Justice Committee on March 7th, 2011

[Mary Ellen Turpel-Lafond]

I think the challenge we see with the proposed amendments is a very ambiguous position about when the names would be released if this act were to come into force. It would lead to very protracted proceedings.

Also, again going back to the position of what the evidence is, is there any evidence to suggest that the publication of the name of a youth would actually lead to a reduction in offences? I think you've identified an issue. We do have some groups of extremely vulnerable youth sometimes being actively recruited into gangs or what have you. We want a very pro-social approach, and the exposure of their names could in fact make them targets for more offending behaviour, if you like. It can increase the likelihood that they will offend again, because they may be acting out specifically for that purpose. They may not oppose that, because they wish to be named, yet a few years down the road--they're 17, say--they decide that this was a terrible thing and their life circumstances have been permanently changed through this.

So we're quite worried about the publication of the names. There are very significant privacy issues. The child may consent to have that name released but may not be able to understand the consequences for their life course and for their rehabilitation and reintegration.

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

Sometimes, cases are appealed. Should the names only be released at the end of the proceedings, when the results of the appeal are out and the ruling has been confirmed?

[Mary Ellen Turpel-Lafond]

I think, again, it depends on the purpose. It would appear in the draft of Bill C-4 that the publication of names is connected to some types of deterrence, to the notion that if the name is out there, it will deter future offending behaviour. I think it's a very weak link between this device and that outcome.

What is the purpose of naming, then? Is it just simply retribution in the community--social stigmatization at school, and so forth? I think it's unclear in this bill what the purpose is. It's not clear to us that there's been enough deliberate and thoughtful consultation and review of this issue to support this provision.

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

The child and youth advocates we have just heard from raised the point that the publication of names enables people to protect themselves. What do you think about that?

[Mary Ellen Turpel-Lafond]

There's no evidence to support that. On the adult side, we routinely have names published. When we see a name published in a newspaper, we don't cut it out, clip it, put it on the refrigerator, and say, “Here are the names of the individuals we should be careful of; they have committed a car theft”. It anticipates something that doesn't exist in reality.

I think the key issue for the advocates is that youth should be held to account for their wrongdoing--with an emphasis on rehabilitation, reintegration, and pro-social development--but it's best, given their vulnerable circumstances, that they be held to account within a system that is designed uniquely around their developmental needs.

Having their names published, as your question indicated earlier, could actually lead to more offending behaviour. That's our fear. It could escalate the level of offending behaviour and provoke a bit of a public recognition spree, rather than deter it or actually inform the public.

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

I—

[The Chair, Conservative, Ed Fast]

Monsieur, your time is up.

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

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

Madame Godin and Ms. Turpel-Lafond, there are three prosecutors sitting behind you, and they're going to come up in the next hour. They propose some amendments to respond to the Nunn commission's idea that what we really need to do is deal with that...probably somewhere around 5%--no more than 10%--of the really serious offenders.

They proposed some material when they were here the last time, five months ago now. I don't know if you've looked at that material--that's my first question--and if you have, do you see it being a possibility of dealing with that very small percentage of the offenders who commit, as they say in some of their material, as much as 46% of the serious offences?

[Mary Ellen Turpel-Lafond]

First of all, I haven't studied their material at length. I understand the position, I understand the findings in the Nunn inquiry, and we've looked at a number cases. I think the Nunn inquiry in particular was very persuasive to say that there are systems to deal with violent offences.

Wherever you have prolific, violent offences on the part of youth, what we see, particularly in British Columbia, where I'm from, is projects with police targeting prolific repeat young offenders; in these cases, you have stronger law enforcement, community supervision, and, of course, an understanding who the young offenders are, particularly young people committing offences in British Columbia. They're frequently young adolescents who are living out of the parental home; they're children in care, in multiple foster placements; they may not have a stable home; they may be aboriginal children who have experienced a great deal of trauma and abuse in their lives.

