Justice Committee on June 17th, 2010

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting 25 of the Standing Committee on Justice and Human Rights. For the record, today is Thursday, June 17, 2010.

Before we go on to the business at hand, the items on the agenda, I want to say something. This is probably our last meeting before the summer break, and there are a number of people who help us at our committee meetings who often don't get the credit they deserve.

First of all I want to recognize our clerks, who work so hard to keep us on task. Sometimes I'm sure they're frazzled with the number of requests they receive and the last-minute changes to the agenda. I want to thank the clerks for their work.

I also want to thank the interpreters. They often have a very difficult time keeping up to our witnesses and they do yeoman service for our committee, so I want to thank them as well.

As well, I want to thank our analysts, who serve us well in providing us with information on the bills that we consider here. I also want to thank the House of Commons staff, who serve so faithfully in setting up these rooms and making sure that some of the needs for water and food are provided for. l wish you all a very healthy, restful summer break.

You have before you the agenda for today. Today we're continuing with our review of Bill C-4, Sébastien's law, an act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other acts.

We have a motion from Mr. Murphy. You've received a copy of it.

Do you want to introduce that right now?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Yes, but I'll be brief. I don't want to stand in the way of the witnesses' testimony.

We heard that there were round table discussions and we'd like to have the report from those round table discussions. I don't think there's any dispute as to that. There's no definite timetable, but I think it gives the department the summer to do that. It also is protective of any privacy rights or protection rights that people who participated in the round tables might have.

I think it gives the minister and the department a fair amount of leeway in preparing a report that would be useful to us in our deliberations when we return.

That's all I really have to say to the motion.

[The Chair, Conservative, Ed Fast]

Members, you have a written copy of the motion before you.

Go ahead, Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'm sorry. This is a point of order, Mr. Chair.

If it's here, I've just not been able to find it. May I have another copy?

[The Chair, Conservative, Ed Fast]

We'll provide you with a copy. It's in both official languages, so it's in order.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Would it be helpful if I read it?

[The Chair, Conservative, Ed Fast]

Would you like it read into the record?

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'm not asking that. I'm just asking if I might see a copy so I may read it for myself.

[The Chair, Conservative, Ed Fast]

Yes.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Because the room was late clearing out and because we have some important witnesses, can we deal with this for five minutes at the end of the meeting?

[The Chair, Conservative, Ed Fast]

Well, now that we're into it, let's just dispose of it. Whether it's at the beginning or the end doesn't matter; we still have the same amount of time with witnesses.

All right, you have copies of the motion before you. Is there any other discussion?

Go ahead, Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

I'd just like to thank Mr. Murphy for the motion and say we support it.

[The Chair, Conservative, Ed Fast]

All right.

Is there any other discussion? Seeing none, I'll call the question.

(Motion agreed to) [See Minutes of Proceedings]

Excellent.

We'll get back to Bill C-4. To help us with our review, we have a number of witnesses.

As an individual, we have Merlin Nunn, a retired justice of the Supreme Court of Nova Scotia. Welcome.

We also have the Government of Alberta, represented by Joshua Hawkes, director of policy for the appeals, education and policy branch of the Department of Justice and Attorney General. Welcome.

We have the Government of Nova Scotia, represented by Ronald MacDonald, senior crown counsel and criminal law policy adviser in the policy, planning, and research branch in the Department of Justice. Welcome.

Finally, we have the Government of Manitoba, represented by David Greening, who is executive director of policy development and analysis in the Department of Justice.

Welcome to all four of you. I think you've been told that you each have ten minutes to present, and then we'll open the floor to questions.

I'll ask those who have cellphones or other hand-held devices to please put them on vibrate or turn them off completely and to please take any telephone calls outside the room.

Why don't we start with Justice Nunn?

[Merlin Nunn, Retired Justice of the Supreme Court of Nova Scotia, As an Individual]

I thought you might do that.

