Joe Comartin

[Youth Criminal Justice Act, November 21st, 2007]

Mr. Speaker, I rise today to address the House on Bill C-25 which has two, two and a half or three amendments to the Youth Criminal Justice Act, depending on how we read it and interpret it.

This is another attempt, a very feeble one on the part of this legislature, to assess the usefulness of the criminal justice system we have developed with regard to youth crime and how best to deal with that within a legislated structure.

When I first saw the bill the other day, I must admit I was a bit taken aback because of all the chest thumping and macho speeches that we had heard from the Conservative government and its members on getting tough on crime. Then the bill came out with only a few sections, and quite frankly, a good deal of which is probably not necessary beyond a very limited scope.

In terms of trying to put that in context, we have to appreciate where we are at.

The thrust of the government has been to get tough on crime at least in both its ideology and its verbiage in response to a bit of a hysteria that it to a great extent has created. Again, we need to put this in context.

The reality is that for the better part of about 150 years, and certainly 125 years, the common law jurisdiction based on the English common law and the criminal law that grew out of that has always treated youth differently, although how we define them has varied from decade to decade. We stopped treating all crime by all age groups and by all citizens differently back around that time. This included bringing into our criminal justice system a recognition that youth, because of their youth, did not have the same capacity to make decisions as adults did. We do the same with people of limited intelligence or suffering serious mental health problems and who do not have the capacity to make conscious decisions at the same maturity level as adults do.

That has been an underpinning of our criminal justice system now for at least 125 years and probably close to 150 years. It has ebbed and flowed over that period of time.

When I first started practising, we had the Juvenile Delinquents Act, which was amended and changed into the Young Offenders Act, youth in conflict with the law, and now the Youth Criminal Justice Act.

The principle that we treat youth crime differently than adult crime has remained throughout all that legislation.

I think it can be argued accurately that when we passed the Youth Criminal Justice Act in 1999-2000, we somewhat expanded those principles and again looked at what was the best way to deal with youth crime. The emphasis clearly at that time, without any doubt, was they would be treated differently than adults, that the courts would have as their overarching philosophy that youth were to be looked at in terms of whatever we could do to rehabilitate, to treat and to bring them back into line so they would be exemplary citizens.

There is in my mind, again a serious attempt in the verbiage we get from the Conservative Party to undermine that principle, that we should in fact begin to treat youth as no different than adults when it comes to crime. Other than ideology, we could argue it is being driven by the spike in youth crime.

I do not think any member in the House, who has studied the rate of crime in the country, would deny that we have seen an increase in youth crime, particularly in the last three or four years, but in a very specific area. Unfortunately, that area is one of serious violent crime involving the use of guns almost always in a gang setting. This means the gun was acquired and used in circumstances that benefited by the fact that the individual was part of a youth gang or a street gang.

The statistics come out in May or June of each year. The initial reports I am getting back at this point is we may in fact be seeing a slight drop in serious violent crime committed by youth. I am not sure what the position of the Conservatives will be at that point if that in fact occurs.

Anyone who has studied the pattern of crime knows that we periodically have a spike. It is quite clear that legislation does nothing to deal with this spike. That is it does not make it go down. It does not allow it to increase. It does not have that kind of effect.

I want to make the point that we do not know why we have these spikes. We saw one in the adult murder rate in Canada in 2005. Then we saw it drop back a bit in 2006. We do know that the adult murder rate has dropped quite dramatically over the last 20 to 25 years based on a per capita rate of incidence.

Because of a number of the enforcement steps that have been taken in some of our major cities, and I think of Toronto as being somewhat the model of this simply because of the number of efforts that have been undertaken there by the police services and Chief Blair in particular, I expect we probably will see a similar reduction across the country, minor and then hopefully more dramatic over the next few years.

Whether we do or not, it is quite clear in my mind that we do not motivate ourselves to change the criminal justice system, and I am referring specifically to the Youth Criminal Justice Act, which has had the effect of lowering the crime rate among our youth since it came into effect.

