Justice Committee on June 17th, 2010

[An hon. member]

No.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I always ask the best questions. That's why you're not willing to let me have more than my seven minutes.

Thank you, gentlemen, for being here, in particular the respective provincial representatives.

I echo Mr. Ménard's comments. The brief is exceptional. I give Mr. Murphy, who has just come in, some credit for having caught one of the points you raised, but I don't think we had seen the other two points you raised. We certainly appreciate it.

I want to pick up from Mr. Ménard, though, and ask you the same point about the provisions around protection of the public.

Mr. MacDonald, you indicated you've had drafting experience. The way it's worded is that they haven't just moved protection of the public in as one of the considerations, it is the primary consideration. It screens all of the other considerations. That's the way I read the new section. Is that not accurate?

[Ronald MacDonald]

I would agree. If I were a counsel in court, I would suggest that under paragraph 3(1)(a) the court is to assess (i) through (iii) in terms of overall protection of the public. I would also suggest, though, that protection of the public includes long-term protection of the public but short-term protection of the public as well. Certainly, as a crown, we would hate to see the courts move away from the idea of rehabilitation and reintegration. Those are very important principles with youths.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Wouldn't it have been better drafting, though, to simply put protection of the public on the list--I don't know how many subsections there are--with the others? Going back to Mr. Hawkes' point about how difficult the existing law is--and I agree with you--wouldn't that have been a better drafting methodology?

[Ronald MacDonald]

It certainly would have been another methodology.

Justice Nunn's report specifically says it should be a primary goal of the act.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

He said, and I will quote here--

[Ronald MacDonald]

Sorry, it's one of the primary goals of the act. You're right. That could have been reflected. There are certainly a variety of ways to do it.

Mr. Greening may have a point.

[David Greening]

I just want to add that I think it's important to recognize--and this picks up on the comments by the member earlier--the need to achieve balance.

One of the reasons Manitoba would support the way it's drafted now, and also the inclusion of deterrence and denunciation, is because we had a fairly notorious case called "the eight ball case". A youth had a billiard ball in a sock, hit an Iraqi immigrant in the back of the head, caused serious injuries, and he was killed.

The person who wielded the eight ball received one day in custody for what was in essence a murder. The rationale was because the Youth Criminal Justice Act didn't specify that deterrence and denunciation was an aspect of sentencing that could be considered, and that was confirmed by the Manitoba Court of Appeal.

I think in the interest of achieving a balance, where you have somebody who commits a very serious offence or an out-of-control youth, you need to have the full range, the full spectrum, the full continuum of options available to the court.

In Manitoba's view, I think this doesn't detract from rehabilitation for the vast majority of young offenders, but for the ones who are serious repeat and out-of-control offenders it's necessary to have the full range available. This type of wording achieves the balance.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I think my response to that is that it's also a good example of poor judicial decision-making, but let me go on.

Mr. MacDonald, the concern that you raised around the youth out of control and how... That's what this is all about. I think both from the government side and our side we recognize that 5%, if Mr. Hawkes is right on the percentage, and it's probably pretty close, 5% or 7%... The difficulty I have is I started practising when the Juvenile Delinquents Act was still in effect, and then the Young Offenders Act came in--

[Dominic LeBlanc, Liberal, Beauséjour, NB]

That was the 1800s, wasn't it?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Actually, the Juvenile Delinquents Act did go back to the 1800s, Mr. LeBlanc, but I wasn't practising at that time.

The concern that I got from what you said is that you would be using a similar standard, and the “out of control” that was used under the Juvenile Delinquents Act was primarily used against girls who simply wouldn't go home at night and listen to their parents in the vast majority of cases at that point. I don't know.

I guess what I'm really suggesting is that I don't want to go back to that kind of wording. Do you have some kind of wording as opposed to what's in the proposed legislation now, which is obviously inadequate? Do you have any actual wording? You didn't have it in your brief.

[Ronald MacDonald]

No, we haven't drafted anything along those lines.

I would like to think that the fact that the act still includes principles that talk about rehabilitation and reintegration and that section 39 still includes clauses that say custody is still essentially the last resort will continue to push forward the general principles that are concerned mostly with those aspects of rehabilitation and reintegration.

I appreciate that you're talking about the 5%, so no, we don't have specific legislative drafting. This is one of the things that perhaps if there were consultation on legislative drafting, it would give the mechanics--in other words, the provinces who work with the automobile--the opportunity to have input. That is one of the concerns we have; it's talked about in the paper, the lack of legislative consultation.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I saw that. If I understand what happened, there were ministerial meetings in 2008, but flowing from that, which this bill did subsequently, there was no discussion at that mechanic's level?

[Ronald MacDonald]

That's absolutely correct.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Can I conclude from that as well that you did not see this bill or any part of it before it came forward?

