STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 17, 2000

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[English]

The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): I would like to thank the witnesses for appearing, and in case you think you're not important, you are.

Parliamentary committees, as I've come to learn, usually start with a fairly blank sheet. We listen to testimony, and from the testimony we receive, we decide what is the best way to go. Contrary to what you may have been told, Ottawa is not the fount of all knowledge. We listen.

So we'll start at this point to listen. If you would introduce yourselves, I believe there are two groups. Could you confine yourself to 10 or 12 minutes—I'm fairly tolerant—before we begin the questioning, whichever group is prepared to start.

Mr. Irwin Koziebrocki (Vice-President, Criminal Lawyers' Association): Good morning. My name is Irwin Koziebrocki. I'm the vice-president of the Criminal Lawyers' Association. I also have the position as the chair of our legislation committee, so I have on occasion had the opportunity to appear before this committee.

As always, the Criminal Lawyers' Association appreciates the opportunity to appear before this committee. I appear with Carol Letman, and she's our member from the Peel Region, which is just outside of the Toronto area. She's the chair of our young offenders committee and has reviewed this legislation and will have some specific comments shortly.

I wish to make some opening remarks. First, we as the Criminal Lawyers' Association recognize that dealing with youth crime is not an easy concept, and it's no answer to say that all youth crime should be treated severely as if it were adult crime. At times also, mollycoddling is not enough. A degree of flexibility is important, and providing the tools to deal with all eventualities in the youth justice system is important.

We're aware that there are those provincial governments and others who say this legislation is not harsh enough, while there are others who say it goes too far and there is no need to amend the YOA. We at the Criminal Lawyers' Association, after years of experience, are not so naive as to believe that no changes will take place in the youth justice system.

It is our position that any change that does take place should take into consideration the principles fundamental in dealing with young people's matters: they are not mature; they do need guidance; and at the same time, they must recognize the responsibility for their actions. A regime that allows for diversion and guidance is an important aspect in developing productive members of society, especially in situations where young people come from deprived backgrounds.

There are those who suggest that incarceration and punishment is the answer to all that ails our society. We suggest this is just not so. Remember, incarceration at an early age does not necessarily solve problems; rather, it may lead to more problems in the future. The young person is learning his or her morality from older inmates. The lessons are not going to be very comfortable for society.

There are more fundamental problems that have to be addressed in society, such as why young people are running wild; why there's no discipline, no authority figures in the home; and why there are dysfunctional families. It's our respectful submission to you that these are factors that have to be part of this regime.

The issue of incarceration has recently been the subject of consideration in several Supreme Court of Canada decisions—the decision of Gladue, dealing with aboriginal inmates, and the case of Proulx, where conditional sentences were dealt with. The Supreme Court of Canada said that Canada has an unenviable record for incarceration. We are basically the second worst western democracy. There should be alternatives to address these issues, and incarceration should be left for those truly violent offenders. This is so for adult offenders, and more so, in our respectful submission, when it comes to young people. Alternatives to incarceration should be available.

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To some degree this legislation addresses this concern, but in other areas it does not. To deal with those specific concerns, I'm going to ask Ms. Letman to point them out to you.

Thank you, Mr. Chair.

Ms. Carol Letman (Director, Peel Region, Criminal Lawyers' Association): I think some written materials have been submitted by our organization, and we focused primarily on two aspects of the act.

One is the issue dealing with the presumptive offences and the use of adult sentences. If I can step back a bit, I'd say that I think one of the principal concerns from the defence perspective and for those of us who do a lot of work in the youth court is that the legislation seems to pay some lip service to the idea that we recognize that young people have developmental needs. They have special needs and they are immature.

However, at the same time, the legislation seems to go far beyond to set in place some very complex procedures that are designed to impose adult sanctions on young people as young as age 14. The process to restrain liberty through detention gives some concerns under clause 30, because even in the wording of it, it speaks to detention prior to sentence, rather than detention prior to trial. That may be a misnomer, but certainly the presumption seems to be that a young person is being detained before they're sentenced.

As far as the issue of presumptive offences goes, the the expansion of the category to a three-strikes rule, including the issues of violent offences or serious violent offences, creates significant concern from the defence perspective, because the wording of “substantial risk of causing bodily harm” is a very open-ended definition.

For example, a substantial risk of bodily harm is caused presumably with any impaired driving situation. It's questionable whether the drafters really intended to expand presumptive offences to include impaired driving, but if you take the words at a straight definition, clearly anyone who gets behind the wheel in an intoxicated condition—not that we ever want young people to do that—creates a substantial risk of physical harm. The same would apply for someone who sets fire to an empty building, because even though they may or may not know the building is empty, we've expanded that to include arson offences.

We've expanded, by using those words “substantial risk of physical harm” to include a broad category of offences and bring them into the circumstances where a young person is deemed to be treated and subject to an adult sentence on the basis of two prior findings, findings that may be as little as assault and bodily harm, which may have been the result, for example, of a schoolyard fight where two boys get into a fight and one ends up with a broken nose.

That situation is very common in the youth court. Certainly young people get into schoolyard fights all the time. Once that finding of guilt, though, is made on a young person, it obviously raises the possibility that should they get into trouble again, they may be automatically subject to an adult sentence. There, then, the burden is on them to ask to be subject to the youth sentence regime.

The logic of adult sentences can be aimed only at imposing longer sentences beyond the provisions of paragraph 41(2)(n), I believe it is, which suggests that the maximum should be three years of a sentence that's both custody and supervision. In reviewing the adult sentence provisions, coupled with the expansion of the presumptive offence category to include these “serious violent offences”, there's no doubt it's going to give rise to a significant demand on court resources, because you're going to bring into play the need for hearings with respect to whether an offence fits into that category.

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There is provision that even if a finding is not made that an offence is a presumptive offence, the crown attorney can make application still to have someone subject to an adult sentence, which again is going to necessitate a further hearing. That, on top of the trial and any sentencing hearing, I don't think it's trite to say, will no doubt at least double the length of court proceedings, if not impose, as well, significant legal challenges to the framework. That's an impact I think we're all going to see within the justice system, the demand on the youth court system. The need to train the various parties involved is a serious consideration as well.

So as far as expanding the focus on adult sentences is concerned, it seems to go contrary to the logic that we are approaching the Young Offenders Act with an expectation and a recognition of young people's special needs and immaturity level, while at the same time saying we want to make far more of our young people, as well as those age 14, subject to adult sentences.

As I read the legislation, the prospect of a 14-year-old being sentenced to a penitentiary is clearly there. It clearly represents a contrast to the purported focus on rehabilitation. The fact that this type of sentence may never actually be imposed on a young person because of the infrequency in which that set of circumstances may arise, or the reluctance of any judicial officer to impose that type of sentence, is not really consoling. The very potential that it in fact could happen is scary and certainly represents something that I don't think has been circulated to the public, that we could put 14-year-olds in the penitentiary.