I have a problem. I was only asked to come here on Monday, as a result of my report, so I spent the last three days reading my report again because it was four years since I had really been involved with it. Before I was involved with it, I had no experience with the Youth Criminal Justice Act, nor the Young Offenders Act, nor the Juvenile Delinquents Act, because I never had a youth in my court. I was in the Supreme Court and we were dealing with the adult situations. In Halifax, there was always a youth court of some kind. Once I started with the inquiry, I learned a tremendous amount about the Youth Criminal Justice Act and about youth justice. While I'm not an expert on the Youth Criminal Justice Act, I think I know an awful lot about youth and how they are dealt with and what problems they have and why they have them, and I'd just like to pass on to you what happened in the inquiry that I had.

As witnesses, I had police officers, I had RCMP officers, I had social workers, I had people who looked after group homes for children who had no other home, I had educators, I had mental health people, I had physical health people. I leaned about attention deficit disorder. I was fortunate that the expert from the U.S.A. was in Halifax that weekend and I attended his lectures, and so on, and I learned things that I really never had any idea about before. They all indicated to me that the problem is to deal with the child and understand the underlying factors that lead to the child being the way he is. That doesn't cover every situation, but it covers probably 98% of the youth who are being dealt with under the act--and maybe more.

I learned then that the Youth Criminal Justice Act really created a new justice system for youth. There are people in Canada who are opposed to that and still are opposed to that and think that every child who's convicted of something should be in jail. That's an attitude that I think comes from a lack of knowledge. If they understand the purpose of the act and they understand how it's working and the successes it has, the act is successful 90-something percent of the time. It sometimes needed to be tweaked a little bit so that we cover something that happened to not work. I had 50 days of that testimony that I spoke of, and not one of the witnesses turned around and said that this is a bad act, that this is an act that shouldn't have been passed. They all were supportive of it. They all wanted the thing to work; they all were trying to make it work. There are systemic problems in the institutions themselves that help to cause youth problems and to allow youth problems to develop further. One of those is delay. One of the biggest ones is delay.

The centre of attraction of my report was a young boy who, at 16 years of age, in a stolen vehicle, in a Halifax city street, was speeding to avoid the police and he crashed--it was a T-bar situation--directly into the driver's side of a car and flipped it in the air and drove it 20 or 30 feet and killed the driver, who was a supplementary aid teacher in a school--Theresa McEvoy. The boy had been in custody just a short time for stealing another car and leading the Mounties in a chase at 160 or 180 kilometres an hour at 12:30 at night down a highway towards Windsor.

He was released from custody on one morning. Two days after, in the morning, he stole another car and that's when he killed Theresa McEvoy. That boy had 38 outstanding charges against him and had never been in jail other than by being in custody for a week or two, really by his own agreement, to await the outcome of what was going to happen. There wasn't communication between people. The system faltered. As a result, the people of Nova Scotia were in an uproar. How could a boy have 38 outstanding charges and not be in jail, or not be somewhere, not be looked after? That was the situation that I had.

Now, for your guidance--and I'm not a preacher, and as I said, I've only come into this again since Monday--I think you have to understand certain things. You have to understand that the act is a complete new justice system for youth and that the treatment of youth is different from the treatment for adults. The reason children do what they are doing is based on their minds and how their minds work, and they work very differently than adults' minds. So you can't think in adult terms of how children should be dealt with. I think you should be aware that one of the underlying principles is that Canada is a party to the United Nations Convention on the Rights of the Child, and that convention, really, among other things, indicates that the best interests of the child are a primary consideration, and also that custody is a last resort and should be for as short a period as is appropriate for the situation and for the person.

Now, because of the situation I was in, I came to the conclusion that the act was deficient, in that it deprived the court from taking the child and dealing with him at an early stage. In the area where I grew up, it was about grabbing him by the scruff of the neck and bringing him up short. It wasn't just to put him in prison. It was so that he'd become aware that the court and the police and authorities mean business, that they're not going to let him get away with these things. And a lot of it, as I say, was based on delay. My thrust, as I said, was for pre-trial custody only. I didn't really do anything about post-trial custody.

