Justice Committee on March 9th, 2011

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting 53 of the Standing Committee on Justice and Human Rights. For the record, today is Wednesday, March 9, 2011.

You have before you the agenda for today. We are continuing our review of Bill C-4, an act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other acts.

As usual we have with us a number of witnesses to help us with our review. Today we have two panels. On the first panel we have, representing St. Leonard's Society of Canada, Anita Desai, as well as Elizabeth White. Welcome to both of you.

We also have the Canadian Bar Association back on this bill. Welcome to Gaylene Schellenberg, as well as Mr. Stroppel.

We also have returning to us Professor Nicholas Bala with the Faculty of Law, Queen's University. Welcome to you as well.

We'll begin with Ms. White. You have 10 minutes to present.

Once you're all finished, we'll open the floor to questions.

[Elizabeth White, Executive Director, St. Leonard's Society of Canada]

Thank you very much, Chair, for the invitation to appear before the committee.

I am speaking on behalf of the St. Leonard's Society of Canada, and as it has been some years since we have presented before you, I would simply note that we have 45 years of experience in criminal justice and social justice, supporting member agencies that provide direct service across this country. While in the past we have been best known for our focus on long-term and life-sentenced individuals and for our residential services, it is our belief and knowledge that youth are key to providing safer communities, and for that reason we are pleased to present on this issue.

I was fortunate enough to participate in the round table in Toronto on youth justice in 2008, and now that the report from that has become available, I am struck by how similar its findings are to the matters we raised in the brief we submitted to you some months ago.

At St. Leonard's Canada, we believe it is important to note that since the enactment of the YCJA in 2003, there has been a significant decrease in youth incarceration without a significant increase in youth crime. Something clearly is working very well.

Turning to Bill C-4, we are in support of the inclusion in clause 3 of “diminished moral blameworthiness or culpability” as a principle, and we also wish to express support for clause 21 on the prohibition against the imprisonment of young persons in adult correctional facilities. On the other hand, St. Leonard's has serious concerns about clauses 4, 7, 8, 11, 18, 20, and 24. I would like to take a few moments on those. We are also concerned about the broadening of the definition of violent offence through the inclusion of sweeping wording, which we believe is cause for grave concern.

We would also like to note that the act did give this country the opportunity to overcome its dubious distinction of having the highest western incarceration rate for youth. That is a big achievement.

We believe these amendments respond to isolated and somewhat sensationalized cases, not the best basis on which to reform legislation. We believe that a more thorough examination and a longer-term opportunity for this act to continue to prove itself should occur before changes are made. We find many of the issues raised by Bill C-4 to be already appropriately addressed.

Deterrence as a sentencing principle would not be useful. There is no substantive support of its effectiveness in crime prevention. We submit that the YCJA deliberately omits deterrence as a sentencing principle with good reason and that it currently addresses the needs of the court in providing appropriate sentencing for youth that offers the best chance for rehabilitation and reintegration. Based on the lack of substantive evidence to show that deterrence is effective, we are concerned about amending the rules for pre-sentence detention. The current guidance from the act regarding pre-trial detention does not lack the necessary focus. The authority to detain a young person is already included if such an action can be justified in the youth court. We believe the proposed amendment places the onus on courts to focus on detention for so much broader a spectrum of offences that very few will remain unconsidered.

Extrajudicial sanctions support the key values of the YCJA in its aim to avoid custodial sentences unless those are required, and they support more viable alternatives that increase the likelihood of positive impact on the youth. The current approach allows the youth's admission of guilt to be a basis on which to move forward rather than a means of embroiling the youth further in the system. The youth will take responsibility. Expanding the criteria to allow them as admissible evidence for custodial sentencing will reduce the attractiveness of admissions of guilt for extrajudicial sanctions for the youth, but will also deter police, we believe, from using them.

On publication bans, the act currently allows a ban to be lifted when it is justified to do so in the interest of the youth or public safety. We know that publication leads to stigma. We know that stigma leads to reduced opportunity and often to recidivism. That's simply not consistent with the principles of the act. As Professor Doob noted in his appearance last week, if publication is to be broadened, it ought not to occur until all appeal processes are complete.

