Justice Committee on May 11th, 2010

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is the sixteenth meeting of the Standing Committee on Justice and Human Rights. For the record, today is Tuesday, May 11, 2010, and I will just note that today's meeting is being televised.

You have before you the agenda for today. We're beginning our review of Bill C-4, an act to amend the Youth Criminal Justice Act and to make consequential and related amendments thereto. It's also known as Sébastien’s law.

To help us with our review, we have with us the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada.

Welcome here, Minister.

Accompanying him are officials from the Department of Justice's youth justice, strategic initiatives, and law reform branch. We have with us Catherine Latimer, who is the general counsel and director general, and Paula Kingston, senior counsel.

At the end of our meeting, we will leave a couple of minutes for committee business to work on the selection of some of the witnesses we're calling forward on this bill.

Minister, you have 10 minutes to present, and then we'll open the floor to questions.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chairman.

As you know, since coming into government, we have taken action to tackle crime and protect Canadians, but much more needs to be done.

Over the spring and summer of 2008, I conducted a series of cross-country round tables, many co-chaired by my provincial and territorial counterparts, in order to hear from youth justice professionals and front-line youth justice stakeholders about areas of concern and possible improvements regarding the provisions and principles of the Youth Criminal Justice Act. The review and other consultations permitted a variety of differing views, including those of aboriginal Canadians, youth involved in the justice system, police, the legal community, and other youth justice experts, to be brought forward and discussed. While most expressed that the fundamentals of the Youth Criminal Justice Act were sound, there was a sense that it could be improved in a number of areas, such as judicial interim release, reducing the complexity of the act, reinforcing proportionate accountability, and targeting serious, violent, and repeat young offenders.

It was with this perspective in mind that I introduced Bill C-4, Sébastien's Law (Protecting the Public from Violent Young Offenders) in the House of Commons.

The proposed changes to that bill that were introduced on March 16 of this year first of all deal with general principles. Currently, the protection of society is not stated strongly enough as an objective in either the preamble to the YCJA or its declaration of principles.

The Honourable Justice Nunn undertook a comprehensive review of the youth criminal justice system in Nova Scotia, from which he produced his 2006 report, “Spiralling Out of Control: Lessons From a Boy in Trouble”. Although the focus was on Nova Scotia and the services available to youth in that province, Justice Nunn did propose a limited number of changes to the YCJA, changes that targeted that small group of violent and repeat offenders. Justice Nunn concluded that highlighting public safety as one of the primary goals or principles of the act was necessary. Stating this objective expressly within the fundamental principles of the YCJA will ensure that courts keep the protection of the public in mind when sentencing violent and repeat young offenders.

The current law on pretrial detention has been viewed by some as confusing and has on occasion been applied inconsistently. As a result, the system is often powerless to keep violent and repeat young offenders in custody while awaiting trial, even when they pose a danger to society. Bill C-4 proposes to replace the pretrial detention test with a stand-alone test that targets youth charged with serious crimes. The amended act will simplify pretrial detention rules to ensure that, when necessary to protect society, violent and repeat young offenders can be detained while awaiting trial if they are charged with a serious offence and there is a substantial likelihood that the youth will commit a serious offence if released.

A serious offence will be defined as any indictable offence for which the maximum punishment is five years or more. This would include violent offences; property offences, such as theft over $5,000, which currently includes car theft; and offences that could endanger the public, such as possession of a firearm, sexual exploitation, robbery, and murder.

Excluded offences would be primarily administration of justice offences and some minor property or mischief offences.

Canadians lose confidence in the youth criminal justice system when sentences are insufficient to hold violent and repeat offenders accountable for their crimes.

The Youth Criminal Justice Act will be amended to broaden the sentencing principles and remove barriers to custody to ensure that violent or repeat young offenders will receive sentences that reflect the seriousness of their crimes. As it stands now, deterrence and denunciation cannot be considered by a judge as part of the sentencing. What we are doing is adding specific deterrence and denunciation as youth justice sentencing principles, to allow the courts to impose sanctions, when necessary, designed to discourage a particular offender from committing further offences. These changes to the sentencing principles will ensure that youth sentences are proportionate to the seriousness of the offence and the degree of responsibility of the offender.

