This change would run counter to a guideline prepared on this topic by the Committee on the Rights of the Child in its general observation.
The committee had indeed insisted on the fact that an admission made by a child in the context of diversion measures must not be “used against him or her in any subsequent legal proceeding”.
Pursuant to clause 20 of the bill, it would be incumbent upon the Attorney General to convince the court to authorize the publication of information making it possible to identify the adolescents who were given adolescent-specific sentences according to certain defined criteria. Although this change improves to some extent the scope of the protection of the right to privacy, the category of adolescents whose name could be divulged would however be broadened.
Indeed the new provision would apply to adolescents convicted of “a violent offence”, an offence whose scope is broader than the current designated offence. Consequently, this would broaden the category of adolescents who might be deprived of the right to privacy. This protection aims to prevent any stigmatization, which contributes to attaining a priority objective of the distinct legal system put in place to deal with juvenile delinquency, i.e. the adolescent's social reinsertion, as emphasized by the Committee on the Rights of the Child.
Pursuant to clause 21 of the bill, an adolescent of less than 18 years of age could no longer serve his sentence in an adult facility, even when given an adult sentence.
However, other exceptions in the bill such as the one concerning pre-trial detention would not be modified and would continue to apply. Consequently, Canada would continue to not be able to comply with the obligation of detaining children separately from adults.
Since 1996, the Commission des droits de la personne et des droits de la jeunesse has made several representations both before Parliament and the federal government in order to promote the rights recognized by the Convention on the Rights of the Child and by other standards of the United Nations applicable to the juvenile criminal justice system.
The Commission intervened in the reference presented by the government of Quebec before the court of appeal in order to support the position of the Attorney General of Quebec, in particular on the inconsistency of certain provisions of the Youth Criminal Justice Act with the provisions of the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The court of appeal referenced principles of international law to conclude that the provisions of the act relating to the presumption that adolescents charged with a designated infraction were subject to an adult sentence, and the presumption of publication, were unconstitutional. The Supreme Court confirmed the interpretation of the appeal court in 2008 in the R. v. D.B. case, and it also based its decision on the convention and other relevant international standards.
In conclusion, the commission urges legislators to respect the provisions and principles of the Convention on the Rights of the Child. It urges them to take into account in their review of Bill C-4 the recommendations and guidelines submitted by the Committee on the Rights of the Child. The committee emphasized a point that seems fundamental to us in the consideration of some of the grounds expressed to justify several of the changes proposed by Bill C-4.
I will summarize with an excerpt from general observation no 10 of the Committee on the Rights of the Child which reads as follows:
“[...] Reintegration requires that no action may be taken that can hamper the child's full participation in his or her community, such as stigmatization, social isolation, or negative publicity of the child. For a child in conflict with the law to be dealt with in a way that promotes reintegration requires that all actions should support the child becoming a full, constructive member of his or her society.”
Thank you for your attention.