Justice Committee on May 25th, 2010

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

Subsection 38(2)(c) of the act currently reads as follows:

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

Paragraph 3(1)(a)(i) of the bill proposes the following:

(a) the youth criminal justice system is intended to protect the public by (i) 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 your opinion, is there a difference between the existing provision, namely section 38, and the proposed section 3?

[Catherine Latimer]

There is a difference, in that the provision in proposed section 3 applies to measures and not just to penalties. This is an attempt to make sure that if the justice system is persuaded that an alternative or extrajudicial measure or sanction is appropriate for the young person, it too would be proportionate to the seriousness of the offence and the degree of responsibility of the offender. It applies not just to sentencing, but to all measures under the criminal law authority that could be imposed on young people through the Youth Criminal Justice Act.

The point is to ensure, to some extent, that young people who are needy and are subjected to an extrajudicial sanction are not getting a measure or a coercive penalty imposed on them that is disproportionate to the seriousness of the offence and the degree of their responsibility, because we don't want to end up punishing the needy. We want to make sure that the penalty is proportionate to the culpability of the young person.

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

That is a very good answer. In fact, this highlights the difference between a sentence, and a measure. Is it not natural for measures to be proportionate to the person on whom the judge wishes to impose them? A sentence takes into account the seriousness of the offence and the degree of responsibility of the young person. We'd like to take a principle that applies to a sentence and apply it to a measure. As a rule, a measure is based much more on subjective factors such as the prospects for rehabilitation, rehabilitation methods, family environment, level of education and so forth.

[Catherine Latimer]

There's no question that the sentencing provisions of the Youth Criminal Justice Act require that the measure that's proportionate be the one that's most likely to support the rehabilitation of the young person. I think the concern is to ensure that the response of the criminal justice system respects that very fundamental rule of being guided by the seriousness of the offence and the degree of responsibility.

We have done a lot of work to see how our systems align with other areas of authority that are more directed towards the well-being and safe development of young people. For example, in the Quebec system there is a merging. The provincial director has a cross-appointment between the director of child welfare and youth justice.

There are many cases in which systems can work collaboratively, but it's important to ensure that the criminal law power being directed towards these objectives is not being used to penalize the needy rather than to help the needy. The idea of making it proportionate is to keep it concentrated on the true criminal law authority here, which is offence-based rather than offender-based.

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

In any event, to impose a criteria that is already in the act, the following principle is being withdrawn with regard to sentencing:

(a) the youth criminal justice system is intended to prevent crime by addressing the circumstances underlying a young person's offending behaviour, 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;

In fact, doesn't the amendment dispense with this principle? It may be included in the proposed paragraph 3(1)(a)(ii), but more as an incentive measure, and not as an objective sought by the act.

[Catherine Latimer]

In the Youth Criminal Justice Act, this measure refers to referring young people to basically crime prevention or support mechanisms in the community. This isn't necessarily an accountability measure under the act. For example, if there's a perception that there may be some mental health conditions, the young person is referred to a mental health system in the community. There's no club of a criminal justice sanction being held over the young person's head if they are having trouble complying with a mental health regime, and the purpose is to make sure that we're not punishing the needy rather than the culpable.

Let me give you an example. We are very concerned about too many young people with mental health conditions defaulting into the criminal justice system because services may not be there for that. We actually had a recent forum with police officers and mental health officials to try to encourage them to understand and know the mental health resources in their communities so that they could refer these young people to those mental health resources, rather than charging them and bringing them into the justice system.

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

You have strayed a bit from the question that was put to you.

[The Chair, Conservative, Ed Fast]

Thank you. We're at the end of the question; we're well over the time, two minutes over.

We'll move on to Mr. Comartin, for five minutes.

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

That was a great line of questioning, though, Mr. Chairman.

[The Chair, Conservative, Ed Fast]

You can continue.

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

I'm going to, but maybe with a bit of a different tack.

First, with page 2, the “diminished moral blameworthiness or culpability”, Ms. Latimer, I must admit, when I read this and read the excerpt from the Supreme Court decision—let me suggest it to you this way—using it in this context is not the same context in which it was used in the Supreme Court of Canada decision. In using it in this context in this section of the act, is it not an attempt on the part of the government to really reduce the significance of that decision and open the door, maybe by a crack, but open the door to the youth justice system, move it closer to the adult criminal justice system by allowing interpretation of this section to introduce the concept of deterrence, general deterrence as opposed to specific? I see it doing that, at least as a potential interpretation, once this matter is interpreted by the courts.