I would like to turn briefly to the relationship between mental health and youth crime. It is suggested that about 10% of youths involved in the criminal justice system have mental health disorders. I note this because in our view the attention in youth criminality should be addressing the needs--and yes, therefore the risks--of the many youth who have mental disorders. Ensuring that supports are in place to help them avoid conflict with the law is essential. Given that more than 70% of adults with mental health diagnoses who are in the criminal justice system had pre-age-18 onsets, it is clear that addressing youth mental wellness is key to minimizing long-term health costs and human distress.

Further to this, we are concerned with recent reports of a 70% co-morbidity rate among incarcerated youth who have mental health and substance abuse problems. Additionally, it has been found that more than 30% of youth with major medical issues also have mental health issues. So it's evident that there need to be more good mental health results, which will ensure good justice results. We're not sure that these proposed amendments get at this very serious issue, and we are very sure that punitive measures will not do a great deal to address it.

There is strong evidence supporting the need to reduce the criminalization of youth with mental health disorders in order to increase rehabilitation, reintegration, public safety, and greater cost-effectiveness overall.

I want to reference an example from London, Ontario, where the St. Leonard's community services in that region have an attendance centre program. They supervise around 150 youths over a six-month period, with a high rate of success through diversion programs. In six years of operation it is estimated that the savings between custody and the attendance centre are in the neighbourhood of $7 million to $10 million. That kind of money can go a long way to assisting youth.

I also want to reference the IRCS sentence. This excellent measure is still not being used to its full potential. Indeed, this week we heard that there are many judges in this country who are not aware that it is possible to use it. So despite allocations of funding that would allow 50 sentences of this type a year, since 2003 there have been less than 80. We need to give an opportunity for this very effective intervention to become known and used to further decrease ongoing criminalization.

We believe that the extended costs of further custodial measures are not necessary or appropriate for the Canadian public. We must give this act time to work, in the view of the St. Leonard's Society. There is overwhelming consensus from the report on the round tables that the flaws are not with the legislation; they're in the system. Implementation needs more and better work.

We submit there is indeed a need for action on youth justice: not legislation or incarceration, but vastly enhanced access to interventions and support through collaborative federal-provincial-territorial initiatives that overcome the silos of governance and address what is needed.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move now to Ms. Schellenberg, please.

[Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association]

Thank you.

I'm Gaylene Schellenberg, a lawyer with the legislation and law reform directorate of the Canadian Bar Association. As we regularly appear before your committee and have previously appeared on this bill, I know that you're familiar with the CBA.

With me today is Rick Stroppel, who is counsel for the youth criminal defence office in Edmonton and a member of the CBA's national criminal justice section. Mr. Stroppel will handle the substance of our brief and respond to any questions.

Thank you.

[Richard Stroppel, Member, National Criminal Justice Section, Canadian Bar Association]

Thank you, Gaylene.

My name is Rick Stroppel. I've been a lawyer for 27 years. For seven and a half years I've done nothing but youth cases. I work as staff counsel at the Youth Criminal Defence Office in Edmonton. I've done every level of case, everything from shoplifting up to and including murder. I was involved in the CBA's submission and I'm here to support it.

I want to start by saying that the amendments that are proposed to the YCJA are, in some senses, necessary amendments. When one is dealing with a criminal statute, it's very common, one might say almost unavoidable, that as the statute is implemented and put into practice in the real world, issues come up that need to be addressed and dealt with. That's what we had with the Youth Criminal Justice Act.

I must say, with respect to the CBA's submission, that I believe we have attempted to achieve some balance in our submission. That reflects the balance of the CBA itself. Our organization includes not just defence lawyers; it includes prosecutors and judges. So when we respond to legislation like this, we like to pick out the things we see as positive, for instance, the positive changes that are proposed, and we've acknowledged that in our submission.

If I could refer you to page 5 of our submission, we have commended Parliament for including the presumption of diminished moral blameworthiness from the case of R. v. B. (D.). Referring to the top of page 6 of our submission, we agree with the prohibition against youth serving time in adult prisons. We agree with the redefinition of serious violent offence with a view towards clarification. These are some of the things we see in Bill C-4 that are positive and that we agree with. It's obvious to us that the amendments, in general terms, are drafted by people with some familiarity with youth law, with some expertise in those areas, and that a lot of thought has gone into that.

