Justice Committee on March 23rd, 2011

[The Chair, Conservative, Ed Fast]

I call the meeting to order. This is meeting number 55 of the Standing Committee on Justice and Human Rights. Today is Wednesday, March 23, 2011. I would note that this meeting is being televised.

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. Today we have two panels of three witnesses each.

On our first panel we have the following witnesses. We have, first of all, as an individual, Susan Reid, professor of criminology and criminal justice, and also director of the centre for research on youth at risk at St. Thomas University. Welcome to you.

We also have the Canadian Crime Victim Foundation, represented by, first of all, Joseph Wamback, who is the co-founder and chair, as well as Lozanne Wamback, who is a co-founder and director of that organization.

Finally, we have from Burnaby by video conference, as an individual, Gordon Penner. It's nice to see you again. It has been a while.

Someone indicated that you don't have copies of the agenda. Is that correct?

I'll get my clerk to provide you with copies of the agenda.

In any event, I think you've been advised of the process. Each of you has 10 minutes to present, and then we'll open the floor to questions from each of you.

Why don't we start with Ms. Reid.

[Professor Susan Reid, Professor, Criminology and Criminal Justice, Director, Centre for Research on Youth at Risk, St. Thomas University, As an Individual]

Thank you very much for the opportunity to appear before you today.

My name is Susan Reid, and I am a criminology professor at St. Thomas University in Fredericton, New Brunswick. I'm also the director of the Centre for Research on Youth at Risk, which houses the eastern hub of the Students Commission of Canada and the Centre of Excellence for Youth Engagement.

I have been studying the impact of juvenile justice legislation since the introduction of the Young Offenders Act, so I've been looking at this over a few years. I hope that my comments will help you as you move forward in the promotion of progressive youth justice legislation in the years to come.

“Why would you ask me what could be changed about the young offender system? I'm just another guy in blue clothes.” This was a comment from a group of young men I went to speak to in our only closed custody facility in the province, the New Brunswick Youth Centre. I responded to this young man by telling him that I was very interested in what he had to say because I wanted to share his comments with those who were making changes to the legislation. I told him I believed that the Youth Criminal Justice Act valued young people in its philosophy and principles, and it was important that young offenders' voices be considered when the government deliberated changes to the law that would directly impact them.

I am here today to let that young man's voice be heard, and to provide you with some pause related to the research and evidence on some of the proposed amendments to the Youth Criminal Justice Act.

I had the privilege of participating in one of the national round tables hosted by the Minister of Justice in the summer of 2008. At that time, I expressed my sincere appreciation for the thoughtful work that had gone into the creation of the Youth Criminal Justice Act. This legislation, unlike its predecessor, showed young people across Canada that they were important, that they were to be seen as valued and contributing members of society, and that we as a country believe in the potential of all our young people. I think we took the lessons learned with the problems with the Young Offenders Act and tried to create a piece of legislation that would be progressive.

I am afraid that in the proposed amendments, with the introduction of deterrence and denunciation to the principles of sentencing, we are headed back to that time when we had the dubious honour of being the country with the highest youth incarceration rate in the world.

I am saddened by the thought of more young people being held in custody, when our research evidence shows that incarceration does little to reduce offending patterns of young people and in most cases increases the likelihood that a young person will reoffend upon release. I believe the impact of such policies will be felt most by our most vulnerable members in our communities: the poor, the disenfranchised, and our first nations youth. I am worried that the message we will be sending to young people, with such principles as deterrence and denunciation, will tell them they are “throwaways”—discarded because we couldn't take the time to apply evidence-based research and practice.

I was very critical of the Young Offenders Act for its lack of priority placed on the principle section. When we created the Declaration of Principle in the Youth Criminal Justice Act, we were clear: we created a sequential approach to youth justice, where we were going further and further into the system, so that we started with the diversion of young people for minor offences, giving tools to the police to be able to move forward, with more severe and serious interventions as we dealt with more serious young offenders.

The final layer in section 38 sets out the purpose and principles of sentencing that underscore the long-term protection of society—just sanctions that hold young persons accountable and promote reintegration and rehabilitation.

The most successful parts of the legislation are in the area of extrajudicial measures and extrajudicial sanctions. Young people and professionals alike applaud that area. A recent meta-analysis of 29 studies in the United States that included over 7,000 juvenile offenders over a 35-year period conclusively showed that the more that justice processing happens to juveniles, the greater the likelihood of recidivism. Our best response is what we're doing right now—diverting minor offenders out of the system.

