Justice Committee on March 2nd, 2011

[The Chair, Conservative, Ed Fast]

I call the meeting to order. This is meeting 51 of the Standing Committee on Justice and Human Rights. For the record, today is Wednesday, March 2, 2011.

Now, members, if you look at your agenda, we scheduled three different witnesses for the first half of this meeting. Because there were no witnesses scheduled for the second half of the meeting, I took the liberty of scheduling Mr. Dreeshen to speak to his private member's bill, Bill C-576. I understand and I realize that was not part of our discussions at the steering committee, but because we had that extra hour I put it in there.

I'd seek your consent to carry on with that. Is that all right?

[Some hon. members]

Agreed.

[The Chair, Conservative, Ed Fast]

All right. Thank you so much.

We're going to begin by going back to Bill C-4, An Act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other Acts.

We have with us four witnesses. First of all, representing the Ontario Federation of Indian Friendship Centres, we have Juliette Nicolet and also Teala Quintanilla. Welcome to both of you.

We also have, as an individual, Professor Anthony Doob, Centre of Criminology at the University of Toronto. Welcome back, Professor.

We also have with us Professor Jacques Dionne, department of psychoeducation and psychology at the Université du Québec en Outaouais. Welcome to you as well.

Perhaps we could begin with the Ontario Federation of Indian Friendship Centres. You have 10 minutes to present, and then we'll open the floor to questions.

[Juliette Nicolet, Policy Director, Ontario Federation of Indian Friendship Centres]

Thank you very much. Merci beaucoup.

My name is Juliette Nicolet. I am the policy director at the Ontario Federation of Indian Friendship Centres. I'm going to try to be brief.

The Ontario Federation of Indian Friendship Centres represents the interests of 29 friendship centres across Ontario. Friendship centres serve status and non-status first nations, Métis, and Inuit people. We provide holistic, wraparound, culture-based programming in such areas as health, education, employment and training, children, parenting, addictions counselling, seniors, and justice, of course. Eighty per cent of the aboriginal population in Ontario—80.4%—reside outside of reserves and 36% of the aboriginal population in Ontario are under the age of 19.

The justice programming that friendship centres provide in Ontario has been around for 30 years. Our court worker program is just over 30 years old. The community justice program, which is an alternative measures program, has been running since 1999, so for 12 full years.

I'm going to provide a really brief outline, some high points, of our position on Bill C-4, on the substance of it. But in general our primary concern is that it seems to mark an overall drift toward a more punishment-oriented regime that we do not feel serves the interests of the public and, more specifically, the interests of the urban aboriginal community and urban aboriginal youth.

We know that at this point already the Youth Criminal Justice Act has a differential impact on aboriginal youth in Ontario and across Canada, but I'm speaking for Ontario. A number of the amendments made are likely to worsen the effect the YCJA already has, and they don't allow us to see, in the fullness, the possibility of positive action the YCJA might have.

The first issue I will bring to your attention is detention prior to sentencing. Bill C-4 amends subsection 29(2) of the YCJA, which refers to the use of pre-sentence detention if there is a likelihood for the young person not to appear. To give you an idea, the court worker program deals with indigenous people in the courts. Thirty-two per cent of appearances of court worker clients in Ontario are for administration of justice charges. This means that there is an extremely high rate of charges that will inevitably result in the use of detention prior to sentencing, increasingly for aboriginal youth, as opposed to others, because of the high rate of non-compliance with administration of justice charges. So this is a problem to begin with.

Second, I'd like to highlight the police record of extrajudicial measures. We believe this will reduce the use and effectiveness of such programs as the community justice program, which has had a very high success rate. There has been 82% compliance with the conditions in the community justice program for the people participating, which we think is very good, as well as decreased recidivism.

The third highlight is publication of names. The OFIFC disagrees with this approach on principle. We think it's needlessly punitive, and it flies in the face of the need to minimize stigma for aboriginal offenders, who are already highly stigmatized in society.

