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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 14 - Evidence for November 1, 2001


OTTAWA, Thursday, November 1, 2001

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-7, in respect of criminal justice for young persons and to amend and repeal other Acts, met this day at 10:55 a.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, this session of the Standing Senate Committee on Legal and Constitutional Affairs is now met. We have before us this morning appearing on Bill C-7. We have before us the Minister of Justice, the Honourable Anne McLellan, who is both Minister of Justice and Attorney General of Canada.

Minister McLellan, we are in your hands.

[Translation]

The Honorable Anne McLellan, Minister of Justice and Attorney General of Canada: Madam Chair, I wish to thank you for this opportunity to appear once again before the committee in the matter of Bill C-7. I have followed your proceedings with a great deal of interest. I congratulate you on the impressive number of witnesses you have managed to hear and on having so candidly debated the complex issues raised by young offenders and the way in which society should attempt to deal with young people within our justice system.

[English]

Your hearings have demonstrated that while there are differences of opinion in relation to certain aspects of the bill, the majority of those who appeared before this committee support the bill's main objectives, which include emphasis on rehabilitation and reintegration of youth; fair and proportional accountability that is consistent with the greater dependency of young persons and their reduced level of maturity; providing enhanced procedural protections to youth to ensure that they are treated fairly and that their rights are protected; ensuring timely or early intervention; and reducing the number of young people needlessly brought into the justice system and into custody.

Bill C-7 reflects the fact that young people lack the maturity of adults and therefore should not be treated as adults. It includes an emphasis on rehabilitation and reintegration and holding young people accountable in a manner that is consistent with their reduced level of maturity.

It requires that interventions with young persons must be fair and proportionate, encourage the repair of harm done, and involve parents and others in the young person's rehabilitation and reintegration. In addition, interventions must respect gender, ethnic, cultural and linguistic differences, and respond to the needs of Aboriginal young persons and of young persons with special requirements.

Witnesses clearly support another of the bill's main objectives: less use of the formal justice system and more diversion and other extrajudicial measures for the vast majority of youth crime. Experience in Canada and other countries has shown that measures outside the court process can provide effective and timely responses to less serious youth crime.

Although the YOA permits the use of alternative measures, over 15 years of experience under the YOA indicates that it does not provide enough legislative direction to encourage their use - particularly with less serious, minor crimes.

The proposed youth justice act is intended to enable the courts to focus on serious youth crime by increasing the use of effective and timely non-court responses to less serious offences. These extrajudicial measures provide meaningful consequences, such as requiring the young person to repair the harm done to the victim.

They also enable early intervention with young people, as well as the opportunity for the broader community to play an important role in developing community-based responses to youth crime. In many cases, extrajudicial measures provide the most meaningful consequences, especially when they involve the victim. In dealing directly with the victim, the young person often best comes to understand the impact of his or her actions, and to accept the responsibility and undertake to repair the harm that he or she has caused.

Witnesses also strongly support a reduction in our overall use of custody in this country. Canada has the highest youth incarceration rate in the western world, and that includes the United States. Young persons in Canada often receive harsher custodial sentences than adults receive for the same type of offence. Almost 80 per cent of custodial sentences are for non-violent offences.

The high rate of youth incarceration of less serious offenders appears indicative of two different sentencing approaches in this country. The first is a "get-tough" philosophy that is based on a misplaced belief that locking up young persons is the best way to protect society. The second approach is a paternalistic needs-based "treatment" philosophy that bases the level of intervention on the perceived needs of the young person rather than on the seriousness of the offence. The result can be that young persons are incarcerated to address their child welfare problems, even though the offence itself may be relatively minor. Deprivation of a young person's liberty in this way - whether it is called custody or educative rehabilitation - is clearly unfair. It is clearly an inappropriate use of the criminal law power.

In contrast to the YOA, the new legislation provides that custody is to be reserved primarily for violent offenders and serious repeat offenders. The youth justice legislation recognizes that non-custodial sentences can often provide more meaningful consequences and be more effective in rehabilitating young persons.

The bill also contains measures for the rehabilitation and reintegration of those who do go into custody. A weakness of the YOA is that a young person can be released from custody with no required supervision and support. The last time I was here, honourable senators, we talked about this at some length.

The bill requires that every period in custody be followed by a period of supervision and support in the community as part of the sentence. The bill's emphasis on assisting a young person successfully make the transition back to the community is based on the belief that all young people can be reintegrated if they receive the proper support, assistance and opportunities.

As a whole, the proposed youth criminal justice act will ensure a fairer and more effective system, while reducing the number of youth going into the formal justice system, reducing the over reliance on incarceration in this country and - for those who go to custody - increasing reintegration measures for a successful transition and return to the community.

While most witnesses strongly supported these objectives and the corresponding provisions of the bill, I understand that concerns have centred on a number of areas that I would now like to discuss.

The first is the UN Convention on the Rights of the Child. As I stated during my earlier appearance before this committee, Bill C-7 is in compliance with the UN Convention on the Rights of the Child. As you are aware, the convention is the most widely ratified human rights treaty, having been ratified by 191 states. This treaty encompasses many different rights, as I know senators are aware, especially Senator Beaudoin and Senator Pearson. These rights include civil, political, economic, social and cultural. As such, they demonstrate the world's commitment to its children. As Senator Pearson and others have shown through their commitment to children, this is an area of utmost importance.

Several articles of the convention deal specifically with the rights of the child - in this case youth - in juvenile justice. My officials will be providing you in the near future - perhaps this afternoon or tomorrow - with a document that sets out these articles of the convention and shows where they are protected in our youth justice legislation.

Honourable senators will note that not only is Canada in compliance with the UN convention with this bill, but that it exceeds the minimum protections called for in many instances and strengthens rights and protections beyond those available under the current Young Offenders Act in a number of areas.

Honourable senators, it is fair to say that it would be hard to find a country that, with this new legislation, does more to protect the rights and the due process rights of young people than we do in this country. That is something about which we should be very proud. It is something of which we should take note. In part, we are as observant as we are of the rights in the UN convention because of the work of people like Senator Pearson, and others, who make us aware of the importance of ensuring that our young people are treated with respect and dignity.

Another area that people have talked about is adult sentences. One of the most challenging areas for a fair and effective youth criminal justice system concerns how to ensure that a young person - in the rare case of a very serious violent offence - is treated fairly and appropriately. One aspect of Bill C-7 which has caused a great deal of confusion and, consequently, a great deal of misplaced controversy, concerns the age at which a young person can receive an adult sentence.

I wish to underscore again that for nearly 100 years under both the Juvenile Delinquents Act and the Young Offenders Act, the law has allowed young persons who are 14 years of age or older to be transferred to adult court under certain circumstances. That is not a change in our law. That has been the law for practically as long as we have had youth legislation in this country. Anyone over the age of 14 can - in certain circumstances, if the Attorney General so seeks to do and if the court agrees - be transferred under the existing law to adult court. If the young person is convicted in adult court, the court must impose an adult sentence.

Our new legislation does not lower the age at which a young person may be subject to an adult sentence. It remains at 14. It has been at 14 for almost 100 years. Under the YOA, if a 16- or 17-year-old is charged with murder, attempted murder, manslaughter or aggravated sexual assault, it has been presumed that he or she will be transferred to the adult court and, if convicted, will receive an adult sentence.

The presumption does not mean that there will be an automatic transfer. It means that the young person's legal counsel must persuade the court that this is a case that should remain in youth court.