As well, I'd like to deal with the issue of the waivers. That was the other aspect on which I focused in the written submissions. What's of grave concern is that the original section 56, which has been redrafted in clause 145, has been the subject of a number of challenges throughout the years since the Young Offenders Act was implemented.

In Peel Region, from which I come, one of my colleagues has spent a fair bit of time dealing with this issue and went to the extent, when the Peel Regional Police developed their initial waiver, of instituting a challenge against it, which was successful and resulted, first of all, in the police rewriting their waiver to a more appropriate format and the police force taking the steps to re-educate their officers on the proper way to provide the rights to a young person. The end result of their taking those steps is that obviously the crown attorneys ended up succeeding in getting far more statements admitted.

What I'm leading up to is that it seems to me the focus of dealing with young people's understanding and properly exercising their rights should be more on the police and the education of the officers who are dealing with young people. When we rewrite the section as it has been drafted here to provide the safeguards that the existing legislation recognized as necessary and the various courts through to the Supreme Court have supported, recognizing that young people have special needs, and we then turn around and in subclause 145(6) say that where there has been a failure to comply with the paragraphs the youth court may admit into evidence any statement referred to if it's satisfied that the admission of the statement would not bring the administration of justice into disrepute, what are we saying?

With all due respect, it appears that the provisions of subclause 145(2), dealing with the rights that have to be provided, were put in so that young people's rights before the courts wouldn't bring the administration of justice into disrepute, so that we knew that young people were being afforded their rights properly. To turn around and say, well, it's okay if you don't comply just so long as admitting it won't bring the system of justice into disrepute effectively negates the value of the previous section.

The Vice-Chair (Mr. Ivan Grose): I would ask you to take just one more moment, please.

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Ms. Carol Letman: Yes, I'm on my last point, so I was getting to that.

Why I think that is a concern is because of a study that has been done—which I brought, although not a lot of copies—and it reflects some American research, as well, on the issue of young people's comprehension of their rights and their waivers.

The research basically shows that young people, particularly the younger people under 15 years of age, in their first and early encounters with the justice system routinely waive their rights. They don't want a parent there, because they don't want the parents to know they've been arrested. So the end result is they give up their rights, not understanding their rights. It's the older, well-rounded young person who may be inclined to exercise their right to remain silent or their right to have counsel present, which is what we would....

The rights are there to safeguard young people so they're not being intimidated by persons in authority and not being persuaded to give statements that may be false. Anyone who has ever watched videos of young people being interviewed can see clearly the influence that police officers can have on them. The fact that they may not understand that they have the right to remain silent or to have a parent present—to take that away in order to safeguard the more serious offender being prosecuted, which is likely the scenario, goes against the research, which suggests that young people don't understand, and it goes against the types of safeguards we should be implementing for our young people.

Having said that, I've indicated that I've focused primarily on those two areas. I think they're the most serious ones in the act that are going to be subject to significant challenge and burden on the court system. While the act has gone a long way in the extrajudicial sanctions and the extrajudicial measures, the back end of it gives rise to very significant concerns.

The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Letman.

Now we'll hear from the Commission des services juridiques. I'm sorry to subject you to my terrible French, but I have no translation here.

Inasmuch as there are three of you, we will go a bit beyond the 10-minute rule, but try to confine yourself as much as you can so that we get to questions. We love questions.

[Translation]

Ms. Diane Trudeau (Coordinator, Comité jeunesse, Commission des services juridiques): Good morning everyone. My name is Diane Trudeau and I represent the Commission des services juridiques du Québec, an umbrella organization for all the legal aid offices in Quebec. More than 50 lawyers represent young people on a day to day basis across Quebec in cases involving youth protection as well as young offenders.

Over the years, the Commission des services juridiques has presented a number of submissions commenting on amendments to the Young Offenders Act. After the youth committee studied the present Bill C-3, the Commission des services juridiques decided to comment on three essential aspects of the bill. I will first deal with the declaration of principle.

My colleague, Benoît Gingras from Quebec City, will address the provisions on transfers to adult court, and then Mario Gervais from Longueuil will talk about the extrajudicial statements made to police officers by youth and the constitutional guarantees that may or may not be contained in the bill.

Since my colleagues are lawyers who represent young people and work on the front lines, they will be supporting their views by presenting concrete cases that they had to defend, without, of course, revealing the identity of their young clients.

I will begin with our general comments. It took years to finally establish clear case law—I would refer you to the Supreme Court decision in R. vs J.J.M., which clearly recognizes that the young offenders law allows for a proper balance between protection of society and the specific situation and needs of the young people involved. The present bill, however, constitutes a complete reversal of this principle: youth justice is being modelled on the criminal justice system for adults.

We are therefore looking at a worrisome shift in the approach to justice where minors are concerned. Just when we are seeing a decrease in crime among young people—you can refer to our submission on this—here comes this bill, which will certainly lead to a harder judicial stance on young offenders. The bill does represent a major step backwards for minors facing the justice system in this country.

I would refer you to an excerpt from the 1995 Jasmin report, entitled Au nom...et au-delà de la loi:

It is often easier to amend legislation than to change intervention practices. It may be tempting to think that making the law more stringent will solve the problems involved in delinquency. Simple solutions are false starters when they are applied to complex problems. They obscure the scope of the problems by creating the false impression that what is needed to solve them is being done.

I will now provide our comments on the new declaration of principle, contained in clause 3 of the bill. It is clear from our reading that protecting society takes precedence over the needs and rights of young people.

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Paragraph 3(1)(a) states:

(a) the principal goal of the youth criminal justice system is to protect the public...

That is totally different from paragraphs 3(1)(a.1) and 3(1)(c.1) of the current Young Offenders Act, which says that young persons are not to be assigned the same level of responsibility as adults. Protecting society, which is one of the primary objectives, can be best served by rehabilitating young people, taking into account their needs and circumstances. We therefore disagree totally with this change in the declaration of principle.

The principles laid out in section 3 of the Young Offenders Act are entirely appropriate and should be maintained without amendment, in particular paragraphs 3(1)(a.1) and 3(1)(c.1), which stem from a very slow evolution in thinking on the part of judges, who have gradually come to define a delicate and difficult balance between protecting society, ensuring that young people are accountable and guaranteeing that young people's needs are protected.

There is an excerpt in our submission from the Supreme Court ruling in JJM.

By specifying, as clause 3 does, that the primary objective of Bill C-3 is to protect society and that rehabilitation and reintegration are only considerations that need to be emphasized—and those are the terms that are used in paragraph 3(1)(b) of the bill—you are destroying this delicate balance that has been gradually achieved and has been recognized by the Supreme Court.