Is there a risk there, at the very least?

[Catherine Latimer]

I agree with your observation that it's hard to know how this particular provision will be applied, because it was determined to be a fundamental principle of justice. It is essentially a game-changer, to some extent, for us. We have been working very hard at trying to figure out what normal cognitive moral development is for young people so that we're in a better position to understand what this diminished moral blameworthiness would mean and how it would be applied throughout the Youth Criminal Justice Act.

We think it actually might have a buttressing effect. If the young person has problems with understanding causality, there may be some questions about whether statements that are made in haste without benefit of counsel should really be included, because of diminished capacity on the part of a young person to understand—

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

That's already a given, both in everything we know from a psychological or psychiatric standpoint and what our courts have recognized as long as I've practised law, back into the 1970s. If we already have our courts, all the way to the Supreme Court of Canada, recognizing that youth have much greater difficulty understanding causality, are we not at some significant risk of having a contrary interpretation because of putting it in at this part of the act in particular?

If there is that risk—and I suggest to you it is there—what are we hoping to achieve? We understand; both in psychology and in law, we understand. That's long-standing. There's no issue over this, about the causality issue and the understanding of causality by youth. So what are we trying to accomplish with this section?

[Catherine Latimer]

First of all, I think this section articulates stated law. Since Regina v. D.B., that is the prevailing principle of fundamental justice that applies to the youth system. Whether it's in there or not, it would be the prevailing framework under which youth justice would be conducted.

We are learning more and more about the cognitive capacities and development of young people and some of the cognitive impairments that affect young people's perception of causality. For example, fetal alcohol spectrum disorder is a major problem in terms of how young people understand the consequences of their actions and it does affect things such as administration of justice breaches. If you impose a lot of conditions on young people who don't understand causality, they're going to breach those conditions and you're going to end up exacerbating the criminal justice response because you didn't understand the limits of their cognitive incapacities.

I think there is a lot of reason for understanding this better, so that the justice system is fairer and more effective.

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

I have my doubts.

With regard to the “protecting the public” section, I must admit, when I read this, I said, again, “Why is this in here?” The protection of the public section was further down.

Anything I learned in drafting when I went to law school and all the cases I've read since then tell me it doesn't matter whether it's at the start of the paragraph or at the end of the paragraph, the principle is there. By moving it to the top of the paragraph, what does it accomplish—other than politically? But you don't have to answer the political question. I'm just asking, from a draftsperson's standpoint, what does this accomplish?

[Catherine Latimer]

I think the only clear difference between the previous drafted provision and this one is that it was the longer-term protection that was in the existing provision, and this puts an emphasis on the more immediate protection by dropping the longer-term protection.

[The Chair, Conservative, Ed Fast]

Thank you.

That brings to an end the time we have with these witnesses.

Thank you for appearing.

[The Chair, Conservative, Ed Fast]

I reconvene the meeting. We now have with us for one hour the Honourable Kelly Lamrock, Q.C., Minister of Social Development and Attorney General for the Province of New Brunswick.

Accompanying him is James Burns, senior policy adviser, policy and planning branch, Office of the Attorney General of New Brunswick.

Welcome to both of you. I think you understand you've got ten minutes to present, and then we'll open the floor to questions.

[Kelly Lamrock, Minister of Social Development and Attorney General, Government of New Brunswick]

That sounds great, Mr. Chair. Thank you very much.

First of all, thanks for the opportunity to do this. I'm here today in the hope that I can share with you maybe two unique perspectives in one presentation on Bill C-4, as well as share a little bit about the New Brunswick experience.

I come with two perspectives that might be helpful to the committee. One, I believe I'm the only provincial attorney general who also has responsibility for youth at risk with a social ministry. Some of what we are doing with success in fighting poverty, reducing youth crime, and reducing youth recidivism may be helpful to the committee in understanding how we actually can be tough on crime by preventing crime and making sure that young people at risk don't stay at risk.

