Thank you, Chair, and members of the committee. It's an honour to be asked to come back. And I understand that you have limited time, so my opening remarks will be brief.
I want to recognize Graeme Hamilton, who is sitting behind me. He's a young lawyer from Toronto who was very helpful to us in preparing our submissions today.
I want to share with you a couple of anecdotes that describe the spectrum we're talking about here, but first I would like to congratulate Parliament for what has been accomplished so far. It strikes me that we have a successful piece of legislation that works, and all the studies and work that went into this legislation and all the background information shows that it's working. It is indeed a product of a lot of work, a lot of thought. So in some respects, before you move to really looking at whether the substance of the bill should be changed, you ought to reflect upon the success that has been generated by this piece of legislation, and a shift to denunciation and incarceration is really short-term pain for long-term pain, if I could borrow a phrase.
Let me just read you two things. Our representative in the Yukon sent me this:
In Whitehorse, the Yukon territorial government's department of health and social services created a youth justice panel, unique in Canada, which decides whether a youth is eligible for post-charge extrajudicial sanctions and what the terms will be. The panel includes a probation officer, a representative from the department of education, a member of the RCMP, a youth advocate from the Boys and Girls Club, a first nation representative, someone from Victim Services, the youth's defence lawyer, and a designated crown. It's an example of community resources being used to assist youth who have broken the law to have meaningful consequences in the community at large, rather than only in the courtroom.
While many of the matters diverted are property charges, we have also successfully diverted violent and sexual offences. In addition, there is a person on contract to the government to facilitate victim-offender reconciliation conferences, which bring together the victims of crimes committed by the youthful offender, supported by adults in his life, to repair the harm he caused. These conferences have been successfully used for offences such as break and enters, assaults, and violence in group home situations. It is this type of intervention that will actually reduce crime in the long run. The spirit of the existing legislation gave rise to this very successful program in the Yukon.
In Saskatchewan, our representative talks about this:
It may be useful for a moment to reflect that the characteristics of being far behind in education, of having a disability, of being poor, and of having a psychological or psychiatric disorder are not common among the children of Canada but are definitely common among the children who are held in custody.
There, in my respectful submission, are the two extremes. We have a very successful program in the Yukon where the principles of this legislation are being put into effect, and we have an example from one of our members in Saskatchewan of, in their experience, the type of people who end up in custody. So we know which extreme we want, and I would respectfully submit that you want the same.
So when you look at serious offence, as it's defined, it expands that definition of offences that could catch these types of young people. It doesn't deal specifically with a violent offender we're concerned about. So I would ask you to look at that definition of serious offence and really see whether it's going to punish the people who are targeted and the young persons who don't have the assistance they need.
Young people live in their heads. This is all of our experiences. And when they go to jail, they will withdraw even further unless they are as successful as the gentleman to my right who articulately talked about his experience. Kids withdraw. So if you incarcerate kids, they will withdraw further. They have already withdrawn in the community. And that's not what we want, because what they will do is attach themselves to an identifiable group of criminals in custody. That's not what we want.
I want to say to you that.... I'll leave it for questions, but there are a couple of issues we are very concerned about.
There is a lot of good stuff in this bill. You are reflecting changes that may be necessary; you'll decide it. But in the definition of “serious offence”—and we agree with the submission of the Canadian Bar Association—paragraph 3(c) states,
an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.
This is a direct response of Mr. Justice Nunn's report. And I would respectfully ask you to add this word,
an offence in the commission of which a young person knowingly endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.
“Knowingly”, in the criminal definition, imports a number of degrees. You can know definitely, you can be wilfully blind, or you can be reckless. These are all terms that are embodied in the word “knowingly”.
Some other learned suggestions were made about “or ought to have known”. I don't think that a young person.... How many times did my mother say to me, “You ought to have known better.” The point is that young people just don't. So I would respectfully submit that if you import “knowingly” into paragraph 3(c), you will catch a deficiency that Mr. Justice Nunn was talking about, and you protect, in my respectful submission, the principle of catching someone who takes a risk. He doesn't have to directly know it. He can be reckless, because that's part of the definition.
Extrajudicial sanctions, extrajudicial measures cannot be used as a trap later on. It's not like a bite at the apple or the criminal.... You are given extrajudicial measures because we want the community to deal with this. As a defence counsel, I am going to be very concerned about allowing extrajudicial measures to go ahead if I know at some point in time it is mandated that they're going to be held against my client if he or she trips up down the line. So to encourage extrajudicial measures and then to use them as a club later on.... And most of these young people don't have lawyers when they entertain this. They're going to want to have lawyers. So I really don't think, in my respectful submission, that's really where you want to go with this.
The last thing is, and I echo the Canadian Bar Association, we don't need to import the principles of denunciation in this legislation. The fact that there is a separate piece of legislation for young people, the fact that this bill, in its wisdom, recognizes a degree of moral responsibility is enough. We do not have to put in.... And I would respectfully submit that it is going to create all kinds of problems, because a judge will look at the principle of denunciation and it will move to the forefront naturally. It will move to the forefront naturally, and that's not what we want.
We want to make sure the holes are plugged where they need to be plugged, but keep the spirit of a very successful piece of legislation that can be held up throughout the world as a good example.
Those are my opening remarks. Thanks very much.