Justice Committee on March 7th, 2011

[Joshua Hawkes]

You may have anticipated my response to the second question. I'm simply a prosecutor, and I'm trying to stay out of the larger political issues involved. However, I would point out that aspects of the YCJA that are reflected in the bill were noted by federal, provincial, and territorial ministers of justice to be matters of concern in 2007, 2008, and 2009, so there is a history of justice ministers pointing out concerns with respect to the act.

On your first question, I believe that the act can be amended in a way that will address the policy objectives articulated. If I might be immodest, I think we've done that with the proposed changes we have circulated.

With respect, on the difficulties with the adult sentencing provisions, it is almost as though the government were proposing this response immediately after the decision of the Supreme Court in D.B., without considering any of the case law that has occurred subsequently. If this were five minutes after D.B., I could see this interpretation, but we're several years after D.B. Several courts of appeal have pronounced. The Supreme Court of Canada has twice refused leave to appeal in cases in which courts of appeal have said the standard of proof remains the same. In that context, clause 18 is simply erroneous in the face of current case law.

[Ronald MacDonald]

I think we all agree with the answer to question one, the answer being that it can be salvaged or amended.

On the second point, I will adopt my friend's position for the most part; however, I would say that the Nunn commission, although not an empirical study on the ground, was certainly an extremely comprehensive study. I listed the number of witnesses in my last statement in June, and many of the points that are in the act flow from Nunn, so in that sense there has been a very comprehensive study.

[David Greening]

The only thing that I would add to the response is from a Manitoba perspective. In 2007, Manitoba brought a non-partisan delegation that we called the “mission to Ottawa”. It included not only the then premier and justice minister, but the leaders of both opposition parties and representatives from municipal governments, chiefs of police, and concerned citizens, to advocate for these types of reforms to the Youth Criminal Justice Act.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I am aware of that. Back in 2007 I was the justice critic for the official opposition. I made a number of public statements, both inside and outside the House, calling on this government to move quickly to implement the recommendations of Justice Nunn's commission of inquiry. In fact, I took steps to ensure that his executive summary was translated into French so that the Quebec Bar Association could actually take cognizance of it. They subsequently wrote to the Minister of Justice in 2008 the first time, with the first apparition of their legislation, and commented on Justice Nunn in their letter. I am aware of that.

[The Chair, Conservative, Ed Fast]

We're out of time.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I'm sorry.

[The Chair, Conservative, Ed Fast]

We'll go to Monsieur Lemay for seven minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you very much, Mr. Chair.

I will try to be exact.

Mr. MacDonald, I thought your proposed amendment to section 29 was sensible up to the part about a serious offence or an offence where the circumstances of the offence and the youth, and so on. You also say: “...is engaged in repeated criminal behaviour; is a threat to the safety of the public, including...; has demonstrated an unwillingness or inability to comply with conditions to secure good conduct in the community.”

Who is going to define that? There are no problems with defining a repeat offender. The same goes for someone who “is a threat to the safety of the public, including any victim or witness to the offence”. But someone who “has demonstrated an unwillingness or inability...” could be mentally challenged. And I'm not sure how you would personally define that.

Could you comment on the wording “has demonstrated an unwillingness or inability to comply with conditions to secure good conduct in the community”?

Am I making myself clear, Mr. MacDonald?

[Ronald MacDonald]

Your point is that under proposed paragraph 29(2)(b) of our amendment, a person demonstrating “unwillingness or inability” may capture an individual who has a mental difficulty or a deficiency that way. It may, and I can't deny that. Obviously this term would be open for the court to determine when it should or shouldn't apply. Remember, this would only say that the presumption would be set aside. It wouldn't necessarily mean that the court would have to hold the person, so if it were strictly an issue of a mental deficiency that could be addressed in other ways, I think the other provisions of the act would—

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I'm sorry to interrupt.

I am reading your proposed wording under paragraph b): “an offence where the circumstances of the offence and the youth, including the youth's prior conduct, demonstrate on a balance of probabilities that the youth:...”.