Fourth, and last, we think that denunciation and deterrence should not be part of a youth sentencing regime. The amendments to include denunciation and deterrence are not appropriate for youth, and are not appropriate, in particular, for an aboriginal population. Sentencing, inasmuch as it is possible for it to address some root causes of criminal behaviour, should do so. Sentencing for aboriginal youth should be aimed at the reduction of criminogenic factors and should be oriented towards pro-social outcomes. Putting more of our kids in jail will not result in increased or better outcomes for our children, and inevitably will not result in better outcomes for society at large.

As a small aside, we know that in Ontario, aboriginal gangs are migrating from the prairies over to the Kenora and Thunder Bay regions, and that much of the recruitment for these aboriginal gangs takes place in youth detention centres and, after age 18, in jails. Increasing opportunities for incarceration are going to lead to an increase in criminality.

In conclusion, we at the OFIFC are very concerned about ensuring that the sentencing regime for youth provides us with alternatives and with opportunities to continue to place an emphasis on preventative, culture-based, community-driven measures and programming that address the root causes of crime--poverty, the effects of racism, and a high incidence of addictions and substance abuse--and that allow us to expand programming options. These include Kizhaay Anishnaabe Niin, which is traditional gender roles programming that teaches men and women about gender responsibilities and how to be good men or good women in the world; Streetwolf, which is specifically addressed to justice-involved youth to try to get them off that track in a culture-based way; and Wasa-Nabin, which addresses youth aged 12 to 18.

These programs have been shown to work. They keep kids out of trouble and keep kids in school, which is not the direction these amendments go.

Finally, I'd like to conclude with a request. There needs to be more time to allow the YCJA to work. More funding needs to be put into programming to allow this to happen. For aboriginal kids, the effects of the YCJA have not yet been felt. This is a result of a lack of programming. It's not necessarily a result of any inherent problems in the legislation.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Professor Doob for 10 minutes.

[Dr. Anthony Doob, Professor, Centre of Criminology, University of Toronto, As an Individual]

Thank you very much for inviting me.

Because of time concerns, I will address only a limited number of the proposed changes.

In subsection 2(1), regarding the definition of “violent offence”, it would undoubtedly be useful for Parliament to define what's meant by a violent offence. In general, members of the public discriminate between violent and other offences in their views about how certain cases should be dealt with.

The normal definition of “violent” is covered quite adequately by proposed paragraphs 3(a) and 3(b) of the definition. Hence, proposed paragraphs 3(a) and 3(b) alone should constitute the definition of “violent”.

I would, therefore, suggest cutting proposed paragraph 3(c) of the definition:

an offence...[that] endangers the life or safety of...person by creating a substantial likelihood of causing bodily harm.

Such an addition to the definition of “violent” implies that an offence could be considered to be violent if someone were to make the argument that the behaviour involved did not, but could have, created bodily harm. Simply put, this allows far too much to be included in the definition of “violent offence”. A first-time impaired driver could be seen as violent. And indeed a youth who shoplifts a candy bar from a department store and runs out the door through a crowd could be seen as endangering those in the crowd, because there is a substantial likelihood that he would run into somebody, causing bodily harm. Besides being overly broad, youths, because they're youths, will not foresee possible consequences in the same manner as will a more thoughtful adult.

If anything can be considered by some judge to be a violent offence, then the real notion of violence is cheapened. It is important to the public, I think, that truly violent offences be named as such and that other offences that truly do not involve violence not be seen as being given similar treatment. The definition of “violent offence” is important because violence is, quite properly, one of the gateways to a custodial sentence. The distinction between intentional violence and other offences should be maintained.

Second, I'm concerned that the invitation to the judge, under the changes to the sentencing principles in proposed subparagraph 38(2)(f)(ii) to try “to deter the young person from committing offences”, could have two unfortunate effects. The change would make a false promise to the public that the judge, through harsher sentences, can accomplish individual deterrence with youths. Data would suggest otherwise. My concern is not so much that the judge will be taking responsibility for and being blamed for crime by this youth, but rather that it gives credence to the unsupportable belief among ordinary members of the public that courts could, by handing down harsher sentences, reduce the level of youth crime.