If you keep in mind that rehabilitation of the youth is the real aim, and you understand that that's happening in over 90% of the cases, then you have to realize that the act is working. Increasing custody in other circumstances or even in pre-trial for long periods of time is not really the way to go. The way to go is rehabilitation. That's what the act is designed to do and that's what we have to do. There are deficiencies, and the deficiencies are in funding, in what's available in the various provinces, and in what's available to provide the support and the professional people needed.

So I think that the Youth Criminal Justice Act, and you should appreciate this, contains the concepts and approaches to youth justice that should make all Canadians proud, and I think we're miles ahead of other countries in our dealing with youth justice.

Occasionally there's a horrendous case that develops and the media jump into the horrendous case, and they're like a starving lion attacking another animal. They're ready to just pounce on this thing for days and days in the media, and all they're doing is inciting those people—and I think it's a real minority—who are against the Youth Criminal Justice Act and are happy to have something to complain about.

Those were the general remarks. I don't propose to know very much about the actual wording that's there, because I haven't looked at it from that point of view, and I think I'll leave that to others. But I think the wording should follow the intent and theme of the act itself. That's my main point.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Hawkes for ten minutes.

Mr. MacDonald, I'm sorry.

[Ronald MacDonald, Senior Crown Counsel and Criminal Law Policy Advisor, Policy, Planning and Research, Department of Justice, Government of Nova Scotia]

Yes, please. We've kind of organized it that way, if that's all right.

[The Chair, Conservative, Ed Fast]

All right. Sure, that's fine.

[Ronald MacDonald]

Thank you.

Thank you very much for giving us an opportunity to be heard today.

My name is Ron MacDonald. I come before you today as a representative of the Nova Scotia government, in my capacity as criminal law policy adviser, but also as a person who was 24 years on the front lines as defence and then crown counsel. In particular, I worked for 17 years in a small community in Nova Scotia at the very front line of justice in a way that allowed me to deal with young people, not simply in court, but I could see them the next day, the next week, the next two months on the streets, and you could see the results of what you did or didn't do in court. It's a very instructive way to learn about the justice system. I quite frankly, quite literally, one day could be doing a murder case, and the next day prosecuting youths for underage drinking.

We've heard from Justice Nunn this morning, and he talked about his inquiry, which came about as a result of Ms. McEvoy's death in 2004. Just a little more detail on that inquiry: it was heard over 32 days, heard from 47 witnesses, and heard three more by way of written statements. He heard from front-line crowns and defence, academic and practice experts, court administrators, the police, policy advisers, etc. We believe that his inquiry was one of the most comprehensive studies of youth justice ever done.

[The Chair, Conservative, Ed Fast]

Mr. MacDonald, I'm just going to get you to slow down a little bit, because the interpreters are trying to keep up.

[Ronald MacDonald]

Sorry; I'm too cognizant of the ten minutes. Thank you.

Justice Nunn made a total of 34 recommendations, seven of which related specifically to the YCJA. One passage that I think should stand out for all of us is this one:

Aside from the misunderstandings and missteps that occurred in relation to AB, many of which were procedural in nature, the real culprit, which failed to provide an adequate response to AB's behaviour and, indeed, to society's rightful expectations, was the Youth Criminal Justice Act itself.

As a result of that, Mr. Justice Nunn made seven specific recommendations related to the act, including these: to make protection of the public a primary goal; to change the definition of violent offence; to make pretrial detention provisions stand alone; and to allow courts to consider a youth's prior findings of guilt and outstanding charges in pretrial detention.

There were a few other ones as well, including those relevant to “responsible person” undertakings and attendance at non-residential community centres. This was the tweaking that Justice Nunn today spoke about.

The recommendations related to pretrial detention and the definition of violent offence have been a particular focus of Nova Scotia's representations. Justice Nunn didn't advocate, and Nova Scotia isn't advocating, changes that necessarily call for greater incarceration of youths. Rather, our submissions emphasize that sometimes youths are out of control, and courts must have the appropriate tools available to them to protect the public and assist the youths. These tools must include the practical ability to place a youth in custody, both pretrial and post-trial, for an appropriate range of offences and fact circumstances.