While the bill does not change the age at which a young person can receive an adult sentence, it does allow for a change in the age of application of the presumptive offences. Under the bill, the age at which the presumption applies would be 14, or could be set at 15 or 16 if a province decides to use its authority to set an age under clause 61.

It is my opinion that clause 61 is a lawful delegation of the criminal law power and that such provincial variations in the application of the criminal law do not violate section 15 of the Charter. I base this conclusion on the jurisprudence of the Supreme Court of Canada, most notably in the cases of R v. Sheldon and R v. Turpin. I understand there has been some discussion around this table in relation to that matter.

It is important to look at this issue in the broader context of other significant changes that are being made in Bill C-7, changes that increase the fairness of the process for determining whether an adult sentence should be applied. I think this is very important because there has also been confusion around this issue. We are changing the whole approach in this area. As I have mentioned, transfer to adult court has been possible for any young person over the age of 14 for many years, if the Attorney General so seeks and the court so agrees.

We are changing the system. The existing system has resulted in unfairness, complexity and delay. We know that delay is one of the real problems when dealing with young people. Psychologists, lawyers, parents and others tell us, and we know from our own intuitive experience with our kids and grandkids that, if someone does something wrong, it is important to tell them fairly close to the event. If a few days or a few months go by or, in some cases because of our existing YOA system, if two or three years goes by, then young people when they are brought before the court say, "Gosh, why are you bringing me here. If this was such an important thing, how come you did not deal with it when it happened?" Unfortunately, under our existing system of transfer to adult court, it can be two or three years before the young person is brought back to court to deal with the harm that he or she allegedly perpetrated on a victim in the community.

We believe that this existing process violates basic fairness by providing that a young person is to be transferred to an adult court before being found guilty of an offence. Under the YOA, before any finding of guilt, the young person loses age appropriate due process protections because they were transferred to adult court, including privacy protections on the basis of an unproven charge. Also, transfer proceedings have lasted as long as two years because of the appeal process, thus impeding access to a speedy trial.

Bill C-7 proposes significant changes that address the unfairness of the current transfer process. These changes include, first, the transfer process is eliminated. Instead, the youth court has the authority to impose an adult sentence where the test for an adult sentence is met. The hearing on the appropriateness of an adult sentence will occur only after a finding of guilt. This is very important. The judge will decide whether that adult sentence being sought by the Crown is appropriate, after hearing the totality of the evidence - after hearing not only the Crown's case, but hearing from defence counsel, all the defence witnesses, probably parents and whoever the defence view is relevant. This is opposed to a transfer to adult court that takes place on a preliminary motion where there was not that kind of record before the court determines whether an adult process was appropriate.

The test for an adult sentence has also been amended. The youth justice court must consider the purposes and principles of youth sentences, with specific direction to consider that the youth justice system is separate from that of adults. It emphasizes fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity before imposing an adult sentence on the basis that the length of sentence available in the youth system is not long enough.

The youth court must consider all relevant factors, including the age, maturity, character and background of the young person, and the seriousness and circumstances of the offence. The name of a young person with an adult sentence may only be released after a finding of guilt, unlike under the existing YOA. I know that there have been some concerns around publication.

Presently, honourable senators, a young person's name will be published upon transfer to adult court. There is no trial or no finding of guilt but, upon transfer, the name is published. What we are saying in this legislation is that since we are doing away with transfer to adult court, the publication, in the limited circumstances that exist under this legislation, will only take place after a finding of guilt. We think this is fairer in terms of the young person.

The creation of a new youth sentence is also included in this legislation. I refer to the intensive rehabilitative custody and supervision order. This is a therapeutic youth sentence for those who have committed the most serious violent offences and might otherwise receive an adult sentence. This sentence, for which the provinces will receive special allocated federal funding, will allow youth with serious mental or emotional problems to remain in the youth system and to receive the best treatment possible to address their problems.

Another issue that has received a great deal of attention in the committee concerns what happens to a youth who receives an adult sentence. It is important to note that clause 76 of the bill provides that a young person with an adult sentence who is under 18 should serve the sentence in youth facilities.

Like many of you, I am opposed to young people serving time with adults. It is for this reason that we have strengthened the protections against this in the bill.

However, there are exceptional circumstances that must be taken The second into account for youth in pre-trial detention who would otherwise be far from home. circumstance involves youth with adult sentences who may be an unmanageable security risk to other youth in a youth facility. Both these are practical problems. The rights and safety of other young people must be taken into consideration, as well as the best interests of the youth with an adult sentence.

Given that this initiative diverges from the UN convention, Canada, like a number of other countries with which we regularly compare ourselves - Britain, the Netherlands, Australia and New Zealand, to name only a few - has entered a reservation to the UN convention on this matter. Nonetheless, these provisions must be looked at, along with a range of other measures in the bill that reduce the use of pre-trial detention and limit the overall use of custody for youth and eliminate transfer to adult courts.

One of the things we heard in terms of the possibility of a young person being detained in a facility where, in some other part of that facility there might also be adults, came from Inuit people and others in the North. These people would prefer that these young persons stay closer to the community, even if that means that they are in a facility that houses adults in another section, rather than move them, in some cases involving a pre-trial detention situation, 1,000 or 1,500 kilometres from the family. Coming from the Yukon, I think Senator Christensen would appreciate this.

If we are to be respectful, as we have tried to be, for example, in Nunavut, with the creation of their judicial system, we need to listen to local communities that are remote. For them, it would provide a distressing break if one had to move some of these young people 1,500 kilometres or more away from families and community. In this kind of limited circumstance, therefore, it is reasonable to provide that discretion. Again, it is only a discretion. If the court thinks that is inappropriate, then other steps would be taken.

It is of the utmost importance that the process for an adult sentence on a young person be fair and that the youth justice court take into account the individual circumstances of each case, including the age and maturity of the youth and the seriousness of the particular offence. This is far preferable to automatic adult sentences for certain youth, as advocated by certain witnesses, which would only serve to undermine the meaning of a fair youth justice system.

Some senators have expressed concerns about the publication of names. A distinguishing feature of the youth justice system is enhanced protection of privacy, to allow young people to avoid enduring stigma for youthful misdeeds. Any exceptions to the rule are only available in the most serious cases and in limited circumstances.

The publication provisions under Bill C-7 are different from those in the Young Offenders Act. Under Bill C-7, greater privacy protections are in place for youth who receive adult sentences. Under the existing law, the identity of some youth 14 and older can be made public, as I have indicated, before the youth is convicted of an offence, at the time the youth is transferred to the adult system for trial. Under the new bill, there is no possibility of the name of a youth receiving an adult penalty being released prior to conviction. There is, however, scope for the identity of a youth receiving a youth sentence to be released in relation to the most serious offences if the judge does not preclude the publication.

In making the decision as to whether or not the name of a young person could be published in such a case, the youth court judge is to balance the public interest, including factors such as freedom of expression and public safety, with the importance of rehabilitating the youth, which would include consideration of the impact of publication on the psychological well-being of the youth and the stigmatization and harmful effects publicity may have on the youth and their chances of rehabilitation and reintegration into the community.

Based on the case law that has interpreted the meaning of public interest, and on the principles sustaining Bill C-7 that emphasize rehabilitation and reintegration as the core of extrajudicial and judicial intervention, I am confident that in only exceptional cases would a youth court permit publication under this test. As one of the witnesses who appeared before you, Mr. Justice Peter Harris, said about publication:

That makes sense in some ways, because when the offence is sufficiently serious the balance shifts from concern about rehabilitation to protection of the public.

