Great. Thank you very much, Mr. Chair.
Good morning. I am, indeed, Peter Dudding, the executive director of the Child Welfare League of Canada. I'm most appreciative of this opportunity to present our views on the proposed amendments to the Youth Criminal Justice Act.
During my 40 years of working with vulnerable children in Canada, I've worked with children under the Juvenile Delinquents Act and its successors. It is my experience that many of the provisions of the old JDA failed to meet the needs of vulnerable children and our societal objectives of rehabilitation and reintegration, as the measures were arbitrary and punitive.
In particular, I can vividly recall the harsh sentences being given to children under the particularly odious section 8 of the JDA for “incorrigibility”. These children, whose behaviour was deemed dangerous and unacceptable to society, were sentenced to lengthy incarceration. The results were predictably bad in creating angry and dysfunctional adults and too often career criminals who present a life-long threat to society.
By contrast, the Youth Criminal Justice Act was one of the first pieces of Canadian legislation that was written to conform to the United Nations Convention on the Rights of the Child, which was signed and ratified by this Parliament in 1991.
The convention recognizes that all children under the age of 18 have specific and immutable rights that take into account their vulnerability due to age, their relative position in society, and their evolving capacities.
Sébastien's Law unfortunately violates some of these rights, notably article 3 of the CRC, which states that the best interests of children should be the primary concern in making decisions that affect them.
It is my judgment and experience that the amendments proposed by Sébastien's Law will reverse the substantial progress that we have made in Canada since the abolition of the Juvenile Delinquents Act. It is the youth justice system that is failing our children and not the legislation, to be clear.
The stated intentions of the government are to hold violent and repeat young offenders accountable and to ensure that society is protected. The amendments proposed by the government are flawed as follows.
The provisions of the current YCJA have proven satisfactory in addressing the needs and issues raised by violent and repeat offenders.
The proposed amendments have implications that go well beyond the application to a small group of violent and repeat offenders, which will result in more children becoming trapped in the criminal justice system. This is particularly concerning as it impacts on aboriginal and visible minority children who are already overrepresented within the criminal justice system.
Finally, the proposed amendments ignore recommendations that have been made to the government to improve the implementation of the YCJA.
I will now comment more specifically on our concerns related to the proposed amendments contained in Bill C-4.
Make protection of society a primary goal of the act. This change will fundamentally alter the purpose of the YCJA so that “public safety” will supersede any other purpose of the act, and this violates article 3 of the UN Convention on the Rights of the Child. This significantly shifts the focus from rehabilitation and reintegration of the child, and the focus on the child and not on public safety was intentional and purposeful in creating the YCJA in the first place. The proposed amendment, as a primary goal—a primary goal—is not consistent with Justice Nunn's recommendation 20 in his own report.
Simplify pre-detention rules. According to Statistics Canada, the number of youth in remand outnumbers those in sentenced custody--52% of all children in custody were in remand in 2008-09.
Article 37(b) of the Convention of the Rights of the Child states that the arrest, detention, or imprisonment of a child should be used only as a measure of last resort and for the shortest amount of appropriate time. Rather than increasing incarceration for children, the youth court should be given greater supports to ensure that an appropriate safety plan is in place when releasing violent children into the community. Pretrial detention should only be used in circumstances of violent offences and exclude property offences or offences that could endanger the public.
In terms of specific deterrents and denunciation, there is no evidence to demonstrate that the application of these principles to sentencing is effective or appropriate. The application of these principles specifically undermines the principle of proportionality. The sentencing principles reverse the foundation of the YCJA, and, I think, rather importantly--this is the significant part--take us back to that old odious section 8 of the Juvenile Delinquents Act.
On adding, to the definition of violent offence, behaviour that endangers the life and safety of others, the current provisions of the YCJA already address these matters. Also, I would refer you to my comments related to having an appropriate plan in place when young people are released back into the community; that's really a very important thing that this committee should turn its mind to.
In terms of allowing custody to be imposed on youth who have a pattern of findings of guilt or extrajudicial sanctions, again, article 40 of the UNCRC expressly states that any child in conflict with the law should be presumed innocent until proven guilty. Rather than increasing incarceration for children, the youth court should be given greater supports to ensure the safety plan is in place.
With regard to ensuring that adult sentences are considered for youth 14 and older who commit serious violent offences--murder, attempted murder, manslaughter, and aggravated sexual assault--the current provisions of the YCJA should be reviewed in order to create a more appropriate mechanism to review the sentences of any child convicted of a serious violent offence and its application beyond the age of 18 years. The application of mandatory adult sentences should not be required.
In terms of lifting the public ban on the names of young offenders convicted of violent offences when youth sentences are given, the application of publication bans is fundamental to achieving the primary objectives of the act: rehabilitation and reintegration of the child offender. The evidence does not demonstrate any increase in public safety by releasing the name of the child offender. In fact, it violates articles 16 and 40 of the UNCRC, which protect children's rights to privacy. Again, the sentencing provisions should be supported by a plan of safety.
As members of the standing committee are aware, the YCJA was introduced in 2003. At the time, it was planned that a national review would occur five years later in 2008. It is my understanding that the minister did undertake a review, although these consultations were limited and no evaluation report was made public.
Since 2008, the CWLC has been partner with the Coalition on Community Safety, Health and Well-being in three national consultations. This is a coalition made up of approximately 28 organizations from justice, health, education, and child and youth services. It is hosted by the Canadian Association of Chiefs of Police. The summer report and proceedings are attached as exhibits 1, 2, and 3 of this submission. There are over 70 recommendations for changes to the youth justice system in Canada, including specific recommendations related to mental health, substance abuse, and violence.
At the first symposium, there were two key summary findings of note. The rights-based foundation of the YCJA and its attention to the interests of victims were endorsed.
The support systems for children were overloaded before the coming into force of the YCJA in 2003 and are now seriously overstressed and cannot deal with the larger number of children thrust upon them.
In addition to the specific comments already provided in this brief, the CWLC submits our position regarding changes more broadly to the implementation of the Youth Criminal Justice Act as follows: that a comprehensive review of the implementation of the YCJA be conducted by Justice Canada in partnership with provinces, territories, and key stakeholders; that provisions regarding deterrence and denunciation not be included in any new youth justice legislative proposal; that Justice Canada assume leadership in working with provincial and territorial counterparts in justice, mental health, addiction, child and family services, violence prevention, and education to address the requirements of vulnerable young people who are committing offending behaviours; that the federal government develop a national strategy to stop violence against children and youth, as recommended in the UN study on violence against children.
We know that if the federal government enacted these four recommendations, Canada would be in a much better position to prevent, address the needs of vulnerable children, and create a safer, healthier, and more productive society.
Thank you very much.