In terms of dealing with those spikes, we deal with them by way of enforcement and maybe other social programs, which are badly needed in the country, particularly for youth, and which are not properly funded by the government. In some cases they are not being funded at all. That is the methodology we have to use and not amendments to the legislation, if in fact it is functioning.

As an aside, I want to acknowledge the work being done in the province of Quebec. Before the Youth Criminal Justice Act came into effect, Quebec had led the country in moving into a number of programs of a restorative justice nature; that is taking the accused person and the victim out of what is basically an inhumane system and treating them in a much more humane way.

It is interesting that just this past week I, the member for Ottawa Centre and the member from the Liberal Party, the member for Yukon attended a session at city hall in Ottawa on restorative justice.

Just this past week I, the member for Ottawa Centre and the member from the Liberal Party, the member for Yukon, attended a session at Ottawa city hall on restorative justice.The new chief of police, Chief White, is a very strong proponent of restorative justice. During his address, he told us he had been a strong proponent for 22 years in various communities where he served, first as an RCMP officer and then as chief of police in other communities before he came to Ottawa.

He made his point of the inhumanity of our criminal justice system, particularly for youth and for their victims. He kept emphasizing the importance of restorative justice, of not using penalty, of not seeing a court system that is not humane, as the best methodology for dealing with this. He has a master's degree in criminology and has some done some major research on this. One of the points he made was that the use of restorative justice had the effect of reducing the recidivism rate by very substantial numbers and with youth, almost cutting it in half. That can be done across most crimes, if not all of them.

When we hear people stand in the House and before the media and parrot really what are U.S. methodologies and proclaim that it is the be all and the end all, it flies in the face of the reality that penalties and severe sentences do not work. They increase the rate of recidivism. Looking at alternative forms of dispensing justice works much better.

The province of Quebec started into this process earlier than any other province and more effectively than any other province. In spite of the fact that the Youth Justice Act incorporated a number of those concepts used already in Quebec, Bloc members opposed it. They felt the legislation, and I think they were somewhat accurate as we heard from my colleague from the Bloc earlier, would impede some of the progress they had made in fighting youth crime, and fighting it successfully.

In any event, although they opposed it, they continued their programs as best they could and much more successfully than the rest of Canada. The rest of Canada has been playing catch-up. I think over 30 years ago, I was involved in a diversion program that was not authorized by any law. It was poorly funded, but it was successful in spite of the lack of support from government at the time.

Although there were projects like that scattered across the country, the overall approach, the umbrella approach that the province of Quebec adopted early, has had a very beneficial effect. In fact, to this day, the youth crime rate and adult crime rate for serious crime in Quebec is lower on average than it is in the rest of the country.

Let me come back to Bill C-25. With the first part of the bill, I have to take some issue with my Bloc colleague when he says that the government is introducing a reverse onus with regard to pre-trial custody for youth who have been charged with a crime. I do not interpret the sections that way. In fact, this part of the bill is simply codifying what we are seeing across the country. I expect the bill will go to committee and when we hear evidence, this will be the message that will come from practising lawyers, Crown attorneys and defence bar across the country. It will not do anything to change the practice in our youth courts across the country. All it will do is confirm what our judges have been evolving over the last decade.

One might ask why we would bother doing it or why would we support doing it. My answer would be that we always have. A few judges may say that they will not do it because it is not in the legislation and that they will meet the criteria that they have. By putting it into the law, for those few judges who may not be following the pattern that I see all the other judges following, it will make it necessary for them to do that and they will feel comfortable and authorized to do that.

Basically, it simply says that if the young offender is faced with this criteria having been met, then we are not likely to release him or her from pretrial custody.

There is a presumption in the act that stays in the act, in spite of these amendments, that says, generally speaking, there is a presumption that a youth would be released pending his or her trial on the charges that he or she is confronted with. The judge would then take that into account and, if the judge felt comfortable, the youth would be released but, if the judge did not, the judge could keep the youth in custody and the judge had the authorization to do that.

I do not have any problem with that and would support the government's approach on it. Again, I do not think it will change very much but it will help in a few cases.

