Thank you very much.
I'd like to thank this honourable committee for the invitation. My name is Michael Spratt. I'm a criminal defence attorney here in Ottawa with the firm Webber Schroeder Goldstein Abergel. I deal with youth on a daily basis, as do most members of our organization. The CLA comprises more than a thousand criminal defence lawyers who deal on a daily basis with issues that this bill seeks to tackle.
Before I start, I'd be remiss if I didn't thank Jennifer Myers and Ildiko Erdei for their assistance in evaluating the bill.
That said, and cognizant of the limited time I have, I'll jump right into it. I'm sure you'll cut me off if I go over.
There are some positives in this bill. I'm going to tell you all the things that I think are negative or need reconsideration, but I'd like to start with talking about some of the positives: reversing the unconstitutional onus that was present before and was struck down by the Supreme Court; and provisions such as mandating that youth serve their sentence in a youth facility. Providing that there is adequate funding for these youth facilities, I think we can all agree that this is something that is advantageous.
However, there are some major difficulties with the bill: the shift in principle from rehabilitation and reintegration to deterrence and denunciation; problems with judicial interim release; the broadening of the definition of serious offence and the implications this will have with the number of youth who are in pre-sentence custody; the broadening of the definition of violence and the impact that will have on the number of youth who find themselves in custody following conviction; the consideration of extrajudicial sanctions and determination as to whether a youth should be sentenced to custody or not; and the associated problems with the publication of the youth's name.
Before I discuss those issues in whatever detail I can, given the time, I think it's important to look at the context in which this legislation is being proposed. The current legislation, from our perspective, is successful. There is a decrease in youth crime, specifically a dramatic decrease in property crime committed by youth. The YCJA corrects the historic problem of over-incarceration of youth and has demonstrated that an emphasis on rehabilitation and integration works.
The use of custody for property offences was a great problem preceding this bill. Of course, the over-incarceration of youth has a number of negative impacts, both on the youth themselves and on the system, and that shouldn't be a goal that we're striving towards.
The context here is that the justice minister has said that the protection of the public is a primary goal--and I couldn't disagree more--but the protection of the public can best be achieved through rehabilitation and reintegration, not through abandoning those principles in favour of a short-term fix that may not ultimately in the long run serve the goals that we all find valuable.
The bottom line is that the system works. Youth who engage in serious and violent behaviour can be detained and are detained under the current legislation. There are always isolated examples to the contrary, but what works shouldn't be abandoned over a few isolated incidents.
I'd like to speak about denunciation and deterrence. Again these principles are a move away from what is working currently, and they're not consistent with what we know about youth. I'm sure this committee has heard a lot of evidence from people much more expert than I am about how youth think, what they respond to, and how they are less affected by general deterrence and denunciatory sentences. In the government's own legislative summary, there are studies from Professor Bala and Professor Grondin and others cited to support that principle. I'd commend to the committee to consider in detail those studies and the evidence that I'm sure you'll hear from people like that.
Deterrence and denunciation aren't effective on youth. Youth are recognized to be more vulnerable, less mature, less able to exercise judgment. Re-incorporating those provisions, which run contrary to what we know is working under the YCJA, is going to result in more jail, either jailing of a youth who is presumed innocent before his trial or a custodial sentence after trial. More jail, I submit, leads to more crime and ultimately less protection of the public.
On the topic of jail, I'd like to speak about pre-sentence custody. The starting position here is that the youth are presumed innocent and should be detained only when necessary. Again, the justice minister has said that violent repeat offenders can't be held under the YCJA. That may be the public perception, but that's not correct. Currently, yes, there is a presumption against release, for very sound and very valid reasons, but with violent offences, youths who have demonstrated non-compliance can be detained. They can be detained if the offence is serious.
On the topic of seriousness, the new legislation as proposed defines very broadly what a “serious offence” is. Under the new legislation, a youth can be detained if a serious offence is committed. We can all agree that certain violent offences are serious; however, the legislation goes beyond that and includes property offences. Property offences, which we have seen under previous forms of youth legislation, have posed significant problems that lead to over-incarceration. These serious offences would include offences such as theft, possession, being unlawfully in a dwelling house, fraud, and possession of break-and-enter tools such as a screwdriver.
Jail is not the best place for the vast majority of youth. Separation from family and community support networks, disruption of a youth's routine and schedule, aren't desirable. Of course, putting a youth in custody in a custodial institution with the youth who probably deserve to be there is not advantageous either. Youth are vulnerable and open to influence. This bill could lead to a youth who has committed property offences being in an institution with much more violent youth who deserve to be there. Of course, no one wants to create a training school for young criminals. It's rehabilitation that works, not warehousing.
From a practical standpoint, increasing the chance that a youth who has committed some of these offences may find himself or herself in pre-sentence custody raises a number of issues. I can tell you that there will be more bail hearings, more delays; there will be more costs associated. I'm sure you'll hear from crown attorneys who will tell you that the courts as they are now are overburdened. I'm sure you'll hear from correctional institution officials who will tell you the problems of funding their institutions as well.
There will be litigation. The over-incarceration of youth, given the circumstances unique to them and their development, may leave this section open to attack under section 7 or other sections of the charter. And of course there are ripple effects throughout the charter. Paragraph 11(b), the right to a speedy trial, may come into play, with youth who are detained ultimately suffering more prejudice than those youth who would have been released under previous legislation. And of course, at the end of the day, these youth who commit property offences, who under this bill could be incarcerated, may not and in my experience likely would not ultimately be sentenced to a period of incarceration.
Moving on to sentencing, there's a removal of the consideration about the seriousness of crime and of the circumstances of offence; that language is taken out. That's what should be considered. Violent youth currently can be sentenced to custody and can be sentenced as an adult.
The broadening of the term “violent offence” is also problematic. It's an over-broad definition that could capture such offences as threats. Of course, by including “recklessness” in that definition, many more youth will be captured, through that provision. When we're looking at youth, it has to be remembered that a youth does not have the foresight that an adult may have or that we can impute to an adult. By including recklessness, we might be over-incarcerating youth who again aren't going to benefit from a custodial sentence.
Also of great concern is the consideration of extrajudicial sanctions when looking at whether a youth can be incarcerated. Of course, those aren't judicial findings. They are, to a great part, discretionary. There's less procedural protection, and ultimately, a youth may be punished more harshly in the future for accepting responsibility of acts in the past.
Again, with these sentencing provisions, there will be more trials, there will be less incentive to resolve, and there will be less incentive to take responsibility, which has an impact not only on the youth and their rehabilitation but on the system as a whole.
I'll hold my remarks on potentially publication issues. I think others have spoken to those, and they flow through largely the same concerns.