Thank you. It's a privilege to be invited to appear before you.
I believe you all have copies of a brief that I had submitted. It sets out my views in greater detail.
I am a law professor at Queen's University. I believe I've done more research and writing about the Youth Criminal Justice Act than any other academic in Canada. I was also a witness before the Nunn commission for a couple of days. I've been involved in the education of police, judges, and lawyers about the legislation, and I'm engaged in ongoing research, much of it with criminologists and others, in other disciplines. And I should say that in Kingston, where I live, I also work with victims and young offenders.
In terms of the Youth Criminal Justice Act, I think it's important to remember that this is legislation that deals with adolescents, with teenagers. One of the things we have a better sense of today than we may have had 20 or 30 years ago is brain development. We know that at least until the age of 18, the brain is not fully developed. When people say, “Well, that young person was not acting rationally or responsibly; it seems like he had a hole in his head”, the answer is, “He probably did, and you can actually see where it is.” Unfortunately, it's the part of the brain that deals with judgment and future planning that is often the last part to be developed.
Sometimes young people do commit absolutely horrific offences, but they're not adults. Even if they commit the most serious crimes, they should not be treated in exactly the same way as adults. That doesn't mean they shouldn't be held accountable, or in some cases even receive adult-length sentences.
One of the challenges in this area is that it is true that we can look back--at the age of 20, let's say--and say that a small group of young people became serious and habitual repeat offenders; the difficulty is that when you look at someone who is 14 or 15, you can't accurately predict which of those will end up in that small group. It is much easier to “post-dict” than it is to predict what is going to happen.
I think the Youth Criminal Justice Act has been a success, at least a qualified success. I've set out some diagrams and statistics there, showing that while we have substantially reduced the level of use of custody and courts, we have not experienced an increase in youth crime in this country. We still have a relatively high rate of use of custody compared with New Zealand and some western European countries. Although our rate has gone down, it is still much higher than in some other countries.
Custody clearly has a place, both in terms of accountability and protection of the public, but one also has to be aware of the costs of custody. One of the costs is financial. The cost—there are different estimates—of incarcerating a young person in a youth custody facility ranges from $40,000 to $100,000 a year. It is very expensive. Sometimes it's appropriate.
Furthermore, once a young person is in custody, they will be stigmatized in their community. People talk about gangs, but the number one place where gangs recruit is in custody. One has to be very careful about not overusing or misusing custody.
I think Bill C-4 is certainly a timely review of the act. Certainly some provisions are very appropriate. I have concerns about others.
Speaking about the specifics, with regard to the change in the declaration of principle--in clause 3--I'm concerned that the long-term protection of the public is removed from this version of the bill. While some reworking of the principles may be appropriate, it's very important to keep in mind the long-term protection of the public, which is most likely to be effected by rehabilitation.
As was pointed out almost without exception, young people who are sent into custody, even for adult-length sentences, are going to get out. The question is this: are they going to get out and be a greater risk to the community or a lesser risk to the community? Their rehabilitation has to be a central concern.
I think proposed paragraph 3(1)(b), the proposal to add the presumption of diminished moral blameworthiness, is a very important and worthwhile amendment. I certainly support that.
I'll turn now to the definitions, and I'll talk particularly about the issue of violent offence; I know this was a concern of Justice Nunn in his report. I support this change, although I have some concerns about the specific wording. He was concerned that the Supreme Court of Canada held, in the C.D. case, that a young person who was involved in, among other things, a high-speed police chase through a city, unless there was an accident, was not committing a violent offence and could not be placed in custody. I think those offences that do endanger the public and, for that matter, the young person themselves, should be regarded as violent offences.
Before the Supreme Court decided, there were some other cases. The Alberta Court of Appeal, for example, I think took a broader approach to the concept of violence. I think that this recommendation, which reflects what Justice Nunn was saying, is appropriate, although I would say that there should be some element of knowledge or recklessness or lack of foresight on the part of the young person committing an offence, and I've proposed some specific wording.
The issue of pretrial detention or remand is extremely important. As the graphs that I've included in the materials point out, we are actually now sending more young people into remand custody than we are into custody after findings of guilt. In other words, we are sending more young people who are not guilty or not yet found guilty into custodial facilities than we are young people who've been found guilty. This is a serious concern not only in terms of presumption of innocence but also in terms of the nature of the programming that could be provided.
As I read the amendment to section 29, it will actually somewhat focus on that and may tend to address that problem in a way that Justice Nunn supported, so I support proposed subsection 29(2).
On the issue of extrajudicial sanctions and their use, I was very pleased to hear the words of the chief. I would fully endorse his position and those of other police officers and prosecutors who point out that extrajudicial sanctions are intended not to be findings of guilt and will confuse the process if they are treated the same way. Therefore, I would suggest that those changes should not be made.
Finally, with regard to the issue of the change in the sentencing principles added by proposed paragraph 38(2)(f) on denunciation and deterrence, on some level I can understand why one would want to see both denunciation and deterrence as factors in youth sentencing, but these are words that have a specific meaning and will have an effect on the youth justice system that I think is undesirable.
We would all like to see young people deterred from committing crime, and indeed arresting young people and bringing them to youth court in and of itself will have a deterrent effect, but I'm concerned. In the paper I refer to some other research I did with Professor Cesaroni, and one of the things we know is that if you put the word “deterrence” back into this legislation, it will affect judges. Youth court judges will sentence young people to longer sentences--we know that--but if you think that will deter young people from committing crimes, unfortunately that is not the reality.
There is a wealth of information about the fact that longer sentences do not deter young people. The problem is that the young people who are committing offences are not thinking about the future at all. They're not thinking about getting caught. They're not thinking about the consequences of their act. Knowing that if they get arrested and if they get to court, they might get a sentence that's twice as long six months later is not going to affect their behaviour. It would be wonderful if it did, but there's a huge amount of research proving otherwise.
Rational adults think that sending accountants who defraud companies to jail actually has an effect on the behaviour of accountants. They're rational adults and they're reading what's going on, so their behaviour is affected. The problem is that young people are not affected by longer sentences. There is research that suggests they are affected by, for example, more effective policing, so thinking they're more likely to get caught may affect their behaviour. If sentences go up, it does not affect their behaviour. By the way, that's why the American Supreme Court abolished capital punishment for young people. They realized it was not protecting society.
Similarly, denunciation is a word that has a legal meaning. While I think accountability is very appropriate, if we are saying that young people are going to have limited accountability reflecting their moral development, as in proposed paragraph 3(1)(b), we should not turn around and denounce their conduct. We should hold them accountable; denunciation has a meaning that will simply result in longer sentences.
Finally, on the issue of publicity for young people who do not receive adult sentences, in some states in the U.S.A. it is not uncommon for there to be identifying publicity as soon as a young person is arrested. Actually some young people who are arrested rather like the publicity. They take the papers around and show them to their friends in custody in the detention facility, saying, “Hey, see what a tough guy I am?” The problem with publicity is that it doesn't deter their behaviour and it doesn't make them more accountable, but when they get out, it does make it more difficult to rehabilitate them and to reintegrate them into the community.
If we impose an adult sentence, it seems fair to say that there's going to be publicity, but if we're treating them as young people and sending them into youth custody, putting their names in the newspaper will not increase the protection of the public. It will simply make it more difficult for them to be rehabilitated.