Justice Committee on June 3rd, 2010

[The Chair, Conservative, Ed Fast]

We're going to deal with this at our next meeting.

We'll suspend for two minutes.

[The Chair, Conservative, Ed Fast]

We'll reconvene the meeting.

I want to invite Mr. Elman. And I said Mr. Tustin. My apologies, Ms. Tustin. Welcome to our meeting.

You've got ten minutes to present, and then we'll open the floor to questions from our members.

Please.

[Irwin Elman, Provincial Advocate, Office of the Provincial Advocate for Children and Youth (Ontario)]

Thank you.

I want to say that I feel very privileged to be here, particularly in light of the last discussion, about witnesses and time. I feel very privileged because I know many Canadians have a real interest in the work of this committee and this bill, including young people themselves.

As you know, I am the provincial advocate for children and youth in Ontario, and I am joined today by one of my advocates, Lee Tustin, who I can tell you is one of the foremost experts on the Youth Criminal Justice Act in the country and has done some work on it. She's also modest. I hope our presentation can be helpful to you.

I want to begin my comments by saying something about process. As you know, when the YCJA was created there was quite a process of consultation and participation at all levels, including the House of Commons committee. What was created was a youth justice renewal strategy. That became the YCJA in 2003, with several years of studying, consulting, and talking to people before making any changes to our youth justice system. I would guess that even in that process few young people were consulted about what they thought might be helpful in terms of changes. Yet there was a consultation process.

In 2008 Bill C-25, which had changes similar to Bill C-4, was introduced without any prior consultation. I'm told by other provincial advocates, as I wasn't in my position at the time, that round-table discussions were held throughout the country on Bill C-25 after it was introduced. I've heard again today and I think I've seen on websites that the report from those consultations has not been made public. Certainly I haven't seen it, or any of my staff. I think that certainly is curious when you're contemplating Bill C-4, which again I feel has not had any true consultation. This is true particularly because the consultations haven't been open and public, and my understanding is there has not been consultation with young people who might be affected by the bill you're speaking to.

I think it's really important that young people and the people who work with your legislation be consulted. I spent the last 25 years working with young people in child welfare and youth justice systems, and I can tell you that the most important things I learned did not come from a lecture or professor I was listening to or from a book I read. It came from the lived experience and wisdom of young people. I urge you, before you make any decisions, to find out what that lived experience and wisdom can say to you. People are saying this act is to some extent about public safety. I want to remind you that young people are every bit as much members of the public as I am or you are, the same way your children are members of the public, and they have a right to be consulted too.

I also understand there's been some discussion of the Nunn commission report about how protection of society should be a primary goal of the act and that a tool should be given to courts to ensure that the protection of society is taken into account. But the Nunn commission also said the Youth Criminal Justice Act is sound legislation, and the report expressed concern about deviating from the sound underlying principles that are enshrined in the act. This is exactly why I think we need a true consultation process before we change what basically seems to be, as people are saying, a sound piece of legislation.

Even some of the questions I've heard you asking today, and I know you have limited time.... It strikes me that to consider changing a piece of legislation fundamentally without knowing some of the information that you need to know—for instance, statistics with regard to racialized members of our community entering into the youth justice system—is a little bit, and perhaps this is too harsh a word, irresponsible without knowing and understanding. So I urge you to take your time and consult widely.

I've thought a great deal about what I wanted to say. I know that I'm one of a group of characters you're going to meet, and probably because of my position and where I've worked, you could probably guess the kinds of things I'm going to say. I want to get beyond that.

Recently in Ontario, we've had quite a debate about a particular youth justice facility outside Toronto. Because we've been on one end of the debate raising the voices of children and youth, particularly youth who have been involved in that facility, people have said there is--and these are their words, not mine--the “hug-a-thug” group, and somebody referred to it as “bleeding hearts” earlier. And then there's the “law and order camp”. I think the polarization of those two camps is particularly difficult, and I want to find another way of having a discourse about youth justice. I think it comes from the voices of young people themselves. My act, which governs what I'm supposed to do, tells me I'm supposed to elevate the voices of children and youth, in this case in conflict with the law.