One of the things I wanted to do in my opening comments is to put the problem of youth crime into a context. I was speaking to Professor Bala before we began our appearance here today. He advised me that it's his understanding that about 80% of youth crime is non-violent. As regards the remaining 20%, more than half of that represents I think what we would objectively characterize as relatively minor violent crimes, not beyond simple assault. The people who are coming later this afternoon could give you the exact figures, but it's my understanding that less than 10% of youth crime represents serious violent crime. Whenever you appear in a context like this, you spend 90% of your time talking about the 10% of youth crime that represents serious violent crime. We shouldn't lose sight of the fact that, with respect to this act, when it comes to non-violent offences and relatively minor violent offences, it works like a charm. It's tremendously successful and we should acknowledge that in our consideration of the act.

Another point I'd like to make is that what's built into the legislation as it stands is a very important safety valve, which allows for the imposition of an adult sentence against a young person. There is reference in our submission to the Lacasse case. Certainly, it's a tragic case. The point is made at page 3 of our submission that this young person who was convicted of second-degree murder as an adult, or at least sentenced as an adult, received a sentence of life with no parole for seven years. That's a life sentence. That young person may spend the rest of his life in jail. Another thing that flows from that is that we can say his name here, because when young people receive an adult sentence they are treated in all respects as adults, including the publication of their name.

Some of the issues and problems that the amendments to Bill C-4 are directed at are in fact already solved by the legislation and therefore unnecessary. A sixteen- or seventeen-year-old who is convicted or pleads guilty of first-degree murder can receive up to life with no parole for 10 years, and this is pursuant to section 745.1 of the Criminal Code. That's surely an onerous sentence, so we already have a statute that's been very carefully considered and drafted to allow for the safety valve of the very tiny minority of young people who commit very serious crimes. They can receive already a very onerous sentence.

Ms. White has already talked about the cost savings that are associated with the decreased rate of incarceration of young people as a function of sentence. What's become apparent to us, and this is mentioned in our submission, is that when we consider the history of the act, not only has the rate of incarceration gone down, but the rate of youth crime generally has gone down. So we have to ask a serious question: what were we accomplishing 10 years ago when we were incarcerating young people at one of the highest rates in the western world? Well, one of the things we were accomplishing was we were wasting a lot of money that could have been much better spent on programs that would have helped to rehabilitate young people.

That leads to a concern on our part in that it seems that many of the proposals in Bill C-4 are aimed towards making it easier to incarcerate young people, and also, with respect to subsection 29(2), making it easier to detain them prior to trial. So we disagree with the amendments to subsection 29(2)--and this will be my last point as I see my time is almost up. In the amendments to subsection 29(2), which make it possible for a judge to detain a young person if there's a substantial likelihood that they will commit a serious offence while they're on release, we've made this point in our submission that “serious offence” contains quite a collection of things that we would characterize as frankly relatively innocuous, like cheque fraud and that sort of thing. The other problem we've identified is that “substantial likelihood” is a rather nebulous phrase.

In youth law, of all areas of the law, we would like to have some certainty and predictability, but what troubles us about this is that we're talking now about keeping people in custody who haven't been convicted of anything as of yet. It seems to us that this is contrary, first of all, to the Charter of Rights, paragraph 11(e), which provides that a person cannot be denied bail without just cause, and also to another principle that is enshrined right in the Youth Criminal Justice Act, item 3(1)(b)(iii), which says that young people are entitled to enhanced procedural protection of their rights.

Those are some of the reasons that we're opposed to subsection 29(2). Some of the other amendments that are proposed here we think would have the very negative effect of increasing the number of custodial sentences imposed against young people and the number of young people detained before trial, which, as is noted on page 3 of Professor Bala's submission, unfortunately has gone up since the Youth Criminal Justice Act was proclaimed into force. I'm ashamed to say it has particularly gone up in the prairie provinces. It's almost like we're giving with one hand and taking away with the other. We're imposing fewer custodial sentences but making more young people remain in custody before trial.

