Evidence of meeting #24 for Justice and Human Rights in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was aboriginal.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Joseph Wamback  Founder and Board Chair, Canadian Crime Victim Foundation
Kim Pate  Executive Director, Canadian Association of Elizabeth Fry Societies
Paula Osmok  Executive Director, John Howard Society of Ontario
Else Marie Knudsen  Policy Analyst, John Howard Society of Ontario
Jonathan Rudin  Program Director, Aboriginal Legal Services of Toronto

June 15th, 2010 / 11:55 a.m.

Paula Osmok Executive Director, John Howard Society of Ontario

Thank you, Mr. Chairperson and members of the committee, for the opportunity to speak with you today.

My name is Paula Osmok, and I'm the executive director of the John Howard Society of Ontario. I'm here today on behalf of the John Howard Society of Ontario and the John Howard Society of Canada. Our national executive director is out of the country and not available today.

Also, we have a written submission for you today, and it will be forwarded to you, I understand, once it's translated.

As you know, the John Howard Society is an agency with 65 offices across the country that helps improve the safety of Canadian communities by working with those who are at risk of becoming involved or are involved in the criminal justice system.

Our mission is effective, just, and humane responses to crime and its causes, and our work is grounded in the research on what works to prevent crime and recidivism.

As an agency with literally decades of experience working with youth involved in the criminal justice system, as well as communities affected by crime, we have what we believe is the unique and important vantage point from which to consider the success and the challenges of the Youth Criminal Justice Act and to comment on the potential benefits and harms of the proposed amendments.

It's with this background that we speak to you today on the matter of Bill C-4, an act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other acts. We oppose the majority of amendments that this bill would make to the YCJA.

The introduction of the YCJA led to many positive changes to the youth criminal justice system, such as the significant decrease in the incarceration rates of young people, and, as you heard previously, without a substantial increase in the crime rate as well.

It's important to be reminded that prior to the introduction of the YCJA, Canada had the poor distinction of having the highest rate of incarcerated youth in the western industrialized world, even higher than the United States. These changes were achieved as a result of the firm and sound focus on rehabilitation, reintegration, and prevention in the act.

We believe Bill C-4 seeks to dismantle this foundation and shift the focus of the youth criminal system to a punitive approach. In the words of the Montreal Gazette editorial board, “The thrust of this bill, unfortunately, is to move away from rehabilitation and toward retribution.”

Punitivism and retribution are incompatible with sound, research-based criminal justice approaches that work to reduce crime and its causes.

Instead of preventing youth crime or reoffending, this bill would actually increase rates of youth in custody, leading to harsher and more adult sentences for youth, reduce the use of extrajudicial sanctions, and increase the cost of the youth criminal justice system to Canadian taxpayers overall. Most importantly, the proposed amendments will do nothing to improve community safety.

Youth crime, as all of you should know, is best prevented by tackling the root causes of crime: poverty, lack of quality education in early childhood education, employment services, and recreation, to name a few. While clearly slower, the approach of preventing crime through social development is the best and most cost-effective way to improve the safety of Canadian communities.

At this point, I would like to call on my colleague, policy analyst Else Marie Knudsen, to speak to some of the specific amendments in Bill C-4.

Noon

Else Marie Knudsen Policy Analyst, John Howard Society of Ontario

Thank you.

The amendments proposed in Bill C-4 give us significant cause for concern, due to the negative impact they will have on young people who come into contact with the criminal justice system. These proposed amendments to the YCJA do not advance the goal of improved community safety. They will also be very expensive.

I'll briefly discuss our three main concerns about the bill and ask that you refer to our brief for a more comprehensive analysis.