We see some great success around projects in which police are promoting public safety and identifying greater stability with young people. We think there are many tools in the act that are being used to deter that crime.

On the issue of some very specific recommendations around pretrial detention, there's a discussion about whether amendments to that part of the Youth Criminal Justice Act are acceptable, if you like, and have evidence supporting them, versus everything else in the act.

At the national council we really haven't taken a position on that question. I know that some of the individual advocates.... In my individual brief I said that I think there are some merits in some of these principles, but it's the overall focus that's of concern to us. There are strategies that can be taken, but taken in the whole, the broader strategy of having a more retributive and deterrence-based system is one that we don't think will get at the circumstances of those offenders.

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

Let me hold you just to the pretrial detention area for now. Justice Nunn was quite clear that he felt that the existing act needed strengthening with respect to targeting that small percentage of repeat offenders in particular, those individuals who clearly were at high risk for violence; is it possible, in your opinion, to amend the act to deal specifically with that group without doing the catch-all that, in my opinion, this bill does?

[Mary Ellen Turpel-Lafond]

Certainly I think the three provisions that jump out from Bill C-4—the provision in proposed paragraph 3(1)(b) on “diminished moral blameworthiness”, the pretrial detention provision in proposed subsection 29(2), and the place of detention in proposed subsection 76(2)—are what I would call clarifications of the original intent and approach of the Youth Criminal Justice Act. They are learning from practice in areas where things needed to be improved and where there was clear evidence to support a change.

The issue that concerns the advocates is that all of the other things that have been layered on top of these are a concern, and that these smaller issues may be lost in some bigger consequences that may target and increase incarceration for vulnerable youth.

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

That's all, Mr. Chair. Thank you.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Comartin.

We'll move on to Monsieur Petit for seven minutes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I am going to share my time with my colleague. I have a very quick question for either Ms. Godin, Ms. Turpel-Lafond or Ms. Illingworth.

In section 21, we read the following: “No young person who is under the age of 18 years is to serve any portion of the imprisonment in a provincial correctional facility for adults or a penitentiary.”

Ms. Godin, have young people in Quebec been put in penitentiaries or prisons for adults?

[Sylvie Godin]

I'm sorry, are you asking whether, in Quebec, young people—

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

—have been sent to adult prisons?

[Sylvie Godin]

Absolutely.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

When?

[Sylvie Godin]

Unfortunately, I don't have the statistics for Quebec.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

What if I were to tell you that there were none for Quebec?

[Sylvie Godin]

For Quebec? Oh, maybe not. No. I don't have the statistics for the province.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Okay.

[Sylvie Godin]

I know some provinces have them, but perhaps not Quebec.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Okay. Ms. Tupel-Lafond, I know that, in Saskatchewan or other provinces, roughly 10 people, aboriginal in particular, have been put in adult prisons for a given period of time because of a lack of space and facilities.

Do you have other examples that could support our initiative to amend section 21 so that no young person is sent to a prison for adults?

Do you have any figures other than the ones I have? Based on my data, in the other provinces, a maximum of 10 young people have been sent to a prison for adults. Are there other cases we should know about?

[Mary Ellen Turpel-Lafond]

First of all, I've had numerous cases in my work in the court in which there are applications to elevate a young person to serving a balance of their sentence in an adult facility because the youth facility was overcrowded or the adolescent sometimes wanted to go to the adult jail, which may not be a very good decision with respect to the future of that adolescent.

In British Columbia this is less frequent, but the challenge is that what is designated as a place of detention for a youth may also be a place of detention for an adult. If we take the case of Ashley Smith, for instance—we're about to have an inquest into the self-harm death of Ashley Smith—I know that as an adolescent she was on several occasions detained in the adult facility. As well, on the pretrial side, RCMP holding cells in rural settings hold both adults and youth.

In terms of serving a sentence following a judicial determination of a sentence, it does happen in Canada. I couldn't say that there are only 10 cases. I certainly am familiar with a number of circumstances—