I understand that some witnesses and senators are of the view that section 718.2(e) of the Criminal Code should be included in the legislation as a means of addressing the problem of overrepresentation of Aboriginal youth in custody. We talked about this issue at some length when I was here before.

I agree that the overrepresentation of Aboriginal youth in custody is a serious problem. It is addressed in the proposed legislation in supporting programs and through crime prevention efforts. However, it is not necessary, in my respectful opinion, to include this section of the Criminal Code because the youth justice legislation contains provisions that are much more likely to be effective and much more robust in protecting Aboriginal young people in custody.

It is clear that our objective should be to reduce the number of Aboriginal youth in custody. That must be one of our key objectives. In fact, it was an objective set out in the Speech from the Throne by this government.

The youth justice legislation is much more likely to achieve this objective because it requires the court to give sentences that "respond" - and that is the word, honourable senators. I ask those who argue in favour of section 718 to keep in mind that it says "consider." There are examples every day where the court considers it and dismisses it. What we are talking about here is "respond." The court must respond to the needs of Aboriginal young persons. That is the language of clause 3. When read in conjunction with clause 38, I hope everyone agrees that that provides much more profound protection than one finds in 718 of the Criminal Code. It contains specific restrictions on the court's discretion to impose custody on young persons, including Aboriginal young persons. That is found in clause 39.

When compared with section 718.2(e) of the Criminal Code, clauses 3, 38 and 39 of this legislation are much more responsive to the needs and circumstances of Aboriginal young persons and are more likely to reduce the high number of Aboriginal young persons in custody. That surely must be our shared goal.

Many of the witnesses who appeared before the committee have said that the bill is too long and complex. Allow me to stress that the bill covers all aspects of the system that deals with the complex challenges of responding to the full range of youth crime. Youth justice is not simple. We all know that. It is not simple for society. That is why it is such a contentious, difficult and emotional issue. It is not easy for legislators. That is why we all take this task so seriously. It ranges from effective community-based programs for the vast majority of youth who commit non-violent offences, to providing a number of options for those youth who commit the most serious violent offences.

In addition, the bill addresses many of the areas where the YOA has not been working effectively, which means strengthened provisions. The legislation will need to be carefully and effectively implemented. I know Senator Andreychuk and others have expressed concerns in relation to this issue. The senator and I spoke about this last time I was here.

This is key. This is absolutely right. Part of the failing of the YOA was the lack sustained implementation and follow-up and training and ongoing review and monitoring by the people who use the system, by the judges, the youth workers, the youth themselves, their families, their communities, the police. That did not happen under the YOA. That is part of the reason for the failure of the YOA in the minds of so many people and why, when we turn the page, we want to ensure that we do not replicate that problem.

Professionals implementing the new legislation will have the training and the tools they need to successfully implement it. In addition, public legal education materials will be available in easily accessible language to reach everyone involved, including the youth themselves, parents, victims, schools and others.

Senators and witnesses have reinforced that legislation alone will not change the course of youth justice and will not in itself reduce youth crime. That is why this legislation is part of a broader youth justice renewal initiative launched in 1999. I believe that I have provided materials in relation to the details of that larger initiative.

Let me just say a couple words about funding. While the federal government has no legal requirement to provide financial support for youth justice programs, under our spending power authority and consistent with the social union framework agreement, I have made offers for five-year financial agreements totalling more than $950 million to the provinces and territories in support of the policy objectives of the youth justice renewal initiative. This amount does not include the significant additional federal resources to support the intensive support and rehabilitative custody and supervision orders intended to provide therapy and support for the most violent and troubled youth.

Moreover, about $27 million have been made available to the provinces and territories to assist in preparing for new legislation through training, encouraging partnerships, improving information systems, addressing implementation contingencies, and preparing for reintegration, planning and support.

In conclusion, I appreciate the fact that the Senate has heard from many witnesses and considered many points of view. It is clearly the considered view of this government that it is time to turn a page on youth justice; to acknowledge the flaws of the existing system; to build on the strengths of the existing system, and to develop an integrated approach to youth justice that truly builds on our front-end initiatives on prevention, that deals with ensuring meaningful consequences for young people in a fair way that respects their rights to due process and other rights, and also puts greater enhanced emphasis, funding and support for meaningful rehabilitation and reintegration into society.

With that kind of multi-faceted approach and with the additional funding from the federal government, provinces - and we as a society - can move forward with confidence that we can build a youth justice system that effectively meets the needs of all Canadians but most particularly those young people who have, for whatever reasons, been in trouble with the law.

[Translation]

Senator Beaudoin: We are dealing here with a very important bill. I am mindful of the fact that in one or two of the cases brought before it, the Supreme Court of Canada has stated that it is absolutely essential we devise a youth justice system.

I am favorably impressed by the alternative measures. I queried one of yesterday's witnesses in that regard. I was told that the new legislation makes these alternative measures possible. I would like to know if that is indeed the case. The system allows a number of alternatives. Some provinces resort to these alternatives and others do not. Will this remain possible under the new legislation?

[English]

Ms McLellan: Honourable senators, this bill clarifies and strengthens the possibilities for alternative measures, extrajudicial measures, and diversion at a variety of stages. For example, diversion might take place when the police are initially called to the scene where a young person has done something. Diversion could take place when the Crown prosecutor is seized with the case. Diversion could take place when the young person comes before the judge and is directed to take support from the community.

We want to enhance that kind of work from the existing YOA, which did not clearly identify diversion as the first alternative. Diversion should be considered first, unless we are dealing with a very serious offence. We are clarifying that in this legislation.

The federal government will provide additional resources of close to $1 billion over five years. The provinces can build on the initiatives already begun. All provinces have some of those initiatives. Now those programs can be enhanced as an integral part of the youth justice system.

This bill is not only about prosecutors, judges and courts. More important for the vast majority of young people who do not commit violent crimes, this bill is about diversion. That is why the bill speaks first about extrajudicial measures. We want to reorient our approach to youth justice.

[Translation]

Senator Beaudoin: My second point concerns the uniform rules of procedure for the courts. Parliament has considerable powers with respect to criminal law. These powers have always been very broadly construed. Nonetheless, the administration of justice within a given province is a provincial matter.

I can see, in this bill, that you wish to institute uniform rules of procedure for courts dealing with young offenders. These rules could of course be enacted under the federal government's auxiliary powers. I would be interested in knowing why you have included these uniform rules in the new legislation?

[English]

Ms McLellan: What are you referring to with regard to consistent rules?

Senator Beaudoin: I am speaking of having the same system.

Ms McLellan: As you have identified, the administration of justice in the province is a provincial matter.

Mr. Richard Mosley, Assistant Deputy Minister, Criminal Law Policy and Community Justice Branch, Department of Justice: As you know, under the Criminal Code, Parliament has reserved the right to impose rules of court on the provincial courts of criminal jurisdiction. That has been rarely exercised and certainly has not, to my knowledge, been exercised in the past 20 years. We do tend, however, to work very closely with the provinces to ensure consistency in the rules and with the provincial superior courts and courts of criminal jurisdiction more generally.

In the context of youth justice, however, it is believed to be much more important that there be national consistency in the rules of court applying to the proceedings governing children, in part because of the experience of the past where the provinces have adopted quite widely differing procedures as to how to administer youth justice.

