Evidence of meeting #25 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 adult.
A recording is available from Parliament.
12:40 p.m.
Bloc
12:40 p.m.
Senior Crown Counsel and Criminal Law Policy Advisor, Policy, Planning and Research, Department of Justice, Government of Nova Scotia
I understand.
12:40 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
That is how wars have started: because people did not understand each other. So we will go slowly and try to understand each other.
I have a practical case for you, Mr. Hawkes or Mr. MacDonald. I truly want to understand. I read your brief very carefully. You emphasized clause 4 of the bill. As a result, I am providing you with a practical example. Suppose a youth commits a robbery, an armed robbery. That constitutes a serious offence. He is released with certain conditions. This youth continues to commit thefts. His friends go along with him, he commits petty thefts and takes joy rides, etc. Did you actually tell us that, in such a case, this youth could not be kept in custody?
I would like to discuss section 524, I believe. In fact, I am referring to the section of the Criminal Code that states that the release of a person can be reviewed. I am wondering. Under this section, a youth could continue to commit offences for as long as his trial has not yet been held, because he has been released. Moreover, he could not be incarcerated or have his release revoked while waiting for his trial even if he commits a series of thefts. Is that what I heard you say?
12:40 p.m.
Director of Policy, Appeals, Education and Policy Branch, Department of Justice and Attorney General, Government of Alberta
It's a little bit more complicated than that. This is at page 4 of the paper, the second paragraph from the bottom on page 4. Essentially, the situation is this: if you're released on a very serious charge that you would be eligible for detention on but you're not detained, and then you commit another whole series of offences that fall below the threshold, so you can't be detained for those offences, the crown can bring you back and have the bail reviewed under section 524 to try to have your original release cancelled or revoked. But we cannot detain you on all of the new charges, no matter how many new charges there are, if they fall below the threshold of “serious offence” as it's defined in the bill.
12:40 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
All of that under what is provided here, under the proposed amendment to the bill?
12:40 p.m.
Director of Policy, Appeals, Education and Policy Branch, Department of Justice and Attorney General, Government of Alberta
Yes.
12:40 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
You can count on us. We are going to scrutinize this closely, I promise you. I have always held that rehabilitation, particularly with young offenders, could begin during pre-trial detention. If we cannot manage to get the young offender to stop behaving in this way, we risk facing a real problem at some point in time.
The other subject that interests me is detention. It is referred to in clause 18 of Bill C-4. You had started answering Mr. Woodworth, but personally, I want to understand the Supreme Court decision in R. v. D.B. You say the following about clause 18: “However, clause 18 goes further. It proposes a new test for imposing an adult sentence, and stipulates that the standard of proof in relation to this test is proof beyond a reasonable doubt.”
Are you saying that in order to impose an adult sentence, a standard of proof should not necessarily be beyond a reasonable doubt, but that it could be as it is defined in the current legislation?
12:45 p.m.
Director of Policy, Appeals, Education and Policy Branch, Department of Justice and Attorney General, Government of Alberta
Two different kinds of considerations would apply when you are having a hearing to determine whether there is an adult sentence. When you are dealing with specific factual allegations--was this planned and deliberate; did you bring a weapon with you; had you been previously warned not to do this?--yes, the crown must prove those beyond a reasonable doubt. But right now, in order to get an adult sentence, you have to look at the other sections of the act, section 38 and section 3, to see if in balancing the principles in those sections you can get a sentence that is of sufficient length to hold the youth accountable. It is the balancing of principles that can't be proven beyond a reasonable doubt. Those aren't the kinds of things you prove or disprove. That's why the language in the current act says “if the court is of the opinion that”. That is the critical language--“of the opinion that”--and that is what distinguishes those principled considerations from factual considerations.
In the brief there is a quote from the Supreme Court of Canada in R. v. M. (S.H.), which draws that distinction. I appreciate that it is under the previous Young Offenders Act, but the distinction remains between fact and principle.
12:45 p.m.