One of our primary concerns about this bill is its expansion of the grounds for holding a youth in pretrial detention. Pretrial detention should be used as a measure of very last resort with young people and for the shortest possible time. Significant justification for restraint in the use of remand is found in a range of sources, from the research literature, to human rights principles, to arguments for fiscal responsibility. The research shows that time spent incarcerated is actually a criminogenic factor. To be clear, that means that the incarceration of a young person actually increases the likelihood that they will reoffend. The reports on the death of Ashley Smith speak to the profoundly negative impact of custodial settings on young people, particularly those with mental health concerns, as well as the dangerous spiral of pretrial detention, institutional charges, and around again, that can result from unnecessary entrance into the carceral system.

The likelihood of harsher sentences also increases. A Department of Justice study found that the detention experiences of young people, when all other factors such as prior record are controlled for, affect the likelihood of pleading guilty and receiving the most severe sentence. Those who are not released by a court after being detained at their first arrest are disproportionally sentenced to custody, as are those who have multiple stays in pretrial detention. Thus, if the goal of the youth criminal justice system includes reducing recidivism, protecting the public, and even saving money, then pretrial detention should never be used unless it's the very least restrictive measure available.

By relaxing the conditions under which a young person can be detained prior to trial, there's also an increased risk of police and the courts using remand to deliver a sort of wake-up call or short, sharp shock to youth. But pretrial detention decisions must never be made with the goal of modifying a young person's behaviour prior to their conviction for a crime. Young Canadians have the constitutional right, as we all do, to not be punished for a crime for which we've not been found guilty. Despite these concerns, Bill C-4 actually seeks to increase and expand the use of pretrial detention, and we strongly oppose this proposal.

Bill C-4 also seeks to add general deterrence and denunciation of sentencing principles. To this, the John Howard Society also strongly objects. This amendment is not supported by evidence and will not prevent crime or reduce reoffending. It will also inevitably increase the use of custodial sentences and may contradict the legal principle of proportionality. As you're aware, people who commit crimes typically do not consider the length of the sentence they might face when they're making the often split-second decision to commit a crime. Young people in particular are characterized by immaturity, spontaneity, and a sense of infallibility. Deterrence and denunciation are, unsurprisingly, without support in the academic literature as a means of preventing or reducing crime or improving public safety. There is, in fact, literature to suggest that the very issues that are correlated with criminality and young people, things like family conflict, low self-control, and school disruption, are also correlated with high impulsivity, low self-control, mental health concerns, and addictions, all issues that reduce one's capacity to perform the careful cost-benefit calculation that is required if general deterrence is to be effective.

Finally, the John Howard Society strongly opposes the amendments contained in clause 8, namely, the provision that participation in extrajudicial sanctions be considered in sentencing and contribute to the likelihood of a custodial sentence. This amendment is counterproductive and it undermines the rehabilitative focus of the YCJA. The proposed amendment can only effect a decrease in the use of EJSs by youth, which would be extremely regrettable. The focus on EJSs in the YCJA has been a wide success, and this process is effective at meeting goals of reparation and lowering recidivism in a much more inexpensive and effective way than custodial or other traditional interventions.

This amendment also raises concerns with regard to the legal rights of youth. The requirement that youth “take responsibility” when agreeing to undertake an EJS cannot be equated with a finding of guilt under the law, and to conflate the two is dangerous. The Convention on the Rights of the Child mandates that youth be presumed innocent until proven guilty, and participation in an EJS does not equate to legally proven guilt.

This amendment threatens to dilute the YCJA's important focus on not unnecessarily propelling young people into the criminal justice system and on not unnecessarily criminalizing what are often very minor acts.

In summary, we urge the committee to abandon or make significant amendments to the bill, which will undermine aspects of a well-functioning youth criminal justice system.

Thank you for the opportunity to speak today.

12:05 p.m.

Conservative

The Chair Conservative Ed Fast

Thank you.

We'll move to Jonathan Rudin. You have 10 minutes.

12:05 p.m.

Jonathan Rudin Program Director, Aboriginal Legal Services of Toronto

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.

12:15 p.m.

Conservative

The Chair Conservative Ed Fast

Thank you very much.

