill C-4.

[Joseph Wamback, Founder and Board Chair, Canadian Crime Victim Foundation]

Thank you very much, Mr. Chair and honourable members of this committee.

I am a father of a young boy who was almost beaten to death by young offenders in 1999. I'm a father who recognized a system that needs change—change for both sides of what we now see is the end result of violent confrontations. I have researched this issue across Canada and beyond, and I have volunteered over 11,000 hours working with victims, families, police, and those within our medical community.

There are very few issues in the criminal justice system in Canada that have been the subject of national debate with dissatisfaction reaching the heights as there are with the existing youth criminal justice system. But it is absolutely vital to my presentation this morning that everybody here understands that this concern and this frustration have never been focused on the provisions for dealing with minor crime or youthful mistakes. Anyone who suggests that they have is being dishonest with this committee and with Canadians.

The national outrage is directed at the Youth Criminal Justice Act's inability to deal with psychopaths, killers, and repeat violent victimizers under the age of 18.

In January of this year I held a conference in Toronto that was made up of families whose children had been murdered by killers under the age of 18. Sadly, there was no problem and no difficulty in finding members to participate in this conference. These families did not ask for the death penalty. They did not ask for extreme or Machiavellian sanctions on the young persons who murdered their children. They asked that the lives of their children be recognized as having value. They asked that the Canadian Parliament recognize not only their tragic loss, but the loss of their child's future contribution to Canada.

What are we telling these parents, as well as all of Canada, about the value of their children's lives when we refuse to impose serious sanctions on murderers? These parents want violent repeat offenders segregated from innocent children to prevent others from experiencing the horror that they live with each and every day. Additionally, they want the necessary time provided to rehabilitate those killers before they are released again, if that is possible.

During the last 10 years I have spoken to dozens of psychologists and psychiatrists who tell me that it takes an average of three years of clinical intervention to change criminal behaviour. Unless we provide mandatory clinical intervention and the time necessary to undertake this intervention, we are exposing Canadians to additional preventable victimization and not helping those young victimizers through what we are now suggesting is rehabilitation.

Canadians who obey our laws have the birthright to be protected by those same laws. The changes proposed in Bill C-4 are not about getting tough; they're about protecting our children, our society. It's about acknowledging the value of the lives of murdered children as well as providing those who are the perpetrators of violence the time necessary for positive reinforcement and reintegration into Canadian society as law-abiding citizens. I believe the proposed changes in Bill C-4 will ultimately lower victimization and, most importantly, restore faith in the Canadian justice system.

The justice system is not the sole province of lawyers, criminals, and judges. It belongs to the people of Canada. The system works when victims report the crimes that are committed against them and testify truthfully when asked. When faith in that system is lost, ladies and gentlemen, it will cease to exist, and nowhere is that faith being eroded faster than with our young people.

In the last three years, my wife and I have spoken to over 32,000 young people in the province of Ontario, and we are repeatedly told of their greatest concerns. They're concerned because there's no consequence for violent acts among their peer group. There's concern because of bullying, which is, in reality, criminal victimization, assault and sexual assault--of schools, police, and a justice system that do nothing or whose hands are tied by existing legislation; of parents who are frustrated and angry because they are unable to do anything. We are told that they are frightened of violent peer groups in their schools and in their communities, and we hear stories of violent peer groups victimizing them, and retaliation has become the norm, if it's been reported.

The last Canadian criminal victimization survey noted that 88% of crimes committed against young people in this country go unreported—88%. The reason they go unreported, I'm going to suggest today, is because our young people don't trust the system that should be in place to protect them. This is a result of the current Youth Criminal Justice Act.

Who are the victims of young offenders today? Canada's last criminal victimization survey showed that 37% of violent victims in this country were under the age of 18, and the majority of perpetrators of those crimes against that 37% were under the age of 18. Who will benefit from the proposed changes suggested in Bill C-4? The young people of this country, Canadians from all walks of life, our justice system, and all political institutions.