I also think it's great that the RCMP has developed a national strategy in terms of providing their officers with tools to be able to use evidence-based practice to screen offenders when they come before them to see about their suitability to be referred to an extrajudicial program.

When I was consulting with the police over my report on extrajudicial measures, they did express concern to me about the lack of record keeping in terms of the number of times young people have been placed with an extrajudicial measure, and they really would like to...and will applaud your recommendation before us about keeping track of those records. I'm concerned about that because the young people who are being diverted out of the system are not in the system and shouldn't have a record at this point. But it's the least of my concerns with the proposed amendment, to be perfectly honest.

The importance of protecting rights under the Youth Criminal Justice Act is also underscored in the preamble to the declaration in terms of underscoring the UN Convention on the Rights of the Child. It draws attention to us as well about the value of diversion from criminal proceedings, looking at extrajudicial solutions, and ensuring that we look for social and educational interventions. We must remind ourselves of the Beijing Rules, which also guide our choices under the UN convention; they talk to us about using juvenile detention in an institution as a measure of last resort.

One of the problematic areas with regard to this CRC is the reservation that we've had under section 37, which allows us to house young offenders in adult institutions. In the province that I come from...I want to applaud the number of young people who have been removed from that institution. But when we had empty beds, they had to fill them, of course, because it's cost effective, and they've chosen, on a ratio of 5:1, to put adults in those cottages within sight of young offenders. That not only is in violation of the UN Convention on the Rights of the Child, but it also reduces the programming that young offenders are allowed to participate in.

I want to applaud the government's insistence on the proposed changes that youth under the age of 18 who were given a custodial sentence will serve it in a youth facility, and I want to draw your attention to subsection 93(1), which also talks about the fact that we can keep young people in youth facilities until they're 20. Both of these sections are definitely in keeping with the philosophy and principles of the YCJA, and we should really underscore that.

However, I don't like section 92, which talks about the ability to make an application to the courts if it's in the best interest of the young person and the long-term protection of society to transfer that young person to an adult facility. I very much believe if we didn't have that provision we might have prevented the death of one of our New Brunswick youth, Ashley Smith, who took her life in one of our adult correctional facilities.

A University of Pennsylvania criminologist was quoted in the media in the 1990s referring to young offenders as “super predators”. John DiIulio predicted that the crime wave of the 1990s was going to be much more serious, and super predator became the common term for referring to young offenders, with a flurry of very punitive policies in the United States around dealing with young offenders. More recently, he's expressed his regrets for the characterization of young people in an article he published in The New York Times, which I was pleased to see, where he acknowledges that his predictions about the growing threat of youth crime did not come to pass.

I'm worried that the government, with its proposed amendments, is falling into the trap of what happened in the United States in an effort to do something because we believe Canadians want something to happen, and that we gain our knowledge from the few sensational cases that draw utter disgust from the public. Moral panics, as we have seen through history, are transitory and will subside over time. This is not to diminish the pain and the anguish that is caused to the victims and the families of those who have had a horrendous incident happen to them. On the contrary, I really strongly believe in the value of making sure that we match our interventions for those young people who come before us in such a way that we know that we're basing it on evidence and that we're doing the best possible thing for our young people and for the victims and the families of those young people who have come before our courts.

We know from our research evidence that providing too high a dose of correctional intervention to low- or moderate-risk offenders will actually increase the propensity for crime. We must ensure that we continue to promote this evidence-based practice and the idea that we think about the proliferation of news stories and take them into account. That's the dose the public is getting about what we do with our young people.

The United Nations Convention on the Rights of the Child is very clear on the idea of privacy, and that we need to be thinking about not publishing names in newspapers. I'm nervous about the idea of lifting the ban on that, because I see that as in direct violation of the UN Convention on the Rights of the Child.

I'm also concerned about media attention and recent marathons on the A&E entertainment network on Beyond Scared Straight. They're publicizing a show that talks about a program that we know from academic literature doesn't work. The public is going to see that as something that is cost-effective and perhaps would help in terms of reducing crime by young people, but we know that--

[The Chair, Conservative, Ed Fast]

Unfortunately, I'm going to have to cut you off there. You're over your time already.

[Prof. Susan Reid]

Okay.