This philosophy of punishing the deviant actions of our young people, centred primarily on the consequences of the offence and treating the young person's needs as secondary, completely obscures the subjective assessment of the criminality that is peculiar to the adolescent phase of one's life.

Young people are indeed in a special situation and they mature gradually. It is important for the youth justice system to take into account the development of young people, who go through various stages in reaching their capacity as adults. To quote Madam Justice Wilson, in the 1986 Supreme Court decision in Hill, the standard applicable to ordinary adults must be adjusted proportionally in the case of young people to take into account their reduced responsibility because of their age.

Framing in a more repressive way the principles underlying enforcement of the act changes in a definitive and in-depth way how judges will evaluate...

[English]

The Vice-Chair (Mr. Ivan Grose): I might ask the witness to slow down a little, as the interpreters are having a problem.

[Translation]

Ms. Diane Trudeau: All right.

[English]

The Vice-Chair (Mr. Ivan Grose): I'll give you the time.

[Translation]

Ms. Diane Trudeau: Very well.

Framing in a more repressive way the principles underlying enforcement of the act changes in a definitive and in-depth way how judges will evaluate and punish young people. It is important not to underestimate the fundamental importance of a declaration of principle and the subtle but very real stamp it puts on the general philosophy of a piece of legislation.

In their 1993 ruling in R versus JJM, the Supreme Court justices stated:

Section 3, which sets out the applicable principles, is not as simple preamble but must be accepted as having the overall strength attributed to the basic provisions.

I will now say a few words on the preamble to Bill C-3. Although the preamble states that members of society share a responsibility to address the developmental challenges and the needs of young persons, our comments remain valid, since it is recognized in case law and doctrine that a preamble does not have a major impact on a bill. A preamble is entirely relative in its application; its value is more pedagogical than interpretative. It is an accessory to the bill and has little impact. Basically, the preamble is there only to clarify what seems to be obscure.

That being the case, if the preamble contradicts the legislation itself, in this case the declaration of principle in clause 3, the provision takes precedence. I would refer you to the book entitled Interprétation des lois, by Pierre-André Côté, and Viger versus Ville de Lachine—1919, 28BR184. Thank you.

Mr. Benoît Gingras (Lawyer, Québec City Region, Commission des services juridiques): As my colleague, Ms. Trudeau, mentioned, I am here primarily as a lawyer specializing in youth justice issues in a legal aid office in Quebec city. We have deliberately chosen to provide you with some concrete examples in ordinary language of work on the front lines that has produced results. I would like to tell you today that, all things considered, the present legislation is satisfactory with respect to both form and content and it gives good results.

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To begin with, we do not agree with the new provisions, which now talk of subjecting young people 14 years and older to adult sentences. By voluntarily creating so-called designated offences, the bill adds to the list of offences for which a young person could be sentenced as an adult. In some circumstances, certain violent offences could also lead to an adult sentence for an adolescent who is 14 or more.

The age is definitely being lowered. I have been talking to you about young people 14 and over, whereas the present legislation allows for a presumption of transfer for young people 16 and over for some offences, and this presumption can be overturned by the defence.

The reason that it can be overturned is that there will be an opportunity, in some circumstances, to have certain criteria taken into account. Ms. Trudeau mentioned the subjective criteria, which are based on the young person's needs. However, there are also criteria based on the need to protect the public.

In this regard, I have a case to put before you. I represented a young person in January 1999 who was accused of very serious crimes. The boy was from outside Quebec and, while on a short stay in Quebec city just after New Year's, on January 5th, 1999, he seriously assaulted an elderly woman who was getting off the bus, simply with the intention of stealing her purse.

Before committing the crime, the boy had taken PCP, an extremely powerful drug. After the offence, he hid in an apartment building, where he savagely beat a delivery man, once again because, owing to the paranoid delirium he was in, he thought that the man was going to attack him.

I met this young man, since I was on duty and was asked to represent him. He was not in very good condition. After taking PCP, even after 24 hours, a person is not aware of very much. He was therefore not very prepared to discuss things with his lawyer.

As the defence lawyer, I was faced at the outset with the grave facts of these serious assaults. At first glance, the case did not have much going for it. What is one to do with a young person like that? What tools are there to work with? What can be done for him?

Then the boy was back in court around the end of January. In the meantime, he had briefly escaped while in legal custody; he disappeared for five days before he was found. Everyone involved was saying that he absolutely had to be found because he was dangerous for society. He was found and I appeared with him at the end of January. Finally, he pleaded guilty to the charges, and the Department of Public Instruction invoked the provisions to have him transferred. The transfer was then ordered by the court.

In the meantime, the boy had been seen by a psychiatrist, and was diagnosed as being in toxic shock. Then he began to recognize the facts and the seriousness of his actions and offences.

A report on the transfer stated that the boy had been in trouble with the law in his own area. He was sentenced to 130 hours of community work for property offences, and he fulfilled his obligations well. The experience was valuable for him, which already indicated potential for reintegration and rehabilitation. Here was a boy who had agreed to get involved in community work imposed under an earlier ruling.

The boy had been abducted by his mother, who was not very available. His father, separated from his wife, was often absent and drank. The boy had low self-esteem, little education and no significant work experience outside the community work that had gone well. He had never been involved in long-term rehabilitation.

In view of the regrets and remorse shown by the young offender, the criminologist who had done the assessment recommended that this boy, who was 16 or older at that time and who was the subject of a presumptive transfer, remain in the juvenile system.

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So he did stay and, some time later, a pre-disposition report indicated that the boy was progressing well, that he was mixing with other young people and that he was responding well to the support being provided, that is to the resources offered in the juvenile system. He is responding well to all that.

I can tell you I can't forget it. I told you before about social law and us, the lawyers from legal aid who practice social law. We believed in that young guy. We could believe in him because we thought we were practicing social law. As youth lawyers, our objectives aren't to underplay future consequences but rather to point out what the rehabilitation objectives are to the youth and get him to think about the seriousness of what he's done.

So we find ourselves at the end of a process with a youth who responded to all this very well that the Youth Court judge had sentenced to 10 months closed custody but the youth was never put in custody but was held for 10 months in closed custody in an intensive rehabilitation facility and who accepted detoxication care and stayed with it.

That happened in January 1999 and the decision was made on May 19, 1999. In January of this year, we went to court to ask the decision to be reviewed and that was granted by the court. In fact, this boy was very easy to influence in the sense that he was open to our interventions. For us, he's a success story. There you go.

I'll conclude on that, Mr. Chairman. Offences that serious would never lead one to believe that you'd get such results.

Mr. Mario Gervais (Lawyer, Longueuil Area, Commission des services juridiques): Hello. I'm Mario Gervais.