Those are my submissions on behalf of the CBA. I'm grateful for this opportunity, and I'd be happy to answer any questions later this afternoon.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Professor Bala for 10 minutes.

[Prof. Nicholas Bala, Professor of Law, Faculty of Law, Queen's University, As an Individual]

Thank you. It's a privilege to be invited back here. I was here last June and I presented a brief, and I understand you have copies of that brief. Having been here before, I will say a few words by way of introduction.

I am a law professor, and I specialize in a range of issues related to families and children, including young offender issues. I've probably written more about youth justice issues than any other law professor in Canada; there are others who have written more from the point of view of other disciplines.

I agree it is an appropriate time to look at the act and make some amendments to it. However, I do not agree that there should be very substantial amendments. I think that while youth crime is understandably a serious problem, the legislation can only have a limited impact on youth crime. In fact, the youth justice system can only have a limited impact on youth crime.

Largely I think the legislation has been a success, or at least a qualified success, in that the rates of use of court and custody have gone down, as we've heard. Youth crime has not increased. We have achieved both a significant financial saving and a significant saving in terms of human resources.

I worry that the thrust of some of these amendments will be to increase the use of courts and custody, and that will increase financial costs, though I should say not to the federal government. Unlike some of the other changes in the criminal law where the federal government may pay for part of the cost of incarceration, this is totally placing the burden on the provinces. I worry about that.

Having said that, I think there are some good provisions in this act. We've heard about a number of them. Certainly there's the introduction of the concept of diminished moral accountability. In proposed subsection 29(2), I think the issue of pre-trial detention is extremely important. In fact, since I submitted that brief, we've had more recent data. You'll hear from Statistics Canada that we send more young people into pre-trial detention than we do into custody. It's a bigger issue now than the use of custody.

One of the problems with sending young people into detention is that their rehabilitation is very difficult to undertake. They're suddenly put in detention where there's limited programming. There is greater potential for abuse from other inmates, less access to programming, and higher levels of suicide and mental health problems. It's a very significant concern.

Having said that, I view proposed subsection 29(2) as somewhat narrowing; it clarifies the law in this area. Probably on balance it's an improvement over what we now have, but I would submit that subsection 29(2)—and I'm sure in your questions we can talk about it—is actually going to narrow the scope for using pre-trial detention from what it is now.

I will refer to two parts of the act where, along with my colleagues here and elsewhere, I share great concerns. One is about the introduction of deterrence and denunciation into the principles of the act. I think it's important that we have a youth justice system that deters young people from committing offences and holds them accountable—and, if you want, from the point of view of colloquial speech, “denounces crime”. But if we use the words “deterrence and denunciation” and put them in the act, the message to judges is to send more young people into custody. That will be its only effect. Unfortunately for the young people who are committing offences, the reality is they are not considering the consequences of getting caught. They are not thinking that the sentence Parliament has imposed is going to go from four months to six months for this offence.

Increasing sentences will not have any impact on their behaviour. There's a huge amount of research that shows that increasing the severity of youth sentence does not affect behaviour. On the other hand, putting those words into the act will affect judicial behaviour, in particular with increased sentences. I'm concerned about that.

On the issue of publicity...and one can understand the point of view of the public, let alone the victims, who say, “I want some accountability here. I want this young person to be held accountable, and I want to know that he or she is appropriately shamed.” Unfortunately, the reality is that if we put their names in the newspapers—there is experience with this in the United States, where they do allow publicity—the offenders go around saying “Look, I'm the toughest guy here. I'm in the newspaper.” It doesn't affect their behaviour, but it does make their rehabilitation much more difficult. It stigmatizes their siblings and their parents. It does not have the kind of positive effect on reducing youth crime that one might hope.

In other words, we have to have a sophisticated, thoughtful, research-based response to youth crime if we want to have a safer society and not do things that might intuitively but in an uninformed way be a response to youth crime that may actually lead to a society where there is an increase in youth crime.

We want to have changes in the act that are smart changes that lead to a safer society, not changes that are, if you want, dumb changes that lead to an increase in youth crime and a society that has more problems with youth crime.

