Justice Committee on June 3rd, 2010

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

I exceeded my time, but the witness did not.

[The Chair, Conservative, Ed Fast]

I'm going to move on to Ms. Leslie for seven minutes.

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

I have a point or order.

[The Chair, Conservative, Ed Fast]

A point of order has been raised by Mr. Murphy.

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

I have a lot of sympathy for Mr. Ménard and for the witnesses as well. Mr. Bergman has not had the opportunity to answer my question either. Perhaps it is my fault as well as Mr. Trudell's perhaps. It proves that not enough time is allotted to witnesses. We shall have to discuss that very soon, Mr. Chairman.

That's my point of order.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Murphy.

Ms. Leslie, for seven minutes.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

I have my own set of questions, but if you would like, Mr. Bergman, you may respond to Monsieur Ménard.

[Scott Bergman]

Thank you very much, Ms. Leslie. I'll be very brief.

Mr. Ménard's question was directed towards serious offences and violent offences.

One of the things I talked about is on serious offences being five years or more and the implications with respect to the new bail regime that's being proposed here. I completely agree that removing the presumption against detention is a very problematic factor, because it plays into the entire structure of rehabilitation and reintegration that's currently in the system.

Then there are also violent offences. One of the things that's concerning about violence offences is in terms of the definition. I won't repeat the portion about building in a knowledge-based or fault-based element to that last tier, which is paragraph (c). If you're convicted of a violent offence and you're a young person, under this regime the crown and the judge automatically have to give some consideration to whether you ought to be sentenced as an adult.

It's interposed and it interplays very subtly but in a very real way. If you're convicted of an offence where you didn't even know there was a risk of harm, but the risk of harm was there and you didn't give any thought to it, you're then convicted of a violent offence and you're potentially sentenced as an adult.

That's what I wanted to add.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

Thank you to all the witnesses for appearing today.

I'd like to start with Monsieur Fournel-Laberge. In the beginning you said that rehabilitation works and could you image if my picture was in the newspaper. Could you talk to us about the publication ban and the fact that they're telling judges to consider whether or not this publication plan should be lifted? What would that look like for young people?

[Simon Fournel-Laberge]

As I was saying, often, young people are searching for their identity. During adolescence, we are trying to find out who we are or whom we associate with. If you put his picture in the paper and identify him as a criminal, a repeat offender, a danger to society, a youth is more likely to identify with that image and say that's who I am. The youth who is searching for his own identity is given the answer right in the paper. In my opinion, that's killing the person's potential and chances for success right from the outset.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

And to the CBA, thank you for your brief. It is excellent. I wish I had written it.

When it comes to publication bans, can you tell us, where would a lifting of a publication ban actually serve the interests of the public when it comes to a young person and protecting the public?

[Scott Bergman]

This also dovetails back to Mr. Murphy's question, so I want to make sure I answer both of them at the same time, because I think they're similar.

Right now there's a nice balance that is struck. If a young person, for example, commits a very violent crime, and is out on the lam, so to speak, and there's a real risk to the public because this person is armed and dangerous, or potentially a risk to the public, then there's a discretion. The crown attorney and the police apply for an order, they lift the publication ban, it's very tightly monitored in terms of how long the publication ban can be lifted for, it hits the newswires, they end up catching the person--and usually when they're young people they're not going very far, because they have a very small circle to go in--and then the ban is removed. If after, for example, 24 hours, which is when the order would be enforced, they haven't found the young person by that point, they go back to court, it's judicially supervised, and there's a request made to extend that order, and that's exactly what's done.

So those are the kinds of circumstances right now where it works, and I think it probably works quite well.

The issue with broadening the publication ban—and this is to Mr. Murphy a little bit too, and I think you know the witness over here had a lot of interesting things to say from a very first-hand perspective—is right now the YCJA is about rehabilitation and reintegration, and what we heard is if you lift the ban what you do is you inhibit the ability of a young person to reintegrate. So what you're doing, in a sense, by lifting a ban is you're undercutting one of the primary driving principles of the YCJA, and I think that's a fundamental concern.

[Megan Leslie, NDP, Halifax, NS]

Thank you.

Very quickly, do you know of any studies that show that denunciation and deterrence works with young people?