Ms Catherine Latimer, General Counsel and Director General, Youth Justice Branch, Department of Justice: This is specifically set out in clause 155(b) where it says that the "Governor in Council may make regulations establishing uniform rules of court for youth justice across Canada."

Senator Beaudoin: I agree with you that we are dealing with the rights of children. To that extent, of course, we may say that the obligation for Canada to implement a treaty that has been signed at the international level is of the greatest importance. However, it is not what we call an act to give effect to the implementation of an international statute.

We do not have that very often in Canada. I would like to see it from time to time. It is true that we have a very good Charter and that we respect rights. However, when we sign a treaty, we should more and more legislate to give effect to the treaty so that it will become the law of the land without doubt.

Ms McLellan: That is an interesting point that I will take back to the Minister of Foreign Affairs because it transcends any discussion of youth justice. Bill C-7 fully complies with the UN Convention on the Rights of the Child. In fact, in many areas it exceeds any kind of minimum protection provided by a great many other countries.

Keep in mind that as it relates to the Convention on the Rights of the Child it deals with a wide range of things. In fact, only a handful of sections deal with juvenile justice. We are complying with those sections and exceeding them in almost all cases.

However, I take your point that perhaps the Minister of Foreign Affairs could look, after signing, at how we go about ratifying and implementing that which we have signed. I will ensure that the minister takes up that issue.

Senator Cools: Before the minister rushes off to take that concept through to the Minister of Foreign Affairs, perhaps the process should work somewhat in the other direction. Perhaps when ministers of foreign affairs are agreeing to these international conventions they should bring them to Parliament before they agree to them. It is not a question of us implementing the law to which they have agreed. It is a question of us agreeing to a law for the minister to take abroad.

It is a strange process that all these international agreements have never been discussed in Parliament. Nations are being bound to things to which they have never agreed.

Ms McLellan: That is an excellent point and one of which the Minister of Foreign Affairs is very aware.

Senator Pearson: Minister, I am interested in your reference to clause 155 and the possibility of regulation. I met last week with the Canadian Association of Provincial Child Advocates. As you know, seven provinces now have child advocates, including Quebec, and another province is about to have one. These people are deeply concerned with the rights of children. The issues they were sharing with me have more to do with the implementation of the act than with the actual text.

Their particular concern relates to national standards - which also relates to the Convention on the Rights of the Child and the issue of not subjecting children to practices that are against their dignity and so on, which is dealt with in clauses 37 and 40. They explained to me and I witnessed - much to my dismay - a tremendous variation in the use of restraints and other kinds of intrusive measures in provincial detention facilities.

Their concern is how, through this legislation, we can help to promote national standards. We need to look at those places that are more successful in their rehabilitation rather than those that are putting kids into solitary confinement for weeks on end. There is a capacity to make regulations. Can there be a commitment to work toward national standards? It is obviously very important for these kids and for the objectives of the bill.

Ms McLellan: You raise a very good point. I can have my office provide you with a report that I believe was done by the Human Rights Commission in Quebec about the Centre jeunesse in Montreal. The report speaks very strongly about some very disturbing findings with regard to solitary confinement and some other things. I am sure that there are some other examples that have not received the same degree of publicity.

In clause 83(5) of the bill, under "Custody and Supervision," we talk about the purposes of youth custody and supervision. The purpose is to contribute to the protection of society by carrying out sentences through the safe, fair and humane supervision of young persons. We take that seriously, as does the child advocate association. If they would like to work on some kind of national standards in this area, we would be very supportive of that work. We might even be able to facilitate and provide the funding for bringing together provinces and those who work with young people. The provinces are instrumental here. We need to work with the provinces to ensure that this proposed legislation is successful. The area you raise is an important one. My youth justice officials work closely with the Child Advocates Association. However, if the association wants to be more focussed in the development of national standards, it might need some provincial push back from provinces that defend their rights and jurisdiction jealously. However, we are used to that in this federation. We work with those who want to work with us and we will move this forward. The principle is clear in proposed section 83(1).

[Translation]

Senator Rivest: Madam Minister, it is obvious that you do not have very many thoughts to share with us this morning concerning the very vigorous opposition this draft legislation has met with in Quebec. The government of Quebec has challenged against this bill in court. All the parties represented in the National Assembly vigorously oppose this bill and, I might add, so does a majority of youth workers and, indeed, of all the various professionals whose job it is to deal with young offenders. The system currently in effect in Quebec compares favorably with what has been done elsewhere in Canada.

Why have you failed to reach an agreement with the government of Quebec and, more importantly, why have you not attempted to convince youth professionals of the merits of the new legislation you are putting forward?

[English]

Ms McLellan: We have talked to those who work in the youth justice system in Quebec who wish to talk to us about this matter. We continue to work as closely as possible with them. There is no question that there are many admirable features of the Quebec system. In this legislation, we are learning from the successes of different jurisdictions and creating a new system that takes the best and builds on that and enhances it. I hope also, it will move the standard forward for all of us.

However, again, I would point out that - and I do this hesitantly, but we will provide you with the reports - in the implementation phase, in Quebec, the system has not been without its critics. The Human Rights Commission in Quebec issued what I can only describe as a stinging report in relation to the operation of at least the Centres jeunnesse in Montreal, as they existed some time ago. We must respect the strengths of a system like Quebec's and those good things that other provinces are doing. We need to build on successes and turn a page in youth justice to move us all forward. That is what this legislation does. We believe this legislation will assist Quebec in its objectives and we will be providing them with considerable more resources to do what they want to do.

Senator Grafstein: Having reviewed the evidence carefully before this committee, I take it you have concluded that no further amendments to this bill are necessary?

Ms McLellan: That is what I have concluded. While people have individual or specific concerns, after testimony in the house committee we made about 160 amendments that are now integrated into this legislation. You heard much of the same testimony. There are some differences of philosophy. You heard from the Attorney General of Ontario last evening and from people who work with young people.

Senator Grafstein: I assume you read our cross-examination of the Attorney General. Some of us do not agree with his position.

Ms McLellan: However, you can see the philosophical differences in this country in and around youth justice. We believe we have developed the best integrated youth justice system possible. Therefore, we do not believe that further amendment to this legislation is required. However, we have learned some important things from testimony here and from your own senators' comments in terms of the concerns that you have and how important it will be to implement this appropriately to ensure not only that we are reviewing it on an ongoing basis to ensure that it is achieving our objectives.

Senator Grafstein: I have a brief technical point arising out of your testimony and then I will move to the heart of one subject matter of which I am sure you are aware. That is, the application of the United Nations Convention on the Rights of the Child. I have read your recital in the bill and I have listened to your testimony. There are those who have supported your position that either it conforms or it does not conform; it does not matter. Is it your position that, by raising this the way you have in this recital and by saying that you conform, this is a de jure implementation of the provisions of the UN Convention on the Rights of the Child as it applies to this bill?

Ms McLellan: My view is that we are in compliance with the UN Convention on the Rights of the Child. The last time we were here, we had a similar discussion with Senator Beaudoin about whether one needs implementing legislation for the entire convention - which deals with everything - and juvenile justice represents a tiny part of the convention. That is an important and interesting issue, but one that is preferably taken up with the Minister of Foreign Affairs.