The second part of the bill, though, is much more problematic. I believe this part of the bill was driven by a Supreme Court of Canada decision that came down about a year and a half or two years ago where a lower court judge had tried to introduce the concept of deterrence when he was sentencing an individual. That went through the appeals court and then to the Supreme Court of Canada which said that it was not in the Youth Criminal Justice Act as a criteria to be taken into account. It stated that since it was rehabilitation and treatment and that it was moving the youth back into society as quickly and effectively as possible, deterrence was not a principle to be applied.

What the government is trying to do is to bring that into the legislation by way of amendment to the Youth Criminal Justice Act.

I want to make two points. The deterrence is both, with regard to the individual, what we call specific deterrence and also general deterrence.

We know, I suppose from studies all over the world and from criminologists, sociologists, psychiatrists and psychologists, that a great deal of youth crime is as a result of youth not being mature enough to make proper decisions and acting so often on impulse. When I say “acting so often on impulse”, almost invariably acting on impulse which results in them committing a crime, and sometimes a serious violent crime.

Deterrence, faced with that psychological reality, is of absolutely no use. Deterrence only works if one meets two criteria. One criteria is being aware of the penalty, and the vast majority of youth are not.

I was doing a seminar this summer at one of our drop-in centres for youth in the city of Windsor. We had a round table discussion with youth aged 15 to 18. I was amazed how overwhelmingly ignorant most of these youth were, and I mean that in the classic definition of the word ignorant, in not having any knowledge of the law. They were making all sorts of assumptions. Some thought the penalties were very severe and others thought there were no penalties at all. I think that group was a very accurate reflection of the individuals who form our youth in this country.

When we take that we can say that they have no any knowledge of it so they will not even stop to think about the deterrent factor because they do not even know what it is. Secondly, they will not stop to think at all because they are acting on impulse. It is not a conscious decision they are making in the vast majority of cases. Therefore, deterrence has no impact.

What we, as a party, are proposing to do with this and with the denunciation, which, quite frankly, I have no sense at all as to why the government would put that in, is to support this at second reading and when it gets to committee we will be looking to alter that part of the bill to take into account some valid changes in the sentencing principles but not these two.

[Youth Criminal Justice Act, November 21st, 2007]

Mr. Speaker, I know the minister will be in front of the committee. I want to ask him about dollars. He bragged about the $1.7 million he gave in his area of the country. I should point out that this was over four years, not one year.

The reality is the government has done very little with regard to preventive work. It put some money in the budget, but has not spent it since it was in power.

Could the minister tell us how much the government has allocated for prevention programs for youth in the current budget period?

[Immigration and Refugee Protection Act, November 19th, 2007]

Mr. Speaker, whatever time I have left is about what the question is worth, but that would be unfair to my friend from the Yukon.

[Immigration and Refugee Protection Act, November 19th, 2007]

Mr. Speaker, my colleague from Winnipeg is very accurate in his assessment. Simply providing the band-aid of the special advocate will not deal with any of the other problems, such as incarceration without charge or conviction, and in many respects, even the right to remain silent. In order for people to find out why they are being held, they almost have to break their silence. It is an interesting twist. There is no question that Bill C-3 is a band-aid approach, and I want to make a comment in that regard.

I think it was the Department of Justice that commissioned a study by a law professor here in Ottawa and a private lawyer involved in a lot of citizenship and immigration files with respect to security certificates. They prepared a very extensive report, about 50 or 60 pages long. They analyzed what went on in the U.K., what went on here in Canada, and in Australia and New Zealand. In addition to the special advocate, they made a long list of steps that could be taken to perhaps make the security certificate system palatable. The only part of the report that the government took was to provide the band-aid of the special advocate. Specific references were also made to additional authorities to give to the special advocate, and hardly any of those were incorporated.

This goes back to why we are voting against this legislation. It is not going to survive the ultimate challenge when it gets back to the Supreme Court.

[Immigration and Refugee Protection Act, November 19th, 2007]

Mr. Speaker, we can go back and analyze the process by which the 19 terrorists committed the atrocity of 9/11, as has been done very extensively, and look at the U.S. system, which is much more vigorous in checking out people before they come to the United States than the Canadian system, certainly at that time, although we have tightened up quite significantly since then.