Conservative
12:45 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
I want to ask Justice Nunn to follow up on Mr. Woodworth's point. The act itself says, in the declaration of principle, which is to be “liberally construed”—there is no partisanship here, it is right in the act--in subsection 3(1): “The following principles apply in this Act”. There are a lot of layers there in the declaration of principle to be liberally construed. Then the following principles apply. The youth criminal justice system is intended to prevent crime, rehabilitate young persons, and make young people appreciate the meaningful consequences of their actions “in order to promote long-term protection of the public”. You've studied that. You understand how that might be interpreted by judges.
The proposed legislation says that this is all to be replaced. There is no wording about the act being liberally construed or conservatively construed or whatever, but it starts right off by saying “ the youth criminal justice system is intended to protect the public”. It is not intended to prevent crime or rehabilitate. It's quite different. Then it talks about “intended to protect the public” by holding persons accountable, promoting rehabilitation, and supporting prevention of crime.
Mr. Woodworth would suggest that other than the omission of the long term, they are exactly the same. I'm sorry, I find them incredibly different. I'm only a lawyer of 25 years. You're a judge of many years and a lawyer of many more years. I don't want to lay the age thing on you, but you're the sage of Cape Breton here. Could you please tell me, in your opinion, whether those are exactly the same, as Mr. Woodworth would have us believe?
12:45 p.m.
Conservative
12:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
--I don't believe at any time I used the word “exactly”. I just pointed out that they both in fact address the promotion of public protection and that neither one gives it any different degree of priority. I didn't say they were exactly the same. That would be ridiculous.
12:45 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
My position would be that they're remarkably different--
12:45 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
The wording is not exactly the same, but the effect is.
12:45 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
It's not a point of order, it's a point of reference.
12:45 p.m.
Conservative
The Chair Conservative Ed Fast
Both of you, hold on.
Mr. Woodworth, that's not a point of order.
Continue, Mr. Murphy.
12:50 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Mr. Chair, with respect, I want to continue the point of order to say that when a member poses a question with an inaccurate premise to a witness, it is a matter of process.
12:50 p.m.
Conservative
The Chair Conservative Ed Fast
Mr. Woodworth, the Speaker of the House has many times ruled that matters that are in dispute, facts that are in dispute, debates that are in dispute are not points of order. So I am going to rule accordingly.
Mr. Murphy, please.
12:50 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
I wonder how you feel about seeing an objection dealt with rather than dealing with it yourself, Milord.
The point I am making--and I admit, I'm making a submission, just as Mr. Woodworth made his--is that I find them remarkably different. We had another judge in camera who suggested that perhaps judges would interpret those competing provisions differently. The result would be--in my view, in my submission--different, in that a judge would put, as the words say, the “protection of the public” primordially, and that might lead to more incarceration. I think we all agree that when a person's locked up, they're not out on the street. That's axiomatic. It's not necessarily good for the long-term protection of society, etc., and it doesn't further rehabilitation sometimes.
I'd like to have your view on how those are different--if you think they are vastly different.
12:50 p.m.
Retired Justice of the Supreme Court of Nova Scotia, As an Individual
Well, I think they're different. I think what was intended, certainly by my approach, was that by adding the words “protection of the public”, it added some ammunition to the judge and the prosecutor who would be dealing with pre-trial sentence.
I mean, you've got to have the authority to get him there. The protection of the public that I intended was just another phrase to be added in to the existing one. It would give scope to short-term protection of the public. I wasn't recommending any changes in the...
The long-term protection of the public is based on rehabilitation--that's the only meaning you can give to it--whereas the protection of the public that I was talking about was short-term.
12:50 p.m.
Conservative
12:50 p.m.
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
Thank you, Mr. Chair.
Thank you to the witnesses for appearing. I'll be a little on the quick side in my questions.
I imagine that you gentlemen read the blues testimony of previous witnesses. The testimony from actually a pantheon of witnesses was basically that not only was the intent of this regulation wrong, but the wording was wrong. They said--reluctantly--that there were a few saving graces, but overall we were better not to address the issue.
I don't know what your reading of their testimony was, but I think you, or anyone, would find it difficult to argue that it was decidedly different from what you gentlemen have said today--with the exception that you've said that the wording of the bill does not render the intent the way it should.
Am I correct there? Perhaps Mr. MacDonald could speak to that.