More importantly, this section could encourage judges to use custodial sentences to deter the young person from committing offences when a proportionate non-custodial sentence was a possibility. Hence, it has a high likelihood of increasing subsequent offending by the youth.

Research findings suggest that incarcerating youths will increase the likelihood of subsequent offending, especially when we're talking about those who are being incarcerated for the first time. Prison sentences are sometimes necessary, but if we are sending youths to prison for the first time, we should realize that there is convincing data to suggest that this experience increases rather than decreases the likelihood of subsequent offending.

The change that is proposed to paragraph 39(1)(c) equates extrajudicial sanctions with findings of guilt. I'm concerned about this for two reasons. In the first place, it makes, for denunciatory purposes, the impact of full court processing of a case the same as the impact of extrajudicial sanctions. Findings of guilt by judges are important events and should not be equated with extrajudicial sanctions for which a youth has not been found guilty by a court. For extrajudicial sanctions, a youth “accepts responsibility for the act or omission that forms the basis of the offence that he or she is alleged to have committed” and a prosecutor has decided that there is enough evidence to proceed with the prosecution.

If a youth is in a fight, he or she might accept responsibility for an assault, but it's quite possible that defences might exist. For a finding of guilt by a court to have the special meaning it should have, accepting responsibility for a misdeed and being found guilty of a criminal offence should not be seen by the youth, or other observers, as being the same.

Furthermore, by equating a finding of guilt to extrajudicial sanctions for this purpose, it could be that a well-informed youth would refuse extrajudicial sanctions when extrajudicial sanctions might otherwise have been appropriate for the youth, the crown, the victim, and the court. Extrajudicial sanctions are an important part of the Youth Criminal Justice Act. They shouldn't be morphed into being indistinguishable from findings of guilt.

Generally speaking, I think the changes made to section 72, the test for an adult sentence, are an improvement over what currently exists. However, there's one addition that would be useful. It's important for Parliament to provide clarity to the crown, defence, and the court on how the presumption of diminished moral blameworthiness or culpability is to be rebutted by the crown. Otherwise, until this is settled by appeals courts or by the Supreme Court of Canada, the crown will be forced to meet a test that's defined nowhere. I think the public and the crown should know what this test is so it can be met. Furthermore, I think Parliament should be doing this rather than the courts.

I understand the changes that are being suggested to the publication bans, but before you do anything on that, there's something simple and independent of these changes that needs fixing in this area. Section 75--current and proposed--makes the publication ban or lack of it part of the sentence. The problem is that if a judge hands down an adult sentence in which the ban is lifted, the sentence is appealable but the press has already published the name. Given the nature of Internet-posted information, the name is now public forever, regardless of what the result of any appeal might be. An appeal on this issue is worthless. Paragraph 110(2)(a) should be amended to include wording like “and the time for all appeals has lapsed or all appeals have been decided”.

Without challenging the purpose of the proposed replacement for section 75, I would suggest some changes. It's important to remember that the publication of names will almost certainly make reintegration of the offender as a peaceful member of society more difficult. Because the publication of the names is likely to increase the difficulty in reintegrating the youth, there should be compelling evidence that there will be some crime prevention value of the publication. In that context I make the following suggestions.

The list of cases to be subject to these changes is proposed to be very broad. As noted above, violent offence is proposed to have a very broad definition. If the definition in subclause 2(3) is not amended in the manner similar to what I've suggested, then it should apply only to violent offences meeting the criteria of paragraphs 2(3)(a) or 2(3)(b), explicitly excluding paragraph 2(3)(c). There is no point in lifting a publication ban for cases that do not cause harm or indeed an attempt or threat to cause bodily harm.

