Mr. Speaker, I rise today to speak to Bill C-68, the youth criminal justice act.
Before I proceed, I would like to take this opportunity to commend my colleague from Surrey North for his prompt and critical review of this long awaited piece of legislation. As stated in an earlier speech, my Reform colleague lends credibility to this debate based on a personal tragedy that hopefully none of us here will ever endure. That was the murder of his son.
In December 1995, more than four years ago, I undertook a preliminary review of the youth justice system. My initial findings were circulated among my colleagues in the Reform Party. I would like to share with the House some of the content of the opening paragraphs of this paper which began with a historical overview of our youth justice system.
The Juvenile Delinquents Act enacted in 1908 created a juvenile justice system separate from the adult system. The Juvenile Delinquents Act was distinctively child welfare oriented with a guiding philosophy behind the act defining “a child having committed delinquency not as an offender but as a person in the condition of delinquency”.
The Juvenile Delinquents Act created an informal system of justice with little emphasis on legal rights. A range of justice officials, including judges, probation officers and correction officials, had very significant discretion in dealing with young offenders. With this treatment rather than punishment orientation, sentences were indeterminate to be served until rehabilitation was effected.
The discretionary nature of the Juvenile Delinquents Act and the rehabilitation objective caused very substantial interprovincial variations in the implementation of the act.
Recognizing that the exclusively welfare oriented focus of the Juvenile Delinquents Act was not appropriate and to reduce judicial discretion, the process of reforming the Juvenile Delinquents Act began in the 1960s. It was not however until the early 1980s with the introduction of the charter of rights and freedoms that major juvenile justice reform became inevitable.
The Juvenile Delinquents Act was inconsistent with the emphasis on due process in the charter. According to a 1994 Ottawa Law Review, the provincial disparities in treatment of juveniles permitted under the Juvenile Delinquents Act was considered to be contrary to section 15 of the charter that came into effect in 1985 which guaranteed equality before the law.
The Young Offenders Act enacted in 1984 gave youth very significant legal rights and established a uniform age jurisdiction of 12 to 18 years. The Young Offenders Act also provided determinate sentencing and formal alternative measure programs to divert less serious cases from youth court.
The new youth criminal justice act will effectively re-enact that contentious portion of the Juvenile Delinquents Act, the portion that wrongfully promoted an inequitable application of the criminal law. This new act provides far too much discretion to the courts in the sentencing of young offenders. The only real direction provided to the courts is to order the less restrictive sentence.
I turn now to lines 22 to 25 of the preamble of the youth criminal justice act which read “take reasonable steps to prevent youth crime by addressing its underlying causes, to respond to the needs of young persons”.
The justice system cannot address the root causes of crime, causes that cannot and should not be used as excuses for committing crime. The justice system must deal and deal effectively with an offender after a crime has been committed to provide the necessary public protection regardless of the offender's background.
Forces outside the justice system must deal with the causes of crime through the design and implementation of crime prevention policies and programs, programs such as the headstart program sponsored by my hon. colleague from Esquimalt—Juan de Fuca.
The justice system was not designed to deal with dysfunctional families, nor was it designed to address the economic hardships that often led to family breakdowns and to juvenile crime. The current and past governments' failure to recognize this simple fact has diluted the purpose and strength of our justice system, particularly in the area of youth crime to the point where young criminals are somehow not responsible and therefore not accountable for their delinquent behaviour.
This fact is reflected in many of the lenient sentences that have been and will continue to be handed out to young offenders.
Two years ago this April, the Standing Committee on Justice and Legal Affairs tabled a comprehensive report containing 14 recommendations for amending the Young Offenders Act.
The report was a result of six months of extensive consultation and travel throughout the country at an expense of almost half a million dollars. Over 300 people representing various sectors of the youth justice system and society in general testified before the committee. That testimony was incorporated into the committee's report.
On April 22, 1997, on behalf of the Reform Party I published a minority report containing 17 recommendations and proposing a comprehensive three pronged approach to deal with the complexities of youth crime and the contributing factors, including early detection and intervention as an effective means of crime prevention, community based resolution and sentences in cases of minor offences, and strengthening the Young Offenders Act through significant amendments.
Two years after the Reform Party proposed such a plan the Liberal government introduced a youth criminal justice act. We are obviously pleased the minister incorporated some of our proposals, and of course not all, into the new act. In particular we fully support, as we recommended years ago, the use of early detection and intervention and the diversion of non-violent and minor offenders to community formed justice groups such as the very successful programs in Sparwood and Maple Ridge, British Columbia.
We also support providing police officers with the necessary discretion and power to deal with non-violent offenders informally. I recommend however that this discretion not be taken away from parents, teachers or any other person in a position of authority.
Currently there is a movement under way spearheaded by a Liberal senator to repeal section 43 of the Criminal Code which protects those in a position of authority if they use reasonable force in the correction of a child. We do not however accept the minister's checkerboard approach to justice that appears to be the crux of the new youth criminal justice act.
This act, as stated earlier, provides far too much discretion to the youth courts. This will result in an inequitable application of youth criminal law across the country, which was a major motivation for changing the old juvenile delinquents act in the first place.