[English]

The Vice-Chair (Mr. Ivan Grose): Please keep it to two or three minutes.

Mr. Mario Gervais: I will do that, sir.

[Translation]

The rules on admissibility of the statements made by teenagers to police officers or other persons are defined in clause 145 of the new bill. Essentially, these new provisions will give any youth court the discretion to admit into evidence a statement not respecting each formal point required by law. We disagree on this amendment because we think it's necessary to maintain those rights and specific guarantees already provided for in clause 56 of the Young Offenders Act.

The courts had already recognized, way before the Young Offenders Act came onto the scene that a child's capacity to understand the nature of his rights and protect himself against adults was limited. In this context, for years, stricter and stricter criteria were set by the courts to properly frame the admissibility of a youth statement made to a peace officer.

However, we were in a system where the rules weren't quite clear or specifically defined by legislation. We were in a situation where we knew full well that during such trial before such a judge, the statement would be found inadmissible as evidence while in front of another judge it would be totally the opposite all this depending on the sensitivity of the judge concerning fundamental respect for teenagers' rights. That's the precise situation the Young Offenders Act tried to put an end to, this fuzzy wooziness, so that in terms of fairness of procedure, the law would be the same for all under all circumstances.

In a society governed by the rule of law that wants to ensure procedural fairness in the judicial process, we think it's essential to maintain clear rules on an element as important as admissibility into evidence of a statement made to a police officer. This element must not be left to the legal discretion of this or that magistrate.

What we must remember is that the rules in clause 56 are clear and, 15 years later now, well understood by police officers. In fact, they are well applied because there are few trials where the admissibility of statements is questioned because, in this very context, that matter has been settled.

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I'll give you an analogy. In Canada, the age of responsibility is set at 12 years. Canadian society is based on the principle that the level of teenagers' development is high enough so that their understanding of good and evil can allow them to distinguish between behaviour that constitutes an offence and behaviour that doesn't. Although the Criminal Code is a very bulky book that has all kinds of offences listed in it, the adage that “ignorance of the law is no excus” also applies to young persons.

Now let's take the case of the police officer dealing with clause 145 where you have clear rules saying he must address himself to a young person in terms appropriate to that young person's level of understanding: advise him he has the right to consult his father, his mother, some appropriate adult or a lawyer; advise him he has the right to be in the presence of the person being consulted during his interrogation.

Those are clear rules. Why would the 12-year-old be told that ignorance of the law is no excuse, whereas the police officer not having respected a very clearly expressed formality set out in clause 145 could plead good faith before the court? Good faith is not the secure possession of ignorance. How can the police officer's omission be tolerated while the 12-year-old will never be able to say that he didn't know or that he was in ignorance of the law?

As jurists, we know that, in the field, there are cases where criminal responsibility is hard to establish. There's a very thin line indeed drawn between simply being present when an offence is being committed and being an accomplice to it. Let's not forget that a 12-year-old will never be able to claim ignorance of the law.

You're signalling me, Mr. Chairman. I'll conclude with that and perhaps feel free to make a few more comments depending on the questions.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Gervais.

[English]

Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Has the witnesses' time run out?

The Vice-Chair (Mr. Ivan Grose): It has, but I thought it was profitable. Now comes the very difficult part—the cross-examination. Mr. Forseth.

Mr. Paul Forseth: This is not a courtroom and I won't attempt a cross-examination, but certainly today both of you have looked at the issue of waivers and have given some examples. I'd like you to further expand.

As you recall, the whole issue of waivers and the young offenders legislation arose out of the pre-charter days; that's the basis of the special sections. Now we are post-charter, and I would like to hear some substantial arguments for simply making the sections the same as the rest of the adult system—for the law to be a model for all and instructive, as well as clarifying the case law around these matters. Because of the uniqueness, we've entered into a whole area of litigation.

I'd like both parties, seeing this is a particular bone of contention, to expand on why the act needs to deal with this matter at all. There are continued complexities in the law that are not really based on a lot of social evidence as to why they are needed. Would you both address yourselves, rather than looking at the case law, to looking at some underlying social reasons that you feel this whole area needs a special wording and criteria that would be different from the adult system in waivers? Perhaps the Criminal Lawyers' Association could start first.

Mr. Irwin Koziebrocki: Just briefly, the fact of the matter is you're dealing with a young person who doesn't have the life experience of an adult in terms of making fundamental decisions that are important to his or her life. One of the important decisions in the justice system is how you deal with persons in authority.

I think one thing we have learned since the introduction of the charter is that the Supreme Court of Canada and our courts make a fundamental distinction, when they deal with section 24 of the charter and what kind of evidence brings the administration of justice into disrepute and what doesn't, between obtaining physical evidence that can be used—and, if it's excluded, might well bring the administration of justice into disrepute—and self-incriminatory statements that come from someone without the necessity of various protections.

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One of the protections the Supreme Court has decided is very important is the right to counsel. It appears that it is important, and many cases have turned on the basis that section 10-type rights were not afforded to adults, let alone young people, in that perspective.

If you take an adult who has some life experiences and then makes a fundamental decision as to whether or not he or she is going to speak to a police officer, that's one thing. But if you take a young person who has very little life experience, with the pressure of an authoritative figure standing over him or her asking questions that may or may not appear intimidating to a 12-year-old or a 14-year-old, and say that person should be in exactly the same position as a 35-year-old with life experiences.... I think that's why we make a fundamental decision to distinguish and to say that waiver must have certain rules.

Even in the adult system, the courts have said the waiver has to be a knowledgeable waiver...knowing the consequences of what you're doing. There are many circumstances where adults have waived what appeared to be their rights, and the courts have found they weren't informed waivers. I would think there would be a greater need for that type of protection when you're dealing with someone young.

Mr. Paul Forseth: I think you somewhat make my point near the end of your comments, when we look specifically at what the adult waiver is and the litigation and guidance around it. But perhaps the folks from Quebec could also address that issue.

I see that in part C of your evidence here, you say “We completely disagree with the provisions of section 145”. So I again put it to you to address this issue about clarity and why you really feel this is a problem.

[Translation]

Mr. Mario Gervais: You have to understand that youth are people whose levels of development and understanding are more limited than those of an adult. That's why courts, way before the law came into force, started demanding that specific conditions applicable to young people be honoured.

Why bother establishing rights if they're not understood by the person they are intended for? That's why we have to establish strict rules for adolescents. That's why the law specifically sets out the obligation to address the young person in terms appropriate to his or her level of understanding. If he has the right to remain silent, if he has the right to know that everything he says to the police officers may be used in evidence against him, if he is not in a position to understand the caution because of the supplementary requirements imposed when an adolescent is being interrogated, then we find ourselves in a situation where the specific guarantees will only have an academic value. That's why a distinct system is needed for youth concerning the admissibility of statements made to police officers as evidence.

