Thank you very much, Mr. Chair.
Members of the committee, I am appearing on behalf of Alberta Justice. I am a prosecutor and am currently the director of the policy unit in Alberta Justice. I bring 20 years of experience as a trial and appellate counsel, so my perspective is very much, as is Mr. MacDonald's, from the front lines.
We agree with the stated policy intentions that Minister Nicholson indicated when he appeared before this committee. In particular, Alberta agrees with the added emphasis on public safety, with the addition of the concepts of individual deterrence and denunciation sentencing principles.
We appreciate that the focus of these changes is to allow the act to more precisely and in a calibrated way target that small percentage of youth, approximately 5% to 10%—which Dr. Croisdale spoke about before this committee--who commit the overwhelming majority of offences. Some of those offences are exceptionally serious.
There are two particular aspects to the bill that in our view significantly undermine those policy objectives and will in fact frustrate the ability of the act to respond effectively to violent crime and to that small section of youth who should receive adult sentences.
Typically, when we are speaking of that group of youthful offenders, we're speaking of very serious homicides. Those are almost exclusively the adult sentence transfers. There are some for other offences, but in my experience, well over 95% of the applications for adult sentences deal with homicides, and of those, most are very aggravated. Typically, the youth involved in those circumstances are older. We tend to be dealing at that stage with youth who are 16 to just under 18 years of age, typically.
As a result of these difficulties, particularly with the adult sentencing provisions and the deferred custody sentencing provisions, Alberta cannot support the bill as it is presently drafted. Our concerns are that serious.
We have, to the extent possible, reviewed the written transcripts of the evidence that has been presented before the committee. At least to date, from the transcribed evidence, we haven't seen that these issues have been raised or deliberated, so we feel that it's important as practitioners who are on the front lines and who will be dealing with the litigation that arises out of whatever legislation is passed to bring that perspective to this committee.
I'll move now to address the first difficulty that arises, and that is with respect to deferred custody sentences.
In my submission, the difficulty here is a manifestation of one of the overall problems with the act. We don't have difficulty with the policy objectives of the act, but it is one of the most complex, and with respect, poorly drafted pieces of legislation that I've had the misfortune of trying to use a practitioner. It's an exceedingly difficult act to follow. It's exceptionally complicated. Most of the provisions are intertwined in that you have to refer to several other sections before you can find out what the meaning or the implication of something will be. This problem is an exact example of why that is difficult and creates a problem.
Paragraph 42(5)(a) of the current act provides that an offender may receive a deferred custody sentence for an offence that is not a serious violent offence. Those sentences, deferred custody sentences, cannot exceed six months. In some ways, they're analogous to adult conditional sentences, although the penalties for breach are quicker. There's no judicial hearing required. If you breach a deferred custody sentence, you can be incarcerated for the balance of that sentence more quickly than if you were an adult.
At present, “serious violent offence” is defined broadly. It refers to offences in the commission of which bodily harm is caused or attempted. A hearing is required where a judge must determine if this particular offence will be categorized as a serious violent offence. The crown bears the burden of proving that the offence is a serious violent offence beyond a reasonable doubt. Once those thresholds have been passed, a deferred custody sentence is not available for those offences.
There has been a constitutional challenge to that limitation, and that constitutional challenge was dismissed. So the current state of the law is, and it's constitutionally sound, that you cannot get a deferred custody sentence for an offence of that kind.
The difficulty is that with the changes to the definition of serious violent offence proposed by the bill, that category of serious violent offence is now a closed category of the most serious offences—murder, attempted murder, aggravated assault, aggravated sexual assault. And that's it. So the result is that deferred custody sentences will now be available for many other very serious kinds of conduct.
I'm sorry--earlier I said that the definition of serious violent offence would apply to aggravated assault. It doesn't. It's aggravated sexual assault. So a deferred custody sentence would be available for aggravated assault, for dangerous driving causing death, criminal negligence causing death—many circumstances where it's not now currently available. As I read the proceedings in relation to this bill, it's not the intent of the bill to make it available. It's not the intent to broaden the availability of that very short sentence. We're dealing with a sentence of six months. Yet that is the effect of the way this bill is drafted.
The most difficult issue that arises with respect to the act as drafted arises in clause 18, which deals with adult sentences. In particular, this section attempts to codify a decision of the Supreme Court of Canada that struck down provisions that reversed the onus for receiving an adult sentence on a youth. Unfortunately, clause 18 goes much further than that. It proposes an entirely new test and articulates that the standard of proof for that test will be proof beyond a reasonable doubt. Now that's the highest standard known to law. That was not the standard previously with respect to any of these sections.
The Supreme Court in 2008 in D.B. overturned the presumptive sentencing regime. Cases subsequent to D.B. from the Alberta Court of Appeal, the Ontario Court of Appeal, and the Quebec Court of Appeal all held that the decision of the Supreme Court of Canada does not mean that the standard of proof is beyond a reasonable doubt. So by entrenching that in the legislation, this section goes much further than what is required by the Supreme Court of Canada, and in fact imposes an almost intractable proof problem on the crown. Because we're not talking about proving particular factors about an offence that has particular facts. Was it premeditated? Did you have a weapon? The code and the charter already recognize that if I as a prosecutor want to rely on aggravating facts, facts about the offence or the offender, I have to prove those beyond a reasonable doubt. That's well established and well understood. The difference is we are now talking about having to establish that principles have been satisfied beyond a reasonable doubt, not facts, and that will cause a very great difficulty.
The other problem is that clause 18 removes much of the specific guidance that was given to courts about the factors that they should consider. Right now section 71 of the act gives a very broad range of considerations for the court. They have to consider the age and the circumstances and the maturity. It's not an exclusive list, but it gives some direction and some guidance. That section is removed by clause 18, and the clause simply says that the crown must rebut “the presumption of diminished moral blameworthiness” beyond a reasonable doubt.
That term, “the presumption of diminished moral blameworthiness”, is not defined anywhere in the act. It is a very expansive term. No one is entirely sure what the precise confines of that term are. It will be exceedingly difficult, as a practitioner, to be able to say to a judge, “I rebutted a presumption beyond a reasonable doubt”, when we can't even agree on the precise scope of what the presumption is. The bill as drafted gives no assistance in that regard, and what's worse, removes the assistance that was previously there for trial judges.
Thank you very much.