[Scott Bergman]

I'm not aware of any. I don't think the CBA section is aware of any.

[Megan Leslie, NDP, Halifax, NS]

Thanks.

At the last meeting we had, the African Canadian Legal Clinic appeared and they talked about the impact on, specifically, young black men in Canada, and how young black men have a greater chance of being picked up, of being charged, not necessarily linked to criminal behaviour, and they talked about racial profiling. I'm wondering if the CBA has any thoughts to share with us about this kind of implication, what profiling would mean with these changes.

[Scott Bergman]

To be quite frank and to be fair, I think that's maybe a little bit outside the scope of our submission, so I don't know if we should really be going there, if we're the best authority to go there.

[Megan Leslie, NDP, Halifax, NS]

That's fair. Thanks, I appreciate your honesty.

You made the statement that these amendments will undermine the long-term protection of the public, and I'm surprised, actually. Well, “surprised” is a strong word. You represent a broad range of people, with lots of ideas and opinions, and I think that's a pretty bold statement for the CBA to make. It's pretty definitive. I love it, but if you want to expand on it, I would appreciate that.

[Scott Bergman]

The fact is, whether you're talking about the YCJA or you're talking about the Criminal Code generally, the long-term protection of the public is a principle that's now built into the YCJA. And I should stop to say, of course, that the CBA section that I'm here representing.... I am a criminal defence lawyer, but there are also crown attorneys who put a lot of time and effort into reviewing this. So it's a joint effort. It's not as though a criminal lawyer's coming before you. I'm coming on behalf of crowns and criminal lawyers. And when, as stakeholders in the justice system, we define “the public”, crown attorneys work in the public interest just as defence lawyers do, and the public interest includes everyone who's part of that justice system. When you're protecting the public, you protect everyone who's a member of the public.

So to undercut some of these principles, you may very well incarcerate people longer, as Mr. Fournel-Laberge said, and what you end up doing, potentially, is you create the image in them that they are who you say they are, and when they're released, because most of these people will be released, they're not better off for it; they're worse off for it. And as a result, we're worse off for it, members who are normal law-abiding citizens of the public.

So that's why a statement like that's made.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Rathgeber, for seven minutes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you to all of the witnesses for your appearance here this morning and for your presentations.

Mr. Fournel-Laberge, I'd like to congratulate you on the efforts you've made to turn your life around and for the stock that you place in rehabilitation and reintegration. But it begs the question, if rehabilitation and reintegration are so successful in the youth criminal justice system, why did it take your third custodial sentence before you began to rehabilitate yourself?

[Simon Fournel-Laberge]

To answer your question, as I said, it was the longest sentence which was the most beneficial. The first sentences, four to five months long, were for minor offences. You do a third of the sentence and you begin right away to be reintegrated into society. I said the longest one was the most beneficial because I had a longer period of time to work with the psychoeducators and my parents and that is why it worked. I could make some trials and errors. In the beginning of my reintegration, I made some mistakes and I was put back in custody. They told me that there were a few things that I had not understood and we were able to start again and try new things.

This is why I say that I am not against longer sentences, but they have to go hand in hand with rehabilitation and reintegration. I don't think that jail time on its own will have any positive result.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Merci. I thank you for that.

Mr. Bergman, how do you feel about that? In your presentation, you believe that if Bill C-4 passes, young persons will be going away for a longer period of time. Well, Mr. Fournel-Laberge just indicated that going away for a longer period of time was what made the difference in his rehabilitation.

[Scott Bergman]

Of course you have to approach everything on a case-by-case basis, so I can't really answer for Mr. Fournel-Laberge's incident, and I can't say what the conditions were of the place where he was versus those of other places, or what kinds of programs were available to him. Based on—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

The question is, why do you believe that longer sentences generally are detrimental to the rehabilitation of young persons, which is what I understood you to say, when you said that young persons would be going away for a longer period of time? You said that in a negative context when describing this bill.

[Scott Bergman]

There are two things about longer sentences. The first thing is pre-trial detention, which is apparently on the rise, based on some of the StatsCan figures that were released. With pre-trial detention, for example, you don't have access to any of the programs you would need as rehabilitative efforts. That's on the one hand—