Thank you, witnesses,
to you especially, Mr. Fournel-Laberge. You testimony is very important for us and is very touching.
I have a few questions for the Canadian Bar and for Mr. Trudell concerning this specific bill.
Here's just a tiny preamble first. The government clearly overshot Nunn. The government clearly imported its own portable philosophy into this bill and overshot.
However, the CBA brief and even Mr. Trudell suggest that there are serious and important changes that need to be made or could be made to the YCJA. We must do our best as parliamentarians, but not to say it should all be adopted or it should all be rejected. I think there's stuff on the table here that we need to save. I want members of the committee, since we're maybe a week or a month or two away from looking at changes to this law to save it.... Indeed, in the brief of the CBA, on pages 5 and 6, they're admitting that there are some very good things to be implemented here, so I won't spend much time on that.
It's not part of my questioning, but in passing, you might want to talk about the publication bans for youth. I believe these can be saved, because the almost universal comment on our part is that it's good that it rests with the discretion of the judge. That's a positive step. In the four and a half years I've been here, it's good that the government realizes that judicial discretion is important. The criticisms in the brief are very accurate, but it seems to me that they could be fixed by tweaking some words, by making sure the judge only “shall” consider lifting of publication bans in cases where there are serious and violent offences and in dealing with repeated or habitual offenders. That seems to be the crux of the criticism of giving the judge that discretion.
I think what you also you object to, and perhaps I do as well, is the word that the judge “shall” consider lifting the publication ban. Maybe that should be changed to “may”. I don't expect you to respond to that, because I think we're already thinking that we can maybe propose some amendments that might save some of these aspects.
But where the rubber hits the road, where, as Mr. Trudell put it, the real philosophical battleground lies, is with the terms “denunciation” and “deterrence”. And here are my questions for Mr. Bergman and Mr. Trudell. Though it's not much talked about around here, the YCJA already has a preamble that mentions, in general terms, that the youth should become aware of the gravity of his or her offences, and that the youth should take into consideration restitution. There's no word of denunciation and deterrence, but there is an aspect that, combined with the Supreme Court's decision, I think imports a certain element of denunciation and deterrence without using those terms. You will also hear from my friends, if I could in some sense prophesy what they're going to tell you, that there is an aspect of specific deterrence that's very important for the youth, and general deterrence is left on the table for the Criminal Code.
I guess what I'm getting at is, how far can we go in changing the preamble--not as far as the government wants, of course, but far enough to take into account one of Justice Nunn's considerations about making the protection of the public a primary goal? How far can we go to beef up the aspect of the personal responsibility of youth, without crossing over, as I've said here many times, to the whole adult notion of criminal justice? As I said to one witness, why don't we just have the Criminal Code, because we're almost getting rid of the Youth Criminal Justice Act by making it a matter of total denunciation and deterrence, like section 718 of the Criminal Code.
How far can we go, Mr. Trudell, if we can perhaps start with you, to nudge it a little further along the road in wording? How can you help us with specific wording?