[English]

Mr. Paul Forseth: That's fine for now.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Forseth.

[Translation]

Ms. Venne.

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Ladies and gentlemen, I see that the two groups we have before us today don't have quite the same approach to this legislation but one thing is certain: you are mostly in agreement on paragraph 145(6).

I'll start with the Criminal Lawyers' Association of Ontario. Do you think this new legislation on the criminal justice system for young offenders was necessary? Couldn't we simply just have improved the present legislation? Would that have been satisfactory to you?

I have another question for you. Doesn't the real problem have to do with the way the legislation is implemented today? What could have been suggested to remedy this situation? Of course, I mean something very specific and very concrete.

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[English]

Ms. Carol Letman: If I can comment on the first part of your question on whether there is a need for this piece of legislation, frankly, I don't think any of our members who deal significantly with the youth population feel there is any necessity for it. The existing legislation could have been reworked to accomplish the needs the legislators are responding to, in recognizing the issues with respect to violent offences, which seem to be the major focus of the public input. Interestingly, this comes at a time when violence is actually going down a little with respect to young people, although there's some issue with that. So I don't think it was needed.

What's worrying about it, and why I commented on it before, is that this is an incredibly complex, difficult piece of legislation that is going to impact on the court system in a number of ways. First, it's going to take a significant amount of time to train the various parties involved in it, be they judges or justices, prosecutors, police officers, defence counsel, probation authorities in the provincial directors' offices, and so on. With the assorted implementations of the expansion of the presumptive offences and the use of the adult sentences, the amount of court time that will go into challenging those will put a significant drain on the youth justice system.

The expansion in the youth justice system, since the implementation of the Young Offenders Act, is already overwhelming, if we contrast it to the Juvenile Delinquents Act, the predecessor to it. The amount of behaviour we've criminalized in the intervening years has created a whole mini-justice system. This is going to double the workload in that existing system, at a time when anyone involved in the system has to question the need to do that, other than as a response to a very limited number of young people involved in violent offences.

The issues could have been accomplished without an omnibus bill of this nature that will put demands on the system that I don't see are avoidable in any way.

[Translation]

Ms. Pierrette Venne: Thank you.

I now have a question for the Youth committee of the Commission des services juridiques. In your case, only a complete withdrawal of the act would satisfy you.

In your brief, you comment on clauses 18 and 19 of the bill that we are studying. You say that you do not agree with instituting youth justice committees and advisory groups. Can you tell me why you particularly disagree with these committees, that will be made up of citizens, according to what I have understood? Are you worried about the extrajudicial measures that might be suggested or recommended to you in some cases? I'd like to know why you don't approve of these two clauses?

Ms. Diane Trudeau: That wasn't part of the points that we outlined this morning. To be honest, we didn't pay a great deal of attention to that issue. As defence attorneys, what struck us, is the fact that information about a young person could possibly be given to a large number of people. There's no control over the breach of confidentiality of information involving a young person. The proposed legislation deals with justice committees that could even come into play during the police investigation. There are no real guidelines, which leads us to believe that the matter of confidentiality was not addressed. I must admit that that is the only comment that came to mind during our discussions. It isn't a major part of our brief.

Ms. Pierrette Venne: Okay. I asked the question because it was in your brief.

Mr. Mario Gervais: Ms. Venne, if I may, I would like to come back to the first part of your question.

Ms. Pierrette Venne: I was coming back to it myself. Go ahead.

Mr. Mario Gervais: You asked why we were in favour of maintaining the present act.

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I would answer that in 1992, the Supreme Court wrote in a decision relating to the present Young Offenders Act that it constituted:

...an honest effort to establish a fair balance in addressing a very complex social problem.

The judges and other professionals working with young persons who break the law need a set of complex and balanced principles like the ones that we find in the YOA.

How many laws passed by Parliament are the subject of such high praise by the Supreme Court? How many laws have our learned Supreme Court judges, these wise people, these guardians of the Constitution, how many laws have they praised so eloquently by saying that they allowed for a compromise in reconciling such well- determined objectives? I feel that we should think twice before discarding this act which, as it happens, has been so greatly endorsed by the Supreme Court.

Ms. Pierrette Venne: Lastly, I would like to ask you what is wrong with the present act. There must be something, somewhere, that has caused a problem since the Department of Justice—and I will give it credit for that—decided to draft Bill C-3. There must have been something wrong, somewhere, with the present act. Do you think there was something wrong? Tell us where the problems are and what should have been done to solve them.

Mr. Mario Gervais: I think the main fault in the Young Offenders Act lies in the fact that the Canadian people don't understand it. It is the victim of this misunderstanding. As soon as people become informed about the fundamental principles of the act, and not simply the sensational aspects related by the media following an event, then they understand.

Mr. Gingras told you about a success story. If the present bill had applied in this case, I don't know what might have happened to that young person, who is now a productive and responsible member of society.

Therefore, the main shortcoming we find is the Young Offenders Act lies in the fact that the public doesn't really know about it. It is an unfortunate fact.

Mr. Benoît Gingras: Ms. Venne, you can find that in the document titled a Strategy for the Renewal of Youth Justice published by the Federal Department of Justice. It is what they intend to do. It says:

It is also necessary to improve public access to information on youth crime and on the youth justice system. [...] The public does not often hear the "success stories" in the youth justice system, stories that apply to most young people who have only committed one offence and who have not re-offended.

In the document, there are statistics showing that there are very few violent crimes. That is something that we find here. There are facts, and we wanted to relate examples to explain that success stories are indeed possible with the tools that we now have at our disposal, with the present act.

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Venne.

Next is Mr. Peter MacKay, for seven minutes or thereabouts.

[Translation]

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I would like to thank all of the witnesses for their presentations.

[English]

Thank you all for your comments, they are very helpful.

As an opening statement and salute to you, I would agree that much of what you have said about this act is quite accurate, particularly the commentary with respect to resource allocation.

My friends across the way have heard comments like this before, but it appears to me that almost to a person, the witnesses we have had before us have indicated that this legislation will be a make-work program for lawyers, judges, and social workers. It raises, perhaps, false hope or expectations that this will address some of the social ills that exist under our current young offenders law, and will put greater emphasis on the ability of those workers to use alternative measures. But without increased resources, very little will be achieved.

I want to focus on a couple of the specific issues you've raised, particularly surrounding statements and the admissibility thereof. I was a defence lawyer at one time, and I'd be very surprised if you didn't have difficulty in anything that was going to make it easier for the crown and the police to get statements before the court. This is the scourge of a defence lawyer's defence when his client has sung like a bird.