I spent, and have spent in the last year or two years, quite a bit of time in youth justice facilities in Ontario speaking to young people, meeting them when the veneer of their lives is stripped away, meeting them in these facilities. When I meet them, I don't know why they're there, but I'm talking to them. They're kids. As somebody said, they're every bit as much children or youths as is the child of anybody sitting around this table. You get to understand that they have hopes and dreams. And you get to understand that they are our future. You ask them what they want to do in the future, and they want to be a plumber, a doctor, a parent. They're somebody's sons or daughters. They are people.

To understand the issue with that in the forefront, with them in the centre of this room, you might make different decisions about the act you're contemplating. I really believe that. It also provides us with common ground, because I believe that people in my so-called “camp”, people who are the characters coming to tell you what's wrong with that, believe as much as you do that we want the best for our children and youth. We want public safety too. Speaking about these young people and understanding them will allow us to act differently, I think. That means also listening to them.

I want to say something else, and I'm thinking about what they might want me to say. In one of the places I was visiting--and it's happened many times--I was with young people in their unit, and suddenly there was a call for a lock-down, what the institution called a “code blue”. So all the young people had to go to their rooms, and they were locked in. This is not atypical from any other province. After they came out, I was able to talk to a young person again, and I said, “What happened?” He said, “Well, we were locked down. We have three CDs we're allowed to listen to on our unit, and one of the CDs was missing, and they needed to lock down all the units in the institution--not just this one--to try to find the CD.” It seemed curious to me. By the way, when they tried to find the CD, there were strip searches. They take everybody's clothes off, one at a time. They go in the rooms and look for the CD.

I'm not criticizing, and I don't work in the justice system, and maybe they're thinking--and I think they were--that the CD could be used as a weapon, and that it was a matter of safety. But I asked the young person how often this happened. “Well, two or three times a week”.

It occurred to me that if at any moment the guards who guard the Parliament Buildings could come in here and tell us to go to our rooms, take our clothes off because they had to look for something that was missing.... If that happened three times, and we didn't know it was going to happen, but we just got used to it happening, we might even think we understood why it was going to happen. When you're in custody in that situation, that's a common situation, and it's just one common element of what it means to be in custody. That's punishment enough in terms of what we need to do to young people if we're going to think we're punishing them. But--and young people will say this--it doesn't do a lot. It's common sense when you think about it.

When you think about your children, it doesn't do a lot in terms of rehabilitation and possibilities for reintegration. So the fewer young people, our children, we can put in that situation.... It's kind of obvious that we shouldn't be doing that.

That's the piece I wanted to say. I also wanted to say a little more about some of the pieces in the act, and I think that with Lee, during questions, we can speak specifically to those.

To me, the declaration principle that people have talked about that shifts the philosophy is really important, because I believe it blatantly ignores parts of the UN Convention on the Rights of the Child, which is also mentioned in the act and which the Canadian Parliament and Ontario's legislature have adopted.

I know there's been some discussion here to the effect of what good is that convention anyway, how enforceable is it, and that maybe that's the reason not to worry about it so much in the act. But what a message that is. It's particularly ironic when we're considering youth justice legislation and are honouring what we as a society say we need to commit to as people, and are teaching our young people how important laws are, that in regard to an act and a convention that Parliament and provincial legislatures have agreed to, we say that because it can't be enforced, it doesn't matter. What an irony it is to take that position.

My time is up. There is so much I wanted to say. There is a group of young people here from children in care. Yesterday they were speaking to Senators Pépin and Munson, talking about their struggles to make it through the child welfare system, how difficult it was. They had made it or were making it, but some of them were in group homes too. Under this legislation, they could be charged and end up in custody and have a completely different path, if they threw a glass at someone in a group home because the abuse they had suffered was triggered by something in that home. I want them to be remembered here too.

I know I'm out of time, but that's my message.

[The Chair, Conservative, Ed Fast]

Thank you.

You're out of time, but you did provide us with a written copy of your submission, and that will be distributed. It will be translated and will form part of the public record.

[Irwin Elman]

Thank you.

[The Chair, Conservative, Ed Fast]

I'd like to give some time for questions.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Is a copy of the English version available at this time?