More to the point, this section is much more damaging to the possible reintegration of the youth than the limited disclosure allowed in section 127. Furthermore, it creates an important inconsistency with this section. I would suggest that you consider that the loosening of the publication ban should apply only to those offences covered by section 127; in other words, an offence involving serious personal injury. Once again, the message is clearer if the provision is restricted to those cases that have high levels of concern.

It would make sense that another pre-condition be added to the conditions that must be met to allow the publication of the name. The publication of the name should only be allowed if the disclosure already permitted in section 127 can be demonstrated not to be sufficient to reduce the risk of committing a violent offence below the level of a significant risk.

In keeping with the fact that this is part of the sentence, the test should require that the court define that the publication of the identity of the youth outweighs the benefit of the publication ban by reducing substantially the likelihood that the youth would commit an offence involving serious personal injury prior to the expiry of the sentence.

Finally, of course, since proposed subsection 75(4) indicates that it would be part of the sentence, the lifting of the publication ban should not be allowed until all appeals have been exhausted.

The Youth Criminal Justice Act is understandably complex and in need of some changes. Though it has largely accomplished many of its important goals and is recognized internationally for being an example of an effective youth legislation, it is not perfect. Clearly, however, I believe that some of the amendments that are before you could be improved.

Thank you very much.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Professor Dionne for ten minutes.

[Prof. Jacques Dionne, Professor, Department of Psychoeducation and Psychology, Université du Québec en Outaouais, As an Individual]

I want to sincerely thank the members of the committee for the opportunity to appear a second time.

The first time I appeared before you, I had three hats on, a researcher's, an educator's and a grandparent's. I will be reiterating the same core message this time around, so I will keep my remarks brief to allow more time for questions and discussion.

My core message from that first appearance still holds true today. To my mind, rehabilitating young offenders and protecting victims are two sides of the same coin. I want to tell you that it is not one or the other, but both at the same time: protecting the victim while rehabilitating the young offender. In other words, protection for victims is achieved through the rehabilitation of young offenders. That is the position taken by the Association des centres jeunesse du Québec, Quebec's youth centres association, and the Association québécoise Plaidoyer-Victimes, Quebec's victim advocacy association. Clause 3 of Bill C-4 seriously threatens that principle, which is essential, in my view.

My message is primarily supported by the entire body of scientific literature and by real-world experience that has shown that young offenders do not have the same level of development as adults and youth, in general, and that that is an important consideration in order to have a real juvenile justice system that is not merely a copy of the justice system for adults. These principles are included in the act but are seriously undermined by the wording of clause 3.

Good rehabilitation programs for young offenders produce much better results than purely repressive measures. And that is also very well-documented. In short, a law that is fair to both young people and society must not be based solely on the severity of the offence when judging an act and sentencing a young person. A fair law must be based on a complex criminal justice system specifically for young people. It is one thing to have a law, but something entirely different to have the whole system necessary to apply that law. And that system must constantly seek to maintain the uneasy balance between the needs of society and the victim, and the needs of the young offender.

This complex system should include a system for applying the law where there is a differential assessment process based on the principle that every young person is different, that every case is different and that every context is different. My colleagues from aboriginal communities did a good job of demonstrating that earlier. This complex system should also include a differential intervention system that includes the possibility of alternative justice and rehabilitation, as well as a process that allows victims to participate and that gives them the support they need. That, too, contributes to rehabilitation. In addition, this complex system should incorporate an organization that promotes the participation and involvement of parents and should especially include rehabilitation, monitoring and intensive community supervision programs, as well as open custody and closed custody enforced by competent staff. I realize that creating a system of this nature extends beyond the federal government's reach and comes under the jurisdiction of the provinces, but I think the law should very clearly open the door to such a system. Finally, this system must also include an investment in research to encourage the development of better practices. That is a broader responsibility of the federal government.

Thank you for listening, and I am ready to answer your questions.

[The Chair, Conservative, Ed Fast]

Thank you.

I'll move to questions from our members.

Mr. Murphy, for seven minutes.