Second, let me also say clearly that from the perspective of New Brunswick, the current YCJA is working for us. We are seeing youth crime go down. We are seeing reductions in the number of young people who are repeating offences. I'm hoping that we can share with you a bit about why that's happening in New Brunswick and also talk about some of the ways in which Bill C-4 doesn't just layer on an additional level of ways to deal with young offenders, but instead may prevent us in New Brunswick from doing some of the things that are working. As a province that's had some success, we're hopeful that our success will be respected through this process.

I would start by saying this: it seems absolutely essential that we have a youth justice system that is aimed at the unique needs of young offenders. Justice that is served in a one-size-fits-all approach does not work. We know that with young people, for example, there's more time to reform their behaviour. We know that if they are growing up in poverty or have mental health issues or have issues of abuse or neglect at home, those experiences may be more formative and therefore may affect their behaviour more than they would affect an adult who has had more time and perspective.

Young people are also less aware of, and think less of, long-term consequences. Deterrence doesn't work as well with young people. I think any parent who's ever had the experience of saying to their kid, “But if you don't study for your test, you won't get into university and you won't have a good job”, knows that they say, “Yeah, yeah, yeah, I know that, but that's off in the future. I'm immortal and I'm young.”

The fact is that we in New Brunswick have been tough on crime, but we've done it by taking the approach that being tough on crime doesn't mean what you do after the crime's already been committed; it's what you do to make sure the crime doesn't happen in the first place. For us that means being tough on crime, and we are. For instance, we've adopted statutes that allow for forfeiture if you are an absentee landlord and you're allowing your property to be used for anything from selling drugs to profiteering from child pornography. We now have the power to seize that property and crack down on absentee landlords. We have a tenant protection act that allows the state to evict those who are dragging neighbourhoods down with anti-social behaviour. That's being tough on crime.

We're also tough on the causes of crime with aggressive reform of our social assistance system. We have aggressive interventions, including more mental health resources early on, making sure the courts are trained, and now integrated service delivery that makes sure we have school-based intervention teams that spot kids who are abused or neglected at home to allow them to get services in an integrated way, whether it's mental health, help for their parents at home, or help in the educational system.

If I may, I will quickly raise five concerns with proposed Bill C-4 that may stand in the way of our doing what the evidence shows is working in New Brunswick.

First I would say this: if you look at clause 8 of the bill, this is one of the first times the Parliament of Canada has proposed a bill that criminalizes intervention. I say that because this bill allows judges, when sentencing, to look at past participation in programs for substance abuse or mental health, or even at things as simple as police warnings.

Here's our concern about that: when we have a young person who has committed a non-violent offence and who was not deliberately inflicting harm on another, we want to get that person into our intervention programs as quickly as possible. We don't want them lawyering up. We don't want a long trial process. We want to get them into that intervention. By now saying that those interventions can count against them, you'll take away our ability to do what works.

As long as they accept responsibility and participate in these programs, we can begin to start the process of turning their lives around. By saying that participating--whether in sentencing circles, whether in community service, whether in counselling--now counts against kids later on in sentencing, we're going to have more kids lawyering up, we're going to go to more trials, and we're going to have kids getting help far less quickly. From our perspective, it would be a mistake to criminalize participation in the very programs that the evidence suggests are working in New Brunswick to keep people safer and to make sure that they don't do it again.

The second concern, I would say, is that this bill may actually defeat its own purpose by blurring the distinction between intentionally violent crimes and those that may be simply reckless or risky behaviour. If the definition of participating in risky behaviour were applied to all young people, I'm not so sure it wouldn't take care of most of us in this room at age 16—I'll certainly say that myself.

The fact of the matter is this: there is nothing wrong, when you have a young person who is intentionally, wilfully, and coldly inflicting harm on others, in making sure they're tried as an adult. That's the right thing to do. I'm a dad, I have kids, and I want them protected too. But to mix the criteria where the wilful infliction of harm is now treated the same as simply engaging in behaviour that's reckless or risky, where the line hasn't been crossed into deciding to hurt somebody, not only runs against everything we know, but it may actually undo some of the tough on crime agenda that's actually behind this bill, because instead of being very specific and directive to judges as to when as attorneys general we can have our prosecutors get that young person into the adult system, it now has actually muddied the waters. Now the definition isn't clear for judges. The judges have more discretion to keep dangerous offenders in the youth system, yet the youth system itself has been effectively destroyed.