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However, my reading of this clause 145 indicates to me that there are a fair number of safeguards there that are enunciated by the legislation, particularly the charter protection. It takes the language right out of the charter when it speaks of the administration of justice being brought into disrepute. So there's a great deal of judicial discretion that is still there as a safeguard.

One of the biggest complaints I often heard from police and prosecutors was that the old young offender statement provisions were extremely complex. You basically told the young offender six, seven, eight, nine times not to speak to the police, while at the same time they're trying to give the police an opportunity to at least use this form of evidence. So, please, if you would, comment on how this is in any way going to prevent a young person from having the protection of abuse from an overzealous police officer browbeating him or taking away his protections. It's all there, it's mentioned in the legislation, his right to counsel, his right to a parent, his right to say nothing. It's going to be there in the warning.

Ms. Carol Letman: But it takes it away at the same time, and that's the concern I think I have to echo on behalf of the defence counsel. Yes, it implements the same section 56 parameters that gave some difficulty in the drafting.

When I first looked at it and when I actually met with some representations from the Department of Justice, the question that was asked by our young offenders committee in Toronto was what's the need for this? Are so many cases being lost because the police have screwed up on getting a proper waiver? Is that the need to circumvent this provision, that there's a perception, or is it perhaps more appropriate that we educate the police on how to properly do the waiver?

I still have cases where we challenge statements regularly and they are tossed out because the police have not properly given the young person their rights and it's clear the young person hasn't fully understood their rights. To turn around and implement them and yet at the same time say, if there hasn't been compliance, we can still let the statement in if it doesn't bring the administration of justice into disrepute.... If we want to safeguard the young person's rights, why give a back door to suppress them? Why not put the resources into educating the police in properly using the waiver and using the provisions?

Or alternatively, look at what happens in some jurisdictions in the United States, where you don't take a statement from a young person unless there is a parent present. If we're dealing with vulnerable people under the protection of their parents, a police officer is a significant authority figure, and to allow young people the back door to say, “No, I don't want my parents here because I don't want them to know about it”, which is the standard answer when you talk to the kids after they've given statements.... They say, “I thought that meant my parents wouldn't know about it”, especially if it's a minor matter. They don't understand that their parents are going to know about it, no matter what. They think if they say to the police, “No, I don't need to call my parents”, then they can keep this from their parents for a period of time until they can talk to their parents.

I said something before and I made reference to a study, and I didn't give you the citation. But it's from The Canadian Journal of Criminology, and it talks specifically about the fact that young people do not comprehend their rights and routinely waive their rights without comprehension. So if there's research that suggests they already are doing that, why do we need and why should we be implementing something that lets their rights be further trampled down?

Mr. Peter MacKay: But, Ms. Letman, can you really generalize that and say that for the most part young people don't understand their rights? You've been an experienced criminal lawyer. There are young people out there who could tell us a thing or two about their rights. There are occasions when you must admit that the taking of the statement is the most effective method the police have in crime solving.

I agree with you that we have to be extremely careful when it comes to safeguarding the rights of a young person, and there must be, I agree, a different standard imposed for adults. But saying that a parent always has to be present, number one—

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Ms. Carol Letman: That's a bit extreme.

Mr. Peter MacKay: A lot of kids don't have parents, or have parents who don't care.

Ms. Carol Letman: True.

Mr. Peter MacKay: Secondly, a lot of times you as a defence lawyer know that a child does have the right to say “I don't want my parents involved in this process.”

Ms. Carol Letman: That is true on occasion. I'm not necessarily advocating we go that extreme route, as they do in some states. However, it is a consideration. What I'm stepping back and saying is that in dealing with the.... Yes, you're right, you can get 16-year-olds and 17-year-olds who know their rights extremely well, and they're going to exercise their right to remain silent. And frankly, it's probably the more serious offenders you really want a statement from.

What I'm more concerned about is the more vulnerable younger person who, at seven or eight or nine o'clock at night, doesn't get a full grasp of it. What I see as a defence counsel, by contrast, dealing with the average impaired driver, who is practically handed a phone with the duty counsel already dialled because the police are so conscientious of the fact that they might lose an “over 80” if they don't give the person the opportunity to speak to duty counsel, contrasts sharply with interviews I've seen with many young people, where they skim over the duty counsel and the young person clearly barely understands they can speak to it. They're not easily given the opportunity. They're not handed a phone. They're not told, “Here, we're going to get you a lawyer to speak to, whether you really push the point or not.”

It scares me that we go that far to protect our “over 80” prosecutions by handing someone who isn't even pushing for a lawyer a phone so they can speak to duty counsel, yet in the same scenario for our young 12-, 13- and 14-year-olds we ramble it through, sometimes not even on video, and yet expect that they fully understand and they fully waive it.

Mr. Peter MacKay: But we can do both.

The Vice-Chair (Mr. Ivan Grose): Peter, you're at the one or thereabouts territory, so be quick.

Mr. Peter MacKay: I realize and I respect what you're saying. But we can also do both, I would suggest. We can educate police in the proper method by which they should be doing it.

I'd like to turn to a brief question with respect to why we're doing this at all, why this exercise of going down the road of new legislation. I would suggest—and I would direct my remarks to our witnesses from Quebec—that, yes, I've taken into account what you said about the Supreme Court's praise of the bill. I also take into account the fact that, sadly, the Supreme Court in many instances, from the public's perception, is very out of step with public sentiment. The perception of this current young offenders legislation, not the proposed, is that it is not effective. Perhaps this is more so outside of the province of Quebec, but the feeling is that it is not working in the way it should. It is seen as protecting youth as opposed to protecting society.

I think the government has in this instance recognized that. The perception is important, just like the perception of the clarity bill is that it's going to clarify things in the province of Quebec. We know that it's going to have the complete opposite effect, but that's for another committee. This particular legislation, this proposed legislation, I think is a genuine attempt to answer this feeling of insecurity on the part of the country that our justice system is simply not effectively addressing youth crime.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. MacKay. If I might repeat, Mr. McKay.

[Translation]

Mr. Benoît Gingras: Mr. Chair....

[English]

The Vice-Chair (Mr. Ivan Grose): I'm sorry, do you want to make a reply?

[Translation]

Mr. Benoît Gingras: Mr. MacKay, was that a question or rather a comment?

[English]

The Vice-Chair (Mr. Ivan Grose): I thought he was just making a comment.

Mr. Peter MacKay: I would be interested in your comments of my comments.

Some hon. members: Oh, oh!