I will end there. Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We will start the questioning with Mr. Murphy, for seven minutes.

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

If I don't jump into the sort of broad issues, you should take it, witnesses, that we've been around the board on this. There are significant differences on many of the large issues between the government and this side—denunciation. I want to hone in on some very particular items.

First of all, I want to thank you all for coming. I've read your briefs and heard your submissions, and I will be getting to specific questions on the use of extrajudicial sanctions in section 39 of the act as amended.

I first want to say, though, to the CBA representatives that we appreciate your brief. It was thorough. You properly paraphrased Justice Nunn’s recommendations as calling for the protection of the public not as the only and primary goal but as one of the goals and objectives, and that is what the Nunn report is all about. Opposition MPs might try to pigeonhole you into saying something else, so be careful.

I also very much appreciate your discourse, sensitively put, about Sébastien's Law. Of course, we all feel for that family. The fact, however, is that the legal outcome—as you say in your brief—was appropriate in that circumstance, and this serves a little bit to exploit the situation, so the short title of the bill is—we give a shot across the bow to the government—something we might be objecting to.

Now what I want to get into is a matter of legitimate concern, and we could go either way on this one: the use of extrajudicial sanctions in the consideration of the judge and the amendments in Bill C-4 to paragraph 39(1)(c) of the YCJA. Essentially I am paraphrasing here, but it says a judge, in deciding whether to commit the youth to incarceration, can now consider extrajudicial sanctions.

I think, Dr. Bala, you have made the point, and so have you, Ms. White, that the judge already has the ability to consider that in the case where a pre-sentence report is prepared, which shall include the history of extrajudicial sanctions and compliance therewith.

My question for all of you is, why is paragraph 39(1)(c) amended here to include extrajudicial sanctions? Is it necessary? Is it piling on? Is it for greater clarity? What can you see is the purpose for reiterating it? Or is there a legitimate concern that even though the pre-sentence report has to have this history in it, the judge does not have to take into account what's in a pre-sentence report?

Can you comment on that? Maybe we'll start with Ms. White.

[Elizabeth White]

We believe it will encourage greater consideration of custodial sentences. We're saying it is not necessarily warranted by simply bringing the past to the fore more, but we are also very concerned, as I mentioned, that putting extrajudicial sanctions into that context for streetwise youth may well encourage them to not make an admission of guilt and to not move forward after an incident, and likewise might discourage an officer from being inclined to go that route.

So we are looking at it from that perspective.

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

We'll go to Dr. Bala. The CBA brief was a bit silent on this point.

[Prof. Nicholas Bala]

I should say that the provisions around the use of extrajudicial measures for diversion have been one of the real hallmarks of success of this legislation. As a country, we've moved a lot of less serious offenders out of the courts and are dealing with them in programs. As it so happens, I'm a volunteer in the program in Kingston. We have a focus, as do many other programs, on restorative justice, on bringing victims to meet with offenders and trying to serve the needs of victims in that way. These are very important provisions. They have financial implications.

By the way, of course I agree with your comment that judges already can and do take account of a record of extrajudicial sanctions, as you pointed out. But I worry that this provision and the later provision around extrajudicial sanctions and police records will tend to discourage police from using these provisions. It seems to send a message to police saying that we're using this too much—and I don't think we are, as a country. In fact, we continue to have a relatively high rate of use of courts. Many countries have significantly more diversion than we do, so if anything, we should be diverting more of these less serious cases.

So I am very concerned about these provisions. In fact, when you add up the large number of cases that they will impact, if they are or more of them are sent to courts, there will be a significant impact on costs, delay, and in that sense victim suffering in the justice system. They will be counterproductive.

[Richard Stroppel]

I'd like to address this issue by taking off my lawyer hat and putting on my taxpayer hat. Every time a young person goes to court, there's a judge, a prosecutor, a defence lawyer, a clerk, a social worker, and a probation officer--and they don't come for free. We have to pay for them

One of the goals of the YCJA--and I think it's a commendable goal--was to get these cases out of the regular court system. I continue to be mystified when I go to court and see a young person charged with stealing a can of pop and a bag of chips. The case goes on for over two weeks so they can consider EJS, and then it goes over another week because the consideration isn't finished yet. Then it goes on for four months so the case can be completed, and so on. If anything, we should be strengthening and enhancing the diversion process. We should encourage people in every possible way to divert more cases out of the regular court process.