Currently, under the YCJA the general rule is that young persons cannot be sentenced to custody unless certain conditions are met. For instance, young offenders cannot be sentenced to custody unless they have committed a violent offence. In 2006 the Supreme Court of Canada interpreted “violent offence” under the YCJA as an offence in which the young person causes, or attempts to cause, or threatens to cause, bodily harm.

We now propose to include in the YCJA a definition of violent offence that expands the Supreme Court's interpretation to include offences in which the young person “endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm”.

The YCJA currently allows for custodial sentences when the young offender has committed an indictable offence for which an adult offender would be liable to imprisonment for a term of more than two years, and the young offender has a history indicating a pattern of findings of guilt.

The requirement for establishing a pattern of criminal activity based on findings of guilt has been criticized by some as being too restrictive in cases where a young person may have been accused of several offences for which there are no findings of guilt, but which have been dealt with through extrajudicial sanctions. The act will be amended to allow a pattern of criminal behaviour to be established through findings of guilt, by showing that extrajudicial sanctions have been used to deal with the young offender, or through a combination of both. Taking a young offender's full history into account will help the courts determine an appropriate sentence.

While adult sentences are available for those 14 years of age and over and can be used where appropriate, they are not always applied, even in the most serious cases. The proposed amendments will require the crown to consider seeking an adult sentence for youth who commit serious violent offences, such as murder, attempted murder, manslaughter, and aggravated sexual assault. The crown will also be required to inform the court if they choose not to apply for an adult sentence, and provinces and territories will continue to have the discretion to set the age at which these obligations apply, either at 14, 15, or 16 years of age.

In May, 2008, the Supreme Court ruled in Regina v. D.B. that certain provisions of the Youth Criminal Justice Act violated the charter. These provisions place an onus on young offenders found guilty of presumptive offences to justify receiving a youth sentence rather than an adult sentence, and to justify the continued protection of their privacy.

The amendments that we are proposing will remove the presumptive offence provisions from the YCJA, as well as other provisions rendered inoperative as a result of the decision of the Supreme Court. The act will be changed to clarify the test for the imposition of an adult sentence and ensure the onus is on the crown to satisfy the court as to the appropriateness of the adult sentence.

Currently, under the YCJA the publication ban is automatically lifted where an adult sentence is imposed on a youth. Also, if the crown applies, the court can consider lifting the ban in appropriate cases when a youth sentence has been imposed in respect of an offence for which the crown was seeking an adult sentence. In practice, violent offenders who are given youth sentences are normally released back into the community anonymously.

The implication for public safety can be significant. For example, parents may have no way of knowing that a convicted sex offender is in the area. The proposed publication amendment to the YCJA would give judges discretion to lift the publication ban for youth who are convicted of violent offences for which a youth sentence was imposed. Judges would be required, when necessary, to determine whether the young person poses a significant risk of committing another violent offence and whether the lifting of the ban is necessary to protect the public against such a risk.

To make it easier to identify patterns of reoffending, the amendments will also require police to keep records when extrajudicial measures are imposed. Typically such measures would include taking no further action or using warnings, cautions, or referrals to respond to an alleged offence by a young person. By requiring that records be kept of these measures, police will be better informed of past allegations of offending so that they can take appropriate action in respect of subsequent offence allegations against a particular young person.

The act will be amended to make it clear that no young person under 18 will serve their sentence in an adult institution, regardless of whether they were given an adult or youth sentence. They can, however, of course be transferred to an adult institution at age 18, as is currently the practice.