The ultimate goal, I believe, of Bill C-4 is to restore faith in our justice system, to provide rehabilitation or perhaps habilitation to criminally inclined youth, to provide futures for kids who obey the laws, and to provide safer communities.

In the year 2000 I created a petition, which I've distributed. I hope everybody has a copy of it. It has circulated across Canada. Today, it has the signatures of 1,252,223 Canadians. The proposed changes and minor alterations reflected in Bill C-4 recognize the points in that petition and, more importantly, will recognize that the lives of the victims of violent young offenders also have value.

I've heard brief after brief from those concerned with the rights and lives and futures of violent criminals under the age of 18, but those voices remain deafeningly silent when asked to comment on victims and victims' families.

Since 2000 I have worked with hundreds of families and survivors of violent crime whose children have been the victims of killers and brutalizers under the age of 18.

My petition, item number 5, stated back in 2000 that protection of Canadians and communities must be paramount, along with deterrence and societal denunciation for violent young offenders. This is the first change recommended by Bill C-4—a change that has the support not only of millions who have signed my petition, but additional millions of Canadian families from coast to coast.

I'm an engineer, I'm not a lawyer, but I believe, and I think most Canadians believe, that the laws of this country are reactive tools. It's not social policy. We should not confuse Canada's social policies and programs with criminal law measures.

I've heard it said that the proposed changes are a violation of the United Nations Convention on the Rights of the Child. I'm going to suggest that such a claim is absolute nonsense. I will argue that the existing Youth Criminal Justice Act is a violation of the UN convention on the rights of child victims and young offenders, specifically articles 13, articles 16, and articles 19, and I will go into details later, if you ask.

I also further suggest that the proposed changes in Bill C-4 are in keeping with that convention and will not only recognize the intrinsic value of the lives of child victims, but also, if we are honest, recognize that serious custodial time will create the opportunity to rehabilitate those who are victimizers.

In addition, I want to argue that the existing Youth Criminal Justice Act is a violation of the UN declaration of the rights of victims, especially child victims of young offenders, and specifically articles 4 and 5. I will go into those later, if the time allows.

I also suggest it is a violation—this is the existing Youth Criminal Justice Act—of the Canadian Charter of Rights and Freedoms, specifically the right to life, liberty, and security of the person. That clause, which is clause 7 in the Canadian charter, includes you, it includes me, and it includes our children and all victims of crime across Canada, not just those who have been accused of crime. Admittedly, it has never been used in that context, but I believe that someday very soon it will.

Canada is very proud of and believes in judicial independence. I ask you to let it work by supporting Bill C-4.

Current provisions in the legislation are tying the hands of justice. It was not that long ago when a judge in Winnipeg sentenced a 17-year-old boy who had just beaten a 22-year-old man to death with a pool ball stuffed in a sock. He sentenced that young man to one day in closed custody. Why? Because the law required him to impose the least restrictive sanctions available to him. He imposed that sentence and he cried out to ask legislators to help him impose greater sanctions against young killers. To this date there have been no changes.

These proposals will provide our courts and judges with the tools necessary to more fully utilize judicial discretion and independence. I urge this committee to support the changes in Bill C-4, as do millions of ordinary Canadians like us from coast to coast.

[The Chair, Conservative, Ed Fast]

Mr. Dhaliwal, just so you know, you can't call the question like that. You'd be out of order. But we are at the end of the list of individuals who wish to speak, so I'm going to call the question on the motion.

(Motion negatived)

We're going to continue our study and review of Bill C-4, An Act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other Acts. We have a number of witnesses here with us. I extend my apologies to you for having to cut into your time a little. This is committee business. It does happen from time to time.

There may also be a vote right in the middle of all of this. So I'm extending to you my apologies in advance. These things sometimes happen. But we want to hear from you as much as we possibly can.

We welcome today Joseph and Lozanne Wamback, representing the Canadian Crime Victim Foundation; the Canadian Association of Elizabeth Fry Societies, represented by Kim Pate; from the John Howard Society of Ontario, Paula Osmok and Elsa Marie Knudsen; and from the Aboriginal Legal Services of Toronto, Jonathan Rudin.

