Evidence of meeting #53 for Justice and Human Rights in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was data.
A recording is available from Parliament.
4:20 p.m.
Conservative
4:20 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you very much, Mr. Chairman.
Thank you very much to all the witnesses.
I have two questions. My first question is for Professor Bala, but if the other witnesses wish to answer it and there's enough time remaining, I invite them to do so.
Professor Bala, in clause 4 of Bill C-4, the one that would completely replace subsection 29(2) of the YCJA, my understanding is that you are in favour of the Bill C-4 amendment. And I do know that the Quebec Bar Association is also in favour of this. This is where the youth justice court or justice may order that a young person be detained in custody only if the young person has been charged with a serious offence and the judge or justice is satisfied on a balance of probability that there is substantial likelihood.... Do you have an idea as to how the “substantial likelihood” term might be determined? Is there any case law on what constitutes a substantial likelihood? That's my first question.
My second question is on how Bill C-4 would include, in the determination of sentencing, the extrajudicial sanctions in paragraph 39(1)(c) of the YCJA. I have your brief before me here, Professor Bala, and you state:
Judges already have a discretion to use the fact of prior youth participation in extrajudicial sanctions as a factor in youth sentencing [see s. 40(2)(d) (iv)]. Amending s. 39(1)(c) to make further specific reference to extrajudicial sanctions seems contrary to the intent of these programs, which is to give youth a “second chance,” and may be inappropriate since youth usually agree to participate in these programs without an opportunity for having legal advice.
For the benefit of the members sitting around the table and any Canadian who is watching these proceedings, would you explain how extrajudicial sanctions actually come about? Just give us a hypothetical case so that people would understand what you're talking about when you say that it happens before a youth may have access to legal advice, for instance.
4:20 p.m.
Professor of Law, Faculty of Law, Queen's University, As an Individual
Thank you.
I think I heard three questions.
4:20 p.m.
Professor of Law, Faculty of Law, Queen's University, As an Individual
One is, I think, about the issue of detention. The first question you have to ask yourself is, do you intend to increase the number of young people in detention, or some of them, or do you want to decrease it? As I pointed out, we've had a significant increase in detention, not in custody. I would suggest, and in fact the national round table consultations suggested, that we should see a decrease in the use of detention. Some young people, however, probably should be there and are not, but on the whole we have too many young people in detention.
If you agree with that, the question is, are the wrong young people in detention? Particularly, we have young people in detention sometimes now for so-called administration of justice offences—they don't show up in court. They are then detained, not because of what they've done to the community, but because they're not showing up in court, they're not showing up at school, and they're not showing up at other places.
I would believe that this provision, on the whole, will tend to narrow the scope and have a more appropriate focus. In some cases where we do not have detention as a possibility now, we will have it, but on the whole, it will tend to narrow the scope of pre-trial detention. That's why I favour this as an improvement over the present law. Also, it's significantly clearer. The present subsection 29(2) has a lot of different interpretations. It's very complex. That's the first point.
On the issue of “substantial likelihood”, although I can't offhand think of where it is, it's not an unfamiliar kind of phrase, and I think it's a fairly high onus on the crown in that situation. That's one of the reasons that will narrow this legislation in pre-trial detention.
On the issue of extrajudicial sanctions, the way this typically works right now is the young person is arrested by the police, who, either alone or in consultation with the crown prosecutor, say that this is a less serious offence; we're thinking of dealing with it outside the court system, and we're going to send you to a program run in the community, perhaps by the St. Leonard's Society or volunteers in the community. Maybe you'll meet with the victim, have some kind of appropriate reconciliation, and be held accountable there, but not through the court process. However, when they go there, they don't have an opportunity to talk to a lawyer, typically.
If a young person goes to court and is charged, they effectively, under section 25, have the right to have a lawyer and to get advice about whether they should plead guilty. So the concern is that some young people, and I've seen this myself, will be pressured by their parents' saying, “Let's get this over with through extrajudicial sanctions. It's faster, it's cheaper for us as a family, and it'll just put this behind us.” The young person says, “Okay, okay, if that's what you want”, and they haven't talked to a lawyer. They may end up accepting responsibility for the extrajudicial sanction, even though they're not, in law, guilty. That is one of the concerns about this provision, and that's why putting it into legislation is a concern for that reason, among others.
4:25 p.m.
Conservative
4:25 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Thank you, Mr. Chairman.
Thanks to the witnesses for being here.
Professor Bala, I read your brief carefully and would like you to help me interpret chart 1 because right after your presentation—it's not that we want you to go—we will be speaking with representatives of Statistics Canada. I really want to discuss the same figures, and yours are interesting. First, I would like to know whether those figures come from Statistics Canada, or whether these are figures that you compiled yourself in order to produce charts 1, 2 and 3.
4:25 p.m.