[Ronald MacDonald]

None. There was nothing. We saw it when the public saw it, on March 16.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Those are all the questions, Mr. Chair.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Comartin.

We'll move on to Mr. Rathgeber for seven minutes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you to all of the witnesses for your attendance here today. I enjoyed them all, and I concur with my friends from the other side that the written report provided by the respective attorneys general was very helpful.

I must also say, Mr. Justice Nunn, that I read your report, and I agree with Mr. LeBlanc that, certainly from a philosophical perspective, it sets out what I think the benchmark should be for dealing with young persons who run afoul the law.

I would like to start with you, Mr. Justice Nunn, concerning one of your recommendations, recommendation 20. This is following up on Mr. Ménard's questioning with respect to your recommendation that the protection of the public become one of the primary goals of the act. Given that the current act does mention long-term protection of the public, I guess I have two questions. Why did you believe that protection of the public, being one of the primary goals of the act, needed to be reformed as a basis of one of your recommendations? Specifically, I'm assuming that by protection you meant short-term protection and therefore pre-trial detention.

[Merlin Nunn]

That's what I meant in the short term, yes. The difficulty of the long-term protection of the public was that it was basically interpreted as being through rehabilitation. There was no short-term stuff to deal with people who needed to be dealt with to protect the public.

If my fellow AB had been taken by the time he got to his tenth, twelfth, or thirteenth charge, if they had taken him and put him in jail, Theresa McEvoy might be alive today, because the person would have been dealt with, and the rehabilitation efforts would have been put into place. I think long-term rehabilitation was not considered to be adequate.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Mr. MacDonald, I found your testimony very instructive with respect to the list of offences that would not qualify, or at least where there would be a presumption against custody. You named a number of them: theft under $5,000, fraud under $5,000, and escape from lawful custody, all offences, I think you said, that young offenders are statistically very likely to commit.

So as I read the current legislation and the proposed amendments in Bill C-4, I stumble on the definition of “serious offence”, which is what I think we're debating. If you were advising the federal Attorney General rather than the Attorney General of Nova Scotia, how would you define “serious offence” to include many if not most of the offences that are currently omitted but you think ought to be included?

[Ronald MacDonald]

Just to be clear, regarding the offences I listed, there isn't just a presumption against detention, but they are excluded completely.

There are two ways you could do it. You could open the availability of pre-trial detention to every offence, because the test, as it's set out for pre-trial detention, is quite strict. However, if as a policy you wanted to distinguish the serious offences from the less serious ones, you could do that by perhaps having a presumption against detention, which there currently is, but at least give the crown the ability. If that were the case, I would suggest that the current way the presumption is drafted be revisited somewhat, because that presumption has been interpreted by the courts as very, very strict, and some courts have even said it's not rebuttable—although that varies.

So I would suggest that for the less serious offences, you still allow for pre-trial detention, but perhaps you might have a presumption. And then for the others, you have the regular test. That would be a way to do it.

I think, overall, we would like to see the court have the discretion and the tool to deal with any offence based on its facts in terms of pre-trial detention, and not have a presumption at all.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Mr. Greening, I know Winnipeg has had an epidemic of issues with respect to car theft. I think you mentioned that. And Mr. Justice Nunn, your report was predicated on a serial car-stealing individual.

What about the issue of volume? Is there some room for that within the definition of repeat offences? Can that form part of the test for pre-trial detention, as opposed to how this legislation defines serious and less serious offences? What about a volume or serial-based test?

Do you have any comments on that, Mr. Greening, from your experience in Manitoba?

[David Greening]

I guess the difficulty is with respect to dealing with the youth motor vehicle thieves. We've had some success with our Winnipeg auto theft suppression strategy, and I indicated in my comments that we have had a 75% reduction in auto theft. So we achieved some progress on that. But to answer your question directly, in terms of getting into whether it should be a number of repeat offences that qualify, there are issues that come into play, including issues of proof. The difficulty from Manitoba's perspective and the reason we've advanced a very straightforward argument that there should be no presumptions in terms of both pre-trial detention and custodial sentencing is that where we've got into trouble with the YCJA is in trying to figure out special rules and criteria that prosecutors have to jump through, as it were, in order to get custody in a particular situation. I think it's very difficult to structure it, because there is always going to be the case that doesn't quite fit, and then you have an issue of public confidence in the justice system.

From our perspective in Manitoba, our view since 2006 has been that we shouldn't tinker with the wording of a presumption or some type of requirement. I think we should recognize that we should never say never to a custodial sentence for the out-of-control youth in an extreme case, and that either the definition of a serious offence should be very broad or, as Manitoba has recommended, there shouldn't be a presumption at all.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Mr. Hawkes, I'm assuming you live in Edmonton, as I do.