Madam Speaker, it is indeed an honour and a privilege to be able to enter the debate on Bill C-3.
I would like to divide my comments into two parts. First, I want to talk about some of the provisions within the bill. Second, I want to talk about the justice system in Canada.
If we look at the overall summary statement at the beginning of the bill, one would almost get the impression that this is summum bonum, the absolute best thing that could ever have happened to the youth justice system. This is what it says:
This enactment sets out a range of extrajudicial measures, establishes the judicial procedures and protections for young persons alleged to have committed an offence, encourages the participation of parents, victims, communities, youth justice committees and others in the youth justice system, sets out a range of sentences available to the youth justice court, establishes custody and supervision provisions, sets out the rules for the keeping of records and protection of privacy, provides transitional provisions and makes consequential amendments to other Acts.
We would think that was it. What else is left to be done after all that?
There are a couple of things that I would like to look at. Conditional sentences, for example, are possible here. We know that in the past conditional sentences on some of the very serious offenders, such as drug traffickers and people who have committed manslaughter, have not resulted in any material punishment for the people involved. There have been no serious consequences for having committed such very serious offences.
There is another position. Only five presumptive offences have been listed here. They include first and second degree murder, attempted murder, manslaughter and aggravated sexual assault. These are the big, heavy duty crimes that must be tried in adult court.
There are some serious omissions here. What about death by criminal negligence? What about bodily harm caused by criminal negligence? What about sexual assault using a weapon? What about hostage taking and illegal confinement? Those are very, very serious offences. I do not believe they are any less violent than the ones under the section in the act. There is a clear indication that amendments to the act are necessary to bring about the true intent of what the act is supposed to accomplish in terms of its purpose.
I would also like to talk about age. The hon. member from Mississauga suggested that we could go down to age eight. No one has ever suggested such a thing. That was the member's dream. We know that 10 and 11 year olds in our society surely know what is right and wrong. They have the ability to make a decision, to make a choice and they do so. We need to deal with them seriously.
The hon. member suggested that most young people are decent and well behaved. I would hope so. The act is not designed to deal with 95% of the people. It is designed to deal with people who have chosen to break the law. That is the problem and that is what we are addressing. Ten and eleven year olds who break the law and who have done so deliberately and with forethought, need to be dealt with in a reasonable way.
Should we include transitional periods? Should we have the restoration of justice and the rehabilitation programs? Absolutely. Incarceration is not what we are talking about. We are not talking about revenge. We have to inculcate in these people a recognition that if they break the law, it is a serious offence and society will not condone that type of behaviour. We want to help them to become contributing and successful members of society.
It is not out of order to suggest that 10 to 15 year olds ought to be included in this legislation. We have seen far too many 10 and 11 year olds take advantage of the fact that they cannot be touched and are not subject to criminal prosecution. It is sad to say but there are some adults who know this and use 10 and 11 year olds to commit crimes on their behalf.
I would now like to turn my attention to the justice system in Canada. I would encourage every member of this House and every Canadian to read the book Outrage written by Alex MacDonald. He is no ordinary author. This man has been in the business of law and justice for 40 years. He was the attorney general of the province of B.C. He was a lawyer and a minister of the crown. He sat in this House as a member of parliament. This gentleman knows what he is talking about. At the beginning of his book Mr. MacDonald says:
Canada's legal system is heading for disaster, so preoccupied with protecting individuals' rights that it fails to protect the rights of society. More than fair to a few, the legal system is less than fair to the majority of Canadians, sacrificing time-honoured concepts such as Truth and Justice to an unhealthy fascination with process.
This is not an amateur who wrote that. This is a practitioner in the legal system, one who understands. The kind of legislation we have had presented to us and which is contained within Bill C-3 does nothing to change that particular conclusion.
The number one issue that is missing in this legislation is the underlying principles. There is a whole section in the bill dealing with the principles that are involved in this particular legislation, but the fundamental principle of the purpose of justice is missing. The fundamental principle is to ensure that when the rights of law-abiding citizens and victims of crime conflict with the rights of the perpetrator of a crime, obviously the rights of the victim should prevail.