I have no problem with the repeated criminal behaviour, but I am wondering about this last part. You are saying that it should be left to the court's discretion, considering all the circumstances of the case. Is that right?

[Ronald MacDonald]

With conditions of a court order, it would have had to have been a previous order they were released on, and they continually demonstrate an inability to comply with those conditions.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

The text is not clear. I am happy with what you have just told me, but it only became clear after you explained it to me.

[Ronald MacDonald]

Okay, fair enough, and that's one good reason to have had us back here. That's certainly what we intend by that, and although we're glad to prepare legislative material, we aren't legislative drafters.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

No, I most definitely don't want you to think that I am criticizing you. On the contrary, I want you to know that I am very interested in this paragraph. I wasn't understanding subparagraph (iii). It wasn't clear for me.

[Ronald MacDonald]

It's intended to mean previous orders that they weren't able to comply with.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Okay.

How much time do I have?

[The Chair, Conservative, Ed Fast]

You still have three minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I have a general question for the three of you. I have read your remarks carefully. We really like section 3 of the current legislation, but not section 3 of the bill. We want to amend section 3 of the bill to include the principles under section 38 of the current act.

I'm not sure you understand me and I don't want to waste your time. That just seems unrealistic to us.

When a sentence is passed, the court looks at this or that aspect. Based on the proposed change to section 3, the principles under section 38 of the current legislation would underlie the youth criminal justice system. Do you understand what I am saying? We don't agree with that.

[Joshua Hawkes]

If I could respond very briefly, I have seen previous testimony and your questions and those of your colleagues with respect to the changes to section 3, so I'm familiar with it. As I read the proposed changes to section 3 of the act, they incorporate many of the things that are currently in section 3.

The only addition is the reference to “protection of the public” explicitly, and also subparagraph (i) under paragraph 3(1)(a). The reference to holding young persons accountable by “proportionate” measures is new. That is also in section 38 of the act. The difference is that this would apply more broadly; it refers not simply to sentences but to measures, so you would have extrajudicial and other measures that would be proportionate.

Now, proportionality isn't a concept that only increases; it is a concept that can decrease as well, based on the circumstances and the degree of responsibility for the young person, so for a serious offence with a low degree of responsibility, proportionality will pull back the severity of the measure that might otherwise apply.

[The Chair, Conservative, Ed Fast]

Thank you.

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

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

Thank you, Mr. Chair.

Thank you for being here. Let me say that sincerely. We say that all the time, but in your case we really mean it, because you've raised points here that in my opinion should have been raised by the government. I think we have some consensus, so thank you for the work you've done. We really do appreciate it.

Mr. MacDonald, I have the same problem as Mr. Lemay. When I was reading that, two things popped into my mind when we're referring to the conditions as set out in a court order. You would be comfortable if we added that wording, or something like that?

[Ronald MacDonald]

Yes.

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

Okay.

Then there's a second part that jumped out at me. I practised what we called juvenile delinquency law at the time when we still had that act, and we had a large number, mostly young girls, who got taken into custody because they were incorrigible. They didn't commit any criminal offences, but they weren't keeping curfew at home, they were going out to wild parties, and there was some sexual activity. We had judges saying that they were incorrigible and they would take them into custody for that. When I saw “good conduct”, that was the same thing that jumped to my mind.

Have you thought of any other wording, things along the lines of criminal offences? I don't know, but something that is.... I have a great deal of respect for our judiciary, but they can make mistakes, and that wording, it seems to me, is just too broad to satisfy me.

[Ronald MacDonald]

Well, remember, this would be in the context of a criminal offence having been committed--they would be before the court for that--and also in the context, with your clarification, of there having been previous criminal offences committed, although perhaps not a conviction yet. There would have been breaches. I would hope that would show the intent of “good conduct”--to, in other words, not commit further criminal offences.

It would not be that dissimilar from the phrase “keep the peace and be of good behaviour”, which is used, as you know, all the time.

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

Yes.