Good morning.
My name is Megan Forward. I am the policy research lawyer at the African Canadian Legal Clinic in Toronto.
I would like to take this opportunity to thank the standing committee for inviting the ACLC to appear and to present submissions on behalf of the African Canadian community.
I apologize for not having been able to provide the committee with briefs to review beforehand. If, upon reviewing the brief, you have any further questions, please do not hesitate to contact me.
The African Canadian Legal Clinic is a not-for-profit legal agency established expressly to address anti-Black racism and other forms of systemic and institutional discrimination in Canadian society. In addition to providing legal services, the ACLC also operates a highly regarded African Canadian youth justice program, which provides court worker services, counselling, programming, and reintegration support to ensure successful outcomes from African-Canadian youth within the criminal justice system.
Anti-Black racism is undeniably present in all facets of Canadian society, but it seems that nowhere are its effects more pronounced or more palpable than within the criminal justice system. African-Canadian youth, who are powerless and plagued by negative stereotypes, are particularly vulnerable to discrimination at all stages of the system. They are stopped, questioned, harassed, and charged at rates disparate with youth from the general population. This discriminatory treatment also extends to sentencing. African-Canadian youth are typically handed harsher punishments and more custodial sentences that their non-racialized counterparts.
As it stands, the Youth Criminal Justice Act's primary focus is on the prevention of youth crime through rehabilitation, reintegration, and community involvement. In the revised act, while they are still included in section 3, these principles are overshadowed by the overarching objective of protection of the public. The ACLC is concerned that the incorporation of this principle will legitimize negative stereotypes about African-Canadian youth--specifically, that they are prone to violence and therefore should be avoided and feared.
At the same time, we are concerned that the addition of these principles will give police officers, lawyers, and judges yet another discretionary factor to consider in deciding how to punish young offenders. Whereas discretion is disproportionately used to the detriment of African-Canadian youth, this provision will inevitably lead to justifying more custodial sentences for African-Canadian youth--all in the name of protection of the public.
Although protection of the public is a valid objective under the YCJA, this principle ought not be framed as an overarching objective under proposed paragraph 3(1)(a). The ACLC proposes that it should be placed along the other objectives as subparagraph 3(1)(a)(iv).
The ACLC is also concerned with the proposed inclusion of the principles of deterrence and denunciation as principles a judge may consider in sentencing. These principles require cognitive and emotional capabilities beyond those of most youth. As with the concern with protection of the public, we are concerned that the inclusion of these principles will give criminal justice officials two more discretionary factors on which to base sentencing decisions. The proposed addition of these principles is further evidence of the government's lack of awareness and understanding when it comes to the dynamics of youth crime.
We believe that in order to combat youth crime, the government must address the socio-economic conditions that drive young people to crime. Indeed, there is no evidence to support the view that increasing the severity of sentences imposed on youth will result in greater societal protection.
For these reasons, the twin principles of deterrence and denunciation must be left out of the legislation altogether. The ACLC is vehemently opposed to proposed subsection 115(1.1), which would require police officers to record any extrajudicial measures handed out in the course of dealing with young persons. Due to police officers' tendency to over-police the African-Canadian community, African-Canadian youth are stopped, harassed, and questioned by the police more often than the general population. We are concerned that this increased interaction with the police will result in extrajudicial measures being issued to African-Canadian youth at rates disparate with other groups.
This effect, caused by the increased contact with police, is exacerbated by the additional discretion afforded to police under this provision. Police officers have the discretion to take no further action, warn the young person, administer a caution, or refer the young person to a program or agency. We are concerned that due to the discretion involved in issuing extrajudicial measures, records created under this provision may be subject to a police officer's racist or prejudiced attitudes toward African Canadian youth. The ACLC is also troubled by the rhetoric surrounding proposed subsection 115(1.1), which will provide police officers with the means by which to identify patterns of criminal behaviour.
Whereas African Canadian youth are already afflicted by negative stereotypes about their propensity toward crime, the ACLC is worried that the presence of extrajudicial measures on a young person's record may be further used to validate and promote this stereotype. In addition, we are gravely concerned that the extrajudicial measures record may be used to justify further surveillance and harassment of African Canadian youth. The ACLC recommends that proposed subsection 115(1.1) be removed altogether or modified to limit the discretionary powers afforded to police under this provision.
The ACLC is also concerned with proposed paragraph 39(1)(c), which would allow judges to consider the presence of extrajudicial sanctions on a young person's record as evidence of criminal tendencies to be considered in sentencing. The ACLC would like to alert the committee to the potential constitutional implications surrounding this provision, which enables a judge to imprison a youth based in part on criminal activity of which they were never officially convicted. At the same time, subsection 10(4) mandates that extrajudicial measures are inadmissible in evidence against any young person in civil or criminal proceedings. The ACLC submits that in order for the extrajudicial sanctions to establish a pattern of criminal activity, the youth court judge must accept the presence of said sanctions as evidence of the young offender having committed the crimes. We do not believe that these two provisions can coexist in the same legislation, and submit that this provision will inevitably attract constitutional scrutiny.
We also believe that proposed paragraph 39(1)(c) should be rejected, as the presence of extrajudicial sanctions on one's record may have no bearing on a young person's propensity toward crime. The presence of extrajudicial sanctions on a young person's record may be the result of discrimination at one or more stages in the criminal process. Furthermore, young offenders may accept extrajudicial sanctions because they do not have the financial wherewithal to fight charges in court or because they do not fully understand their options.
Because the presence of extrajudicial sanctions on a young person's record is not necessarily an accurate reflection of their criminal tendencies and may be tainted by discrimination, the ACLC recommends that this provision be removed altogether.
The ACLC is extremely concerned with proposed subsection 64(2), which would create an obligation on the part of the Attorney General to consider adult sentences in all instances where a young person over the age of 14 has committed a serious violent offence. This is because where there is discretion to sentence a young offender as an adult, this discretion has been disproportionately used to justify adult sentences for racialized youth. Increasing the number of youth subject to this discretion would almost certainly exacerbate this effect. To avoid this effect, the ACLC submits that adult sentences should only be contemplated in extreme circumstances involving egregious facts and exceptionally mature accused.
The ACLC also objects to what it considers to be a widening of the net of offences eligible for custody. We are concerned that the expansion of the definition of serious offences to include property offences will be used to justify the pretrial detention of a disproportionate number of low-income youth, including African Canadians. Accordingly, such an expansion ought not to be allowed. The ACLC further objects to the expansion of the definition of “violent offence” to include any offence that endangers the life or safety of another person by creating a substantial likelihood of harm. This definition is far too subjective and ought to be modified or left out, lest it be used to target young members of the African Canadian community.
While African Canadians are very concerned about safety in their communities, many feel that this kind of tough-on-crime approach is not the answer. Youth crime must be addressed through rehabilitation, reintegration, and community involvement. Indeed, the power of these principles has been confirmed through the success of the African Canadian youth justice program.
The amendments under Bill C-4 represent a significant departure from the prevention-centred principle, which the ACLC believes will result in the further stigmatization and criminalization of African Canadian youth.
These are my submissions. Thank you.