A failure to give the courts these tools leads to increased risk to public safety and the public's loss of respect for the administration of justice. It also results in the loss of an opportunity to intervene into the life of an out-of-control youth, an intervention that could well make a great difference in the life of a youth--I have seen that personally on several different occasions--simply as a result of short periods of pretrial custody.

In general, Nova Scotia supports the statements of policy made by Minister Nicholson in Parliament when speaking to Bill C-4. For example, he said:

Sébastien's law will make the protection of society a primary goal of our youth criminal justice system, and it will give Canadians greater confidence that violent and repeat young offenders will be held accountable through sentences that are proportionate to the severity of their crimes.

He later also talks about violent and repeat offenders needing to be kept off the streets while awaiting trial when necessary, and about reducing barriers to custody for those violent and repeat offenders where appropriate.

Nova Scotia supports those policy goals and suggests that they reflect some of the comments of Justice Nunn in his report--for example, on page 230 of his report, where he indeed talks about “enlarging the gateways to custody”.

Justice Nunn also states:

I cannot overestimate the importance of taking a balanced approach. Parts of the YCJA must be changed in order to create a workable and effective approach to handling repeat young offenders in a manner based upon protection of the public as a primary concern, as well as providing a means to step in to halt unacceptable criminal behaviour in a timely manner. This is not an option. It is crucial.

Simply put, while it is right to say that in principle we don't want any more youths than necessary in custody, it does not mean the system should have restrictions that effectively block that custody when it's necessary. I will be speaking today primarily about pretrial detention and how that can occur.

First of all, Nova Scotia would like to note that the changes intended to be made to the principles of the act by Bill C-4, to provide that protection of the public is an immediate goal of the act, is supported by Nova Scotia and is indeed consistent with Justice Nunn's recommendation.

We also support the changes planned to the definition of violent offence--namely, to include offences that have bodily harm as an element or where life is endangered by substantial risk of bodily harm. Those too are consistent, we suggest, with Justice Nunn's recommendations.

They recognize that an offence that involves a substantial risk of bodily harm to someone is as serious and significant as when a youth takes actions to intentionally cause bodily harm. In some ways they place the general public more at risk, because general dangerous behaviour can affect the public, whereas intentional violent behaviour is more often directed at persons known to the accused.

We strongly suggest, however, that the actual wording, the legislative wording of Bill C-4, does not meet the stated policy goals in three significant areas: pre-trial detention, deferred custody, and adult sentencing. These drafting issues, we suggest, must be corrected to ensure the government's intent is met and to ensure the amendments do not create what we believe will be very crucial problems to the youth justice system.

With respect to pre-trial detention, the bill provides clause 29 as stand-alone provisions, which we support. We note that the test the crown will have to meet will still be very significant, and we support that as well. However, we suggest the current wording of the bill contains a very serious problem. While it provides that pre-trial custody is available should the strict test be met, it is only with cases that could carry a maximum sentence of five years or more for adults. What this means is that offences such as theft under $5,000, breach of dispositions, failure to comply, escape from lawful custody, committing an indecent act, damage to property, fraud under $5,000, inciting hatred, corrupting children, etc., are offences that are completely ineligible for custody. These are the very offences that youth are most prone to commit. This means that the bill does not deal with the repeat offenders, as the justice minister had hoped. It allows youths to repeatedly commit these offences, be arrested, and be released again. There would be no remedy for the public, pre-trial. It would allow an out-of-control youth to continue in a downward spiral without the system being able to step in and impose the needed control.

The amendments fail to consider that less serious offences, which on their own should not justify pre-trial custody, when committed in conjunction with many others can give you a very serious situation. Let me give you an example. A youth walks down Sparks Street, breaks every single pane of window glass on a block, is picked up by the police, and is taken to court. They must release him; they have no choice. He gets out. He tells the judge he has no intention of following the rules and does it again the next day. This type of behaviour could continue. While you might say that's an extreme example, what we know about human and indeed youth behaviour is that those types of examples are out there.