Each organization has up to 10 minutes to present. We'll start with Mr. Wamback, please.

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

Yes. Thank you, Mr. Chair.

Arising out of our discussion at the last meeting of the committee, I'd like to make a motion concerning how we deal with the witnesses and a review of the legislation on Bill C-4. If that's appropriate, I'd like to read the motion.

I move that in light of the significant number of justice bills and other important issues before this committee, and recognizing the substantial number of witnesses who have already appeared before this committee with respect to Bill C-4, it is resolved that the justice committee proceed on the basis of the earlier agreement of its members to sit for an additional half hour at each scheduled meeting in order to hear all previously scheduled witnesses and conclude the clause-by-clause review of Bill C-4 prior to the summer recess of Parliament.

[Serge Cardin, Bloc, Sherbrooke, QC]

Thank you, Mr. Chairman.

Ladies and gentlemen, good morning and welcome.

With respect to your concerns about the bill's title, if it's helpful, I would say that I also don't think it makes any sense. It means... How can I put it? It's precisely because the government cannot measure its own words that it chooses these types of titles.

I'm going to use an example to show you how the Conservative government works. When we were talking about minimum sentences and law and order, Sébastien's Law was created. This law made people emotional. Another act amending the Criminal Code referred to “trafficking in persons”. That meant that the government, if we didn't agree on certain parts of it, could say, for example, that the Bloc Québécois was protecting pedophiles. So you can see how this government doesn't know how to measure its words.

Now, in terms of fairness at the pump, it should be pointed out that Bill C-14 deals with all weights and measures for electricity and gas, obviously. On the other hand, we also know that the federal government has to market its message. We know that it hasn't received good press over petroleum, with western petroleum companies and everything that's happening. Therefore, it's making the retailers shoulder the responsibility. I don't think that's the way to do things. The title of this legislation could simply have included words such as “fairness in measuring”, “accurate measuring” or something like that that involves all devices for weights and measures.

The government refers mainly to petroleum because it does not want to give more power to the Competition Bureau. You know, collusion is much more profitable than inaccurate instruments and differences of 0.5% at the pump. Neither do they want any sort of monitoring agency. They know that this affects many individuals and people who buy gas. So they come up with a pompous title for marketing purposes, simply because they're concerned with their image, it's obvious. They think they can improve their image by doing that.

That said, we know perfectly well, as Mr. Lake said earlier, that the government is surprised by that $20-million loss to the consumer. Obviously, that's not right. However, it's a relatively small amount compared to the $40 billion worth of gas sold every year in Canada. If retailers wanted to, rather than manipulate their instruments—this is what Mr. Lake is claiming—they could simply increase their costs by a tenth of a cent, or a cent, and that would easily cover it.

Generally speaking the Weights and Measures Act covers all measuring devices. What's important is that consumers can feel confident that when they buy something they're getting the right amount.

I do not believe that retailers are going to manipulate their pumps to get a price that will set them a few cents more. Not everyone sells 10 million litres annually. In any case I don't believe it. That would be rare. They should not be accused without any proof. Accusing them offsets to some degree everything the Conservatives have done on the other side. Twenty million dollars is a lot of money for Mr. Lake when the issue is pump adjustments, but $1 billion over three days doesn't appear to be a problem. We could pay for a lot of inspections with that money.

With respect to inspection costs, I've heard that they would vary between $50 and $200. How much are they now? How much does a retailer pay currently for inspection and calibration, approximately?

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

Okay. I believe you mentioned earlier that you may have dealt with one of the perpetrators in the death of Sébastien Lacasse. I know that one or two people have mentioned that perhaps because this Bill C-4 is dedicated to the memory of Sébastien Lacasse, that was inappropriate. Is that true? Did I hear you correctly? Did you deal with one of those perpetrators?

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

All right.

I'm just going to ask you to do a little homework with your lawyers, because in your written statement, for example, there is a sentence that suggests that Bill C-4 is adding denunciation and deterrence and giving them priority over rehabilitation and best interests of the child.