Senator Grafstein: I am asking a legal question, not a political question or a policy question. The legal question is simple and not very complicated. That is, by referencing the United Nations Convention on the Rights of the Child and by your statements now, before and since saying "We comply;" and referencing the fact that you are only focussing on those provisions of the UN charter that relate to criminal justice - with which we do not disagree - is this de jure implementation in the domestic law of the United Nations Convention on the Rights of the Child for which you have applauded Senator Pearson?

Ms McLellan: If you are asking whether or not, in a court of law, we would argue in a case where someone suggests that something in this bill is not in compliance with the UN convention, the answer is yes, we would argue that.

Senator Grafstein: What are the consequences if you do not?

Ms McLellan: That would be up to the court to decide.

Senator Grafstein: I do not want to get into a circular argument, but your law officers will know what I am talking about. If you wish to respond further to us, since you will present us with a document, perhaps you might respond precisely to that question in legal terms, not policy terms.

Let me get to the heart of my concern here. Minister, your officials have obviously followed this and you will know that I have a disagreement with you on a question of law, namely, clause 61. Clause 61 changes the presumption for criminal offences, as you have pointed out, from 16 to 14. It leaves that decision not in the hands of the courts or the system, but in the hands of the Governor in Council of a province. I have looked at the Sheldon case and the Turpin case. We will not get into a legal debate about that.

I will put that off to one side for a moment and come back to the evidence before us. You are correct that most witnesses agree with your stated objectives - but between cup and lip there is always Niagara Falls. Let me sum up the objection to that provision from a policy standpoint, and then I will come back to the constitutional standpoint.

It is best summed up by Professor Doob - whose view is widely shared - who said that this provision is "unprincipled and unnecessary." Other witnesses go beyond that and say it is unconstitutional, both as it applies to the delegation of powers and also as it applies to the Charter. Let us leave the charter and delegation issues aside.

How do you contend with the proposition that the John Howard Society and the Elizabeth Fry Society - "outside" organizations that have been probably the most involved in the criminal justice system - support the contention that this provision is unprincipled and unnecessary from a policy standpoint and may have a counter-productive impact on incarceration and all of the things that you suggested? How do you deal with that?

If there is one place where there is a substantive objection from most witnesses - laying aside the attorneys general of Ontario, Manitoba, and Saskatchewan, and obviously you have heard us on that - this raises a very important question of liberal values - small "L."

Ms McLellan: Indeed. I accept the fact - and it neither surprises nor disturbs me - that there are those who would have differences of view on various issues in and around this legislation. Our policy objective here is to lower the age for the presumption of adult sentence to apply in the most serious offences from 16 to 14. That is the policy objective of this government.

Senator Grafstein: In the bill, you do not say that.

Ms McLellan: However, in response to discussions with the provinces and others, we decided that we could provide a province, a Lieutenant Governor in Council, with the discretion to determine whether they wanted that presumption to apply at 16, 15 or 14. Keep in mind that attorneys general exercise that discretion every day in this country. They decide whether they will ask for an adult sentence for a 14-year-old, and they do it on the basis of the exercise of their legitimate and constitutional discretion. That discretion may be exercised differently in British Columbia than it is in Nova Scotia or in Ontario. That happens every day as a basic element of the administration of justice in this country.

We are saying that if a provincial government wants to be more accountable and transparent to its public and through Order in Council indicate how it will exercise that discretion, at least in relation to this part of their discretion, they can do so. Then they are on record, and their public knows. I can assure you, honourable senators, whether we seek an adult sentence for this 14-year-old or this 15-year-old or this 16- or 17-year-old, we are saying that you can be transparent and upfront with your public and issue an Order in Council saying, "We do not want the presumption to apply in our province in these circumstances." I assure you that the attorneys general are making that decision every day.

Senator Grafstein: You are suggesting it is a distinction without a difference, that by delegating a responsibility to a Governor in Council to establish a systemic rule across the province - which will vary from province to province - is exactly the same from a constitutional standpoint as the individual decision made in the courts with the prosecutor in conjunction within the judicial system. You say that that is the same for constitutional purposes, from a question of delegation?

Ms McLellan: There is no problem with this provision in terms of delegation, in our opinion.

Senator Grafstein: Minister, let us respectfully disagree, and we would hope that the courts will decide in the future.

Let me ask you a final question, then. On the Charter issue, you are saying to us again - in clear and unequivocal terms - that having this checkerboard delegation, which you say is lawful across the country, in no way, shape or form offends the charter provisions.

Ms McLellan: That is what I am saying. The Supreme Court has been clear that allegations or assertions of Charter violation on province of residence in the area of youth justice and criminal justice generally do not constitute a Charter violation. The Supreme Court encourages provincial variation in the area of youth justice.

Senator Grafstein: Again, we respectfully disagree.

Ms McLellan: I understand that, senator, and that is fair ball.

Senator Grafstein: We will meet again in the Supreme Court.

Ms McLellan: We will.

Senator Andreychuk: Needless to say, I am somewhat disappointed, Minister, that you have said that you would not entertain any amendments. That means that no matter what I might try to do to persuade you today that some of the clauses of the bill are probably unfair or need to be revisited, you are not prepared to amend the bill.

Ms McLellan: I will certainly take your comments under advisement. I respect your opinion, and I will be interested in hearing your comments. Much of the concern that I have read, through the transcripts at least, can be dealt with through implementation and ensuring careful, wise, and well-informed implementation of this legislation. That may not speak to your concerns. I do not know.

Senator Andreychuk: I will touch on that. It seems to me that you and I have read the witnesses differently. I think the witnesses have very strongly pointed out the areas that they like in the bill and some of the directions that you are going. I think everyone has come to the conclusion, in my opinion, that you started out with one philosophy. You were then persuaded to include more of a different philosophy. The bill is really a compilation now of competing principles and philosophies. Therefore, it is very complex, very cumbersome, very detailed and will be costly and laden with unnecessary bureaucracies. People worry the bill does not speak quickly to young people and clearly to parents, including those who have some effect on children.

For example, if I may raise again schools, teachers are left out of the equation unless someone else deems them to be in. There are thousands of teachers who make an impact on their students and they have asked to be included. I am not sure what they have asked for by way of amendment, but they do want to be included.

Victims, for example, groups are saying that they will likely be traumatized twice - by the crime and then by these methods and procedures. It is not a question of this bill trying to cause results - in fact, it may have been a problem of over-listening.

Ms McLellan: It is rare that I am accused of over-listening.

Senator Andreychuk: I think it is absolutely true. The first act was put forward and there was great difficulty with it. I think you have tried to listen and to accommodate many varying points of view. The bottom line is that the proposed act will be so complex, in my opinion, that it will not benefit young people. That is why I urge you to listen to the witnesses and to reflect on some amendments.

Ms McLellan: That is an interesting point. I respect what you have said. We have lived with this bill for so long and when one lives with something for a long time, one can distil it down to its essence. For me, actually, this proposed legislation is simple and straightforward. It is about some very basic things.

Implementation is a different issue. There is much that needs to be done on the implementation side to ensure the legislation works as anticipated. Much work must be done in the training of police, prosecutors, judges and provincial attorneys general. I understand that challenge and I take that up because we all want a better system.

There are no competing philosophies here. There are complementary objectives. A key component of the criminal justice system is obviously protection of society as a matter of constitutional imperative. That is criminal law. Another compelling objective, though, in dealing with young people, is to prevent them from getting into trouble and, if they do, to rehabilitate them and reintegrate them back into society as effectively and fully as possible. We want them to get on with their lives and the families and the communities can get on with their lives.