[The Chair, Conservative, Ed Fast]

You can certainly get some of the additional points out when you're asked questions.

[Prof. Susan Reid]

That's fine. Thank you.

[The Chair, Conservative, Ed Fast]

We'll go to Mr. Wamback.

Welcome back to our committee. You have ten minutes.

[Joseph Wamback, Co-founder and Chair, Canadian Crime Victim Foundation]

Thank you very much, Mr. Chair and members of the committee. It's my honour to be here. My objective today is to be brief.

My concerns are the same as all Canadian families: healthy, safe communities where we can grow and prosper without intimidation and fear and where we provide early identification and support for those who are predisposed to violent behaviour, and also where we can protect the most treasured of Canadian values, our birthright, our most basic human right, which is the right to life. Today's debate is not about kids who are making dumb mistakes, and any attempt to suggest that today's debate is so masks the truth. This is not about the great majority of young Canadians who find themselves before a court.

Modifications, as anticipated by Bill C-4, should not be confused with social problems or social policy. I believe these are mandatory changes to a criminal law measure that is probably the most understood legislation in the history of Canada. The debate is about the most serious violent young offenders in Canada, who represent a small minority of all those who become involved with the justice system, a small minority that has created a storm of discussion, fear, and debate, which has confused most Canadians. This debate should not be limited to the sanitized world of academics, and it must include all Canadians, especially those who have lived with violent crime by young offenders, who have witnessed the body bags, and who have lived with the aftermath and consequences of murder, community intimidation, and the life-altering effects of gang culture and violence.

This debate is about trust.

Over the last 11 years I have met with police officers, crowns, and judges who are really the quarterbacks of our judicial system. They have expressed their frustration at the limitations of the current legislation that has no provision for dealing with the worst of the worst.

This debate is about trust, by providing our judiciary the tools and latitude necessary to make the right decisions for the safety of all young Canadians while maintaining our values and principles of judicial independence.

This debate is about trust in our judiciary to provide protection for our children, while at the same time providing future opportunities for both the offender as well as the victims. My expert advisors tell me it takes a minimum of three years of intensive clinical intervention to give hope for success in the treatment and habilitation of violent young people. Longer sentences allow social engineers and psychologists the time necessary to provide the clinical intervention to assist in the successful rehabilitation and reintroduction of the violent young offender back into society, while at the same time reducing recidivism and keeping violent repeat offenders off the streets.This does not happen in the existing system where sentences for extreme violence are discounted and plea bargained away and, most importantly, where counselling is not mandatory within this system.

Currently, we're doing nothing more than babysitting, and we're not doing a very good job at that. The existing IRCS program—intensive rehabilitative custodial sentence—that provides $100,000 per year for violent young murderers is a massive waste of money and a failure, because nothing is mandatory for warrant expiry. There are numerous examples that I can tell you, which we have been personally involved with, where somebody who has graduated from the IRCS program, within two weeks of release, has murdered another child.

On the statistics debate, I ask you not to rely on the current StatsCan statistics in your decision-making process. I ask you please to take the time to read the Macdonald Laurier Institute report, an excerpt of which I have provided both in English and in French for everybody on this committee. I encourage you to read the full report and to continue this debate about the revisions before you without the distraction of misleading statistics. The question we've all been asking is whether the Youth Criminal Justice Act, in its current form, is an effective tool for reducing crime. We did have, statistically, the highest incarceration rate in the world. But in so many cases, one individual was counted four times in that statistical database.

The average length of sentence in Canada was 30 days, compared with the average length in the United States, which was measured in years. Again, that's a statistical anomaly that has been used by many proponents trying to make the YCJA or the YOA different from what it was, to justify their reasons.

The simple answer to that question is breaches, which were separate indictable offences under the Young Offenders Act. Forty-seven percent of the statistical database under the YOA were breaches: breach of recognizance, breach of bail, breach of probation. When the Youth Criminal Justice Act eliminated breaches as an indictable offence, why did the crime rate not drop by 40% to 50%? It didn't. It dropped by about 32% to 35%. That's telling me that youth crime was going up, not down.

In the last 11 years, I've travelled across Canada and I've spoken to thousands of victims, as well as victimizers, and their families. Without exception, everybody wanted change—positive change—to protect their families. In 1999, I created a petition, which you have before you in both English and French, while my son lay comatose in the hospital from a violent attack by 14 young people. At the time, in 1999, there was nothing Machiavellian or hidden in its content, nor is there today. Items one to nine you have before you. That petition has been signed by 1,300,000 Canadians. I believe it has the distinction of being one of the largest petitions in the history of this country.