I have in front of me the provision of Bill C-4 that adds denunciation and deterrence. That's clause 7 of Bill C-4, and it adds those things to section 38. In fact, it adds them to five other principles and it doesn't give them priority. In fact, it specifically says they will be subject to one of those other five principles.

So I would like you to go back to the people who wrote this brief and ask them to refer this committee specifically to the provision in Bill C-4 and the words in that bill that they say give priority to denunciation and deterrence, because I think if you do that you will find that there is no such thing in Bill C-4.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Okay. Do you have in front of you a copy of Bill C-4, by any chance?

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Je vous remercie beaucoup, monsieur le président.

Thanks go to all of the witnesses for being here.

There is so much I would like to say in so little time. I'll begin by simply saying that I want to reassure the witnesses that every member of this committee received a report on the national invitational symposium on youth justice renewal. Indeed, it was a detailed report that indicated the number of participants, the process, the identification of issues, gathering of evidence. I'm sure not all of us have had time to read it yet, but I assure you that I have and I found many ideas in it that I hope I to ensure will find their way into the report of this committee, or at least the discussion of this bill.

Secondly, I would like to point out, for anyone here who was listening earlier, that if you look at the existing Youth Criminal Justice Act you will see that it already includes as a principle the promotion of the protection of the public. That is not something new that is being added by Bill C-4; nor does Bill C-4 give it any greater priority than it had in the previous act.

Ms. Toutant, I would like to thank you. I thought your presentation was balanced. I don't agree with everything you've said, but there are at least two things on which I agree.

First, in your brief, you say: "Young people are now being placed for such short periods that any effort at rehabilitation becomes impossible." That's true and that's clear. You also say: "Yes to a return to a better balance between the importance attached to the offence, and the needs and personality of the young person." That's also true and clear.

I regret that I have so little time. I want to direct some questions to Ms. Vandergrift, because I sit here day after day, hour after hour and I listen often to people say things that I know are not really correct. It's not fair in a way, because I'm a lawyer and I have access to resources, and others don't.

I want to begin by asking you, are you a lawyer, Ms. Vandergrift?

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

In your presentation, I wasn't clear whether you think there was an analysis of Bill C-4 done by the Department of Justice with anyone in government with respect to how it complies with the Convention on the Law of the Rights of Children.

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

Right, okay. So would any of the provisions of Bill C-4 that we're reviewing in this study have applied, in your opinion, to Ashley Smith?

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

When you read Bill C-4, do you feel that it reflects the consultations that you've attended?

[Merri-Lee Hanson]

Sure.

And when crime does happen, we need to know how we can rehabilitate and reintegrate the young offenders once they have served their sentences. The NBASW recommends that there be a renewed investment in community-based preventive approaches. It is generally accepted that the more you spend at the beginning on prevention efforts, the more the benefits in the long term will surpass the initial investments.

Second, the NBASW recommends that greater investments be made in treating young offenders with mental health and/or substance abuse issues. For example, I strongly urge the committee to examine the Ashley Smith report by respected child and youth advocate Bernard Richard.

The Honourable Rob Nicholson reported that Bill C-4 is a balanced approach that includes elements of prevention, enforcement, and rehabilitation; however, as we discussed previously, the NBASW believes that amendments in some areas, and specifically those on rehabilitation, are insufficient.

As a social worker, I work with vulnerable people in our community. This is the nature of our health profession. In their approach to necessary legislation, social workers strive to provide a balanced approach that considers all factors of an individual's adherence to the laws that guide how we live as Canadians. The Nunn report is often referred to as one of the guiding forces of the amendments being put forward. Mr. Nicholson himself stated, however, that this bill goes considerably beyond what was in the Nunn report. He has stated that this bill is directed towards a certain type of individual and a certain type of crime. Front-line social workers are concerned that those towards whom this bill is not specifically directed will suffer the consequences of a more punitive approach.