In the middle, there are meaningful consequences if they do get into trouble: making sure the young person is accountable and is takes responsibility for his or her acts. That is all part of maturation and growing up. Parents understand that viscerally. People who work with young people understand that viscerally. They understand - and we have learned a lot from them - that sometimes the most meaningful consequences for a young person are not jail, are not being hauled in front of a judge. Sometimes it is sitting down and connecting with the person who has been harmed.

I do not think there are conflicting philosophies here. This bill reflects the complexity in a modern society of dealing with the challenge of how we respond to young people who break the law or hurt other people. That is reflected in both the preamble and in the principles of this legislation, but it is not easy stuff.

This bill does not have competing goals but complementary goals, and that is a challenge. There will be tension along the edges here. However, tension, as I have discovered, is what life is inherently about.

Our goals here are clear. Implementation will require much work and work that must be carried forward. The work will not stop. We have no finite point at which we can say the bill has been proclaimed, we have done our education and expect that the system will work beautifully. That is what happened with the YOA and the system did not work beautifully.

What we need to do is sustain; we are always implementing - maybe not at the same intensity as in the first year or 18 months. However, we are always learning, reviewing and returning to the original principles, objectives and goals and ask, "Are we meeting those? If not, what do we need to do in terms of the implementation to achieve that?"

Senator Andreychuk: Virtually everyone has said the YOA failed because the training and the tools to get the act up and running were ignored in favour of start-up costs and gearing up the custodial facilities.

Ms McLellan: Exactly.

Senator Andreychuk: By that time, the public had lost faith in the Young Offenders Act.

We have heard attorneys general say that, since 1990, when they were on a 50-50 cost-sharing, they had difficulty implementing the Young Offenders Act. They are now down to 22 per cent or 25 per cent on the cost-sharing basis and that there just is not much money. They are very worried. Every witness who lauded your bill said that success was subject to the necessary resources being made available.

The provinces say that the arrangements with the federal government are simply not sufficient to gear up and sustain the provisions of this bill. We understand that $9 million is being provided for police training in and around the provinces. The overall Ontario budget for training the police, though, will be $12 million.

I hear these figures repeatedly. I know that you can not do it now because it would take too long, but could you provide us with details on the exact proposed cost-sharing for implementation and training and gearing up of the entire system. I need a breakdown of the figures. I hear $950 million from you. That is not what we are hearing from the provinces. Can we get a breakdown of figures for each category?

Ms McLellan: We can give you that. Some details may have been provided but we certainly can send it out again to everyone. We have all sorts of figures, as you might imagine.

The previous government moved away from 50-50 cost-sharing for specific reasons. We are now in the process of increasing funding - as I mentioned the last time I was here. On average, we are moving to around 40 per cent, although that varies from province to province. Is that a fair estimation, Ms Latimer?

Ms Latimer: It very much depends on the jurisdiction and the type of approach taken in youth justice. There is no question that Ontario runs a very expensive, custody-based system. The result of having a 50-50 cost-sharing system previously, was that many resources for youth justice were flowing into Ontario to subsidize their custody-based system.

Senator Andreychuk: I do not want to get into attacking or defending any particular province. The uniform message was that we did not properly train for or sustain the YOA. We compound our neglect by saying that amending the act will solve the problems.

I am asking for an assurance now that if anyone is going to buy into this bill, that the federal government - who is driving this bill forward; the provinces do not want it - will provide sufficient money to encourage the provinces to implement it appropriately?

The Canadian Bar told us that they do not like what the provinces are doing and that consequently, this bill was going to force provincial governments to do, on the social services agenda, what cannot be done directly by negotiation. We are going to try to attack their methods and models of how they implement rehabilitation and how they deal with families and youth by using the clout of the new act.

Ms McLellan: There is hardly a major issue that we talk about with the provinces where they do not want more money from us. Just as the Prime Minister and the Minister of Finance are somewhat sceptical when we ministers line up and ask for more resources to implement our mandates, I think it is appropriate for me as Minister of Justice, sometimes, to meet ongoing requests from the provinces for additional resources with healthy scepticism. If the federation works effectively, the way to approach this is to sit down with the provinces and territories and determine whether we share the same objectives. I have not heard a province say that they do not share the objectives of this legislation, even Ontario.

Let us then talk about how, working together, we can achieve this shared objective. The provinces might disagree with some of the means, and that is fair, but that is a different issue. Let us talk about how we can achieve these shared objectives within a reasonable fiscal framework. We would always like more money, but we must work within a reasonable fiscal framework.

We received substantial new dollars for this implementation; those new dollars are available to the provinces. Many of the provinces have taken that up. If a province does not like the fact that those who do more front-end work rather than traditional custody will benefit, I make no apologies for that because that is what we are trying to do. We are trying to reduce over-dependence on incarceration where it is not required.

As Ms Latimer has said, the most expensive intervention for a young person is detention. As we implement this legislation and as detention is used less for non-violent young offenders, the provinces should be freeing up resources to put into the front end and the rehabilitation and reintegration. That is our goal.

Resources will be reallocated from detention to front end if we are successful with this legislation. With the new dollars, there are enough resources for the provinces to move forward. I have told the provinces that I will continue to argue for a return to 50-50 funding in this area. We are getting close. We have made substantial strides from when the previous government unilaterally slashed these contribution agreements with the provinces. We talked to the provinces. We share the fiscal burden and we understand the challenges. While they would like more - as would I - we have enough to implement this legislation in an effective and responsible way.

Senator Andreychuk: The point is that the YOA was sold in exactly the same way - front end, no custody and we will have plenty of money.

Minister Chris Axworthy from Saskatchewan appeared before us and conveyed the overwhelming feeling that the entire justice system, with all these changes, really does not suit the Aboriginal ideal of justice for young people. I am concerned that this bill does not reflect the needs sufficiently. If Mr. Axworthy is correct, if 6,000 young people are incarcerated in Saskatchewan and 80 per cent of those are Aboriginal - which is, by anyone's calculation, an over-subscription - it would cost about $4,000 per youth to even begin to start up the implementation. From where does the money come to fund a justice system that is not sufficiently contemplated in this bill? Conferences do not do it. It is just on the edges.

I appeal to you to rethink Aboriginal justice immediately because it is a critical issue that this bill does not really address.

Ms McLellan: That is a very important point. As I described in my opening comments, there is much in this legislation that we believe will help with the over-representation of Aboriginal youth in our justice system, because so many of them are convicted for minor crimes. Because their parents do not come to court or because they do not have a support system where the offence took place, they end up in detention. Some people think that putting those young people in detention gives them a better chance than leaving them on the street. That is a terrible thing.

Your point is a very important one. Youth justice is only a tiny part of dealing with the overall issue of Aboriginal youth and why they are over-represented in the justice system. We must all start addressing root causes.

It is too late when a young person is before a court. Why are so many Aboriginal young people coming before the courts? What is happening in these communities and what do we need to do long before this legislation kicks in to ensure that these young people do not come in contact with the criminal law.

Those are profoundly important issues, which we all have a responsibility to take up, that go well beyond youth justice. Through our Aboriginal justice strategy, which is a separate program, through crime prevention and through the new dollars here, we in the Justice Department are taking up that obligation very seriously and perhaps doing more in a concerted way than are some others. However, it must be a shared societal obligation to get at the root causes. We do not want young people overrepresented before the courts or overrepresented in police contacts on the streets of Regina or Saskatoon. However, that issue must be dealt with long before they get here.

