Evidence of meeting #14 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
Conservative
The Chair Conservative Dave MacKenzie
It carries.
(Clause 168 as amended agreed to)
(Clauses 169 to 171 agreed to on division)
(On clause 172)
Conservative
NDP
Jack Harris NDP St. John's East, NL
I think we're getting the message on deleting clauses being proposed in their entirety, so I think it's probably preferable to withdraw the amendment and debate the clause itself, because the argument is the same.
Our amendment was to delete that clause in its entirety, and the reason is because it changes the objectives of sentencing to denunciation and individual deterrence as principles of sentencing for youth crimes.
We did have expert evidence on this. We heard Professor Bala's comments as an expert on this matter, and we also heard excerpts from the Nunn commission, talking about the issue of how you deal with young people and youth courts.
In this act, even with some of the provisions that are a part of the act itself and the new amendments, for example, in clause 168, “the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability”—and then it talks about what it emphasizes—it's clear that we do have a different set of rules for young people. Denunciation is a feature of sentencing that is reserved for adults at this point in time, and to include that as a principle of sentencing for young people we feel is inappropriate and contrary to the understanding of what the youth criminal justice system is about.
As I say, some of the proposals will only lead to potentially longer periods of incarceration, less emphasis on rehabilitation, and less ability for young people to be rehabilitated. This is one of the reasons we are opposed to the overly punitive nature of aspects of this legislation in its entirety and the reason we oppose this particular section.
There may be others who have some comments on our side, but I'm not certain of that.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I have a brief point, Mr. Chair, just to illuminate that this amendment simply gives discretion to a judge where a judge concludes that a specific young person might be deterred...to allow the judge to take that into account in sentencing. It is permissive to a judge. It's not mandatory or required. Therefore, I would hope my friends across the way would be willing to give the judges a little more discretion.
Conservative
The Chair Conservative Dave MacKenzie
Thank you, Mr. Woodworth.
(Clauses 172 and 173 agreed to on division)
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Mr. Chair, on a point of order, I'm wondering if Mr. Harris would consider the opportunity we have to group the clauses together.
NDP
Jack Harris NDP St. John's East, NL
The next amendment we have is on clause 185, but there may be one on clause 183—we have a Liberal amendment—so I don't have a problem with clauses 173 to 182 being dealt with as a group.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
We've dealt with clause 173, so it would be clauses 174 to 182.
NDP
Jack Harris NDP St. John's East, NL
Okay. We just did that on division. It would be clauses 174 to 182. I stand corrected. Thank you.
Conservative
The Chair Conservative Dave MacKenzie
It's agreed that we will deal with clauses 174 through 182.
(Clauses 174 to 182 agreed to on division)
(On clause 183)
November 22nd, 2011 / 6:45 p.m.
Conservative
Liberal
Sean Casey Liberal Charlottetown, PE
Yes, it's Liberal amendment 35. In the short time that I've replaced Mr. Cotler, I've heard my colleague Mr. Woodworth a couple of times deliver very convincing pleas for more judicial discretion, and that's exactly what this is directed at.
The bill as presented ties the hands of the judge with respect to the imposition of an adult sentence, and we are asking for permissive language to allow a judge to have that discretion.
NDP
Jack Harris NDP St. John's East, NL
Our amendment is identical. If one fails, the other fails.
We have a second amendment as well to the same clause, replacing lines 2 and 3 on page 93 with the following:
that an adult sentence be imposed if, having considered the seriousness and circumstances of the offence, the personal circumstances of the young person—including their age, maturity, character, background, and previous record—and other relevant factors, it is satisfied that
That would be in there and be ahead of the provisions about the presumption of moral blameworthiness or culpability being rebutted, and the sentence being imposed according to the purpose and principles of the act.
It's to the same effect.... We think the requirement of adult sentences is an affront, as Mr. Casey indicated, to the court having discretion. Again, telling judges what to do in so many circumstances, as we're seeing in this government's approach to both the youth justice system and the adult system, is contrary to our justice system, which, frankly, has a large number of judges across this country who are highly trained, highly experienced, and whose judgment we pay handsomely for, and who we rely on to deliver justice in individual cases and to take into consideration relevant factors, and have that system operate with the level of discretion that's appropriate. We think it is appropriate to continue to expect judges to be able to make proper determinations based on, as we say here, the individual circumstances that should be taken into account.
We're talking here about the seriousness of the offence, the personal circumstances of the young person—their maturity, character, background, and previous record—and any other relevant factors. I think that's the key here, that it does permit relevant factors to be taken into account. Judges have long experience and there's a tremendous amount of precedent available to guide the court in terms of how they work and what precedents.... If they deviate from those precedents and are out of line, other courts and courts of appeal can establish the guidelines that are necessary to give a proper set of determinations for our courts on an ongoing basis.
We are satisfied that the existing provisions of the law are adequate. In order to continue with that tradition, we think our amendments—along with the amendment, LIB-35, that was proposed by Mr. Cotler, through Mr. Casey just now, which, in this case, is identical to NDP-52. Our amendment, NDP-53, provides a guideline around which the decision of a sentencing judge or a determining judge would be made.
Conservative
The Chair Conservative Dave MacKenzie
Thank you.
Mr. Casey, you have LIB-36. Just so it's clear, if the NDP-53 amendment is adopted, we can't adopt LIB-36.
Liberal
Sean Casey Liberal Charlottetown, PE
Thank you.
I'm now in the uncomfortable situation of speaking out of both sides of my mouth.
If it is the will of the majority of this committee to limit the discretion of judges, then it's our position that if you're going to give them direction then you'd better make it damn clear.
What LIB-36 does is it says to judges that if you're going to set about imposing an adult sentence, the standard to be applied is the criminal standard of “beyond a reasonable doubt” and no other standard, which makes it consistent with our Constitution, and makes it crystal clear that if you're going down that road they're entitled to the criminal burden of proof.
So while we would urge upon you that the judges should be given discretion, as I indicated in my earlier remarks, if you disagree with that and you're going to tie their hands, make sure you make it real clear and make sure that young people are entitled to the benefit of the doubt before they're handed an adult sentence.
That's the purpose of that amendment.
Thank you.
Conservative
NDP
Jack Harris NDP St. John's East, NL
Yes. I'll just speak briefly to that, Mr. Chairman.
We think that all the provisions of section 3 and section 38 should be considered, not just subparagraph 3(1)(b)(ii), to give proper consideration for the factors of sentencing.