The issues today are as valid as they were 12 years ago. As a matter of fact, I believe they almost parallel what is in Bill C-4, with the exception of things that I believe we need in addition, which are mandatory counselling, mandatory intervention at an early age, to try to help our young people.

I hear so much about identification of serious violent offenders and pre-trial custody and bail. The people who hurt my son had 56 prior charges. The young man who killed, stabbed, Joey Tanner had 29 previous convictions for violent offences. Joshua Hunt, Nicholas Chow--and the names could go on and on. These crimes, these murders, were committed by individuals with a violent history, and the system is not doing anything to help them and it is not doing anything to protect innocent kids. It deals with the length of sentence. It deals with the ability of our institutions to be able to provide effective rehabilitation efforts, if that is possible, and it deals with the requirement to protect innocent children from those who are extremely violent.

Most of the victims of young offenders are themselves young people. I believe the number is around 90%. Lozanne and I have spoken directly to over 30,000 teenagers in the last few years. The message they give us is consistent from large cities to small communities: Why won't anybody help us? Why is it okay to hurt another person? Why do bullies and victimizers get all the help? Why does no one listen? I don't have answers for them. I'm hoping this government, or whatever government follows, will have those answers.

Ninety percent of youth crime today is unreported and, according to expert advisers on my board of directors, results in massive psychological trauma. The cost to Canada and our society is immeasurable—dropping out of school, family breakdown, unresolved anger and frustration, and ultimately revenge and becoming involved in the judicial process.

We support the clauses in Bill C-4. I hope and I'm prepared to answer any of your questions, as is my wife.

I promised you today to be brief, and I do apologize for becoming emotional.

It's been 11 years, and we see today—just last week—that what happened to our son has happened time and time again in our country. It has happened, not because of a stupid mistake, not because of a minor crime, but because we as a society are unable to deal with violent and repeat offenders.

I'm hoping that everybody in this committee looks at this for what it really is. It is not a partisan political issue; it is about protecting the rights of Canadians and our families.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you very much for that testimony.

We'll move now to Mr. Gordon Penner.

You have 10 minutes.

[Gordon Penner, As an Individual]

Hi. Thanks for having me. I don't have a huge report like the other two. I haven't been in the business that long. But I will relay my personal story, and hopefully this will shed some light on where I'm coming from.

In 2006, my son Jesse, 20 years old, a Douglas College student, was murdered by a ten-time convicted young offender. Most of his offences were for violence. He was released to a family that was described in court as the mother having her issues and the father being indifferent. And lo and behold, no one came forward with information that we found on Google—the 18-year-old brother, who was a cocaine addict at the time, was also out on bail for murder, for a home invasion in Burnaby that he did with his cousin. They released this boy to the custody of that dysfunctional family.

When I read the sections under pre-sentencing detention in the Young Offenders Act, I believe the language is already there. Why wasn't it carried out?

I probably have more questions than I have answers, but I can tell you it's been a nightmare for us because nobody seems to want to talk to us about these issues. We find that very disconcerting, that nobody wants to talk about a mistake that happened through the system.

If these kids were being assessed and evaluated properly, then they probably would be detained as well; therefore I don't think we would have to start naming kids who are on the border, who might fall through those cracks.

This boy who killed our son...it was random. As a matter of fact, 90% of the people at this house party didn't even know this kid. I don't know that naming them is going to do anything. On the issue of privacy and not naming these kids, I don't think that naming them is going to be the answer. I know one thing: privacy under the youth policy is being used to stymie my family. I cannot get my provincial government to discuss these issues with me. They've told me that he was a young offender and they won't discuss his issues or his family's issues.

If we can't find out why this boy was released, and nobody will talk to us, and the laws that are in place are not carried out, how would I think this new bill would do anything to help us? You're talking to a skeptic, at best. We've been dragged through this quagmire. It's a nightmare. We've had no assistance whatsoever getting through this mess. It's been quite an experience for us to go through the system and see all the things where the system broke down and dropped my family on its head. I think that's a sad state of affairs and a black eye to the criminal justice system.

In order for me to be able to speak with my provincial government, I would have to hire a lawyer. I would like to know why I have to be able to afford justice.