So I think, frankly, because of some very loose drafting around what constitutes getting somebody into the adult system, as an attorney general I'd be very concerned that it will actually be harder for us to get truly dangerous youth into the adult system if this bill passes.

The third concern is that this probably undoes a large part of the reason to have a youth system. If we take a look, for instance, at clause 7, adding deterrence to the act as a consideration, what we try to do as attorneys general is, very early on, have as many tools as possible that actually meet our needs. We should have an adult system that is tough on crime, that emphasizes responsibility, that cracks down on violent offenders and actually makes sure they stay behind bars where they can't hurt somebody—no question. We also need a youth system that is based on the unique needs of young offenders, and that means, in fact, we put more of an emphasis on rehabilitation, because frankly, we know that the 16-year-old who steals a car is not going to be locked up for life but is going to be back on the streets.

As an attorney general and, frankly, as a dad, my interest is this: when we turn that person loose at 18, 19, or 22 years of age, what kind of citizen is he? What have we done to change that outcome? Being tough on crime doesn't mean waiting until he's 22 and hurts somebody again and locking him up. Being tough on crime means making sure he doesn't do it in the first place.

By adding deterrence and denunciation and making the youth system more like an adult system, we've destroyed the whole point of having a system that works to prevent young people from reoffending, and at the same time makes it harder for us to get adult offenders into the adult system.

The youth system is there for a reason, and the more you try to make it like the adult system, the more you then blur the distinction; if we can't get people into the right tools for rehabilitation, then you've effectively hurt our ability as attorneys general to deliver justice that works and protects people.

I might make two more general comments that aren't tied to the legislation.

I would like to share with you some of the concerns that we have at the provincial level.

The Government of New Brunswick believes that adopting this proposed legislation would only make matters worse for young persons and other residents of the province. Just recently, the federal government did away with the Youth Option Program in New Brunswick. This program offered youths who were at risk in a regular school setting and at home alternative methods of learning so that they did not turn to criminal behaviour.

Requiring provinces that are not rich, such as New Brunswick, to spend money on locking kids up will take away from things we've seen, just like the federal cuts to programs like Youth Options and to intensive programs like Portage, which allow us to intervene with those who have substance abuse problems. If we have to spend money putting people in prison, frankly, in a province like New Brunswick we don't have an extra dollar to spend on things that aren't backed up by evidence. You're going to require us to take away from some of the programs that are working in New Brunswick, programs that intervene on mental health issues and substance abuse.

I would be remiss if I didn't share with you the report of Bernard Richard, our provincial child and youth advocate, around Ashley Smith. Sometimes it's easy to lose this in philosophical arguments, but there are risks with the wrong approach in youth justice.

Ashley was a young teenager who originally was arrested for mischief. She was throwing crab apples at people out of a tree. Because she did not comply very often with the directions given in jail, she wound up in higher and higher levels of custody. What we now know about her case is that by putting her into a system that did not have the staff, training, or resources to recognize mental health issues early, ultimately we didn't rehabilitate that young person and we didn't keep her safe. What happened is that Ashley sadly and tragically committed suicide. That happened because we were too quick to steer her out of a system with the right kinds of supports and into a system that measured only whether or not she complied with the orders given to her, which we now know, with the benefit of hindsight, mental health issues had made almost certain wouldn't happen.

People die if we get it wrong. People die if we get it wrong by being too slow to incarcerate. People also die if we get it wrong by being too quick to incarcerate. From our perspective, perhaps I can offer some alternatives in which the Government of New Brunswick would be interested. Let us have two distinct systems--one focused on rehabilitation, and one in which detention and punishment start to become more important. Give us more discretion, not less, to steer young people into that system and to steer violent offenders into the adult system. And work with us. Help give us the tools. Don't cut the programs that help us intervene in these kids' lives, but help us to have the resources to appropriately detect and intervene, and to train staff on issues as wide-ranging as mental health, abuse at home, and substance abuse that can lead to failure.

I will close with this thought, Mr. Chair. Sometimes when we study these sorts of bills, we tend to look at a bad example of a young person gone wrong and ask what went wrong; if we look at the cases of young people who were rehabilitated and ask what went right, we are probably more likely to do it right in the future. In New Brunswick we are funding some programs that are doing it right, and we don't want to lose the ability to do that.