It seems that the only people who are here to protect society, not the law, are police officers, the men and women who enforce the law. They stick their necks out. They are in danger day after day. What does the government do with these people who look after the interests of society? It slashes their budgets and ties their hands. It has a revolving door parole system and an unbalanced justice system.
What does one of these principles say? I want to draw specific attention to one statement of principle in this bill. Subparagraph 3(1)(c)(ii) states:
(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should—
That is not shall, but should.
(ii) encourage the repair of harm done to victims and the community.
I agree. The operative word is “should”, not “shall”. If this were a principle, it would say “it shall”. Clearly it is not a principle. If it is, it is one that is so wide open that it is meaningless. It may be more specific.
There is another provision in this bill which I am not sure is a principle. I think it is, but it is not found in that particular clause. It is probably the worst possible clause that could have been in the bill. It is the centrepiece of the old Juvenile Delinquents Act, the Young Offenders Act and it is contained in this bill again. It is word for word, exactly the same sentence. Paragraph 145(2)(b) states:
(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding—
It is the officer saying this to the individual. The first point is that the young person is under no obligation to make a statement. In other words, the individual who is accused of a particular crime, apprehended or whatever the case may be is not obligated to speak at all. He can be absolutely silent. This is a real difficulty. What is the result?
Now, what kind of a signal is this to send to teens? It expresses one of the shibboleths of our Law, one which the criminal defence bar is apparently prepared to defend to the death. Never mind that it contradicts the wisdom of the ages when it comes to raising youngsters into responsible adulthood.
Those are the words of Alex MacDonald again.
Every parent who is wise wants to raise his children well. The hon. member from Mississauga talked about the fact that he raised three boys. That individual knows full well that he did very well with his children. He admitted that and I think that is right and wonderful. The wise parent, and I am sure the hon. member from Mississauga knows this only too well, asks when his children are in trouble, “What is it that is causing it? Tell me the whole story”. That is what we need to do. Mr. MacDonald observes:
Sensible parents know that the first step in correcting youthful misbehaviour is getting the miscreant to own up. And they know that acknowledging wrongdoing is in the best interests of the young person, since it minimizes the chance that the offender will repeat.
Sadly, the federal government's lawmakers have yet to grasp this concept. The whole wide world knows that confessing is good for the soul. So why doesn't the Law get it? Surely a duty to speak up serves young people in trouble better than a right to keep mum.
I wish to read a particular case into the record. It took place in British Columbia on Vancouver Island and began in 1988. Peter is the individual.
In the wee hours of October 12, 1988, this young man...and two of his friends, aged 17 and 23, took a cab from the native reserve at Duncan, B.C., to Victoria, some 65 kilometres to the south. They had been partying hard and had several drinks en route to their destination. In their possession were two mean-looking pellet guns, two “throwing knives” and what the 23 year old later called “tools to break and enter”.
After arriving in Victoria at about 4 a.m., the threesome wanted some more beer and asked the cabby to get them some more. After paying off the cabby, they hailed another cab. Two of them were in the back seat and Peter was in the front.
The two in the back seat stuck their guns in the driver's neck, but the driver resisted. In the scuffle for the driver's wallet, Peter, who was in the front seat, stabbed him several times. The man died.
At a friend's house, the young men washed the blood from their clothing, but some remained on Peter's. Later that day, one of the youths casually mentioned that they'd killed a cabby. The RCMP were tipped, and all three were arrested. At the lock-up, Peter was given the Charter caution and was told to call a lawyer and have a guardian come down. He chose a great aunt. However, before the lawyer arrived—the great aunt was there—one Constable Logan engaged Peter in a long conversation. Before it was over, Peter told Logan something of what had happened. The other two youths were to hold guns to the cabby's neck. Peter was supposed to sit in the front seat and “just stab”. Logan then drove Peter to a house where he produced the fatal knife and the cabby's car keys. Later that day, at Logan's urging, he talked with his lawyer.