In conclusion, Mr. Chairman, Canadians have told us they want action on crime and our government is delivering. With the introduction of Sébastien's law, this government is taking action to strengthen the way the young offenders system deals with violent and repeat offenders. I urge you, my honourable colleagues, to support this bill, which proposes amendments to and addresses key deficiencies in the Youth Criminal Justice Act.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you, Minister.

For the information of committee members, the minister has to leave essentially at noon or perhaps a couple of minutes before. He has an important meeting to attend, so you've got approximately 45 minutes to ask questions. Once the minister is finished, his supporting staff will be here to continue.

We'll go to Mr. Murphy. You have seven minutes.

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

Thank you.

Thank you, Minister.

I am glad that in some ways you're implementing Justice Nunn's provisions with respect to what arose out of the McEvoy incident in Nova Scotia, particularly in terms of interim release provisions. I don't think that's a controversial matter, and it's good on the housekeeping end. It's a pity we hadn't sat through these things, but there were some bumps along the road, and prorogation.

The other thing on which I think I could join with you is the idea of making the act less complex for judges and prosecutors to amble through. That seems reasonable.

I also think I could go halfway with you on some of the publication concerns, particularly when you said in your remarks that the discretion of judges, after taking into consideration concerns of public safety, would be uppermost in the amendments. I think it's an encouraging sign, after the four years and some months that this government's been in office, that homage to judicial discretion is now coming from a minister of justice. I notice you defend judges now in the House of Commons with respect to some persistent questions on the naming of judges, so I think we could all rejoice that this government has finally come around to realizing what we have realized for a long time: that judicial discretion is incredibly important.

I want to dig down into some broader issues. As I say, some of the amendments are good--they're housekeeping, and they're long overdue--but the core of what the changes are about here, the pith, is philosophical.

I don't want to quibble about a lot of the other aspects. I do have some questions about this kaleidoscope of standards at 14, 15, 16 years of age that are related to the onus on the crown to insist on a more onerous sentence. I wonder why.

My first question might be a very simple one. Why are you leaving it to the provinces to decide that? What happened to the Canadian Minister of Justice ideal that laws should be the same everywhere in Canada? That's maybe a short snapper.

The bigger question is whether you need, Minister, to put denunciation and deterrence, which are in section 718 of the adult Criminal Code, into the Youth Criminal Justice Act.

As you know, Minister, the act already has words to the effect that the youth shall be made to know the consequences of his or her actions. There's a preamble to the bill that is right in line with why you have a YCGA in the first place. I speak of the United Nations conventions and so on.

The philosophical question, I think, is this: if you import denunciation and deterrence, just as in section 718, is there really a need for a Youth Criminal Justice Act? Aren't you just matching it to the Criminal Code in total?

There's a larger question, then, and a short one on provincial standards.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You covered a bit of ground there, Mr. Murphy.

I will say with respect to the age at which the provision you referred to kicks in that we're very respectful of the provincial role in the administration of justice. The facilities are operated by the provinces. These matters are conducted, as for the most part all criminal prosecutions are, with provincial resources. We work with the provinces and we're respectful of their role.

With respect to your comments on why we would require the crown to consider applying for an adult sentence, we're talking about the most serious crimes in the Criminal Code. We're talking about murder, aggravated sexual assault, attempted murder, and we think it's appropriate to give that guidance to those who administer justice and prosecute these cases that we do want these matters before them.

With respect to your comments on deterrence and denunciation, sometimes in my reading of some of the comments about this, it has not been made clear. We're talking about specific deterrence. We want this individual--this specific individual--not to get involved with this kind of the activity. What we are doing is tailoring the penalty for that individual and making sure that the courts have before them all the tools necessary to deal with that individual. Ultimately, we do want that individual to be deterred from doing this type of crime.

It's in his or her best interests, of course, and it's in the best interests of society. I think it works in everybody's interest for the courts to have all that discretion at their hands.

You covered about three different areas, I think, and I hope I've covered all of them for you. In response to your question, that's the gist of where we're going.

