Mr. Speaker, I am pleased to have the opportunity to speak on Bill C-37 and respond to the long awaited changes to the Young Offenders Act.
The Young Offenders Act in its operation is critical to Canada's view of the justice system. Its implementation touches at the very heart of the future of our society. Freedom from fear ranks with food and shelter as one of our basic needs. Our communities today are crying out in their fear for the safety of innocent people walking in our neighbourhoods. They are deeply concerned for the safety of their children in playgrounds and schools, even in their homes. Every week we hear another horror story involving young offenders and violent crime.
Ottawa police arrested young offenders after the drive-by shooting death of Nicholas Battersby.
Three young offenders in St. Jerome, Quebec, were arrested after a shooting spree. They were in possession of rifles, handguns and hand grenades.
In British Columbia, Jason Gamache was found guilty in 1992 of rape and murder of a six-year old girl. When she was reported missing Gamache aided in the search for her and spent hours babysitting her siblings. Gamache was just 16 years old when he committed this offence and had been previously convicted of sex offences involving young children. The public had no way of knowing. The Young Offenders Act prohibits publication of details which might identify such an offender.
Just over a month ago an Edmonton woman was stabbed in her home by teenage burglars while trying to protect her children. A few weeks ago a 14-year old was stabbed with a pair of scissors in the hands of a 10-year old boy during a soccer game at Medicine Hat, Alberta.
In a small town near Kelowna, B.C., a 44-year old family man is recovering in hospital after being hit on the head with an axe. Two 16-year-olds have been charged.
A 72-year old man was murdered outside his home in Saskatchewan by a young offender. The sentence: the maximum, three years in custody.
In Edmonton last month a teenager was shot in the back of the head with a stolen handgun. The alleged killer is a 16-year old repeat offender who was on probation for another crime.
In 1992 a man had his car totally demolished by six young offenders. The penalty for this group: none. They were let off scot-free.
Two weeks ago the father of a 10-year old girl was out for a walk in his own neighbourhood in suburban Mississauga when he was viciously beaten to death by young offenders. The motivation: a robbery attempt.
As we struggle with social programs to address the causes of our youth turning to crimes such as alienation, family breakdown, and drug and alcohol abuse, we must also address the effect youth crime has on our families in our communities. By failing to take bold action to correct what has largely not worked and introducing legislation just to mollify a restless public and fulfil an election promise with the call of trust us, the government has fallen short and let us down despite its well intentioned effort.
The Liberal red book speaks of safe homes and safe streets as a basic right and a distinguishing characteristic of Canadian society, while pledging to combat the 40 per cent increase in violent crime that has crept in to threaten that basic right.
The proposals brought forward in the bill are woefully inadequate to reverse the current trend I have mentioned. Tinkering with the internal mechanisms of the act does not rally community confidence. Nor does it reflect an attentiveness to community concern. It is merely a top down, we know best answer to an increasingly aware and justifiably demanding populace.
It is said that the proposed amendments to the Young Offenders Act will improve public protection by improving the act's ability to deal effectively with serious crime.
I have heard the government's side today. We in this corner of the House take government members as sincere. However it is possible to be sincere but sincerely wrong. I applaud the government that the bill today is not going to be the last word on amendments to the act during this Parliament. The two stage approach offered by the government is indeed welcome.
I have said a lot in the House about the shortcomings of the Young Offenders Act. I have made very specific and pointed suggestions both on paper to the justice ministry and in a speech in the House. One wonders if anyone ever listens. Certainly folk at home wonder if the government does any adjusting at all to public grassroots input as distinct from the bilateral negotiations with the provinces and those on the inside of the justice system community.
We will constructively criticize the many shortcomings of Bill C-37. However we are thankful the government is finally prepared to change some parts of the Young Offenders Act, largely in response to the pressure that we in this corner of the House have brought. We will be Her Majesty's loyal, constructive alternative with advocacy for improvements to Bill C-37 based on what the community wants rather than merely on what Reformers want.
Bill C-37 is full of problems, but we will likely support any small measure to shift the emphasis within the juvenile justice system away from its reputation of being too soft. A new Young Offenders Act must be socially resonant and clearly demonstrate Canadian society's values and Canadian mores. It must be an instrument not only of rehabilitation and treatment but also of deterrence and orderly denunciation.
The criminal justice system must be a mirror reflecting the community's sense of what is right and wrong and what is socially acceptable. People are looking today at an image that is distorted, that has little relevance to the social order we have that may have formerly existed.