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

Thank you, Mr. Chair.

Thank you, witnesses.

First, when it comes to your answering, I want to ask each of you whether you were invited to participate, and indeed did participate, in the minister's round table cross-country conferences in 2008 in various cities across the country. I'll let you get to that, but I have a specific question or summary as well.

I think it's always good to look at what the act is about and what the changes are about. If I could simplify it and then ask for your comments, it seems to me it's like this. The act had, in section 3, its principles as intending to do three things, in no hierarchy--three important things: prevent crime, rehabilitate young persons, and make young people subject to meaningful consequences for their actions. Those are equal principles in the act.

However it's trying to be spun by those outside the four corners of this document, this act attempts to make the protection of the public the major and the only concern, and to make persons accountable to promote rehabilitation--not the actual fact of rehabilitation--but promoting rehabilitation and the prevention of crime as means toward protecting the public. So the simple question is, is this a complete change in what the Youth Criminal Justice Act was enacted for, and that is the three prime principles I mentioned?

And is it just reverting to a Criminal Code by another name? The Criminal Code is to protect the public with the various measures put in it. It doesn't bother to have a preamble because the Criminal Code says it all; it's a Criminal Code. This act--which was not objected to by previous Progressive Conservative governments, was not substantially attacked until now--attempts to change it completely and make it really just an addendum to the Criminal Code. Would you agree with that, would you expand on that, and could you help us in any way?

But first, please answer the question as to whether you were at those round tables in 2008.

[Dr. Anthony Doob]

I was at one of those round tables in Toronto.

In answer to your question, it seems to me that the original section 3 is preferable. I didn't talk about the changes to section 3 because I had 10 minutes and I was focusing on other things.

I think the issue here is that the focus on protecting the public is a narrow focus that is very difficult to accomplish. I rather liked the original construction because it was talking about, among other things, long-term protection and it was focusing on the long term rather than short term.

The difficulty with focusing on protecting the public is that the language implies that the only way one could protect the public or the easiest way to protect the public is through incapacitation, through locking kids up or locking people up. And rather than saying that what we're trying to do is to prevent, rehabilitate, and hold people accountable and through that complex mechanism we will have a better society, it's telling us to take bad people and put them away. So I'm certainly not in favour of this.

In answer to your final question about does this in effect, then, turn this into a simple Criminal Code, my answer would be no. And the reason is there is a lot in the Youth Criminal Justice Act. The sentencing provisions alone, for example, are important and much clearer than the sentencing provisions in the Criminal Code, and I think are preferable in many ways, not just for youth, but the structure of the Youth Criminal Justice Act sentencing provisions are superior to those of the Criminal Code.

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

I have a question on specific and general deterrents. If you look at the changes to section 38 of the act, there might be an argument that this is to introduce specific deterrents, and therefore we're not touching on that decision in the Supreme Court decision Regina v. B.W.P., Regina v. B.V.N., which said that general and specific deterrence are not in this act.

There might be an argument from the other side that this is just attempting to do specific deterrence on conduct that is for specific persons to prevent them from effecting crime again.

What is your stand generally on deterrence and denunciation being introduced to the YCJA? Is it effective?

[Dr. Anthony Doob]

We have data on this, and this is not something, in a sense, on which I have to take a moral stand. I can look at it in terms of data. What we know for a substantial group of people—particularly those being sent to prison for their first time—is that sending people to prison for the first time, which is in effect saying we're going to put this person in usually for a relatively short period of time, increases the likelihood of subsequent offending. What we're doing, rather than deterring them, is making them worse.

I'm sorry, I should make it clear. I'm not suggesting that we don't have to send people to prison and that we don't have to send youths to custody, because clearly we do in certain circumstances. I'm not suggesting otherwise, but the original idea behind this act, and in fact the principles that are in the Criminal Code as well, suggest that we should be cautious about doing it because in the long term we're making things worse.