The next morning, Peter had another phone conversation with his lawyer. Then, seeing Logan, he told the officer that he had left out some details and wanted to add more. Again the two men spoke, and again Peter confessed—
On legal advice, Peter did not testify at his trial in youth court. He was found guilty of second degree murder, and the verdict was affirmed by the appeal court. However, in 1993, the Supreme Court set aside the judgment.
The court had no doubt that Peter's statements were basically true and that Logan had been frank and polite in all his dealings with the youth. Nevertheless, it held that Constable Logan had slipped up in the way he had obtained the admissions. Therefore, the words had to be treated as if they had never been spoken. To do otherwise would sully the law's fair name.
The upshot was clearly that three young men had committed murder, at least second degree murder. Their individual complicity might have varied some but that ought to have been a matter for sentencing. Clearing Peter meant that the court did not have to deliberate on the serious issue and the real issue of the crime. MacDonald continues:
Criminal cases, especially those concerning young people, must slide away from the adversarial model, with its gladiatorial combats and prosecutors devising strategies to out-manoeuvre those of the defence. The presiding judge should lead an inquiry, independently if need be, of the two sides—more inquisitorial and less adversarial.
“Legal fairness”, as in Peter's case, all too often gets the better of truth seeking. And ignoring truth can grease the slippery slope on which a young lawbreaker finds himself, hastening a life-destroying future life as a criminal.
Those are very serious observations by the former attorney general of the province of British Columbia.
It is clear that the truth is sacrificed on the altar of legal technicalities and process. Such a system is not a justice system. It is a legal system. It does not generate respect for the law, for society's values, for personal responsibility or accountability, nor does it engender respect for law enforcement officers.
The hon. Alex MacDonald then makes this observation. He talks about the legal and justice system as being governed by Prodigal's law that process expands to fill the time and money available. That is a very serious indictment. I will use the Winnipeg connection in this regard to illustrate how the process expands to fill the time and the money available:
In 1984, “Joe”, a 17-year old Winnipeg lad, brutally raped and murdered a 3 year old girl. Her body was found in a garage, blue panties at her feet, her rectum torn and bruised, her skull fractured and her neck broken.
As soon as the body was found, the police began to round up possible witnesses, among them this 17-year old. Attending at the police station, Joe gave an account of his whereabouts that, checked out, proved to be false. He also tried to shift the blame onto someone else.
The young man was confronted with shreds of scalp and clothing that could be his. Again, he tried to pin the crime on another saying, “Yeah, like I said, he took her to a garage and she was crying for her grandmother”, details that could only have been known by the guilty person. He then conceded, “I grabbed her...took her to the garage...blacked out”.
The police ceased their questioning, arrested Joe and read him his Charter rights. He conferred with his lawyer for 37 minutes. When she left, not asking the officers to stop any further questioning, the police resumed their inquiries. Once more, Joe voluntarily admitted to the crime. On the way to the detention centre, he pointed out the apartment building where he abducted her, pointed to the garage where he bludgeoned her to “stop her screaming” and even pointed out the bloody cinder block he used. At the trial, which was held in an adult court, the judge let the jury hear Joe's tape-recorded admissions, which he'd made prior to his lawyer's visit. But what he said and what he pointed out to the police after seeing his lawyer were ruled out. Joe was convicted of first-degree murder.
The matter went to appeal, where the court ruled just the opposite, rejecting Joe's admissions made before seeing his lawyer and allowing everything he said and did afterwards. A new trial was ordered—
There was one trial. It was appealed. The appeal overthrew the decision and a new trial was ordered. He was convicted at the new trial but it did not end there. This case began in 1984. In 1991, seven years after the crime was committed, a third trial was ordered. Joe was convicted by the supreme court in 1991, seven years later.
What reasonable person could expect that a law like this one would take seven years to come to a conclusion? We need to come to the point where we recognize that the values in society need to be protected and that the rights of an individual also carry with them responsibility.
What seems to be developing is that the rights of individuals are important but their accountability and their sense of responsibility is secondary. We need to shift our justice system to where it becomes a justice system that seeks the truth and convicts on the basis of the real issue rather than on the basis of legal technicality and process.