Parents are concerned for the safety of their children. They are demanding an accountability of the justice system to the community. They want to have a sense of ownership in the process of justice. They are frustrated and angry that the current system seems to operate for and around a select enclave of justice professionals: the criminologists, the legal community, corrections workers, offender care agencies and the police.
Offenders seem to be the ones protected by legislation and are the preoccupation of the system. Victims, particularly victims of violent crime, do not feel well served. They have little opportunity to represent a public denunciation of violent crime. There is no legal recognition for their stake in the general proceedings.
The YOA does not require statutory service of proceedings to victims for court appearances. A whole new community accountability model of justice is required to address the needs of public concern and involvement. The public at large can also be a victim as the publication of names in critical and violent and repeat offences is not routine. The violent young offender can be released to offend again with no assurance of safety and the public has no way of knowing the person is in their midst.
Particular concern is expressed by teachers and social workers who traditionally had no access to a dangerous offender's history. It is pathetically futile for a teacher to reprimand a student and order a detention for bad behaviour in the classroom when the student has been involved in the latest convenience store robbery or is living in a local group home because he has committed sexual assault. It shortchanges not only the teacher and the other students in the classroom but also the young offender.
There are many programs in the educational system tailored to deal with problems the students are encountering, but the lack of vital information about a student precludes the opportunity for that student to reap the benefit of those very programs.
Social workers who are called to work with the young person have no way of knowing the full character of the young offender they are supposed to help. It is somewhat like asking a gourmet chef to prepare a meal and supplying only unmarked packages for the ingredients. It is a little recipe for disaster. Yet we spend millions of dollars on social programs and provide workers who are uninformed and ill equipped for what they face.
The new half-measures place a monitoring burden perhaps solely on the youth worker for in systems advisory, another bureaucratic nightmare. The whole business of non-disclosure is an abstract premise at best based on a hypothetical, on a hoped for future reformation of the offender.
The government recognizes the problem, for victims have died directly because of the non-disclosure provisions of the YOA. Now we are going to open it up a little. How many bureaucratic screw-ups will have to occur before it must be recognized all non-disclosure provisions that go beyond the adult standard of control should be scrapped. The government admits the problem. Let us deal with it square on.
The judiciary is also faced with a dilemma when resulting from non-disclosure of records in adult courts. Once a young offender has served the prescribed sentence for a serious offence and then five years more has elapsed, youth records are no longer admissible in court. This provision is based on the belief, or should I say the hope, that a run-in with the courts will motivate a young offender to rehabilitate and have a chance to contribute to society without the fear of his young foolish mistake unreasonably standing in his way.
Nine pages of this bill relate to amendments around a faulty premise. I say clearly to the minister let go of these outdated notions and stop the tangled bureaucratic response. One line in the act would suffice that would simply state that a youth court record and an adult criminal record are one and the same, a continuum to be kept in one computer, handled like all criminal records. The bill requires the RCMP to have a separate repository for youth records.
All these provisions are social engineering at its worst.
Take for instance the case of a convicted paedophile. If he manages to escape detection for five years and then offends again, the judge in adult court is not allowed to hear the pattern of record and he is bound by stare decisis of the courts of appeal to sentence as a first offender. The judgment is based on inaccurate information and the offender is treated accordingly and truth does not appear in the courtroom as the judge is deliberately misled. If a lawyer deliberately misled in the court
it would be contempt. This is repeated countless times in countless courtrooms across our land, and the government would have us believe it is seriously responding to the submissions and correspondence it has received from Canadians in recent months.
Society sees violent crime as an abhorrence needing retribution and a sensible social defence response. If a violent offender of 16 or 17 years of age is kept within the bounds of the Young Offenders Act the maximum penalty available for first degree murder would be 10 years. If that same violent offender were dealt with in adult court, the penalty for first degree murder would be life imprisonment with no parole for 25 years.
While 10 years under the new proposal would seem to be sufficiently harsh, the reality is that probably only six years would be spent in detention, with the remaining four years being spent under community supervision. How tragically painful for the families of the victim and perhaps how dangerous for the community. It is blatantly obvious that this provision is written for the protection of the offender, and a violent one at that, with disregard to the rights or protection of the victims, past and future.
Anyone capable of committing a premeditated murder at 16 or 17 years of age must surely be accountable to society at a level commensurate with the severity of the crime. I choose to highlight the charge of first degree murder as that is as severe as it gets in Canadian law. This does not even begin to touch less serious crimes, which in reality seem no less serious to the victim. I say this clause does not appropriately respond to these offenders. These criminals are not young offenders; they are youthful appearing adults and should be treated as such.