[Translation]

Mr. Benoît Gingras: Mr. MacKay, you have touched upon what we said with respect to the strategy, that is mentioned in the document. I'm not exactly sure what your duties are here, in the House of Commons, but I know that it is certainly within your mandate to outline the positive outcomes of the act. One must be careful, because what you say leaves the impression that the decisions made are not serious, are not credible, and that society is ill-served by the decisions that are made, decisions that are too innocuous. One should perhaps talk about situations where young people have managed to succeed. One of the fundamental objectives of our society is to respond immediately, and properly, when young people commit crimes so as to ensure that they will become well- adjusted adults, well-adjusted Canadian citizens. This is a comment that I am making. I'm telling you that it is your mandate as well as our own. We are all in this together.

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Ms. Diane Trudeau: I'd like to add something to what Benoît has just said. The document that you have produced, a Strategy for the Renewal of Youth Justice, recognizes that Canadians feel that youth crime is on the decline. Therefore, in the Strategy for the Renewal you yourself clearly state that Canadians feel that fewer young people are committing crimes. Therefore, I think, and on this I share my colleagues' opinion, that the problem involves a lack of information on the real consequences of punitive measures taken against young people. You can have a young person in closed custody for six months, but add to that a year's probation. During that year, the young person will receive treatment and will be closely monitored.

We mustn't think that youth court is different from adult court or that it takes second place. It is a tribunal that operates with the same rules of evidence, but with procedures adapted to young people. This evolution began at the turn of the century. This was analyzed through many legal precedents. You mentioned the Supreme Court. The public sometimes feels that the Supreme Court decisions... And not only the Supreme Court decisions. Since the turn of this century there have been numerous bodies, in all provinces, who have spoken out on the importance of considering subjective factors when dealing with youth.

All that is rather strange. At this point, in adult criminal law, there's a very strong movement in favour of reparative justice and alternative measures. In B.C., the alternative measures apply all the way up to manslaughter. Paradoxically, we're being more severe with youth even though the crime rate has gone down in that segment of the population.

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Ms. Trudeau.

Even when Mr. MacKay makes a comment, he gets long answers.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman.

Thank you, witnesses, for your contribution to this fairly perplexing problem.

I wanted to direct the attention of the Criminal Lawyers' Association to the second paragraph on page 2 of their brief. It says:

These increased demands will occur in at least two ways, firstly, by increased demand on the adult courts to try additional young persons who fall into the doubly-expanded presumptive category....

I don't understand the part that talks about the increased demands on adult courts. I thought the scheme of the act was that everything would be retained within youth court and that there would be a decision as to whether an adult sentence would be sought.

Could you clarify that comment, please?

Mr. Irwin Koziebrocki: I think we're talking about jury trials in adult court. Now, with the presumptive sections, young people will be tried in adult court, and then you'll have jury trials. Certainly for second-degree murder and manslaughter, or a “three strikes and you're out” type of offence, going to adult court will invariably require you to challenge those decisions and effectively put a demand on the Superior Court to try those cases by jury, because a young person may well require a jury trial in that respect.

Mr. John McKay: To clarify this point for me, your comment, then, is just limited to where a young person elects trial by jury?

Mr. Irwin Koziebrocki: I think that's where it's more likely to happen.

Mr. John McKay: And that's the only basis on which one could elect up out of youth court into adult court?

Mr. Irwin Koziebrocki: Right.

Mr. John McKay: That's correct. So the comment, then, is simply limited to jury trials.

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Mr. Irwin Koziebrocki: Having said that, as an appellate counsel, which I have been for the last 25 years, I rub my hands together when I see this type of legislation, because it can only help my business.

Mr. John McKay: Well, we're here to help, Mr. Koziebrocki.

Mr. Irwin Koziebrocki: I appreciate that.

Mr. John McKay: The second issue is also in that paragraph, which says:

...by necessitating additional court time to arrive at the judicial determination that an offence constitutes a “serious violent offence”

—in effect, what constitutes a serious violent offence. I must admit, when I look at the definition of “serious violent offence”, it looks to me like a tautological definition. A serious violent offence is a serious violent offence.

The question I have for you is would that definition be improved if there were a listing of what constitutes serious violent offences?

Mr. Irwin Koziebrocki: One of the concerns that I have, having read that, is that it defines it as a substantial risk of causing serious bodily harm, which opens it up to a subjective determination, because there are all kinds of offences that could fall into that category, but don't necessarily.

One of the examples we gave today was impaired driving. Impaired driving in itself doesn't look like it is, but if you take that one step further, it could cause serious bodily harm to the passenger, to the driver, to anyone who could be struck.

Careless storage of a firearm doesn't look like a serious violent crime, but the next step from that is that is could well lead to violence.

I'll give you an example that I had in the court of appeal not very long ago: aggravated assault. You'd look at that charge and you'd say to yourself, that's a charge that falls right in that definition. What happened in that particular case is there was a dust-up between two guys. They had had a fair bit to drink, and one fellow bit the finger of the other fellow and cut it. Now, that's a wounding, because he had cut the finger and drawn blood. By any definition, that would fall into that particular category, but if you looked at it subjectively, you'd say “Come on, that's silly.”

That's where we have problems here, because the way you want to then prove these particular “three strikes and you're out” types of provisions is by putting in a certificate. So if I put in a certificate in that case, it would say assault causing bodily harm, and the guy got a suspended sentence. You would say, well there it is, or it's a dust-up in—

Mr. John McKay: I don't understand. What do you mean by “certificate”?

Mr. Irwin Koziebrocki: One of the ways you can prove that someone has had one of these offences is that you file a court certificate.

Mr. John McKay: On the individual's record.

Mr. Irwin Koziebrocki: Right.

The concern is that you'll have a challenge saying “It may look like a crime that fits within this category, but I want to have a judicial determination to determine whether in fact it does. So I want to go back to the facts with respect to that particular case, and I want you to review them to decide whether in fact it fits within that category.”

Mr. John McKay: So in effect, you'd be re-litigating all three strikes, if you will.

Mr. Irwin Koziebrocki: Absolutely, all the previous cases.

Mr. John McKay: But really, that dust-up was more of a punch-up than a dust-up.

Mr. Irwin Koziebrocki: That's right, a slap in the face or something like that.

Mr. John McKay: On the issue of clause 145, I take your point that “may admit” in subclause (5), and again in subclause (6), “if...admission of the statement would not bring the administration of justice into disrepute” is somewhat vague, to say the least. But on the other hand, Mr. MacKay's point was that the police would have some difficulties if this kind of provision were not in place.

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So is your position that subclauses 145(5) and 145(6) should simply be struck, and that the admissibility be limited to an inquiry under subparagraphs 145(2)(b)(i) through 145(2)(b)(iv)?

Mr. Irwin Koziebrocki: I think we have to take that position for this, because in an adult situation, when you admit a statement, it's all subject to the charter. And if what used to be tests of voluntariness still exist, there are these new tests of charter violations that apply—violations of section 10, the right to counsel or the right to be informed of the offence. Then the court makes those determinations, goes to section 24 of the charter, and sees whether it should be admitted or not admitted based on the tests that we found. And in most cases, as I said before, when it's a violation of those charter rights, it's not admitted because it's a self-incriminating piece of evidence.