Currently the act provides that those offences are eligible for detention, although there's a presumption against detention. We suggest that this portion of the bill must be amended or the act will contain provisions that will allow a youth to commit offences with no pre-trial consequence available. There does not appear to have been any case law or other explanation for this change, as currently these cases are eligible for detention, as I've mentioned, albeit subject to a presumption against detention. We are very concerned that this will create a situation where the community will lose confidence in the very system designed to protect it.

On the issues of deferred custody and adult sentencing, my colleague Josh Hawkes will be discussing those details.

I just wish to say this in closing. You've heard from many witnesses who have suggested the proposed changes to the act will result in greater incarceration of youth. We come before you today to indicate that in fact the changes that Mr. Hawkes will discuss do the opposite. They will greatly increase the opportunities for youth to avoid custody in situations of crimes of serious violence by being granted a deferred sentence, which is the same effect as a conditional sentence for an adult. They'll also make having a youth sentenced as an adult much less likely. Our comments are not based on a general concern about policy; rather, they're based on the impact from legislative drafting.

I come before you as a person who works with legislative drafting and has done so on the ground. These changes will take a current practice, about which no one was concerned, and will make it more difficult to have youth placed in custody in the context of acts the public already sees as being too difficult. We are submitting that this is contrary to the submitted intent of the government and is in effect an error that must be corrected before these amendments become law.

I will leave it to Mr. Hawkes to explain those details.

Thank you, Mr. Chair. I am pleased to answer any questions.

[The Chair, Conservative, Ed Fast]

Thank you.

We will move on to Mr. Hawkes for ten minutes.

[Joshua Hawkes, Director of Policy, Appeals, Education and Policy Branch, Department of Justice and Attorney General, Government of Alberta]

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.

[The Chair, Conservative, Ed Fast]

Thank you very much.

Mr. Greening, you have ten minutes.

[David Greening, Executive Director, Policy Development and Analysis, Department of Justice, Government of Manitoba]

Thank you.

By way of background, I am the executive director of policy development and analysis for Manitoba Justice. I have been doing criminal law policy work now for a bit over 14 years, and prior to that I was defence counsel, dealing with both adult criminal cases and youth court cases for roughly five years.

I'm pleased to be here today to speak to the committee about the Manitoba government's position on YCJA reform and its concerns about Bill C-4 and its approach to reform of the Youth Criminal Justice Act. Manitoba has longstanding concerns about youth crime and the YCJA. Since 2006 it has been advocating for reforms to enhance the bail and sentencing provisions of the YCJA to ensure that serious and repeat young offenders can be more easily held in custody upon arrest and face jail sentences for their crimes.

To clarify, Manitoba is not suggesting that all alleged young offenders should be detained in custody or sentenced to custody, but just that judges be allowed the opportunity to consider the circumstances of each case and to make appropriate decisions based upon the youth's behaviour and the risk they pose to the public, rather than having their hands tied and being prevented from doing so by the existing YCJA presumptions against pre-trial detention and custodial sentences. Being unable to keep out-of-control youth in custody not only creates a public safety risk, but also undermines public confidence in the justice system, as the public begins to see it as a revolving door catch-and-release exercise.

In addition to Manitoba raising its concerns at meetings of federal-provincial-territorial ministers responsible for justice, and in meetings with the federal Minister of Justice, in September 2007 Manitoba's then Premier and Minister of Justice led a non-partisan “Mission to Ottawa” delegation, including Manitoba's opposition leaders, the mayors and chiefs of police of Winnipeg and Brandon, and community leaders to press the Prime Minister, the federal Minister of Justice, the federal Liberal caucus, the federal New Democratic Party caucus, and Manitoba members of Parliament to amend the YCJA to address Manitoba's concerns.