I think it would be unfair of us as parliamentarians to convey to the Canadian citizenry that we could 100% guarantee that we could prevent a person bent on the terrorist type of activity, violent activity, from getting into this country. It would be foolhardy on our part to suggest that.

I would repeat that we have tightened up quite extensively what we do in terms of people coming into Canada compared to what it was like prior to 9/11. I think a number of those provisions have been useful. Others probably do not advance it at all.

I want to make one more point in response to the point the member made about us disagreeing over this. I practised law for 27 years, mostly in the courts, and a good deal of that was criminal law in the early part of my career. I can well understand the desire to do something like this, to have security certificates, but my legal practical experience says that I am never as a lawyer going to be able to make that system work and preserve our civil liberties and human rights.

[Immigration and Refugee Protection Act, November 19th, 2007]

Mr. Speaker, Bill C-3 is really about how our society approaches an attack on our society. As a society it seems to me we always have the opportunity of making one of two decisions. We can respond to an attack in fear, in panic, or we can respond from a vantage point of strong belief in the essential values of our society and that those essential values will protect us and prevent further attack.

After 9/11 in particular, but at other times in our history, we as a country and as a society have all too often opted for the first alternative, that is, reacting in fear and in panic, and putting into place legislation rather than protecting our society as a whole. This has actually caused our society to become weaker. We saw that with regard to the security certificates.

Obviously, I will spend most of my time talking about them, but we saw it after 9/11 with the anti-terrorism legislation. Canada passed a law at that time that by any objective analysis was not necessary. We had provisions within our existing legislation, the criminal justice system, and our procedures under that system protected us. History has proven that true over the last five or six years, and in particular in the last year or two, as sections of the anti-terrorism legislation have been struck down.

We have a similar history with regard to the security certificate, although the security certificates when we study them have a bit of a twist that we have not yet seen with the anti-terrorism legislation.

Before I go on with that, we have historically made some very bad decisions. When we did that, oftentimes it was targeting specific communities within our overall society. We saw it in the first and second world wars against the Italian and German Canadian communities, where a large number of people were incarcerated for a good part of those wars. When we go back and look at it objectively in hindsight, we say that they were not a threat to us. They were not a security concern, but we imprisoned them and took them away from their families and put them into prison camps for both of those wars for extended periods of time.

Of course, the most tragic of all of those was what we did to the Japanese Canadian community in the second world war. We deprived them of their property and their liberty for the entire war, and not paying compensation after the war. This was a real stain on the history of this country.

As I go back and whenever we are looking at protecting our community and our country as a whole, I argue that we have to come from the vantage point of a sense of self-confidence that the society that we build, the criminal justice system that we build, and the security systems that we build are all more than adequate to protect us.

Then, when we are given that choice, we always hear that we have to balance it. When I hear those words, I always cringe because I know what is coming next. When people talk about balancing, what they are really talking about is taking away rights, taking away our civil liberties, acting out of fear and panic, as opposed to saying “we as a society over the last 135-plus years have built a system that generally will protect us”.

I want to come back to the security certificates. Many people I know think that the security certificates were a product of the anti-terrorism legislation after 9/11. Of course that is not accurate. We have had security certificates for almost 30 years now.

To some degree when we look at them, their real abuse did come after 9/11. It came because to a great extent they have been used almost exclusively, with the exception of Mr. Zundel in that period of time, against people who are Muslim and who fit a stereotype of a terrorist. I emphasize stereotype of a terrorist because nothing of course is proven. No one is even charged. They are simply held.

I want to go back and cover the history. Prior to 9/11 we had a system where certificates were used. We only had a few cases, one that is still outstanding, where an individual was held for extended periods of time. In fact, that individual was released under conditions and is still in Canada because he cannot go back to his country without realistic apprehension of torture and probably death as a result of his conduct in the other country. So he is still here, in a case that went to the Supreme Court of Canada once and in a number of other appeals.

However, he is here. He has never been charged, never been convicted, and still is under control, although living in society. That case was reasonably abusive, but the cases that came after 9/11 are even more so.