We also do not accept the minister's outright rejection of what I consider to be the two most important recommendations of the standing committee. The minister has refused to accept the committee's recommendation to lower the age of criminality to encompass 10 and 11 year olds in limited circumstances, and she has rejected publishing the names of all violent offenders.
The first and guiding principle of the new youth criminal justice act should be the protection of society. The only way to ensure the safety of our children and grandchildren is to provide parents with the names of all violent and dangerous offenders, which in my opinion include drug traffickers. This category of offender has wrongly been missed in the new legislation.
With regard to lowering the age of criminality to 10 years, Professor Nicholas Bala of Queen's University summarized the work of a 1992 Statistics Canada survey of 27 police forces in Canada. The data indicated that offending behaviour by children under 12 was a significant problem. The study further indicated children under the age of 12 committed about 5% of all youth crime. Despite this fact, authorities are powerless to hold these children legally responsible for their crimes. Although a number of provinces do have a child welfare system that can and does deal with these children adequately, many provinces do not.
Repeatedly witnesses told the standing committee on justice that in the case of violent offences a welfare response is inappropriate. Lowering the age to 10 years does not mean there would be a large influx of 10 and 11 year old children being drawn into the court system. The system can divert most children of this age away from any formal response, in particular with support for alternative measures and community based justice committees.
By amending the age we will have in those very few cases of violent offences the means to provide these young children with the rehabilitation they need. As it stands now the minister has abandoned 10 and 11 year olds who by committing criminal acts signal they are in need of help. The minister has abandoned these children to the provinces that do not have the constitutional authority to legislate against criminal acts.
I want to sum up my concerns about the bill by pointing out the most unacceptable portion of it. The minister has attempted to create the impression that she has listened to the people and mandated in law the changes they have been asking for in the Young Offenders Act. This is not the case.
All the minister has done is provide the courts with the discretion to do so. Many courts may not share the same concerns as the majority of Canadians and, through the exercise of their discretion provided for in the bill, refuse to mandate what the people have asked for. It is the people through their elected representatives who should determine the law, not the courts.
For years Canadians have asked the government to make specific changes to the Young Offenders Act. These changes include the publication of names of all violent offenders, and particularly repeat violent offenders. They wanted the mandatory attendance of parents in court with their children. They wanted the lowering of the age of criminality to include 10 and 11 year olds, as I mentioned earlier, and the application of adult sentences for all serious crime. In each and every case the courts should be mandated to impose the sentences for which the people have asked and with which the minister has indicated she has complied.
Under the new act the courts have not been mandated. Instead the minister has given the courts the discretion to implement these changes or ignore them. This is wrong. Canadians should make the law through their elected representatives. The courts should interpret and impose that law so that the will of the people of the country is reflected through the decisions made within our courts and by the sentences imposed by our courts.
The bill falls far short of this simple democratic principle. It leads to the very serious concern in some groups in the country that there is a great deal of judicial activism which, if I could just touch on it for a moment, I believe is unfortunate.
The blame should not be placed at the feet of our judges but rather on our legislators for providing open ended legislation which allows the courts to make decisions that are not supported by the majority of Canadians. Over the last number of years and certainly since I have been in the House, the people of Canada have asked for changes within the Young Offenders Act.
I do not know if it has been deliberately done or not, but the minister through this bill has created the unfortunate perception that the wishes and the cries of Canadians for the last number of years have been adhered to and that those demands for changes have been implemented in the bill. They have not been mandated at all. They are there, but we will see the status quo maintained because in too many cases the courts will not embrace the same concern for some of these offences as reflected by the Canadian people. Therefore the courts have the discretion either to implement an adult penalty for some of these offences or simply impose the penalty under the Young Offenders Act or this new act.
Very few if any of the changes the people of Canada have been asking for are mandated. In other words we have not told the courts what we want. We have not instructed the courts about the kind of sentence we want for a offence such as murder, serious assault, manslaughter and so on. Even those offences must be tried in the youth court system. Then the crown must apply for an adult sentence to be imposed. The defence can speak against it, but it is left to the discretion of the judge as to whether or not an adult sentence is imposed. The bill is deficient in that way.
Inasmuch as it may have fooled the people, it is a very serious matter that the government may have brought forward a bill which has led people to believe the government has listened to their cries for reasonable changes such as the publication of the names of all young offenders who commit a violent offence or have a series of violent offences on their records. That again is left to the discretion of the courts. It is not mandated that the names be publicized.
My final point is on the appearance of parents or legal guardians in court with their children. That is not mandated. Again it is left to the discretion of the courts.
What do we have in the bill? We have the perception of change where there may be no change at all. We will have to wait and see. Some of the attorneys general of the provinces have already expressed dismay over the principle contained in the bill, that is the enormous discretion which will allow judges to make varying decisions across the country. We think that is wrong.
We should not be going back to the checkerboard type of legislation we had under the old juvenile delinquents act where there was a varying of sentencing and adjudication from province to province. We have gone back to that. There is not a standardized form of sentencing implied within this statute.
It is deficient in that way, which I think is very unfortunate. When the bill reaches committee stage and the clause by clause amendments come forward, we hope the government will take a serious look at the amendments we will be bringing forward to close some of the loopholes we think the people will be dismayed to see exist within the bill.