Professor of Law, Faculty of Law, Queen's University, As an Individual
Charts 1, 2, and 3 are based on Statistics Canada data, yes. Some of it is unpublished data interpreted by myself and particularly by my colleague, Professor Peter Carrington, but it's based on Statistics Canada data, which comes from courts and police. So it should be consistent, yes.
By the way, I think they'll have one more year of data for you. They may have—I don't want to say that. You'll still see it going out one year.
4:25 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
There was an increase in the crime rate in 1990-1991. What interests me very much is diversion. Based on your figures, are we to understand that there was a sharp increase in diversion from 1998 to 2003 and that this has since levelled off? Since these sections in the act were implemented, we have had an increase in crime and a level rate of diversion at the same time as a decline in the number of cases brought before the youth courts.
4:25 p.m.
Professor of Law, Faculty of Law, Queen's University, As an Individual
Yes, that's correct.
I should say that reported youth crime in Canada as reported by the police peaked in 1992. That's a measure of crime based on what people report to the police, and then the police have a choice either to charge or to divert. The middle line shows the number of cases in which they are charged. Initially that was above the line for diversion, and now it's below the line for diversion. So we are now diverting more people than we are charging. And I should say that we still have a relatively high rate of use of courts and a low rate of diversion compared to those for many other countries.
But I do think your interpretation is correct.
4:30 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Thank you for your answer.
Professor Bala, I also read your recommendation regarding the publication of information, and I heard what you said earlier. Based on the experience of the United States, where the identities of young offenders are released and published, the publication of this information is even a source of pride for certain young offenders.
My question is for Mr. Stroppel and Ms. Schellenberg. In your practice, have you or your colleagues, who drafted the brief with you, observed or had any knowledge that, when there is this kind of publication, young offenders are very often proud to appear in court saying that they've been charged with something. This is a source of pride for them, particularly in school yards, at comprehensive schools and those kinds of places.
4:30 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
I've seen that phenomenon, and I've also seen a phenomenon in my practice—and as I indicated earlier, I've been doing nothing but youth cases for seven and half years—that it becomes kind of a self-fulfilling prophecy. If you tell a kid that he's really bad, he's going to think, well, I'd better act bad because everybody thinks I'm bad, and they want me to be bad, and that's all that's expected of me. On the other hand, if you give a young person a chance, if you say we're going to let you start without this black cloud hanging over your head, and we're going to give you another chance to make your way in society and make yourself into a useful citizen, then without that handicap, he could do that. In the long run, isn't that what we all want? Isn't that what serves society--for that young person to make a good life for himself and become a productive citizen?
4:30 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Since I don't have a lot of time, I'm now going to talk about the recommendation.
I'm speaking to the Bar Association representatives. Professor Bala made the following recommendation: "Publication of identifying information should be restricted to cases where an adult sentence is imposed: s. 75 should be repealed." Are the Bar Association representatives in favour of this recommendation?
4:30 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
That's what the act says now.
As I mentioned earlier, when a young person receives an adult sentence, they are treated in all respects as though they were an adult, which means their case can be publicized.
4:30 p.m.
Conservative
March 9th, 2011 / 4:30 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
Thank you, ladies and gentlemen, for your appearance here today.
Perhaps I could start with Mr. Stroppel.
Mr. Stroppel, you mentioned in your comments that 80% of youth crime is non-violent.
4:30 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
I don't think you put a number on it, but you said most of the violent offences--which would be the 20%--are actually relatively minor, and that less than 10% of youth crime represents what you would describe as serious violent crime. Is that what you said?
4:30 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
That's right.
4:30 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Okay.
Given that Bill C-4 really concentrates primarily on serious and repeat offenders, the changes we're talking about are going to affect a rather small percentage of young offenders. Isn't that correct?
4:30 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
I would disagree with that.
Many of the amendments are not directed at serious violent offenders. I've already made the point that the definition of serious offence, which would effectively reverse the onus, in a certain sense, onto the young person to justify their release, includes all kinds of property offences.
4:30 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Yes, but to be clear, serious offences are indictable offences for which the maximum punishment is imprisonment for five years or more. So they're fairly serious property offences, I would suggest, then--
4:30 p.m.
Member, National Criminal Justice Section, Canadian Bar Association
Well, in some cases they might be.
4:30 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Let me ask you a question. I'm not sure that I completely followed the discussion when you talked about the vagueness of the words “substantial likelihood”. As I read clause 4 of Bill C-4, which amends subsection 29(2) of the act, it says:
A youth justice court judge or a justice may order that a young person be detained in custody only if the young person has been charged with a serious offence and the judge or justice is satisfied, on a balance of probabilities
(a) that there is a substantial likelihood that [he will flee] or commit [another] serious offence
There's a “serious offence” there again, and there is:
(b) no condition or combination of conditions of release that would reduce...the likelihood of [a secondary offence being committed]
and
(3) the onus of satisfying the youth [judge] is on the Attorney General [or the prosecutor].
