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.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Thank you for your answer.
You criticize, and rightly I believe, the change in the definition of "serious violent offence". As experts, you're providing a significant list of crimes that will now be considered violent crimes. Can you give us that list.
Member, National Criminal Justice Section, Canadian Bar Association
I need to clarify something arising from your question.There's something called a “serious violent offence” that has been redefined, and we agree with that. “Serious violent offence” was defined judicially as any “offence in the commission of which a...person causes...serious bodily harm”. There were all kinds of discussions and debate about whether that included psychological harm. It was confusing. It was troubling for the courts. It was difficult for people to predict what might be classified as a serious violent offence.
This is one of the things we agree with. The act has redefined it by including four very serious offences that make up “serious violent offences”. That's a good thing. But what you're getting at is this definition of “serious offence”. And this is addressed on page 9 of our submission. This is a different thing. Our problem with the definition of “serious offence” is that it has implications with respect to, for instance, denial of bail.
I think I can make the point by giving you an example. The definition of “serious offence” includes any offence for which an adult, if prosecuted by indictment, could get a sentence of five years or more. That includes things such as fraud, theft over a certain amount, uttering a forged document, possession of a stolen credit card, public mischief, and so on. We don't see these as objectively serious offences.
If a judge is dealing with a young person in possession of a stolen credit card and feels there's a substantial likelihood, whatever that means, that this person, if released, might get another stolen credit card, the judge is entitled to hold the person in custody before trial. We don't think that's wise. We think that's an overly expansive and vague definition of “serious offence”. So that's the part we disagree with.
Conservative
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Chair, and thank you to all the witnesses for your attendance today. Mr. Stroppel, it's good to see a fellow Edmontonian come and testify before our committee.
I take it all of you have read the Nunn inquiry and Justice Nunn's recommendations. I'm assuming you're all familiar with that. Is that fair?
Professor of Law, Faculty of Law, Queen's University, As an Individual
Actually I was a witness for a couple of days.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
I want to focus on a couple of his recommendations. The first one is recommendation 20, where he advises the Nova Scotia government to lobby us to amend the declaration of principles in the act to add a clause indicating that the protection of the public is one of the primary goals of the act. I'm assuming from your opening statements that philosophically and in principle you all support recommendation 20. Is anybody against recommendation 20?
Dr. Bala.
Professor of Law, Faculty of Law, Queen's University, As an Individual
I'm not against recommendation 20 in the sense that I think protection of the public is an important idea. However, I'm concerned about the specific wording of paragraph 3(1)(a). Protection of the public is certainly one of the important aspects, and in fact one could argue it's the most.... It's the reason we have a criminal justice system in significant measure. But the wording of 3(1)(a) causes concern to me particularly because judges may ask what the legislation said before, what they changed it to, and what the significance of that change is. I worry that they'll read the change in 3(1)(a) and think they should not take into account the long-term protection of the public but the short-term protection of the public, which, in some people's minds, would mean more youth incarceration.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
We'll come back to that.
Mr. Stroppel, do you agree that protection of the public should be one of the goals of the Youth Criminal Justice Act?
Member, National Criminal Justice Section, Canadian Bar Association
I do, but I think we need to put this in context, and we've done so on page 2 of our submission. As we say there—quoting directly from the Nunn report—we think the protection of the public should be recognized as one of the goals, but not the only primary goal of the act. What troubles us, what concerns us, is the proposal to take out the idea of long-term protection of the public, because we think a prime strength of the act is the way rehabilitation and protection of the public work together.
In other words, the best way to protect the public is to rehabilitate the young person, which in many cases does not involve incarceration, and in fact incarceration may have the opposite effect. It may render the young person more dangerous. So we seek to have that principle put in a context.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Ms. White, from your opening comments, I think you support protection of the public as one of the goals of the act.
Executive Director, St. Leonard's Society of Canada
I support the concept. Like my colleagues, I am concerned about the positioning, the wording, and the inference. I considered recommendation 20 in the context of the commentary in the commission's report, which in that area said this is not to be taken in any way as “a call for major reform”. It is a tweaking. While highlighting public safety in the act is necessary, it is only one of the goals or principles.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
So qualified support of recommendation 20.
Am I safe to assume that if one promotes recommendation 20 and believes that protection of the public ought to be one of the goals of the act, it could very well, and should very well, include specific deterrence and denunciation?
I'll start here again with Professor Bala.
Professor of Law, Faculty of Law, Queen's University, As an Individual
I don't think including specific or general deterrents will in fact protect the public. I know there is a lot of research, and my own personal experience would suggest that the problem with young people committing offences is that they are not thinking about the consequences of their act, let alone thinking about the severity of the sentence. Increasing the severity of sentences will not deter their behaviour.
The Supreme Court of Canada in R. v. B. (D.), in discussing the whole issue, said, and I think this is an important point, that the youth justice system, the effect of the system, should be to deter crime. So having police catch young people, having them brought before their parents, having them brought before a judge, that will have a deterrent effect. But if you say deterrence should be a factor in the principle of sentencing, you will be increasing sentences, which will not have an effect on youth crime. It will have an effect on youth sentences and youth court judges.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
You said in your opening statements that the length of the sentence and increasing the sentence will not affect the behaviour of the young person. I'm troubled by that. Perhaps I look at this in all too simplistic terms, but it occurs to me that if an individual is sentenced to incarceration for 12 months versus six months, for that increment of six months there is a period where that person is not committing crime. Help me out. Where is my logic faulty there?
Professor of Law, Faculty of Law, Queen's University, As an Individual
That actually would not be considered deterrence; that would be considered incapacitation, which is a different issue.
There is no doubt that rational adults are affected by the length of sentence. If, for example, we want to stop corporate fraud, having longer sentences and having a more effective securities legislation will deter accountants and lawyers and others, but it will not affect the behaviour of younger--
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Okay.
So you'll agree with me, then, that incapacity does serve the protection of the public.
Professor of Law, Faculty of Law, Queen's University, As an Individual
Yes, but could I just say that we also have to be aware when we are incarcerating of whether we are rehabilitating. As is often the case, unfortunately, custody is a place where gangs recruit young people, where young people are not rehabilitated, and they are more likely to reoffend. So I think it requires the kind of individualized determination that now goes on under this regime.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
I'd like to give my last minute to Mr. Woodworth.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much. I'll see what I can do with one minute.
By the way, Professor Bala, it's nice to see you back again, and also Ms. Schellenberg.
I don't think I've met Mr. Stroppel, so welcome.
Are you comforted by the fact that Bill C-4, in clause 3--which in fact amends paragraph 3(1)(a) of the act to move the concept of protection of the public from the last line to the first line--still says that:
(a) the youth criminal justice system is intended to protect the public by
--among other things--
(ii) promoting the rehabilitation and reintegration of young persons
That seems to me to be exactly what you are in agreement with, so I want to be sure that it is of comfort to you and that you haven't overlooked it.
Member, National Criminal Justice Section, Canadian Bar Association
I take some comfort from the fact that the principle is still there. But on balance we feel that the act was fine just the way it was. Certainly the Supreme Court of Canada agreed with us. In the R. v. B. (D.) case, there is substantial consideration of these principles.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I just want to be sure that no one at this table is trying to make off to the public as if somehow protection of the public is going to exclude the principle of rehabilitation and reintegration. You agree with me that we are maintaining the notion that it is okay to protect the public by rehabilitation and reintegration.
Member, National Criminal Justice Section, Canadian Bar Association
It is still there, yes.
Conservative