The Chairman: I have Senators Joyal and Cools on my list of questioners. Please be as brief as possible.

Senator Joyal: I have the same right as any other senator to question the witness. We have heard at least 60 witnesses and have spent many hours studying this bill. It is only fair that I have an opportunity to question the minister.

I would like to return to the issue of the U.N. Convention on the Rights of the Child. The 1995 report of the United Nations committee stated in section 23 that:

In view of the fact that the Convention can only be referred to before the courts as a means of interpretation of national legislation, the Committee recommends that further steps be taken to ensure the effective implementation of the convention at the national level.

We all agree that in 1995 that was the conclusion of the legal force or strength of the convention in our domestic legislation. It was used as an interpretive document.

If I understand your reading of the "whereas" in the preamble of the bill, which clearly says, "Whereas Canada is a party to the United Nations Convention on the Rights of the Child," you recognize that this legislation is in fact the implementation in the domestic law of the obligations that flow from the convention insofar as juvenile or child court system is concerned. Am I right by saying that?

Ms McLellan: Senator, I chose my words carefully. I believe that the legislation before you complies with the UN Convention on the Rights of the Child. I will defer to Ms Weiser if you want to get into the nuances of compliance versus some form of official implementing legislation. That is not what this is. However, we are in compliance with our obligations is our opinion.

Ms Irit Weiser, General Counsel, Hunan Rights Law Section, Department of Justice: The preamble alone would not be the means by which Canada is implementing the convention on the rights of the child. There are various provisions in this bill that implement the convention on the rights of the child as that applies to the administration of justice. As the minister mentioned, we will submit to you shortly the document that outlines which provisions of the bill implement the sections of the convention on the rights of the child that deal with the administration of justice.

The reference to the convention in the preamble is a signal to judges to consider the convention when they are interpreting the Youth Justice Act, just as we consider the convention when we were developing the bill.

Senator Joyal: There is nuance from what you said previously. The way I interpreted your first statement in response to Senator Grafstein on this issue was that this bill is the enabling legislation of the convention insofar as the Juvenile Court System is concerned.

Ms McLellan: I chose my words carefully. I said that we were in compliance with the UN convention.

Mr. Mosley: I will approach it slightly differently by talking about our process. When we are considering adhering to an international instrument such as this convention, we look at our domestic law or, as in this case, also at the domestic administrative arrangements. We ask ourselves the question: Are our domestic laws or arrangements now in conformity with the convention so that we could sign and adhere to it, or are there gaps in our existing law or procedures that need to be addressed? For example, with respect to two conventions that are addressed in Bill C-36, you were also, senator, if I may, a member of the special committee.

Senator Joyal: I was not a member, but I attended the meetings.

Mr. Mosley: We have identified gaps in our existing law that require additional legislation so that we are in a position to say yes, we are in conformity with the terms of this convention. That is the way Canada approaches that issue.

Senator Joyal: When the convention states that the paramount principle of the convention is the superior interest or the best interest of the child, you are of the conviction that, in its essential clauses, this bill reflects your interpretation of what is the best interest of the child?

Ms McLellan: We believe that this legislation, as it relates to the Youth Criminal Justice System, reflects that which is fair, appropriate and respects not only the rights of the child as outlined in the UN convention, but also the rights of the child as protected under the Charter of Rights and Freedoms.

Senator Joyal: When the bill contains a series of clauses that equate the treatment of the child or the teenager to the one of an adult, do you still feel that you are in compliance with the convention? I could give you a series of clauses of the bill, the principle of proportionality that is defined according to Penal Code, the self-incrimination issue, the publication of the name, the penitentiary.

This is critical because these are the issues that your department, through Mr. Mosley, will have the opportunity to debate in the Court of Appeal of Quebec and maybe in the Supreme Court.

Ms McLellan: We look forward to that.

Senator Joyal: I want to be precise on these issues because we have been debating this for hours in this committee and we want to understand the lines that we have to draw on each and every concept where in this bill the teenager is assimilated into adult court. All the discussion we have turns around this aspect.

Can we hear from Ms Weiser, who I understand is responsible for the human rights law, how you can justify in terms of principle that you import into the juvenile system concepts that are essentially characteristics of the adult penal system?

Ms McLellan: We will provide you with that discussion in writing. Let me assure you that this legislation speaks to the unique situation of the young person and always finds its core values in the fact that the young person is different. What we are doing in this legislation is extending protections of due process for the young person that did not exist under the present legislation. We are going further to ensure that - in the front end and in the formal judicial proceedings and then in the rehabilitative phase - first and foremost, the understanding is that the young person who commits a crime is different.

Senator Joyal: My problem with the bill - perhaps I am wrong, the court will decide - relates to something you said this morning. You mentioned that morning when a young person has committed a very serious crime - let us use the worst scenario involving weapons and violence - the balance is tilted in that that person must be treated on the level of an adult. That is where I feel there is a breaking point in the overall philosophy of this bill. You have said - and I fully agree with you - there are in this bill very good approaches. I subscribe to them 200 per cent. However, I think it is fair to say, Madam Minister, your description of the system in Quebec is somewhat unfair when you said that the human rights commission said that les Centres de jeunesse do not comply.

Ms McLellan: That is not what I said.

Senator Joyal: If there is a good juvenile system in the country it is in Quebec. If all the provinces were like Quebec, we would not have this bill this morning.

Ms McLellan: I did not say that.

Senator Joyal: We must be very careful when we qualify the Quebec system. I am sorry; I get emotional on this as you get emotional about your bill. I think that this is a very serious element.

Ms McLellan: I wish to clarify the record. In fact, I made it very plain, and I want to clarify that my reference to les Centres de jeunesse was in relation to a report published by the Quebec Human Rights Commission in which they raised concerns as to the operation or the practices in some of those centres. We will happily make that report available to everyone.

In fact, that was simply by way of showing that we all have systems that can be improved and, with the additional resources that the federal government is providing, we hope that the Province of Quebec will be able to build on the many good things they do.

In relation to Senator Joyal's other point, I simply would say that I respectfully disagree. We would be happy to provide Senator Joyal and the entire committee with our views as to why we believe this proposed legislation not only complies but goes well beyond that which you will find almost anywhere else in the world in terms of the protection of young people who come in contact with the criminal justice system.

Senator Joyal: Returning to the 1995 report in dealing with Aboriginal young offenders lifts the bar higher than it is in this bill. Let me refer to paragraph 26 of the 1995 report of the Committee on the Rights of the Child. It reads:

The committee recommends that the State party - that is Canada - strengthen its efforts to ensure that children from vulnerable and disadvantaged groups, such as Aboriginal children, benefit from positive measures ...

We have discussed that issue amply with the 60 or so witnesses we have seen in the last three weeks. The Aboriginal issue has always been at the forefront of our deliberation. I am somewhat distressed this morning to hear that you are of the same opinion as the Attorney General of Ontario - who happens to be at the same time the minister responsible for native affairs in Ontario. He said to us that on the 100 amendments to this bill that he has provided our chair, not a single one of them deals with the abominable status or conditions of the Aboriginal young offenders in our country. My colleagues around this table are unanimous on this issue.

He even wanted to delete the slight, inoffensive mention in subclause 3, paragraph (c) to "aboriginal," while we know the major problem in our system is the Aboriginal problem.