The concern I have is that from a practical perspective we're likely to be increasing the likelihood of future offending for these youths, who could be dealt with otherwise. Second, it does give a message that really being tough on youth, and the specific deterrents in this case, is good policy in terms of reducing crime, and we know it is not. It is giving the wrong message and it's doing the wrong thing.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Monsieur Ménard, for seven minutes.

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

Thank you, Mr. Chair.

Mr. Doob, I am glad that someone brought up clause 3(1)(a) of the bill to you. I am not sure whether you noticed the same thing I did, but clause 3(1) of the bill removes paragraph (a) from the current section and makes the first objective of the youth criminal justice system “holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person”. I noticed that the current act already provides for that in section 38(2)(c). But where clause 3(1)(a), in its current form in the bill, goes wrong is that it removes paragraph (a) from section 3 as it now stands, which I think does a much better job of outlining the other objectives described in the proposed amendments to the section.

Did you notice the same thing?

[Dr. Anthony Doob]

Certainly I have. My colleague has spoken about this as well.

The message that's given by this section in terms of what the Youth Criminal Justice Act is about is not a message we should be proud of.

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

With all due respect, I have to interrupt you, since we have very little time. I have come to the conclusion that we are basically better off not making a decision on paragraph 3(1)(a). We would not be taking anything away from what the Minister wants to add to it by saying that sub-paragraph 3(1)(a)(i) is important to him. We wouldn't be taking anything away from the Minister's goal of establishing “measures that are proportionate to the seriousness of the offence”, since this objective already is and will remain in the legislation. However, the bill takes away elements that express the objective much better. I am glad that you have also come to this conclusion because I know how much we can count on your professionalism.

[Dr. Anthony Doob]

Thank you.

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

As I have very little time, I would like to speak to the organization lobbying for the protection of aboriginal children in Ontario.

When evaluating legislation that applies to young offenders, do you not find that young people from aboriginal communities should be treated differently from others? I am not talking about discrimination, but it's obvious that, given the poverty levels in reserves and other aboriginal communities, there are ways for aboriginals to take care of their offenders that differ from what we can do in the city. What has been suggested here is to significantly increase the use of incarceration measures in the case of young aboriginals. If we go ahead and do this, we will end up increasing the crime rate within this group instead of reducing it.

[Juliette Nicolet]

I will try to answer in French.

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

Your French is very good.

[Juliette Nicolet]

Of course, the legislation does not explicitly mention aboriginals, but we anticipate that the proposed amendments will help maintain the already strong trend according to which aboriginal young offenders are overrepresented in the prison system. These amendments would make things even worse. I think it's inevitable.

I would also like to follow up on what Professor Doob said when he talked about the vocabulary used in discussing public protection. The wording used makes it seem like victims and criminals are two completely segregated and distinct groups. However, we know all too well that, in the aboriginal community, there is only one group of people because victims and criminals belong to the same group. Therefore, I feel that the message is inaccurate, if you will, and that we failed to recognize the fact that the public encompasses everybody, even criminals. How can we create legislation that reflects the fact that a society consists of all its members, not only of the squeaky clean ones?

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

A characteristic of Quebec's legal system in the way it deals with young offenders is the application of the right measure at the right time. This approach makes it possible to treat people in accordance with factors that are present everywhere, such as their sociological condition and poverty level. This is the kind of philosophy you would like to see applied.

However, when we apply pretrial imprisonment provisions and take into consideration extrajudicial measures that are imposed, we end up with too many objectives. This prevents judges from having the discretion they need to really apply the right measure at the right time, to apply the measure that will ensure that no subsequent offence takes place or will reduce the likelihood of a person reoffending.

[Juliette Nicolet]

The issue of judicial discretion is pretty layered. I think that, as much as possible, it's important to allow judges to take into account the practically permanent conditions that are part of urban aboriginal communities. This is impossible and it's actually an issue recognized by the Criminal Code and by the Youth Criminal Justice Act. I think that taking this discretion away would adversely affect young aboriginals.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go on to Mr. Comartin for seven minutes.