It is important to see that this amendment will not address the impulsivity of young persons or their intellectual capacity to see and predict the consequences of their actions. Since the inception of the Juvenile Delinquents Act, the early history of youth justice in Canada has stressed the importance of seeing a young person not as a criminal, but as a misdirected individual. The focus has been on considering the factors that contributed to criminal behaviour rather than on punishing the youth. Although this has moved toward a more balanced and judicial approach over the years, the move towards utilizing denunciation and deterrence turns its back on considering those social factors that so often play a role in youth criminal activity.

We must retain the consideration that because of their lack of maturity, young people require special considerations. We must be able to get young people's attention in order to create an environment for change. It is important to recognize that it is extremely rare that a punitive approach to poor behaviour creates change. There are no skills taught by incarceration.

Owing to individual factors, a small cluster of youth will respond to the recommendations being made; however, that does not take into account the real reasons young people often get involved in the criminal justice system in the first place, which include family conflicts, mental health, and/or developmental difficulties or trauma.

Recommending the use of denunciation and deterrence in the Youth Criminal Justice Act goes against what mental health and child advocates work for day in and day out across this country. Social workers often speak of stigma, the stigma of living in poverty or of having a mental illness; in this case, it is the stigma that comes with involvement in the legal system. By making amendments that may potentially increase the undesirable effects of the youth criminal justice system on young people, we are not creating a system focused on rehabilitation.

In the end, I want to caution against the development of legislative changes that are based on extreme cases. The case of Sébastien, for whom the bill is named, illustrates my point. Using this extreme case to name such a bill promotes emotions rather than a debate of the merits of the amendments. I believe the development of social and economic policies needs to be debated from a perspective that is sound and balanced, but using extreme cases to advance the rationale for changing the Youth Criminal Justice Act, as seems to be happening in this situation, will not result in good legislation.

Again, on behalf of the social workers of New Brunswick, I want to thank you for taking the time to listen to our recommendations.

[Kathy Vandergrift, Chairperson, Board of Directors, Canadian Coalition for the Rights of Children]

Thank you very much for this opportunity.

I will be highlighting points from the written submission that I believe you have in front of you, and I would certainly invite questions on the other content in the submission as well.

Bill C-4 is named Sébastien’s Law to remember a young person killed by another young person. But we also need to remember other children, like AB and Ashley Smith. AB is the child at the heart of the Nunn commission, which weighs into this bill. He was a boy with learning disabilities who spiralled out of control, to use the words of the commission, and then came to public attention when he killed a woman while he was joyriding in a stolen car. You heard just now more of the details of Ashley Smith, a girl suffering from mental health issues who died in federal custody.

What they had in common was that they were adolescents who got involved in criminal activity after they fell through the cracks of underdeveloped, sporadic, or poorly coordinated services for children in need. That's the primary challenge for Canada at this time. Young people within the system told that to members of Parliament directly in a forum we sponsored in 2007. If you were to see the report of the consultation, we are sure you would see that early intervention is a primary message. Several of our members participated in those sessions across the country, and we hope you will insist on seeing the report from those.

I'm raising this because Bill C-4 does very little to address our primary concern in relation to youth justice in Canada.

One of the ways of being sure we balance the various interests is to look at what the Convention on the Rights of the Child has to say about youth justice. That is going to be our primary contribution to the review of Bill C-4, so I'd like to look at various aspects of that bill in relation to the convention, which Canada ratified in 1991.

First of all are the basic principles. Protection of the public, which was recommended by the Nunn commission, can be accommodated without revising the other basic principles. I submit to you that the revisions proposed in Bill C-4 change the approach to accountability and change the primacy of prevention in ways that are contradictory to the Convention on the Rights of the Child and are not in keeping with the whole Nunn commission report. If you read the whole report, you could see adding protection of the public without changing the other principles. That would be the recommendation of the Canadian Coalition on the Rights of Children.

We appreciate one good point in Bill C-4: the recognition of the “principle of diminished moral blameworthiness or culpability”, as the Supreme Court ruled. However, there is another principle that the Supreme Court is now recognizing, which your committee should consider, and that is “the best interests of the child”.

