Justice Committee on June 17th, 2010

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Mr. Chairman.

Thank you, gentlemen, for what I found to be a thorough and detailed presentation. The record of your evidence and your testimony will certainly be very important for us when we're looking at actual clause-by-clause amendments when we get to that stage. I appreciate the effort all of you have made.

I'd like to begin by asking a question to Justice Nunn and welcoming him to the justice committee of the House of Commons.

Justice Nunn, your report has for many of us served as a very important benchmark for how we can, as you may have said, tweak or adjust the Youth Criminal Justice Act. I share your view, Justice Nunn, that 90% of it is working well. We have talked many times at this table and have certainly heard evidence from your colleagues on the panel this morning about areas in which it can be improved. No piece of legislation--and I think, Mr. Hawkes, you said it well--as complicated and as awkwardly drafted to be generous is easy, and that's why I think it's useful for the government to have brought forward suggestions. I think we can constantly try to improve it. My own view is that after a relatively short period of time, we shouldn't make massive changes. We should allow courts and judges to apply it for a longer period before we throw large portions of it out. But I think we all agree there can be adjustments.

Justice Nunn, one of the areas that worries us--or worries me and I think worries my colleagues in the Liberal Party--is this business of the protection of the public, of society, as being one of the factors inserted fairly high up at the beginning of the legislation. In other words, we're concerned about the order of objectives of the act. You had spoken in your report, and I think correctly, of how that has to be and should properly be one of the objectives of criminal justice legislation. I don't think we disagree with that, but we worry that changing the long-term protection of the public--which in our view spoke to rehabilitation--and making it simply the protection of the public and moving it higher up in the wording of the legislation could lead courts to increased incarceration of young people--in closed custody--in circumstances where otherwise it wouldn't be warranted.

In other words, we all speak of repeat violent youth offenders and the tragic example of which your inquiry spoke, Justice Nunn. I don't think anybody would disagree that clearly the system failed in that circumstance. We want to be careful that in changing the wording we don't inadvertently tie the hands of judges in subsequent cases to incarcerate or to lean to incarceration where other more rehabilitative measures are appropriate and would work.

When you talked about the protection of the public as an objective, how did you imagine that being inserted into the act, and how would you imagine future courts considering that factor? How do we get the balance right so we don't tie the hands of future courts to incarcerate or to have a propensity to incarcerate when in fact other measures would be appropriate?

[Merlin Nunn]

If I could remember where it was in the book, I'd be able to deal with it a little better.

I can tell you it stemmed from appearances before me of police, particularly the deputy chief of the Halifax police force, who impressed me very much at the time, I must admit. He attended almost every day of our sessions even though he was called as a witness on only one day.

I don't think it opens a door that would allow judges or give judges great discretion to do something. It's just one of the factors for the judge to consider in dealing with the particular case that he has. I can't really remember too much about the details of putting it in, but it wasn't put in to open the door to a whole host of increased sentences and so on. It wasn't that. I think it was all in the notion that we have to do something to protect the public from these strange situations.

Now, if you've been listening, you've heard that in Manitoba there have been three or four people killed or severely injured, and each incident involved a stolen vehicle. We are in another world if we think that perpetrator stole only one vehicle.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

That it was his first stolen car.

[Merlin Nunn]

Yes, it was his first one--this is always the way. This is the unfortunate part when you're dealing with them.

My guy had 38 offences, of which 15 or 20 involved stolen cars. He got out of jail for stealing a car and stole another one two days later when he killed a woman. Those are the kinds of situations we're trying to get into the pre-trial custody and make it easier for the judge to do that, so he can, as I say, grab the kid by the scruff of the neck, bring him into court, and say “You're going to go to jail for a little while, while we deal with you”.

I don't know if I said it in there, but their attitude was that YCJA means you can't jail anyone. That's the way it was treated by the courts. It was extremely difficult to put somebody in jail. As was said here, you have one section that you can do it by, but that section refers to another section and refers to another section, and by the time you've gone through all of those, you say you can't do it.

The prosecutor in Halifax who had great experience with youth made an application to put this kid in jail, and he said to the judge, “Look, I don't think you can do it but I'd like you to do it”. That's the kind of thing that happens. It's not the murderer who's going out to murder. He generally does murder one person. But the car thief is stealing cars every time for a joyride, and in the course of one or another of those, he kills somebody. That's the reason we're saying give us the tools to cut that person off short.

[The Chair, Conservative, Ed Fast]

Thank you.