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

Minister, one thing we learned in speaking to people like the chiefs of police in Calgary and Edmonton, various law enforcement officials, and various community support individuals is that gang-related violence, since we're talking about the most egregious offences, is often perpetrated in the youth context by what I have called pawns in the gang hierarchy. Youth are being used by someone else, who's really directing them.

We're in a quandary in our organized crime study as to how to get to the directors of the pawns, who do these things just along the lines of YCJA for reasons that an adult probably wouldn't, such as self-esteem, self-grandeur, acceptance, and all those things.

Can you think of a way to get at the directors of the pawns--the kingpins, so to speak--in gang violence, whether or not it's through the YCJA?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Many of these pawns, as you describe them, are adults who are getting involved with trying to direct or get these individuals. I can tell you that you will have legislation before this committee that deals very specifically with the gangs and organized crime.

The drug bill that I introduced in the last week specifically targets the people who are involved with drug trafficking, because what law enforcement agencies tell me is that these are the gangs. These are organized crime. These aren't one-offs, and you're right: they employ other people. Sometimes they employ young people, and law-enforcement agencies have been telling me consistently that we have to update the laws of this country, which are inadequate to deal with the sophistication of crime that is developing in this country.

I can go right down the line. It's like auto theft. They tell me that not having specific provisions with respect to auto theft and having provisions about possession of stolen goods that were written many decades ago are inadequate provisions to deal with the gangs, the individuals, who are involved with this.

The legislation that I've had earlier that passed--there was identity theft, auto theft, a drug bill--is to get everybody who is a part of the process, you see.

Pardon me?

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

Why did it take four and a half years?

That problem was evident at the beginning of my term here. Why did it take four and a half years to bring this stuff in? I'm not sure you'd get a lot of opposition.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Do you want me to get into how long that bill sat? Your colleagues in the Senate wouldn't pass that drug bill for over six months. The auto theft bill sat for over six months.

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

Minister, you didn't bring it in for three years.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We did get the Tackling Violent Crime Act through, but it was very difficult. I remember telling the Senate in February 2008 that if they didn't pass that bill by the end of February, my recommendation to the Prime Minister was that he call an election on that. That finally focused their attention on getting these things done, but I always say to people that just because this is a minority Parliament is no excuse not to stand up for victims and law-abiding Canadians. If you look at the pieces of legislation we have had passed and the legislation we have introduced into this Parliament, it's all consistent with that principle, so--

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

They were victims of prorogation, Minister, victims of prorogation--

[Rob Nicholson, Conservative, Niagara Falls, ON]

--I'm urging you and I'm urging your colleagues to get these things passed. Let's get them done. This country will be better off for it. I'm going to tell you something: when you go back to your constituencies, Canadians will thank you that you stood up for law-abiding Canadians and stood up for victims on this and made the criminal justice system work better. I am absolutely convinced of that.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Monsieur Ménard for seven minutes.

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

Thank you, Mr. Chair.

Mr. Minister, you decided to change the statement of principle that appears in the existing act. You are now saying that the following principle should apply to the present act: "holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person".

In paragraph 38(2)(c) of the existing act, in reference to sentencing, it says that "the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence". You will recognize that this is essentially the same language, except that in one case it talks about sentencing and in the other it talks about measures. Why this change? What do you expect this addition to do?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think we've been consistent throughout that we do want the individuals to take responsibility. That's the first step in the process of rehabilitation: an individual who is prepared to admit a mistake and is prepared to do something about it.

Now you didn't quite mention it, but one of the things we've done is introduce those principles as the protection of society. That's in everyone's best interests as well. Protecting society, protecting individuals, the rehabilitation of the individual, and getting that individual to acknowledge the seriousness of the offence are very important considerations, and we want that to be taken into consideration in every case. This is why we have changed the wording in the Youth Criminal Justice Act to make it more specific. It's so that we're all on the same page, so to speak.

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

We are all in perfect agreement on that, Mr. Minister. The question is just: why are you moving a section that applies to sentencing, that you are leaving in sentencing? You are moving it to general principles. But I look at what you are removing, and what you are removing is what you just said you want to pursue.