[The Chair, Conservative, Ed Fast]

No, it is not. That's a process we follow at committee: if it's not in both official languages, we have to wait until it's translated.

Mr. Murphy.

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

Thank you for your testimony.

Just briefly, did you say you were part of the government consultations?

[Irwin Elman]

I was not.

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

You were not.

I wholeheartedly endorse your comment. It's not as if we haven't asked, but it seems to me that we've heard a number of times now that there were people who were not in the discussions, or the consultation process in each province, who should have been, like you.

We've also heard from people who were part of the consultations. One said just recently—and maybe you were in the room—that she didn't hear a person speak against the way the YCJA was working.

So I think it behoves us as members of the committee—and you will recall people asking the minister and members for a report on those consultations—to drive that point more strongly. I thank you for echoing those concerns.

My question is the following. The YCJA is working adequately. What this bill does, however, is it seeks on its face to address some of that act's shortcomings in a positive way, changes most of us agree with. The government, in perhaps over-reaching, to use my term, seeks to put a little philosophy in there that perhaps we on this side disagree with. To use the phrase “throw the baby out with the bath water”, what I fear is that we will throw the whole thing out and not achieve some meaningful amendments, or the whole thing will come in and do some irreparable harm in some regard.

I'll zero in on one very specific part of this, because we've had a longer debate on some of the deeper issues. I'd be very interested in your comments on the publication ban. Your group obviously cares very much about youth, but there is this element of protection of the public, and we heard that in some cases there ought to be a lifting of the publication ban.

Do you think that if the wording were a little more specific around “violent” and “serious” offences involving repeat offenders, even though they are youth, and if we still have that stopgap of judicial discretion, that would be effective?

[Lee Tustin, Advocate for Children and Youth, Office of the Provincial Advocate for Children and Youth (Ontario)]

I think I can answer that.

The lifting of the publication ban is really one of the violations of the UN convention, in my view, specifically of the young person's right to privacy. It also undermines a young person's ability for rehabilitation and reintegration.

In answering your question, I would say we need more consultation on it. We need to hear from the people all over the province. We need to hear when it works and when it doesn't work, before we change anything.

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

Knowing that our time is short, I'm going to cede the rest of my time around the table to you, Mr. Chair, to use when you have time.

[The Chair, Conservative, Ed Fast]

Thank you for ceding your time, Mr. Murphy.

Go ahead, Monsieur Ménard.

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

Ms. Tustin, could you send us a copy of the international convention article that you just made reference to?

[Lee Tustin]

Do you mean the article from the UN?

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

Yes.

[Lee Tustin]

Yes.

It's actually article 16 of the UN convention, if you happen to have a copy.

[The Chair, Conservative, Ed Fast]

Actually, could you get that to the clerk? Then she'll distribute it.

Thanks.

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

Do I understand you--

[The Chair, Conservative, Ed Fast]

Mr. Norlock has a point of order.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

On a point of order, Mr. Chair, if we're going to get the article, could I also ask for a list of the countries that are signatories to it so that I can compare which countries are telling us how we should be doing our business? Thank you.

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

I understand that Canada is one of these countries.

You will tell me if you do not agree, but I believe that the basic philosophy of the current legislation is well expressed in section 3 of the Act. You will note that a significant change is proposed to section 3 in the bill. What is important and troubling is not so much what is added than what is removed.

Do you agree with me that this change could result in significant differences in the way sentences will be handed down by judges? You are saying yes and Ms. Tustin, you are almost saying yes, is that right?

[Lee Tustin]

I do agree with you. I think our position is that section 3 ought to remain the same. That change, we feel, is really making a change for a small group of individuals and ignoring the rest of the group of youth justice folks, and it really changes the philosophy. It shifts the philosophy of the principles, and I think it would make a huge difference in every decision that's made throughout the entire process. It actually ignores article 3 of the UN convention as well, so again it's a contradiction of the preamble of the YCJA.

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

In your answer, you were alluding to a small group of violent and dangerous re-offenders. They are a tiny group among the youth that are being treated, is that right?

You are nodding, but I must remind you that you are not on camera.