We're out of time on that question, so we'll move on to Mr. Ménard for seven minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I also have very little time. However, I do wish to tell you before beginning how much I appreciated the brief that the ministers of Justice from Alberta and Nova Scotia sent us. I do however note that the Alberta Department of Justice wandered off topic somewhat, which is to say they dealt with other issues. The Nova Scotia brief remained more faithful to the subject. It is obvious that this brief was written by professionals who know the subject well and who have suggestions to make. I read it and thought about it a great deal, and I feel the need to reread it and think about it again.

I was also very impressed by Mr. Justice Nunn's conclusions. I will not say any more, because it is not the role of lawyers to judge judges. That could be dangerous, don't you think? I very much admire your reasoning. And in fact, I would like to ask you my first question.

In your recommendation 20, you suggest adding a provision to clause 3 that would establish the principles of the act. However, the amendments that have been proposed by the government do not constitute an addition, but rather a replacement. Your objective was to keep the first paragraph of clause 3, while adding what you state in your recommendation 20 to it. You want to add the principle. It is true that in what follows, there are other references to rehabilitation and reintegration programs. However, we can see that the text has been somewhat cleaned up. Now, reintegration is no longer being recommended, but being promoted. The government is therefore, from the outset, making a change that you would not like to see, it seems to me.

Am I right to believe that?

[Merlin Nunn]

If I understand, the public perception...

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Let me sum up my thinking in a few words.

You proposed an addition, and the government responded with a replacement.

Did you understand my question?

[Merlin Nunn]

No.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

It was not translated. And yet, I tried to speak slowly.

I understand that my time will be credited to me.

First of all, I want to thank you. I found your work to be very impressive, but as a lawyer, I do not wish to risk judging a judge.

[Some hon. members]

Oh, oh!

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

All right, I see that the interpretation service is working properly now.

In recommendation 20, you recommended that the government add a provision according to which the protection of the public would become a primary goal. However, the amendment that the government has proposed is intended to withdraw the first paragraph in order to replace it with this clause.

If I understand correctly, you wanted to add this clause, and not to take something away in order to replace it with something else.

[Merlin Nunn]

I was saying that should be added to the existing section 3.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

In fact, in the following subparagraphs, there are references to rehabilitation programs. They are promoted, whereas currently, they are part of the primary goals.

[Merlin Nunn]

The words that I suggested be put in were in the original act before they passed it, and they were taken out: “protection of the public”. We thought they should be there as one of the reasons to supplement the judge's concerns when he's dealing with someone--

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

We all agree. As I have very little time, I would like to ask you my second question.

When you carried out your inquiry, did you consult the report by Mr. Justice Jasmin, the Associate Chief Justice of Quebec, on the system for dealing with young offenders?

[Merlin Nunn]

I did not, and nobody suggested that I do.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Were you aware at that time that Quebec had changed its way of dealing with young offenders, at the beginning of the 1980s, and that since 1985, the youth crime rate in Quebec has regularly been less than the Canadian rate, and that in some years, it was even less than half of the Canadian rate?

[Merlin Nunn]

I was aware that there was a difference in Quebec, but that was about all. Nobody brought it up before me and I didn't ask for it.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Let us go back to the brief that I so admired. What I see essentially is that the federal legislation is fine to a certain degree, but that the most important thing in fighting youth crime is the way in which the provinces apply it.

[Ronald MacDonald]

Our concern with the pre-trial detention provision is that it takes us so far, but then it stops with respect to certain offences and doesn't allow the provinces to deal at all with certain offences in terms of pre-trial detention. That's our grave concern, because those are the very types of offences youth tend to commit. You heard evidence that if youth begin early and keep going, the more they commit, the more likely they are to continue to commit.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I will now come back to Mr. Justice Nunn. If I understand correctly, the resources that a province invests will probably be what contributes the most to decreasing the youth crime rate.

[Merlin Nunn]

I agree. One of the witnesses I had was the deputy of social services, I think. With social services at the time, the heaviest thrust was for child abuse, but there wasn't a way to help mothers or single parents who were having trouble with their children.

I asked him how much his budget was for the year. I think he told me it was $965 million. My eyes got huge, and I said if you've got that, why can't you put some money where it's needed? He said “If we had more money, sir, I could do that”. I gave him a rough time as a witness.

But it is about money. There have to be the systems to accommodate it.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Ménard, you had a total of nine minutes, so I think you've been treated fairly.

Mr. Comartin, seven minutes.

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

I don't get nine, too?