I thought, at the very least, you would have been open to an amendment that would have given the recognition, the additional measures and sensitivity that all the courts must have in terms of relations with Aboriginal people. This morning we find that everything is perfect; the Aboriginal situation has so much improved, although the United Nations said to us very clearly six years ago, "You have an abysmal dossier in terms of the conditions of Aboriginal youth."

Why are you so closed? Are you just afraid that if we make an amendment in the chamber, that when it goes to the other place it will re-fire everything again? We must do things right when we have the opportunity to establish a new system. This is a new system, as you said. We are concerned that it succeed.

Ms McLellan: That is why I do not believe any amendments are necessary in relation to that area. This proposed legislation speaks directly to the circumstances of Aboriginal people. It directs the court to respond to the circumstances of Aboriginal young people.

It is important that the entire philosophy of the bill is oriented toward assist in keeping young Aboriginal people out of the criminal justice system unnecessarily. It is an integration of those values into the system that is so important.

I would again want the record clarified. I have no idea why Senator Joyal would suggest that I am in agreement with the Attorney General of Ontario. In fact, we amended this bill to ensure that it was clear that courts had to respond to the concerns of Aboriginal young people. This entire orientation - which perhaps the Attorney General of Ontario has some concern with - speaks to the issue with which we are concerned here as a matter of criminal justice, which is keeping young Aboriginal people out of the criminal justice system except where it is absolutely necessary.

That is what this is about. We are spending additional resources on that. We are working with Aboriginal communities. We have an Aboriginal justice strategy. We have a crime prevention program, for which I have just received another $145 million, that targets Aboriginal people and Aboriginal youth. All of that speaks to our commitment in terms of Aboriginal young people and the communities in which they live.

Do we need to do more for Aboriginal people? Yes. Will this proposed legislation be an important step forward? Absolutely. Will the other things we are doing across this government, including in my department, help? Yes, but we need to work with the provinces; we need to work with Aboriginal communities and those organizations and agencies who work with them.

Senator Cools: The minister has told us that no amendments are necessary to this bill. She has said that quite strongly and forcefully. Consequently, it has caused a degree of distress and agitation among senators.

Since no amendments are necessary, could the minister tell us, in her view, what is the role of the House of Commons and the Senate in legislation in this country?

Ms McLellan: I am saying I do not believe amendments are necessary. We hope to do the best job possible when we bring legislation before the two Houses. The first time we brought legislation to the House of Commons we listened intently to the witnesses and we made more than 160 amendments in response to them. At that time those amendments were integrated into this legislation.

If I did not think this legislation was in a form to be passed by this Senate, I would not have wasted your time bringing it here.

Senator Cools: You are not answering my question. Certainly, one can conceptualize that one can be wrong.

Ms McLellan: Yes.

Senator Cools: Certainly, one can conceptualize that in our grand system of Parliament, there is a role for the Senate.

Ms McLellan: Absolutely.

Senator Cools: I ask you again: What is the ground that you stand on when you say that amendments are not only not necessary but the word goes around here that you will not accept them?

Ms McLellan: What I said was that I do not believe amendments are necessary. You control your own processes. That is very clear.

We have reviewed carefully the transcripts. We believe the legislation in its present form, with the 160 amendments that were made in the summer, reflects a fair and functioning justice system.

Senator Cools: Madam Minister, you are misleading us. No amendments were made to this bill. This is a new bill.

The Chairman: It was to the previous bill.

Senator Cools: This bill has had no amendments.

Ms McLellan: When this bill was returned to the House, we incorporated more than 160 amendments.

Senator Cools: She is talking about another bill.

Ms McLellan: We incorporated those. They are integrated into this new piece of legislation.

Senator Cools: I was talking about this particular bill. It is not particularly helpful if you speak about another bill.

I really would like to know, because it is tedious, what you as a minister of the Crown in relation to Parliament see as our role in legislation - particularly this proposed legislation. With all due respect, some honourable senators have told you quite clearly, and you say you have been reading the proceedings, that there are some very profound concerns. What is our role?

Ms McLellan: Your role is to review this legislation and to hear witnesses.

Senator Cools: Then to be refused?

Ms McLellan: No, you must do that which you think is appropriate.

You asked me whether I think amendments are necessary. No, I do not think they are necessary. Having said that, that matter is up to you.

Senator Rivest: Have you seen the amendments?

The Chairman: Excuse me. Senator Cools, would you ask a question about the bill, please?

Senator Cools: Absolutely. There has been a fair amount of anxiety and some unnecessary provocation around the table.

I have two questions. The minister said a few moments ago that we must get to the societal causes of young people being before the courts. The minister suggests that this bill is attempting to address some of these problems. Am I wrong on that? Maybe you should tell us what you mean by "root causes."

Ms McLellan: One part of our youth justice initiative is this legislation. It has a number of different components. Some of those components deal with the root causes of criminal conduct - that is, the root causes of why young people get in trouble with the law. For example, our initiatives in relation to prevention try to identify root causes, whether it is FAS or FAE, whether it is coming from a home of domestic violence where the young person is forced to flee, whatever the case may be. We identify, in an integrated approach overall, to young people. This is part of our national agenda targeted at young people, which involves government department. How do we ensure young people get a good start in life without coming into contact with the criminal justice system?

Senator Cools: That is what I am trying to ask you, since you are coming forward with a children's agenda and you are very concerned. The data and the studies are overwhelmingly showing in today's community that the connection between crime and the involvement of fathers in children's lives is overwhelming. That is the greatest indicator. Furthermore, family structure is by far the most reliable indicator of children's well-being. What are you then doing in terms of your overall strategies to promote social policy in this country that will support the involvement of fathers with their children, which, undoubtedly, is showing that it is a real major cause in keeping children away from trouble with the law?

Ms McLellan: It is important that children have loving, caring families, however those families are defined. In the Aboriginal community especially, children are raised by loving grandparents. Extended families in many Aboriginal communities provide that living and caring network - not as much as we would like, but I use that by way of example to show what is important.

Senator Cools is right if her point is that every child should be able to grow up in a loving, caring, stable family environment, free from violence and from conflict, and where that young child is loved, nurtured, cared for and provided with the opportunity for a good future. I agree with that profoundly. That is why so much of our prevention efforts, so much of my colleague Jane Stewart's efforts, Allan Rock's efforts, and the efforts of others, are all directed at trying to support the Canadian family in whatever shape that family may be found in today's modern world.

Senator Cools: I get the impression that "father" is a difficult word to say.

Ms McLellan: No; not at all.

Senator Cools: I was trying to direct you toward the huge body of research both in this country and in the United States of America, which is pointing to fatherlessness as a major social problem commanding the attention of governments and social policy. The only reason I have put this out, minister, is because you raised the question of the societal causes of crime. You raised all of that. I had no intention of raising that.

Ms McLellan: It is important to ensure that fathers, where they so choose, play an active role in the lives of their children. Just as it is important for mothers, grandfathers, grandmothers, uncles and aunts to play that role. It is absolutely key for moms and dads to play a constructive role in the lives of their children. I do not think anyone would disagree with that.

Senator Cools: I was talking about a public policy that is father-friendly. That is what I was talking about. We can leave that point.

Ms McLellan: We need to support parents.

Senator Cools: I was not finished. Could the minister come back to this committee?

Ms McLellan: I have been back twice.

The Chairman: I thank you for appearing before us.

Ms McLellan: It is my pleasure.

The Chairman: Our next committee meeting will be next Wednesday to do clause-by-clause study of the bill at 3:30 or whenever the Senate rises.

The committee adjourned.


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