I want to point out that the system changed after 9/11 because up to that point we had what I saw as somewhat greater protections against the abuse of the use of these certificates.

I must say at that time I was opposed to the use of these certificates because I felt our criminal justice system was more than adequate to deal with the problems we were finding and applying the certificates to.

However, it was certainly a safer system in terms of preventing abuse and in fact it did. It worked under what we call SIRC and it provided additional abilities for the person who was facing the condition of a security certificate to have some additional protection more closely in accordance with our traditional civil liberties and human rights in this country. It was far from perfect and in fact, again, it was not necessary.

After 9/11 though, it became very obvious that we were using them almost exclusively to target individuals who were Muslim and who fit a stereotype.

We have had five cases since 9/11 all very similar, people incarcerated for extended periods of time without charge, no prospect that they are ever going to be charged in this country and it always begs the question. If they are such violent people, if they are such a threat to our society, how dare we as a country send them back? Are they going to be terrorists in the other country, are they going to commit violent acts in the other country?

In a number of cases these people have been here for extended periods of time. We have a moral responsibility, if not a legal one, to keep them in this country and deal with them in this country in our traditional criminal justice system. That of course has not happened.

In addition, we have had these cases where the certificates were applied for and granted by our proper ministers who had signing authority to pursue these. Then there were very extensive legal battles to the Supreme Court, again most recently to the Federal Court at the trial level, and the Federal Court of Appeal level repeatedly and repeatedly.

What we have always been faced with in those five cases, without exception, is the reality that the certificates are useless when they come up against the practical fact that if we send these people back they again are facing torture or death in these countries. Our courts have repeatedly found that we are not prepared to do that. There is a sliver of a window that the Supreme Court left open with regard to cases where we might do that. However, in all five of these cases, our courts have said no, we cannot do that because of the fear of torture and/or death.

We are left with this conundrum. We have these people in the country. We are saying that we are never going to release them, but we are never going to charge them and we are never going to prosecute them. That so flies in the face of our traditional criminal justice system as to make a mockery of that criminal justice system.

Now, today, we are faced with this legislation that had been in effect a response to the Supreme Court of Canada decision of about 10 months ago. It was one of these cases that went to the Supreme Court. In that decision, the Supreme Court said, after analyzing the empowering legislation for the certificates, that we could not continue with the system as it is now, it being a clear breach of the Charter of Rights and Freedoms.

Also, as the court always has to go to that secondary stage of asking in a free and democratic society if this type of infringement on civil liberties and human rights is permissible, it said no to that as well. It said that the legislation as is, the practice as is, is unconstitutional. It is against the charter and it is not saved by the residual clause, section 1 of the charter, that allows in exceptional circumstances for breaches of fundamental rights.

The court said it is illegal, unconstitutional and against the charter, that there are no saving provisions in this legislation, and that we have to redo it, making it clear that it gave government 12 months to correct the legislation if it could. If not, then the security certificates are declared unconstitutional, as being against the charter.

We are approaching that timeframe. It runs out sometime in early March, I believe, so we have this response from the government. It was interesting to listen to some of the other speakers who have read the court case, as I have, but I come away with a different interpretation. What we hear is that in this legislation, in Bill C-3, we have cured the problem by introducing the concept of a special advocate.

If one not only read the decision by the Supreme Court but saw the arguments that went on in front of the Supreme Court by counsel from all sides, one would see, I believe, that the simple introduction of the special advocate, and the limited authority given to that special advocate, does not meet the requirements of the Supreme Court in that decision. I say that from two vantage points.

One is that although the concept was discussed and argued by various counsel before the Supreme Court, it was a fairly limited argument. There was not a great deal of evidence put in as to how the advocates function, particularly in the U.K., which is the model that has been fairly closely adhered to in Bill C-3, but there was information that went forward at that point. There were serious questions about its efficacy in the U.K., about whether in fact it was working, and I will come back to that in a minute.