This boy has a medical history, by the way, and I couldn't find that out until I went to his detention review hearing. He was hit in the head by a vehicle when he was 8 years old and he has major frontal lobe damage. He was hit again by a vehicle when he was 10 years old and had a second frontal lobe damage.

He had 10 serious convictions by the time he was 16. He was kicked out of school at the age of 11, for violence. He was refused entry into an outreach program because of his violence; he was 13 at the time. I don't know what he did between ages 11 and 13 as far as education goes, but you can't help but think that he would be on the radar. I'm sure that most children in this country who aren't in school at that age are on the radar. At 13, he was found in possession of a stolen car. At 14, he had arson, times two, without regard to human life. He broke a liquor store clerk's hand with a baseball bat. He smashed a kid on the neck with a two-by-four-sized tree branch, at a sky train station, to rob him.

Now, do you think there might have been a few hints of escalation there?

My family and I have sat and had very many cheerful discussions about these issues. As far as we can see, the language is there that could deal with these kids.

It seems that there's a lot of confusion right across the country on how this whole system works. There seems to be a lot of issues on interpretation by different jurisdictions. The victims are just the meat in the sandwich.

That's about all I can really say at this point.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll open the floor to questions now.

We'll begin with Mr. Murphy for seven minutes.

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

Thank you, Mr. Chair.

I want to thank the witnesses for giving us their testimony.

First, I want to say to Mr. Penner and his family, to the Wambacks and their family, on behalf of the Liberals and probably all committee members, we understand--we can see it in your faces--that this is extremely painful for you. You have lived the nightmare of victimization. We understand that, and we feel for you on that.

What we're trying to do here is improve the law with respect to youth criminal justice. Over many hearings, listening to many witnesses, we seem to be grappling with the fact that the act itself just prescribes what the offences are and what the penalties will be. It doesn't at all address--that's not the way we do laws, and it's wrong--what kind of treatment, what kind of success or benchmarking there is on the treatment or rehabilitation or counselling that these people, the very worst offenders, should receive when incarcerated or when under supervision. That's an obvious gap that goes a long way to explaining how the law itself, whatever we do with it, is not going to answer the question. I think we all know that.

I am very interested, Mr. Wamback, in what you said about three years and how the experts you have consulted say that's sort of a benchmark or a period at which clinical intervention works. We heard evidence just this week from another victim of this type of crime, who also mentioned the three-year period. Whether it's incarcerated clinical intervention or supervised clinical intervention, I'm interested in what your experts told you about that. If you had further material, we could probably get the clerk to receive it from you.

Just briefly, because I do want to get back to my St. Thomas friend on other issues, could you tell me what you meant by that?

[Joseph Wamback]

The information was given to me by my directors, who are professors of psychology, and a dean of psychology, at Canadian universities. They also have their own private practice. We've discussed ad nauseam the issues relative to young people, crime, predisposition to violence, and criminal behaviour.

The comment has always come back that in their estimation and in their experience--and these are people who have been in that particular area of medical practice for decades--it takes a minimum of at least three years of intensive clinical intervention, which means at least once or twice a week, to be able to change the predisposition or be able to change the behaviour of that individual.

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

Do you think incarcerated youths, the few who are, are receiving this type of clinical intervention?

[Joseph Wamback]

Absolutely not. That's one of the things we identified back in 1999 and continue to try to identify today to anybody who will listen to us. By housing individuals in youth facilities without making clinical intervention or programs or rehabilitation programs mandatory, we are not achieving any objective. It is not mandatory.

We speak to prison guards, to jail guards, to workers within youth custodial environments who have told us time and time again that they get the finger and they're told to shove it when they ask a particular individual to attend their counselling classes. There is nothing they can do; absolutely nothing. There is no mandatory requirement for completion on warrant prior to warrant expiry.

I think it would be a massive step forward in releasing individuals back into our community to give them--and society--at least a greater chance of reintegration without recurring recidivism.

Recidivism under young offenders is an almost impossible benchmark to try to ascertain, because no statistics are kept. All we do is we look at 56 prior convictions, 29 prior convictions, 40 prior convictions. We don't know. But it doesn't take a rocket scientist to figure out that if we cannot change those individuals and rehabilitate--or, let's face it, habilitate--those individuals, we are not solving any problems; we're just making things worse.

