I said “thinking of”. We on this side of the House are witnessing certain Alice in Wonderland experiences. The most recent evidence of bizarre experience is that the people of Windsor—St. Clair allowed those two parties to fight over 6% of the vote. We think the people of Windsor—St. Clair have a certain element of wisdom in their insight.
Speaking of Alice in Wonderland, Mr. Speaker, since you are as erudite as anyone in the House you will recall one of the great phrases in that book: “First the sentence, then the verdict”. In some respects that is my reaction to the hon. member's speech.
I will direct the minds of hon. members to the meaningful consequences the bill proposes with respect to serious and less serious offenders and I will direct my remarks to sentencing. Only a small number of people are involved in serious and repeat criminal acts, particularly acts of violence, but I say with respect that they seem to drive the agenda. It is as if those on the other side of the House wish to set policy based on Toronto Sun headlines.
In 1997, 82% of charges laid against youth were for non-violent crimes like theft and breach of court orders and contempt orders. Unfortunately there are too many examples in our current youth justice system of young people serving time for minor offences.
We incarcerate youth at a rate twice that of the United States and ten times that of Europe, and we are soft on crime. The figure when it comes to adults is entirely reversed. The United States incarcerates adults at six times the rate we do.
A fundamental question for all members is whether we are safer by incarcerating youth at a rate twice that of the United States and ten times that of the Europeans. Are our streets safer? Is our crime rate lower or higher? Will “toughening up” this system of youth justice make our streets safer?
We incarcerate youth despite the fact that we knowingly run the risk they will come out hardened criminals. It is trite but it is true that this is where these kids learn how to be real criminals. We incarcerate them knowing that the alternatives to custody can frequently do a better job of ensuring that young people learn from their mistakes.
Under the balanced approach we have taken in this new act there is a clear distinction between serious and less serious offences. All young people who commit offences will be held accountable through meaningful consequences. However the new act recognizes that taking minor offenders to court and sending them to jail is not the best way of holding them accountable and is often counterproductive. I would submit that is frequently lost on the other side.
For the first time judges will be given a rationale for the act and some sentencing guidelines. Up to now they have been without guidelines and all over the map. Section 37 gives the purpose and principles of the act with respect to sentencing and states:
The purpose of sentencing under section 41 is to contribute to the protection of society by holding a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society.
The first purpose is the protection of society. The second is to hold youth accountable. The third is the imposition of just sanctions. The fourth is meaningful consequences. The fifth is to promote rehabilitation and reintegration of the youth. Subsection 37(2) states:
A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the following principles:
(a) the sentence must not result in a punishment that is greater than a punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances.
That directly addresses the issue raised by the previous speaker with respect to the “shell game”. It continues:
(b) the sentence must be similar to the sentence imposed on young persons found guilty of the same offence committed in similar circumstances;
(c) the sentence must be proportionate to the seriousness of the offence and the degree of the responsibility of the young person for that offence.
It goes on further to outline various other issues to be taken into consideration in sentencing. To review, subsection 37(2) states that the sentence cannot be greater than that of an adult, that it must be similar to that of another young person, and that it must be proportionate.
Having said that there is now some coherence, some purpose and some rationale for the sentencing principles in these guidelines, I draw the attention of members to subsection 2(1) dealing with presumptive offences or, as they have become known, the big five. It reads:
“Presumptive offence” means:
(a) an offence under one of the following provisions of the Criminal Code:
(i)...first degree murder or second degree murder...
(ii)...attempt to commit murder,
(iv)...aggravated sexual assault—
The minister has attempted to add to the list subsection (b):
—a serious violent offence for which an adult could be sentenced to imprisonment for more than two years committed by a young person after the coming into force of section 61, if at the time the young person committed the offence at least two judicial determinations have been made under subsection 41(8), at different proceedings, that the young person has committed a serious violent offence.
In other words another category, the category of youth who commit serious violent offences in a repeat pattern. I turn to subsection 41(8) which states:
—On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious, violent offence (and it may not be in the top four categories) and endorse the information accordingly.
If that finding is made on two separate occasions, the youth will be subject to a jeopardy that is not faced by adult criminals. In my view the minister has addressed the subsection of the youth population which garners the headlines in the Toronto Sun .
Section 69 deals with presumptive offences and states:
—If a young person who is charged with an offence set out paragraph (a) of the definition “presumptive offence” in subsection 2(1), committed after having attained the age of fourteen years, is found guilty of committing an included offence for which an adult could be sentenced to imprisonment for more than two years, other than another presumptive offence set out in that paragraph,
We set out a presumptive offence. An individual could be less than 14 years old and a sentence of at least two years could be imposed. Instead of a presumption youth justice can make an order. The scheme is coherent, rational and proportionate. It is now time for the provinces, the judiciary and the lawyers to step up to the plate and make the system work. The ball has moved over to that court.
The new act provides that in general incarceration is to be reserved for violent offenders and serious repeat offenders where there is no reasonable alternative that would be capable of holding the young person accountable. Some judges have indicated that they reluctantly use custody for some offenders because of the lack of alternatives to custody.
The act provides new sentencing options that allow the judge to impose meaningful consequences that do not involve incarceration. These options include an intensive support and supervision order which will provide closer monitoring and more support than probation to assist the young person in changing his or her behaviour.
In addition, an attendance order will require the young person to attend a program at specified times and on conditions set by the judge. Also a deferred custody and supervision order will restrict non-violent offenders and will require an offender who would otherwise be sentenced to custody to remain in the community subject to conditions set by the judge. Failure to comply with the conditions can result in a young person being sentenced to custody.
These alternatives to custody are in addition to other alternatives that will continue to be available under the act, such as probation, restitution and community service.
In some respects the minister puts her money where her mouth is. The new resources allocated in the 1999 budget for youth justice are $206 million over the next three years. It will be available to the provinces to ensure that front end alternatives and alternatives to custody are available. In other words it is great to set it out in legislation, but if we do not put the resources with it, it is not terribly meaningful. This will enable the more expensive court process and custody facilities to be targeted for the more serious youth crimes that warrant their use.
My submission is that this is a balanced approach. This recognizes the concerns of Canadians to their safety. It recognizes the reality that all youth offenders are not created equal and that some deserve a certain kind of treatment. That treatment will in fact result in, it is hoped, turning out useful citizens to our society.