At the other end of the spectrum there are youngsters 10 and 11 years old who are flexing their muscles and daring society to take them to task. Under the provisions of Bill C-37 they remain untouchable. By the time they are 12 years old they are street wise and are becoming increasingly sophisticated in testing the system. When they finally appear as young offenders they are often already beyond being intimidated by the system and the successive warnings and breaks they receive as young offenders become meaningless. They are often too deeply entrenched in the game to see or desire a way out.
I believe that 10 and 11-year olds, if brought under the umbrella of the justice system, publicly denounced and placed in programs of education and rehabilitation, would be much more responsive to efforts to set them straight.
Sometimes violent patterns in children are identifiable at the kindergarten level. Schools and social helping agencies respond, but by the time these exceptional children are 12 years of age, a justice system response of monitoring and intervention is problematic. By identifying these young offenders before they graduate into the teen world of crime set before them, we drastically reduce the number of youthful adults we are forced to deal with six years down the road. This is social engineering at its best.
Statistics indicate that of the 42 murder cases heard by youth courts in 1992-93, 25 cases or 60 per cent involved 16 and 17-year olds. That means a full 40 per cent of the cases involved children 15 and under. Of the 74 cases of attempted murder, 39 per cent were 15 and under. Manslaughter saw an even split of 50 per cent. For aggravated assault, some 311 cases or 32 per cent were 15 years old and under.
These are astounding figures in themselves, but consider the burden placed on the youth court system and the correctional facilities. It has been argued that 16 and 17-year-olds should not be placed in full adult prisons, a position we endorse. There is ample flexibility within the correctional system to accommodate the youthful adults who would be sentenced in adult court.
It is imperative that 16 and 17-year old violent offenders be removed from the environment in which true young offenders are housed. The younger we are able to begin the process of education and rehabilitation, the greater chances of success. Seeing negative role models who are 16 and 17-year olds who can exert tremendous power over the younger population decreases the chances of positive redirection.
Teens themselves are frustrated and concerned about how they are perceived within our society. There are so many young people who are really trying to make a positive contribution to their world. They see themselves as victims within the youth culture. They are in fact victims of the violence which is so prevalent in the high schools.
Inner city schools have gang wars between ethnic groups, punkers, skinheads and others of diverse styles and attitudes as well as drug dealers. These differences erupt in fighting over territories and are typified by aggression using weapons. It is easy to say that the problems of the schools are provincial jurisdiction, but if there is little accountability for violence under the law the schools have little recourse.
Teens often feel that society blames them for all its problems and they feel condemnation for just being young. At a recent high school meeting of 40 young people, my colleague, the member for North Vancouver, addressed the issue of the Young Offenders Act. Thirty-nine of the 40 students raised their hands to appeal for changes to the act. Locally about 250 students participated in a march through downtown Hull to protest the violence of a schoolmate's death. Melanie Moore was quoted as saying: "We just want all this violence to stop". Student Renée
Moreau feels that the accused should be tried in adult court as "at that age he is conscious of what he has done".
These young people are tired of being painted with the same brush as those who are doing the offending. They are fed up with losing close friends to violence. They are sending a very clear message to us in this House that they demand change.
We have received correspondence from parents who are terrified to send even young children to school because of threats from older students, typically 10 to 12-year-olds. They would bully, set up vigilante parties and generally make it impossible for their targets to function in the classroom, hallways or schoolyard. The assault is often so subtle that it is many months before parents or teachers are aware there is anything wrong. By definition these bullies are young offenders and should be held accountable.
One failing of the age parameters corresponds directly to the situations I have just outlined. The police are very reluctant to become involved in answering calls involving children under 12 years. The result is that the schools and parents are left to deal with such behaviour with little community resources available to them. The offenders are therefore left to wreak havoc until their 12th birthday, when they are often firmly entrenched in antisocial behaviour.
Parents cry for help but receive little satisfaction. The case of Michael Smith has been mentioned in this House before. He is the 11-year old who has stolen over 30 cars and stands defiantly dedicated to continue to do so until he turns 12. Michael is quite literally an accident going somewhere to happen as he careens through the streets of the Vancouver area. His mother has publicly denounced his behaviour in the press identifying him and his actions but authorities are powerless to help her. More tragically, our system is unable to help Michael. He is desperately crying out for limits to be set and under the Young Offenders Act and now under Bill C-37 we stand unable to provide those limits. He is not a young offender by definition.