So even though the Supreme Court heard a little about that, it was not extensively argued. Again, when we look at the wording that it actually used, we see that it simply said this may be one possible way of fixing the problem. I think that is a fair characterization of its wording. The court did not go all the way, by any stretch of the imagination, and say to put in special advocates and the problem would be corrected. It did not say that. In fact, the court left open quite clearly the point that this was only a possibility in regard to fixing the problem with the security certificates and the way they impinge on the charter.

When we actually look at the experience in the U.K., and I know that we have heard from other speakers about this but I want to emphasize it, we see that the lawyers in the U.K. who were special advocates have on a number of occasions resigned their positions and have gone public with the reasons for those resignations. Sir Ian Macdonald is probably the primary one that we refer to.

He wrote a very eloquent piece at the time of his resignation as to why he could no longer in good faith continue to act as a special advocate. He listed the problems that he had as a lawyer, as a barrister of much reputation. He is a very experienced lawyer. He is a very experienced barrister in the criminal justice system in the U.K.

His final conclusion was that in terms of being honest to himself, his profession and his professional role, he could not continue to do it because in fact he was not capable. As talented as he is, as experienced as he is in criminal law matters and in the criminal justice system, he could not provide protection that is anywhere near the standard that we should expect. He was speaking there of England, but this certainly would also be applicable here in Canada. He resigned.

I also want to point out that on a number of occasions the special advocates made representations to the government about the additional authority and mandate that they wanted in terms of being able to communicate with the individual who was the subject of that kind of system. It is different in the U.K., but there are basically security certificates there. They were wanting to play a much more traditional lawyer's role of protecting the person they were assigned to protect.

One of the things that happened midway through the process in the United Kingdom was that they actually established resources because they did not have many, both in terms of additional personnel to help the counsel and actually setting up an independent office so they could provide additional protection.

Even after they did that, Sir Ian Macdonald still said that they could not do it, that it is fundamentally flawed and fundamentally against the basic concepts of English common law, civil liberties and of human rights. “And if you want to set this up as a sham”, he said, “I am no longer going to be part of it”. He resigned.

I believe that is the same argument that the Supreme Court will see if this bill gets through. It sounds like it will get through, because the Liberals, as they have done so often lately, are siding with the government. It will probably get through.

We are going to be voting against it as a party, because I believe ultimately that when this gets back to the Supreme Court of Canada it will say that it has now seen how the system works, how the introduction of the special advocate does not meet the basic requirements of the charter and does not protect fundamental rights in this country, and the court is going to strike this one down too.

Quite frankly, I am proud to say that the NDP will continue its opposition to the use of the security certificates. We should get this out of our system completely. We should have the faith, the confidence and, yes, the courage in our belief that we can protect our citizens using our existing criminal justice system. All sorts of evidence says we are justified in that belief and that faith in our system. That is the way we should be going. This legislation should never be passed.

[Points of Order, November 14th, 2007]

Mr. Speaker, the Prime Minister, in response to a question from the member for Toronto—Danforth, indicated that there were terms of reference for the independent investigation into the Mulroney-Schreiber affair.

I would ask that those terms of reference be tabled in the House.

[Airbus, November 14th, 2007]

Mr. Speaker, it is obvious he is not going to exercise his discretion or his responsibility.

Will he try this? Will he seek from the German government authority that it will see to it that Mr. Schreiber will return here at any time that we require him to appear in front of the public inquiry? Will he do at least that much to protect the interests of Canadians?

[Airbus, November 14th, 2007]

Mr. Speaker, there is not one Canadian who does not understand the significance of Karlheinz Schreiber staying in this country. He has an extradition hearing tomorrow. The minister has both the discretion and the responsibility to go into court, seek an adjournment tomorrow and keep Mr. Schreiber in this country so we can get to the bottom of this scandal. It encompasses the Liberal previous administration and this administration.

Will he do that?

[Airbus, November 13th, 2007]

Mr. Speaker, I would suggest he is shirking his responsibility.

There are very clear provisions within the accountability act for the appointment and the use of a public prosecutor in these circumstances. I am asking the minister today, has he considered that as a possibility to look at who should be directing those, or is the director of public prosecutions in a conflict because he may be investigating his own department?