Mr. Chairman, ladies and gentlemen members of Parliament, good morning.
I am Sylvie Godin, Vice-President of the Commission des droits de la personne et des droits de la jeunesse of Quebec, and I am accompanied by Ms. Claire Bernard, legal adviser at the Research Branch.
Under the Charter of Rights and Freedoms of Quebec and the Youth Protection Act, the Commission des droits de la personne et des droits de la jeunesse of Quebec is entrusted with ensuring the protection of the interests of the child, and of ensuring through all appropriate means the promotion and respect of the rights that are granted to children under the Youth Protection Act and the Youth Criminal Justice Act.
It is thus the commission's mission to ensure that the amendments to the legislation governing the criminal justice system as it applies to adolescents are in compliance with the rights that are recognized to them. The commission discharges its mission by ensuring that the international commitments that Canada has made in the area of child rights are respected, pursuant to the Convention on the Rights of the Child and other applicable treaties.
The commission's analysis of Bill C-4 is informed by the convention, as well as the recommendations which the Committee on the Rights of the Child addressed to Canada in 2003, pursuant to the examination of Canada's second report on the implementation of the convention and the general observation the committee made public in 2007 concerning the administration of the justice system applicable to minors.
The Committee on the Rights of the Child recommended that Canada fully integrate into its legislation, policies and practices the provisions and principles of the convention, in particular the articles concerning the child's superior interest, the measures relating to deprivation of liberty, the rights of a child who is suspected, charged or convicted of a criminal offence, and rehabilitation and reinsertion, as well as the other international standards applicable in this area.
More specifically, the committee urged Canada to ensure that no person of less than 18 years of age be judged like an adult, whatever the circumstances or seriousness of the offence committed; to guarantee that the opinions of children be duly taken into consideration and respected in all legal proceedings concerning them; to see to it that the right to privacy of all children in conflict with the law be fully respected; to take the necessary measures, for instance alternate measures to the deprivation of liberty or parole, in order to considerably reduce the number of children being detained, and see to it that detention is only imposed as a last resort and for as brief a period as possible, and that in any case, children always be detained separately from adults.
Moreover, in its general observation in 2007, the Committee on the Rights of the Child addressed guidelines and recommendations to all of the states parties to the convention, so that their system of administration of justice applicable to minors be in compliance with the convention.
Our comments will thus discuss the amendments proposed in clauses 3, 4, 7, 25, 8, 20 and 21 of Bill C-4.
The bill proposes an amendment to section 3 of the act so as to make the protection of the public the priority objective of the act. The Committee on the Rights of the Child recognized that “the preservation of public safety is a legitimate aim of the justice system”. However, it “is of the opinion that this aim is best served by a full respect for and implementation of the leading and overarching principles of juvenile justice as enshrined in CRC”. Moreover, Canada itself recently pointed out in the context of its contribution to a report produced by the Human Rights Council on the Administration of Justice, that the Canadian criminal law applicable to minors guarantees that detention is a measure of last resort and that rehabilitation and reintegration must be taken into account in any decision. The principles of rehabilitation and reintegration must constitute the priority objectives of the law and not only be means, as the bill proposes.
Clause 4 of the bill proposes broadening the possibilities of resorting to pre-trial detention. The commission reminds us that according to the rights guaranteed to children in international law, detention must be a measure of last resort and it must be as brief as possible.
In this regard, the Committee on the Rights of the Child firmly pointed out that “the juvenile justice system should provide for ample opportunities to deal with children in conflict with the law by using social and/or educational measures, and to strictly limit the use of deprivation of liberty, and in particular pre-trial detention, as a measure of last resort.”
Clause 7 of the bill suggests the addition of two new principles to the principles of sentence determination, information and deterrence. Although this is no longer a matter of introducing a general deterrence principle applicable to all juveniles, as was the case in Bill C-25, the fact remains that the specific objectives of information and deterrence contradict the objectives of rehabilitation and reitegration which must remain at the heart of the criminal juvenile justice system. According to the Committee on the Rights of the Child, the protection of the best interests of the child means that: “the traditional objectives of criminal justice such as repression and retribution must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety.” Indeed several studies conclude that measures aimed at deterrence are ineffective.
Clause 25 of the bill proposes obliging police forces to keep a file regarding extrajudicial measures taken with regard to any adolescent. From the perspective of respecting the rules of international law, this change is not problematic as such, on condition however that the provisions governing access to that register and the use of the information it would contain not be modified.
A change suggested in another clause of the bill however, clause 8, concerns precisely the use of the information involving one category of extrajudicial measures, i.e. extrajudicial penalties. The court could in future impose on a juvenile a sentence of committal to custody in light of prior extrajudicial penalties, whereas currently it can only take into account prior convictions.