Good morning, everyone. Thank you for allowing me to be here and the CBA to be here.
I'd like to start off by saying that although the CBA doesn't support passage of the bill in its current form, there are a number of proposed amendments that are positive and ultimately ought to be included in the YCJA. For example, the recognition of diminished moral blameworthiness or culpability of young persons is a very significant step in the right direction. Also, we support the amendment prohibiting youth under the age of 18 from ever being sent to adult institutions.
With that said, on balance, the CBA cannot recommend passage of the bill in its current incarnation. With the emphasis being shifted toward pre-trial and post-conviction incarceration of youth, the bill would be a step backwards for the YCJA. Bill C-4 represents a radical shift from the guiding principles behind the hugely successful YCJA and recognition that most youth come into contact with the law as a result of fairly minor and isolated incidents.
The YCJA recognizes the importance of diverting minors and minor incidents away from the criminal justice system, with an emphasis on extrajudicial measures such as warnings, cautions, referrals, mediation, and also family conferencing. The YCJA stresses the importance of rehabilitation and reintegration of youth offenders throughout the act, including in the preamble and also in the purposes and principles of the act. One of the key objectives is to keep young offenders out of jail except for the worst, most violent, or habitual offenders. For those violent or habitual offenders, the YCJA opened the door to adult sentences and opened it more widely and perhaps rightly so. It was a move in the right direction.
With that said, Bill C-4 is a step back to the dark days of incarceration for youth. It is a movement away from diversion, rehabilitation, and reintegration.
It appears that one impetus for the bill is Mr. Justice Nunn's report, “Spiralling Out of Control: Lessons From a Boy in Trouble”. But Justice Nunn himself has actually spoken out against over-reliance on incarceration of youth, saying recently:
There’s no evidence anywhere in North America that I know of that keeping people in custody longer, punishing them longer, has any fruitful effects for society. Custody should be the last-ditch thing for a child....
Indeed, Justice Nunn has some disdain for certain aspects of Bill C-4 itself. He is quoted recently as saying “They have gone beyond what I did, and beyond the philosophy I accepted. I don’t think it’s wise.”
In the CBA's view, one area where the bill does go beyond what Justice Nunn recommended is the deletion of long-term protection of the public in favour of the more general concept of protection of the public. Without further insight, one can only assume that the deletion of the words “long-term” before “protection of the public” is intentional. This raises serious concerns about young people being locked up for longer periods of time, situations that should only be reserved for the most serious cases.
Except for those most serious or habitual cases—and I pause parenthetically to note that Dr. Croisdale recently talked about the most serious cases being between 5% and 10%, and I believe he testified before this committee on May 13—it's in the interests of both society and the young person to focus on how rehabilitation can best be achieved. The reality is, the vast majority of young people who come into contact with the justice system do so once or twice and likely never come back again. That's what I took from Dr. Croisdale's evidence, and that's what the CBA took from it.
The proposed addition of denunciation and deterrent as sentencing considerations is of very great concern to the CBA. On the one hand, the bill seeks to amend the YCJA to recognize youth's criminal diminished moral blameworthiness in contrast to adults. On the other hand, what the amendments do is import denunciation and deterrents. These are clearly adult-based sentencing principles. Moreover, the literature has conclusively found that incarceration is generally not an effective deterrent against a young person.
Since the YCJA was proclaimed in force in 2003, rates of youth crime have gone down consistently, while the rates of incarceration of young persons after sentence have also gone down. The empirical evidence seems clear. The YCJA is working as intended. Where is the evidence that such drastic and expensive changes are necessary right now for Canadian society? The CBA hasn't seen any such evidence. Before spending massive amounts of money on what appears to be a structural overhaul of some aspects of the system, one would think that significant and widespread public consultation should be the first order of business.
The government backgrounder on Bill C-4 states, and I quote, “...often the system is powerless to hold violent and reckless youths in custody, even when they pose a danger to society.” Again, the CBA has seen no evidence to support this proposition. In fact, the current YCJA appears to be quite effective in keeping truly violent and dangerous youth in custody pending trial.
The amendments to pre-trial detention, with a focus on the newly created serious offence category, would not serve to keep more violent or dangerous youth off the street. What it would do is widen the net of pre-trial incarceration to include many non-violent and in some cases relatively minor offences, like assault—simple assault, that is—uttering threats, possession over $5,000, possession of a stolen credit card.
Like all Canadians, CBA is of the view that pre-trial detention is necessary for truly violent youth who pose a very serious risk to the safety and security of the public. The difficulty we have with Bill C-4 is that the proposed amendments do not align with that desired goal. In the name of protecting the public, a youth charged with a serious offence, like a schoolyard fight, could potentially find himself or herself in pre-trial detention.
Violent offence is now going to be defined as “an offence that results in bodily harm and includes threats or attempts to commit such offences”. Bill C-4 expands the definition of “violent” to include dangerous acts as well. Even if an act is not violent or does not result in bodily harm, conduct that gives rise only to the risk of bodily harm or endangerment would now be considered violent. At the very least, the CBA takes the position that at least an intent or recklessness component ought to be built into the revised definition of violent offence.
It's incompatible, in our view, to say that young people have diminished moral blameworthiness and to only then create a very serious category of offence that includes endangerment of another by creating a substantial likelihood of causing bodily harm. The very notion of diminished moral blameworthiness is premised on the fact that youth do not think about the consequences or nature of the acts in the same way adults do.
While Bill C-4 contains some important and positive amendments, we cannot support its passage in its current form. In its current form it will undermine, not foster, the long-term protection of society. Practically speaking, the bill means more young people going to jail for longer periods of time. The bill is a move away from a restorative and rehabilitative model of justice toward a more punitive model, which we see as both unnecessary and contrary to sound public policy, which itself is based on well-accepted social science. The social price tag will be hefty, no doubt, but the fiscal costs will really be just as steep.
Thank you for your time.