We'll move on to questions now, and we'll start with Ms. Mendes. You've got seven minutes.

12:15 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

Thank you very much, Mr. Chair.

Good afternoon to all. Thank you very much for your testimony.

I would like to start with Mr. Wamback. When you mentioned the victims, were you talking about children in school, school-aged children mostly, young people of school age?

12:15 p.m.

Founder and Board Chair, Canadian Crime Victim Foundation

Joseph Wamback

In my presentation I'm talking about children who are under the age of 18, the victims of victimizers who are under the age of 18, yes.

12:15 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

Okay, so mostly in schoolyards?

12:15 p.m.

Founder and Board Chair, Canadian Crime Victim Foundation

Joseph Wamback

No, no, the school is part of it; school is only part of their lives. When they leave school, when the clock strikes three or four o'clock, their lives are still not free of intimidation. They have difficulties after that, anywhere in the community.

12:15 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

You would describe that intimidation as a violent crime?

12:15 p.m.

Founder and Board Chair, Canadian Crime Victim Foundation

12:15 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

So that's a violent crime, in your opinion?

12:15 p.m.

Founder and Board Chair, Canadian Crime Victim Foundation

Joseph Wamback

Intimidation?

12:15 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

Yes.

12:15 p.m.

Founder and Board Chair, Canadian Crime Victim Foundation

Joseph Wamback

No--physical assault, being beaten into a coma. We have visited hospitals across this country where children do not make the front pages of our newspapers, but they are still lying in vegetative states after five and six years of violent physical assaults as a result of violent confrontations with their peer group.

12:15 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

How do you think our current Youth Criminal Justice Act could be made better to prevent that?

12:15 p.m.

Founder and Board Chair, Canadian Crime Victim Foundation

Joseph Wamback

One of the things that I think is an extreme shortcoming of the existing Youth Criminal Justice Act is the fact that there is no provision for mandatory counselling. If we really want to see violent people, who are placed within the system after they have been convicted of committing a violent act, reintegrated into our communities, if we really want to help them--and I've heard the word “rhetoric” used--if we don't want to use rhetoric, then let's make sure that whatever warrant expiry date is set, they receive that counselling. Currently it does not exist. Currently it is not mandatory.

12:15 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

But it is not in the new bill either.

12:15 p.m.

Founder and Board Chair, Canadian Crime Victim Foundation

Joseph Wamback

It's not in the new bill either. I'm also suggesting other things that should be included in this new legislation. In my meeting in Toronto, many things were recommended.

12:15 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

It's part of the rehabilitation that we would like to see being a part of this bill.

12:15 p.m.

Founder and Board Chair, Canadian Crime Victim Foundation

Joseph Wamback

That's correct, but rehabilitation will not happen on the streets of the city.

12:15 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

Oh, absolutely, but counselling is part of the rehabilitative process. That is not part of this bill at all; you agree with me.

12:15 p.m.

Founder and Board Chair, Canadian Crime Victim Foundation

Joseph Wamback

I agree with you, yes, but I also want to suggest to you or state to you that the concept of deterrence and denunciation should not be overlooked and should not be underestimated. The school children we've talked to...there are several instances in my own community where a young boy has been beaten almost to death, and the individual who committed that particular act was arrested, brought before a JP, and was brought back into the same school wearing a bigger badge of courage than he had the day before he beat that young man.

The fact that there is no consequence, or no perceived consequence, for individuals who are young offenders is, I believe, a huge factor in perpetuating this type of violence in our community.

12:20 p.m.

Liberal

Alexandra Mendes Liberal Brossard—La Prairie, QC

That's precisely one of our objections to lifting bans on identification, because it does create the impression that they have gained some sort of badge of honour. That's precisely why we object to it, and you're just proving--

12:20 p.m.

Founder and Board Chair, Canadian Crime Victim Foundation

Joseph Wamback

I'm sorry, I missed that point completely.