A key impetus for Manitoba's concerns and for the “Mission to Ottawa” delegation was a trend of escalating reckless and dangerous conduct associated with motor vehicle theft, which is one of the offences for which the YCJA currently provides a presumption against denial of bail and a presumption against the imposition of a custodial sentence. In the first seven months of 2007, in Winnipeg, there were four incidents where persons were killed or seriously injured as a result of being struck by vehicles driven by youth motor vehicle thieves.

In fact, one of the participants in the mission to Ottawa was Kelly Van Camp, a jogger who was deliberately targeted by a youth driving a stolen vehicle, was struck by the vehicle, and was hospitalized with broken bones and serious head injuries. There were further serious injuries and fatalities caused by out-of-control youth car thieves in 2008 and 2009 and there have been circumstances in which the police have been targeted for collisions, both while in their vehicles and while on foot. Although we have had great success in reducing the overall incidence of motor vehicle theft--down by over 75%--we still need amendments to the YCJA to address this problem.

Turning to Bill C-4, although the bill implements some of Manitoba's longstanding YCJA reform recommendations, such as recognizing deterrence and denunciation as valid principles for sentencing young offenders, in other respects it does not address Manitoba's concerns but is actually a step backwards that worsens the ability of the youth justice system to deal with serious out-of-control young offenders. I want to clarify, much like previous speakers, that certainly we do support the intent and the policy thrust behind Bill C-4, but there are serious concerns we have about some of the provisions.

Again, this is going to sound a bit repetitious, and I'm going to try to streamline my comments so I don't repeat the fine comments of colleagues to my left. Manitoba definitely shares their view that there are three key problems with Bill C-4. The first one is the amendments related to pre-trial detention, the second is the amendments related to adult sentences, and the third is the amendments related to deferred custody sentences.

I should also note that those three concerns have also been identified and championed in terms of trying to find a solution by the western Attorneys General and Solicitors General in Canada.

In terms of pre-trial detention, instead of eliminating the presumption against pre-trial detention outright, Bill C-4 actually creates what is in effect a mandatory release provision that prevents judges from denying bail for offences that do not fall within the new limited category of serious offences and offences such as committing an indecent act, damage to property, theft of a vehicle worth less than $5,000. Unless Bill S-9 is passed and proclaimed—it creates a new offence—violating bail conditions or other court orders, or escaping from custody or failing to return to a custody facility when required to do so, regardless of how many times this conduct is repeated, won't fall within the definition. At a minimum, the definition of “serious offence” in Bill C-4 needs to be removed or changed to allow a broader range of offences to be considered for denial of bail and thereby prevent re-offending with impunity.

In terms of the adult sentencing provisions, Manitoba shares the view expressed today that Bill C-4 goes beyond what is necessary to address the Supreme Court of Canada's concerns in the R. v. D.B. case and that the proposed new proof beyond a reasonable doubt standard for determining when an adult sentence should be imposed will make obtaining an adult sentence virtually impossible except in the rarest of cases. The adult sentence provision of Bill C-4 should be amended to remove the reasonable doubt standard of proof requirement and restore the existing list of factors in terms of providing guidance to the court about when an adult sentence should be imposed, such as age, maturity, background and prior record of the offender, and circumstances of the offence. All of those should be considered by the court in determining whether an adult sentence should be imposed.

In terms of deferred custody, Manitoba's view—and again, this is the same as my colleagues' from Alberta and Nova Scotia—is that there is no justification for allowing the YCJA equivalent of conditional sentences to be available for serious violent offences that are now excluded from consideration. Doing so jeopardizes both public safety and public confidence in the justice system. Bill C-4 should be changed to ensure that the deferred custody sentences remain unavailable for situations in which a young person causes or attempts to cause serious bodily harm. Also, at the very least, there is a need for consistency with the legislation on the adult side in relation to where conditional sentences are prohibited.

In conclusion, I would ask the committee to give serious consideration to the concerns I have identified about Bill C-4 and to amend the bill to rectify them before the bill proceeds any further.

Thank you, and I will take whatever questions you have.

[The Chair, Conservative, Ed Fast]

Thank you very much.

We'll open the floor to questions, beginning with Monsieur LeBlanc, for seven minutes.