The Liberals speak so eloquently that the causes of violent crime are patent, and they are poverty, and they are dysfunctional families, and they are abusive children and it is hopelessness. I am sure Bonnie Hartwick, Michael's mother, is not pleased that the minister has so glibly packaged and labelled her life in one line of rhetoric. That her pleas are falling on deaf ears is ample proof that this government really has no clue about the reality of ordinary people's lives. I suggest that the hopelessness she feels is a direct result of the age limits the minister is unwilling to change.
The minister announced highlights of the bill which merit a focused response even at second reading. Increased sentences for teenagers convicted of first and second degree murder in youth court are increased to ten and seven years respectively from the former five years maximum.
In reality for first degree murder within the maximum 10-year total sentence Bill C-37 provides six years of custody followed by four years of community supervision. Only by exception after a hearing can a judge choose at the automatic annual court reviews of custody sentences that an offender can be kept in custody another year rather than receive community supervision. It can only be done if the offender if released is likely to commit an offence causing death or serious harm. The maximum, no minimum stated, combination sentence of jail and community supervision is 10 years for the individual murder offence. Second degree murder brings a maximum seven years, a four and three combination.
There is enough inherent discretion and flexibility in the adult system for individual circumstances to be taken into account for the adult consequences to generally apply to youths 16 years and over. The age of operation of the YOA remains unchanged at 12 to 17 inclusive under Bill C-37, rather than to the desired 10 to 15 inclusive.
An adult convicted of first degree murder is liable to jail for life without eligibility for parole for 25 years, section 742(a) of the Criminal Code, but may apply for judicial review of the period of ineligibility after 15 years, section 745 of the Criminal Code. A person convicted of second degree murder is liable to jail for life without eligibility for parole for a period between 10 and 25 years, section 742(b) of the Criminal Code.
Bill C-37 expands the consequences for murder within the Young Offenders Act. Therefore, by this greater accommodation it will be less likely that youth murderers will be transferred to adult court. The result may bring about a softening of the law as more murderers will remain under the Young Offenders Act and then be released earlier instead of being transferred to the adult court under the former provisions.
The bill highlight also mentions that 16 and 17-year-olds charged with serious personal injury offences can be transferred to adult court unless they can show a judge that public protection and rehabilitation can both be achieved through youth court. For this new category the onus is on the offender to demonstrate. Previously it was the crown which had the onus to demonstrate, as it still does on all other transfers to adult court applications.
Currently a young offender must be 14 years old to be eligible for transfer to adult court and must have committed an indictable offence, section 16 of the YOA. Bill C-37 additionally says that those 16 and 17-year-olds who commit murder, attempted murder, manslaughter, aggravated sexual assault and aggravated assault will have the onus on them to show they should not be transferred.
The government will not admit the basic flaw of the YOA, as all youths 16 and 17 years should be judged in adult court. There will likely be many more transfer hearings under C-37 which are expensive, full trials used to determine where the real trial will be heard.
The Reform alternative would retain transfers but they should be available for any youth charged with an indictable offence. However, the threshold of appropriate circumstances, section 16(1.1) for transfers is quite high from the precedence of the case law. The likelihood of inappropriate transfers to adult court is very remote under the Reform alternative. They would be used only rarely if all 16 and 17-year old youth were already in adult court.
C-37 extends the time that offenders 16 and 17 years old at the time of offence who have been convicted of murder in adult court must serve before they can be considered for parole. Parole eligibility currently is five to 10 years, section 742(1) of the Criminal Code. C-37 makes it 10 years for first degree murder and seven years for second degree murder. The minister announces this provision as a highlight. In view of the public's lack of confidence in the national parole board this is a minor change that cannot be considered as a provision "that would crack down"-from the justice news release of June 7.
First degree murder, the most heinous category, planned and deliberate, should be applied the same for all in adult court: no parole eligibility for 25 years, the fair exchange for removing the death penalty.
Next is proposed that there are improved measures for information sharing between professionals such as school officials and police and selected members of the public when the public's safety is at risk, as well as retaining the records of serious young offenders longer. This is a tangled provision but hopefully it does loosen things up so that a province can designate social workers and school authorities to be given confidential information about offenders they have dealings with.
The basic non-disclosure aspects of the YOA unfortunately remain. The misguided blanket media publication ban remains concerning identifying an offender even though the operations of local young offender courts are open to the public.
The argument that the media will sensationalize does not hold and there would be no difference in operation from the adult system. Only the high profile and socially significant cases will be published, as they should.
Media publication of court operations is fundamental to the effectiveness of general deterrence as well as developing public confidence in the justice system.