I see this, first of all, as a subtle way of making it look more important. I can tell you that in Alberta--and I'm sure it's the same in just about every province--we have a kind of two-bite rule. Extrajudicial sanctions are reserved for non-violent offences for a first offender and a second offender. The cases that go to EJS are like the one I just described, and I don't think they belong in court in the first place.

There's a tremendous potential there for saving money. I see this section as kind of superficial or superfluous. If a judge is considering whether to transfer a young person to adult court--or I should say, to impose an adult sentence, which is how we talk about it now--would it make any difference that this young person stole a bag of chips and a can of pop at the beginning of their criminal history? I don't think so. I think that consideration should be focused on serious convictions, including cases that have been referred to extrajudicial sanctions.

Those are some of the reasons why we're opposed to this proposed amendment.

[The Chair, Conservative, Ed Fast]

Thank you.

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

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

Thank you very much for your reports, particularly since we have had the opportunity to read them since we received them on time. We did a lot of underlining.

I see that no one here comes from Quebec. The Canadian Bar Association represents all lawyers. I would like to know whether you are familiar with the specific method that Quebec has used to judge young offenders for a generation now.

[Richard Stroppel]

I think Gaylene and I can both speak to that.

We pride ourselves at the CBA on representing the entire country. It's my recollection that there were lawyers from Quebec involved in the preparation of this submission. It was a large group. We certainly considered their input on what's happening in Quebec. I think the substance of the submission reflects their experience and input.

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

If I say the principle of the right measure for the right person at the right time, does that mean anything to you?

[Richard Stroppel]

You'll have to help me with that.

[Gaylene Schellenberg]

Is that part of the Quebec legislation?

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

That's how the chief judge of Quebec's youth court summed up the intervention philosophy. I see that Mr. Bala is nodding his head. He's probably aware of it since he has written the most about young offenders.

I'm afraid of one thing. There was a concern about the changes that were made the last time. I believe that was in 2002. It was feared that Quebec would be unable to continue applying that philosophy because too many limits were being placed on judges' discretion. They were allowed to impose harsh measures for less serious offences when they were warranted by the young offender's personality and prospects. At times, they could also make more lenient decisions with regard to very serious crimes. The judges appreciated that discretion and were advised by psychologists attached to the court.

I'm sure that any amendments to this bill would be an opportunity for them to tell you whether the dangers they feared with regard to the act have materialized.

[Richard Stroppel]

I will respond to that on behalf of the CBA. We're talking about the Youth Criminal Justice Act, which was proclaimed and took effect in April 2003.

You've touched on something of concern to us. There seems to be a philosophy that not only judges but also prosecutors are not to be trusted in the exercise of their discretion. Part of the backbone of our submission is that we spend a lot of time selecting judges. We like to think we select the best possible people. My wife is a full-time prosecutor, and I deal with prosecutors everyday. I'm happy to say they are extremely professional, competent people.

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

Do you mean you deal with your wife everyday?

[Voices]

Oh, oh!

[Richard Stroppel]

The legislation says judges have to consider one thing and prosecutors have to consider another. That goes without saying. We think it's unnecessary. Prosecutors can be trusted to consider seeking an adult sentence in any serious case. They always do. They always will. It doesn't have to be put in the legislation. It's unnecessary. That's part of our submission.

[Prof. Nicholas Bala]

I think Quebec has had a different approach to a whole range of child-related issues over the past few decades. When this act came into force, there was concern that it might change the approach in Quebec. In fact, while the legislation constrains judges all across Canada, Quebec has continued to have the lowest rates of use of courts, custody, and pre-trial detention. I think it's a significant achievement. In fact, research suggests they may also have a lower youth crime rate. In that sense, we have a bit of a national laboratory. Conversely, we have other provinces that have much higher rates of custody and much higher rates of youth offending. So in some ways Quebec is a model for the rest of the country.