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

This might be a good time to segue to you, Professor Reid. I lived for a year at Holy Cross House when I was going to law school, so I have a fond spot for St. Thomas and the good work that former conservative MP Dennis Cochrane is doing there as chancellor.

In any event, there may be some common ground in the idea of clinical work towards rehabilitation, whether through diversion or incarceration, and whether mandatory or not--and those are good questions--in that I think we recognize that it could work.

Getting away from the mandatory aspect, what are your thoughts on the type of treatment and the length of treatment? What is required to turn someone around? I heard that evidence from a victim's group, about turning a young person around if it's possible. It sounds to me, Mr. Penner, as though there's a whole public health or a mental health issue as well. With your set of circumstances it may be awful--it is awful--but it may be quite different from the hopeful rehabilitative goal that I think you espouse.

[Prof. Susan Reid]

Thank you very much.

I think you have hit it on the head in terms of the common ground that we do share. Let's be clear: our youth facilities are there for punishment. They're not there for treatment, and being held in a custodial facility does nothing more than punish young people. We know that young people with highly complex needs require a different kind of treatment and that our young offender facilities are full of people with mental health needs for whom treatment is not mandatory. I would argue that there aren't services even if they want to access them. That's an issue as well.

We have a number of programs in our community facilities, and if we had sufficient resources tied to intensive mental health treatment over a period of about three years, we would be better served. Some people do need to be in a closed facility for a period of time. But let's not kid ourselves into thinking that being in a closed facility is for treatment. It's for punishment. I agree with the three-year term. In fact, that's why we had three years in the original Young Offender's Act.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Mr. Lemay for seven minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chair.

And thank you to the witnesses for being here today.

What I have to say is directed at parents and to Mr. Penner, a father. I appreciate what it took for you to come here today to describe what you went though, what society did and, above all, what it did not do to help parents and victims who have gone through the same thing you have.

I can tell you that I argued many a case in youth court, and I met a number of parents such as yourself. The problem I have, and I say this in all honesty, is that everything you just mentioned is in the current act. Everything you are asking for is already in the current act. It would not have to be amended or revised. Everything is already there, I can assure you, in sections 38, 39 and 40 of the current act. I have read them and argued cases relying on them. It is all there.

The question we need to ask instead is why were you, the parents of these children, not informed. There is a problem somewhere. I am being completely sincere. When you read the specific sentences set out in sections 37, 38, 39, 40, 41 and 42, everything is clearly laid out. It's all there. What really concerns me, what is so unfortunate here, is that the courts do not seem to be using them.

I cannot speak for British Columbia or for any other province besides Quebec, but I can tell you that the crime rate has gone down. Yes, violent crimes are still committed, of course. And yes, we still have street gangs, as Mr. Petit will probably tell you in a few minutes. Yes, that is true. Nevertheless, everything is already in the current act. I hate the fact that you cannot access the information you want. And I say that with all sincerity.

Do we need to amend the act? Do we need to include parents? Do we need to notify you and keep you informed, as set out in the current Criminal Code? The Criminal Code contains specific provisions that allow victims—such as yourself—to appear before the court and tell your stories.

I won't take up any more time with that. I will get to my question. This is for Mr. Wamback and obviously Mr. Penner. I would ask that you keep your answers brief, and you can have the rest of my time.

Why do we need to change the legislation to address your concerns when everything is already there? What is missing? What should be in there?

I had clients who delighted in going before the juvenile court under the Young Offenders Act. They would have loved to have their names posted everywhere because they would have come off looking all thuggish or tough. I am not convinced that amending the Criminal Code to make their names public would be such a good idea.

Mr. Chair, I am not sure how much time I have left, but I will give it to Mr. Penner and Mr. Wamback, because I want to hear what they have to say in response.

[Joseph Wamback]

Thank you very much, Mr. Lemay.

Your experience that everything we're asking for is within the legislation...I find that I'm incredulous, and I'm pleased that you did find that, because all of the lawyers, legislators, and advisors we have spoken to are telling us that it is not, and it is our own personal experience that it is not. I'm not a lawyer, so I'm not going to debate with you; I'm an engineer. But we do not have the concept of deterrence and denunciation in the existing legislation. I believe that deterrence and denunciation, meaning that “you do that and this will happen”, and societal denunciation, meaning that we as a society find that particular act or that particular offence so offensive that we need to provide a sanction against that....