The media restrictions for youth court should be the same as adult court. Any half measure qualification of non-disclosure for youth court is unacceptable.
The government defends C-37 under the United Nations standard minimum rules for the administration of juvenile justice, the Beijing rules: a child is someone under 18 years; in courts the best interest of the child should be a primary consideration. Current Bill C-254 refers to these measures. It suggests children should not become soldiers under 16 years, and yet they are still to be treated as children until 18 years? It also suggests that in courts the best interest of the child should be paramount but does not address the balance for the offenders' victims.
The government is making a most stretched argument to defend the YOA by invoking the United Nations thereby telling Canadians what its standards should be rather than submitting to community judgment on the results the system delivers.
The YOA applies to the wrong set of youth. The complicated provisions arise largely because of the misapplied age of operation. Young offenders should be dealt with more compassionately and separately from adults based on the theory of diminished capacity to formulate intent, mens rea, guilty mind, and to fully appreciate future outcomes.
Separation also addresses the contamination theory from older hardened criminals in adult institutions. Privacy provisions also rest on the clean slate, fresh start theory in the hope that young offenders can be rehabilitated.
There is no evidence that the complicated system that has been developed to address these ideas is needed. It is not much more than an abstract ideal. However, it is a fact that victims have been killed as a direct consequence of the YOA privacy provisions.
The YOA has not received the support of the public because it is basically flawed concerning the age of application. We maintain there is consensus around the operating of a separate youth court system that should apply to 10 to 15 years inclusive rather than the current 12 to 17 inclusive.
The concept of dealing with young offenders differently from adults is sound. However, how that is actually accomplished reflects differences in social values. We propose that the justice system must be accountable to the community for the results it delivers. Does it denounce crime in a public, straightforward and speedy way that inspires confidence? Does it seem fair to all? Is it flexible but firm in its role of protecting the community? Does it balance the rights and needs of victims with those of the accused?
Canadians currently spend millions on social services for young offenders. Appropriate public response to crime must be broadly based with adequate investments in the public school system, recreation and social services. The role of a vibrant economy is also important, but it is too easy to always say we
need to throw more money at a problem. We need to respond better to the social causes of crime.
However, societal concerns cannot be used as an excuse not to tighten up the justice system while we work on the broad social policy objectives.
The juvenile justice system in its operation should mirror the adult system as much as possible if it is to be understandable by the community and develop general deterrents.
Consequently, the YOA court should be completely open to the press. YOA court records should be one and the same as adult criminal records and the same rules for the control and use of adult records should apply to the YOA: access, dissemination, subsequent court use. Without the social engineering limits of the YOA justice must be seen to be done as well as done.
We advocate the increased use of a variety of residential young offender facilities, some of which may be secure. Alternative measures such as diversion from further court process, community accountability panels, victim reconciliation programs, community work service, restitution orders, fines, educational attendance programs and treatment programs for behavioural disorders and substance abuse are all being used at present at great expense to the taxpayer.
The community could always use more helping alternatives but there are financial limits. There is no end to the demand for more and better social programs, and government must balance its priorities.
Although C-37 tries to encourage the broader use of non-custodial alternatives there is no additional cost shared funding forthcoming related to the C-37 initiative.
In summary, it is my prediction that the half measures of C-37 are not going to fundamentally alter the operation of the young offenders system and future results will still bring outcries of dissatisfaction from the community.
The Liberals gave us the Young Offenders Act after years of wrangling at the end of the former Liberal administration. It was an overly optimistic social experiment, idealistically designed around a wishful view of the community rather than reality. We have now lived with the consequences of the YOA for 10 years. It has been amended and improved by the Conservatives, as the first version passed by this House was bleeding heart Liberal in the extreme. It was a bureaucratic approach from the experts down to the community.
Bill C-37 is finally an admission for the Liberals that the original YOA was fundamentally flawed. The public pressure has been building against the misguided YOA and C-37 is another in a line of amendments to reflect reality rather than idealistic theory.
As the Standing Committee on Justice and Legal Affairs undertakes the more long term fundamental review, I hope the government will remain open to the common sense view of ordinary Canadians and let them have what they have been asking for. Canadians have said loud and clear they want a juvenile justice system that they can have confidence in.
As Reformers we will work to let the people speak so that our legal system reflects a higher standard which Canadians deserve.
The motion of the Bloc members is oppositional in an unhelpful manner. It says if it is not their way then it should be no way and do not amend the act at this time.
Reformers are the true opposition and we will work with the government to make the YOA reflective of what the community wants. Again I say let the people speak and Reformers will bring their voice to this House.