Thank you very much.
Aboriginal Legal Services of Toronto appreciates the opportunity to present our position on Bill C-4 to the justice committee.
ALST earlier appeared before the House and Senate justice committees regarding the development of the YCJA, and we're proud to say that our appearances contributed to having the wording of paragraph 718.2(e) of the Criminal Code explicitly placed in the YCJA.
In addition, we were an intervenor at the Supreme Court of Canada in the case of R. v. B.W.P., which is the case that confirmed that deterrence does not have a role in the sentencing of young offenders. The bill before you, if passed, will overturn that decision.
In our submission we do not wish to go over the amendments line by line. Rather, we'd like to focus on the overall impact of the amendments, and that impact will clearly be that more youth will be jailed either on sentence or on remand. Before embarking on such an approach, however, we would ask that this committee look beyond the rhetoric and consider the realities of the youth justice system today.
In April of this year, Statistics Canada released a Juristat study entitled “Youth custody and community services in Canada, 2008/2009”. This report makes clear what has been a very disturbing trend over the years since the enactment of the YCJA, and that trend has been for youth jails to become the increasing preserve of aboriginal youth. Indeed the overrepresentation of aboriginal youth in custodial facilities today far outstrips the overrepresentation of aboriginal adults in prison, and this bill will only make a very, very bad situation even worse.
In 2008-09, aboriginal youth made up 36% of all youth in sentenced custody, despite the fact that aboriginal youth are only 6% of the youth population. This overrepresentation is not some geographic anomaly. The report indicates that all jurisdictions showed evidence of overrepresentation. If we look simply at the situation of the overrepresentation of aboriginal girls, the figure is even more striking. Forty-four percent of girls in sentenced custody in Canada are aboriginal.
In 1999, the Supreme Court of Canada, in the decision of R. v. Gladue, referred to aboriginal overrepresentation as “a crisis in the Canadian criminal justice system”. The current figures for aboriginal overrepresentation in youth jails are much higher than the figures were for adults in 1999, at the time Gladue was decided. If overrepresentation was a crisis in 1999, what words can describe the situation today?
Among the problems with this bill, in our opinion, is that it will allow judges to rely on deterrence to justify jailing youth. You have already heard today, and I know you've heard earlier, that there are studies that illustrate that deterrence, both general and specific, does not work. While we agree with these studies, we would suggest that levels of aboriginal overrepresentation themselves show that deterrence is not effective.
Ever-increasing levels of aboriginal overrepresentation in the adult and youth justice systems mean that aboriginal people know better than most that if you break the law, you will go to jail, yet those same, ever-increasing levels of aboriginal overrepresentation show that this fact does not stop the phenomenon. If deterrence worked, we would see a decreasing proportion of aboriginal youth and adults in jail, but we don't see that. This bill will contribute to ever-increasing levels of overrepresentation by allowing judges to send young people to jail to send a message that no one will get.
Let’s be clear. Allowing deterrence into the sentencing equation will mean that youth, and disproportionately aboriginal youth, will be sent to jail, not because it will serve any purpose for them, but to satisfy a mistaken and wrong-headed belief that someone else will be dissuaded from criminal activity as a result of those sentences.
It is cruel to punish a person by taking away their liberty in order to send a message to someone else. It is beyond cruel to do so when we know that no one will get that message.
This bill will also make it easier to detain young people before trial, and this too will have a disproportionate impact on aboriginal youth, who, not surprisingly, are also overrepresented among those on remand.
Why is there such a great need to increase the youth remand population? If we look again to the Juristat article, we find that in 2008-09, for the second year in a row, there were more youth in Canada on remand than there were in sentenced custody.
The idea that it is difficult to remand a young person in custody is belied by the facts. Indeed, one quarter of the youth detained on remand were there for offences against property only. Making it even easier to rely on remand will increase those numbers even more. Reliance on remand means that sections of the YCJA that look to alternatives to custody are made irrelevant because young people will already have served their sentence before they're actually sentenced.
In his appearance before this committee, the Minister of Justice referred to consultations he undertook in 2008 on the YCJA. ALST attended the consultations that were held in Toronto on July 16, 2008, with the minister and with the Attorney General of Ontario. At that meeting, there were representatives of many different organizations, including the police. While minutes of those meetings were not released, I can tell you, as a participant, that no one in the Toronto consultations advocated that deterrence be added to the YCJA. No one argued for more reliance on remand. No one felt the YCJA was too lenient.
We would never make the mistake of saying that what people in Toronto think is necessarily representative of what the whole country thinks, but it is significant that the amendments being advanced here are not addressing the concerns that were expressed at that meeting.
As I mentioned, we are already seeing that youth jails in Canada are really aboriginal youth jails. In some provinces this has already occurred. In Manitoba, 87% of boys and 91% of girls in custody are aboriginal. In Saskatchewan, 73% of boys and 93% of girls in custody are aboriginal. This is an incredibly disturbing trend. If these amendments are passed, this trend will just accelerate.
Is this development going to make communities safer? Is it going to address the root causes of aboriginal offending? No. We need to recognize in Canada, in both our adult and youth systems, that we increasingly reserve incarceration, our harshest penalty, for aboriginal people. Almost always when legislators toughen up the criminal justice system, that translates into more aboriginal people going to jail, and these amendments are no exception.
When important decisions are made in the aboriginal community, people are often reminded by the elders to think seven generations ahead. We realize that it's often difficult for politicians who must regularly run for re-election to think 10 or 15 years down the line, much less seven generations. The sad reality, the tragedy, of aboriginal overrepresentation can at least be partially understood by the fact that decision-makers have often not looked at the impact of their decisions on aboriginal communities.
We urge you to resist the pressures of those who believe the problem with youth justice is that we have not been tough enough. Resist those pressures, because bowing to them will result in the perpetuation of practices that do not work, practices that lead to the continued over-incarceration of aboriginal people, practices that do nothing to change the behaviour of those who commit offences, practices that, in their short-sightedness, do not increase community safety but rather make communities more dangerous by placing aboriginal young people into the revolving door of the prison system.
Thank you, merci, meegwetch.