One of the major problems we have with the Youth Criminal Justice Act is that, in my very, very humble opinion, it is too lengthy...it takes three and four years to bring a violent young offender before a court. In that three- or four-year period, witnesses lose their memories, testimony is lost, intimidation mounts, witnesses disappear, and the sanctions ultimately mean virtually nothing.

As far as publication bans for names are concerned, we do that currently in aboriginal sentencing circles. As far as kids on the street today are concerned, when somebody commits an act of violence, I can guarantee you that everybody in that community at that age level knows exactly who that is. The people who don't know are the police and the parents of those children.

The boys who hurt my child had 56 prior charges as young offenders, including violent charges. Had we known about that in the community, perhaps we could have taken steps to protect ourselves or our children.

There's a young man in London whose name is Almeida and whose five-and-a-half-year-old daughter was abducted, raped, bludgeoned, and murdered by an 18-year-old who had just finished a warrant expiry for sexually abusing young children. He was moved into the community, nobody knew who he was, and his acts of violence were shrouded in secrecy. The police didn't even know who he was and where he went, yet he committed an act that took another child's life.

When somebody goes out and commits an act of extreme violence--including rape--in our communities, they come back to our schools. The teachers and the parents don't know who they are, but the kids do. They come back with a bigger batch of courage than they had before they left and they're heroes among their communities.

Publication of names also deals with the embarrassment, the embarrassment of the community and the family for individuals who perpetrate acts of such violence against humanity, and I think it's absolutely vital and very important.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Mr. Comartin for seven minutes.

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

Thank you, Mr. Chair.

Mr. and Mrs. Wamback and Mr. Penner, I echo Mr. Murphy's comments in terms of the pain and suffering you've gone through and the way our criminal justice system has failed you. Because that's the reality: it has failed you.

Mr. Wamback, I guess I want to take issue.... I did this on Monday with other victims of abuse and violence by young offenders. I've studied this. I am a lawyer and have spent a lot of my career, early on in particular, working in this field, and on both sides.

When I first saw this legislation, my initial reaction was to say: “What are we doing? This doesn't help.” I assume you've read the Nunn report--

[Joseph Wamback]

Yes.

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

--and Justice Nunn's comments about the need for us to deal with that specific group of the violent offenders, and particularly the repeat violent offenders. This legislation, as far as I can see, really doesn't advance that. I'll make that as an opening comment.

Here is what I would like to ask you. You were talking about the prosecutors and the police who were frustrated with the system. We had three senior prosecutors come before us, from Alberta, Manitoba, and Nova Scotia. These are people who are specifically responsible for prosecuting young offenders. They said there are three areas in this legislation that in fact are going to make it more difficult for them as prosecutors.

I'm talking about Bill C-4 that's before this committee right now. They said that it's going to make it more difficult for them to be able to prosecute young offenders, including maintaining them in pre-trial custody, what they do in terms of holding them after sentencing, and also in applying adult sentences to them. In all three of those areas, this legislation is actually going to make it more difficult for them to use this against that 5% to 10% of all the young offenders.

So my question is, have you looked at it? Do you have any impression about...? I'm sorry, I should finish. They were before us on two different occasions. In between, they actually sent this proposed amendment. To this point, the government has refused to even talk to them. I shouldn't say “refused”, but simply “not talked to them”. It appears that they're not going to move these amendments to this legislation, in spite of the fact that it's so clear that this would be the one major step forward in terms of dealing with that 5% to 10% of those violent offenders.

So, number one, do you know about the amendments, and two, if you do, do you have any comments?

[Joseph Wamback]

Yes, I do. I'll approach them individually, as the pre-trial custody issue is certainly to be used in a discretionary manner. It is not going to place in pre-trial custody somebody who has committed minor offences and whose offences are non-violent. Where an individual who has committed murder is not held in pre-trial custody, I think it's an absolute travesty and a mistake that could cost other lives. We've seen it happen before. We've seen it happen in so many cases that we believe in, and I would support with my life, pre-trial custody for extremely violent individuals.

On your second point, this isn't mandated or mandatory. This legislation is only expanding the options that are available for both the crown and the judges to make decisions and maintain their judicial independence from the government. I'm not a lawyer, but I don't understand how a crown is going to say that seeking an adult sentence is going to create additional problems for him. An adult sentence under the current Canadian Criminal Code can actually mean less time in a custodial environment.