In fact, paragraph 3(1)(a) of the Youth Criminal Justice Act says: "the youth criminal justice system is intended to prevent crime by addressing the circumstances underlying a young person’s offending behaviour"—what you are taking out of the act, right, you are removing it—"rehabilitate young persons who commit offences and reintegrate them into society, and ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public".

You are taking that out and replacing it with a principle that is already in the act in relation to sentencing. I acknowledge that, in addition, you are in fact adding something that must be encouraged.

Myself, I see a difference between the objective of rehabilitation and protecting society by reintegrating and rehabilitating young people and the objective of simply promoting rehabilitation. Did you intentionally incorporate that difference, or is that a mistake on your part?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't really see the inconsistency, Monsieur Ménard. It's an overall approach. We all agree that we do want the rehabilitation of this individual, but we want that individual to be responsible for his or her actions. To the extent that we're making the clarification, at one point you said it's not necessary to put that in the sentencing provisions. Well, giving guidance to the courts is our responsibility as legislators, so I believe that indicating that in the sentencing principles will be of assistance to the courts. Ultimately we all want to do that—we want to assist the courts—but at the same time, we want to do everything that's possible to help that individual and have that individual take responsibility for his or her actions.

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

I don't have the impression that you understood me, but because we have so little time, I'm going to move on to another subject.

You went across Canada to get information about this issue. You realized, when you were in Quebec, that Quebec was particularly proud of the way it deals with young offenders, that it believes it has achieved the greatest successes in America, and that it would like to be able to retain that system? You understood that?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I do. With respect to those areas of provincial jurisdiction, you heard your colleague, Mr. Murphy, who was asking why I am leaving it up to the provinces with respect to certain age requirements. I did hear that the provinces that are in the business of administering this law--of having the detention centres and everything that goes with this--want a certain flexibility.

As you can see, there is that discretion and judgment placed in there, and I think that's appropriate. Ultimately, even though we write the laws at the federal level and we have a huge responsibility with respect to the criminal justice system, for the most part it's administered by our colleagues at the provincial level. I'm very respectful of that.

As you say, I did go right across this country and I did have the opportunity to hear slightly different approaches, but there were some common elements. As I pointed out in my opening comments, sometimes some simplification was wanted with respect to the complexity of the law. There was a concern about a relatively small group of violent repeat offenders, and this came across loud and clear across the country.

As one of your colleagues pointed out about the Nunn report, that's one set of recommendations, but we try to get recommendations from Canadians right across the country. This bill is a good reflection of those consultations.

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

If Quebec tells you that by changing the principles in the act, as you have done, you are going from a primary objective, that the sentence be proportionate to the crime committed, to a secondary one, to rehabilitate offenders to the extent possible and thus protect society in the long term.

Would you be prepared to reconsider the amendments you want to make to this act to put rehabilitation back to the forefront?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't see any inconsistency with that. It's an overall package, Monsieur Ménard.

Rehabilitation course is a part of that, as is protecting society. If you look at the incident that sparked the Nunn report, the individual himself said that if he had been detained, the tragedy that took place might not have taken place.

We do want rehabilitation and we want protection of society, and I see no inconsistency with that. We're all part of a process by which this individual hopefully will become a productive member of society.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Ménard, you're out of time.

Before we go to Mr. Comartin, Ms. Leslie also wants to ask questions. I believe they're going to split their time. I believe Ms. Leslie will be participating in future meetings on Bill C-4. Does anyone have any objection?

Seeing none, I'll ask you to go ahead, Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair, and thank you to the committee for that consideration.

Mr. Minister and officials, thank you.

Mr. Minister, with regard to clause 21 of this bill, the amendment to subsection 76(2) of the law, are you knowledgeable as to how many youth are currently under 18 but are in custody in adult prisons?

[Rob Nicholson, Conservative, Niagara Falls, ON]

How many more would be...?