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.