In the Supreme Court ruling on Omar Khadr, the justices found that the “best interests of the child” are a matter of fundamental justice in Canada. We are suggesting that this principle also be added as a primary principle for the youth justice system.

In 2003 Canada was asked by the UN Committee on the Rights of the Child to integrate the best interests principle in its revision of domestic laws that have an impact on children. Last year Canada made a commitment at the UN Human Rights Council to improve its implementation of its international obligations. This is a good opportunity to do so.

The current YCJA refers to the convention in the preamble and the best interests in one article. We would suggest that the best interests of the child should be made a primary consideration for all decisions relating to children in the youth justice system.

Moving on to pre-trial detention, the convention—and when I say “convention” here, I mean the Convention on the Rights of the Child—has very specific provisions relating to detention. It uses two tests: it should be the last resort and for the shortest time possible. I submit to you that the wording of the criteria in Bill C-4 and the definition of concepts like “serious offence” fall short of meeting those criteria.

In 2007 the government responded to a major study on children's right by saying that every piece of legislation is reviewed for being consistent with the convention. My suggestion to you is that the committee ask to see the analysis that was done of Bill C-4 in relation to the Convention on the Rights of the Child. If a thorough analysis were done, I suspect that you would find recommendations for more precise wording of the criteria that should apply for pre-trial detention.

A second area of concern is the uneven quality of services provided to young people in detention centres across the country. We would suggest that this should also be addressed as you review that portion of Bill C-4.

Turning now to sentencing principles, no evidence has been presented to show that deterrence is an effective strategy for young people. Adding denunciation is not consistent with the recognition of the reduced moral blameworthiness and culpability of young persons. We suggest those be deleted.

The fourth area we want to address is treatment of extrajudicial measures and sanctions. These are elements in the YCJA that are actually working well now and are helping to get early appropriate intervention that helps redirect young people. The provision suggested in Bill C-4 would result in counterproductive delays and added regulations to that. We suggest that you leave well enough alone in terms of extrajudicial measures and sanctions and not incorporate them, on the grounds that these moves would be counterproductive to the objective of early appropriate intervention with young people who get in trouble with the law.

The fifth area is adult sentences for young offenders. Another good piece of Bill C-4 is putting the onus back on crown prosecutors rather than on the defendants of young people, but requiring crown prosecutors to consider adult sentences for all violent offences and report why they are not recommending them is an unnecessary complication to the current act. Leaving that as discretion is a better way to get what is the highest goal, which is early and appropriate treatment rather than adding complications that are likely to result in delays. We would also like to highlight that allowing provinces to set different ages for consideration of adult sentences contravenes the basic provision of equitable treatment for all children under the Convention on the Rights of the Child.

In 2003 Canada was asked by the UN committee to review how it ensures equitable treatment in a number of areas. It's a request that has not yet been addressed in Canada's third and fourth report to the committee. The federal government bears the obligation of ensuring equitable treatment of children across the country. That needs to be part of Canada's commitment to improve its implementation of international obligations. Parliament should not now pass a law that further enshrines inequitable treatment. In 2003 the UN committee recommended that Canada amend its youth justice law to ensure that no person under 18 is tried as an adult.

We make specific recommendations that are in line with the Convention on the Rights of the Child. The sixth area we want to address is the place of detention. Again, a good aspect of Bill C-4 requires that youth serve their sentences in youth facilities. We would just add that there should be some requirements as to what constitutes a youth facility. The convention says that it must take account of the needs of persons of his or her age. That's not always true in the facilities across Canada. Right now, there are really no guidelines for that.

The final area is publication of names. We appreciate again that Bill C-4 is complying with the Supreme Court judgment about the onus of proof in the publication of names, but we would ask for review of this provision in light of the Convention on the Rights of the Child, paragraph 40(2)(b), which states that every child has a right to have his privacy fully respected.

Finally, our submission lists for you the recommendations that the UN committee made to Canada in 2003. When you finish with Bill C-4, I hope this committee will take the time to consider what has been suggested to Canada and look at how we can improve our youth justice system to be in line with developing international standards.

Thank you.