With that, I thank the committee and stand open to your questions.

[The Chair, Conservative, Ed Fast]

Thank you very much.

As we agreed, we'll start off with a round of seven minutes. Each party will have one round. Then we'll go to five minutes right to the end of our meeting.

Go ahead, Mr. Murphy, for seven minutes.

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

Thank you, Mr. Chair.

Thank you, Mr. Attorney General, for a very good presentation.

I would like to clear up a couple of things. You have a federal counterpart, Rob Nicholson, the Attorney General and Minister of Justice. You would expect him to be an advocate for his bill, Bill C-4, and appear before us suggesting that people were asking for this kind of legislation and that in fact attorneys general were asking for this kind of legislation, so I have three little questions for you.

My understanding is that attorneys general across the country wanted something done with some of the very sensible recommendations in the Nunn Commission of Inquiry report, and that some of those items have been dealt with in this act. However, much of this act is outside the Nunn commission recommendations. It is essentially a program of the government with respect to inculcating adult criminal sanctions into the YCJA, as you mentioned.

My first question is this: do you feel that this law responds adequately to both the Nunn recommendations and to the concerns of attorneys general across the country, and specifically the concerns of New Brunswick?

Second, what level of consultation did you have with the federal Attorney General on this matter?

Third, you mentioned a direct federal cut to a Fredericton program that is very near and dear to you, a very preventive early intervention program. At the same time, we know through Kevin Page's work that the cost of some of the legislation the government is bringing forward in terms of prison costs is extraordinary. Some of these sentences rely on provincial resources, but what we haven't received yet is any indication from any province.

Where does the rubber hit the road for provinces like New Brunswick? What is your estimation of the costs of the Conservative tough-on-crime agenda to the Province of New Brunswick? I left there this morning, and unless you found offshore oil or gas in the meantime, how are you or we going to afford it?

[Kelly Lamrock]

Mr. Murphy, I'll start there. The estimates from our department would be that, likely, if you look at the entire range of reforms to the law that would require increased incarceration, a province the size of New Brunswick is looking at about $10 million to $15 million annually in increased costs.

As I said, we don't really have a dollar to spend where the evidence doesn't direct us. One thing I like about programs such as Youth Options, for instance, is that we track those kids. If they're reoffending, if they're committing more crimes, if they're not getting their GED, then we don't support funding them. If Youth Options should be held to an evidence-based approach, I think so too should governments.

That $15 million would, by and large, come out of some of the extras in the school system and in the range of services we have at social services to families and kids at risk. It would mean fewer TAs to help when a child struggles in literacy. It would mean fewer behaviour interventionists in our schools. It would mean fewer programs that train staff in correctional facilities or schools to spot issues of mental health or substance abuse. I would submit that if we are going to hold programs like Youth Options to an evidence-based approach where they have to show it's working, it seems to me that at some point the Government of Canada should also be held to an evidence-based approach where we actually are shown how this approach reduces crime.

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

You mentioned the Nunn recommendations. Were you crying for this act in New Brunswick?

[Kelly Lamrock]

No. Now, I cannot speak for all attorneys general, and in fairness to Minister Nicholson, there have been round tables. I have not seen any summary released of the overall advice.

I would say this: on some of the common-sense Nunn recommendations—for instance, clearing up pretrial detention—that's good. We would support that. On some of those areas, absolutely it matches what attorneys general were unanimously calling for.

On other areas, though, I would certainly say we have been very explicit as a province that what we are not asking for is increasing the number of resources we must have by having a youth system that no longer is based upon what makes young people different. In terms of this one-size-fits-all approach, I'd rather have an adult system that's effective and make it easier to get violent offenders into it, and keep a youth system that deals with young people who haven't committed a violent offence or intentionally hurt somebody. Let's meet the needs they actually have instead of a big-government one-size-fits-all approach.

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

I have a couple of minutes left.

In your statement, you talked about how it's working in New Brunswick, how you're actually seeing a decrease in youth crime.

We have a federal level of statistics. The argument is that in violent youth crime, the incidents may be down but the magnitude of them are up.

How are you tracking the crime levels of New Brunswick, and what leads you to say what you said, that youth crime is down?