Here, under the Young Offenders Act, you've made a determination—and we've made a determination in the past—that these events are prerequisites to the taking of a statement and the admissibility of a statement under the Young Offenders Act. And effectively what you're saying is that if you don't have these things, it violates the charter, if I could make that analogy.

Mr. John McKay: And your job will be to expand those items?

Mr. Irwin Koziebrocki: That's right. Therefore you have to do those things before you can get to the eventuality of admission. It's as if you've taken the position that these are violations of the charter, and therefore you have to comply with them so you can get to the stage of admission. It makes sense in a young offender situation.

Mr. John McKay: Would there be any benefit in trying to make use of technology in the statute form—this is not a terribly well-thought-out idea—in the form of video, tape, or something of that nature, so that if the video or tape were running, there would be a presumption in favour of...? I was going to say admissibility, but it couldn't be a presumption in favour of admissibility. What you want to avoid and to cut down in time is the argument between the police and the defence as to whether or not this was an admissible statement. So would there be any benefit in looking at technology as a way of reducing that argument?

Mr. Irwin Koziebrocki: Aside from this act, it's always been my view that because of the very nature of the statement-taking process, all statements that the authorities are going to attempt to use in evidence should be videotaped. As a defence counsel, I love it when it doesn't happen, because it makes my job that much easier, especially when the technology exists.

But putting my defence counsel hat aside and speaking to you from a criminal justice standpoint, given the history of taking statements that we have, that common law has, and the concern about coerced statements for whatever reason, it would make sense that statements always be videotaped. I think the administration of justice would be better for it if that happened. Then someone can say, looking at it dispassionately, yes, that statement should go in because there isn't anything there that would prevent it from going in; or no, it shouldn't go in because this just wasn't done right.

Mr. John McKay: Thank you.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. McKay. You've now equalled your namesake.

Mr. John McKay: I didn't make a speech, though.

The Vice-Chair (Mr. Ivan Grose): True.

Mr. Forseth.

Mr. Paul Forseth: I'd like to go to page 4 of the bill, and I ask you both to look at this again. We're talking about the definition of “serious violent offence”. It says it means “an offence that causes or creates a substantial risk of causing serious bodily harm”, and “violent offence” means “an offence that causes or creates a substantial risk of causing bodily harm”.

Would it be helpful to look at the other parts of the Criminal Code that talk about serious personal injury offences that use a definition for consideration of indefinite sentences? There's a body of law around that. It has a clear list, and there have been decisions around it that clearly specify where you take an offender, but because of past convictions they are then placed into a new category. This seems to be somewhat analogous.

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Can you maybe make some comments about how we could gain instruction from the process of placing an adult offender into an indefinite sentence, and from looking at the clear definition of what the Criminal Code calls a serious personal injury offence? All the definitions and all the laws that come with that might be a way out from around the rather open ambiguity that you're talking about here in these two definitions.

Mr. Irwin Koziebrocki: Can I address that? I have three dangerous offender applications sitting on my desk right now, and it seems to be a growing trend.

With respect, I think that answer is the point I was making earlier. In terms of the way the dangerous offender application works, yes, you do have that definition in the Criminal Code. Things are plain enough in the Criminal Code, and yes, you can go to the case law to determine whether or not certain acts amount to the definition in the Criminal Code. That having been said, you still have to go back to each particular offence and review that offence to determine whether or not it in fact falls within the category outlined in the Criminal Code. So you still have that particular problem that you have to overcome, and that doesn't get us any further than we are today on that issue.

Mr. Paul Forseth: So the listing and the clear definition of, I believe the terminology is “serious personal injury offence” in that whole process is not helpful here?

Mr. Irwin Koziebrocki: Sure, you're going to have a body of case law that exists in terms of making the determination of what is and what isn't, but you're still going to have to go back to the issue of whether or not a particular offence amounted to that.

Mr. Paul Forseth: Does the other delegation have any comment on that? No? I'll just leave it at that, then. Thank you.

The Vice-Chair (Mr. Ivan Grose): Thank you.

Mr. Maloney, for three minutes.

Mr. John Maloney (Erie—Lincoln, Lib.): I have a specific question for Ms. Letman, Mr. Chair.

Could you direct me to the clause in the bill that would even give the possibility of a youth serving a sentence in a adult facility, in a penitentiary?

Perhaps to anyone and everyone, a lot of the sentencing principles are in clauses 37 and 38, and there are extensive references to extrajudicial measures and alternative measures. Why does one feel there will be perhaps more custody under this act than the previous act?

I'd also appreciate your comments on the provision of custody followed by a period of supervision, which doesn't exist in the current act. Is that an improvement?

Ms. Carol Letman: To start with your last question first, yes, I think that potentially is an improvement. Again, I'm terrible on clause numbers, but there are provisions to take that away in certain circumstances, and I think that is a step in the right direction.

In dealing with the question of extrajudicial sanction and whether or not I think there will be more use of custody, as I said before, the steps towards extrajudicial measures and extrajudicial sanctions are very good things, but they're all discretionary in the hands of the attorneys general respectively. They're all done on the basis of “may implement”, “may do this”, “may do that”. We went through that challenge the last time with respect to alternative measures under the Young Offenders Act, so reality-wise, coming from the jurisdiction where we come from, I suspect there will be no improvement in the use of extrajudicial sanctions at this point in time, given the difficulties we have even with alternative measures right now.

As for whether or not there will be more use of custody, I don't see this act as ending up with more use of custody in non-violent offences—in other words, property offences. It won't make a significant difference in that area. In fact, if the judges pay attention to the motherhood sorts of statements about the interests of the young person and the efforts to move away from incarceration, perhaps it will result in less use of custody for the non-violent, property-related offences—such as the thefts—of which there are also a very high number before the courts.

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I think there is certainly a potential for longer and more significant custodial sentences for “violent offences”. The concern I highlighted before is that the loose wording of the definition includes more offences that we don't traditionally treat as violent offences. There is the potential for an inclusion of things like impaired driving. Obviously, charges of threatening are not necessarily perceived as serious violent offences right now because they really relate primarily to words that are uttered. Under the definition here, though, they would clearly fall into serious violent offences. A young person can say “I'm going to get a gun and blow your head off”—and kids do say things like that—and now they can get charged for it.

Again, I went through this section. With respect to the adult sentencing provisions, they gave me concern in that you could have a young person who has turned 14 here, and perhaps he has two findings of assault causing bodily harm before he turned 14. If he now commits a robbery or another assault causing bodily harm, he could be proceeded against by the crown seeking an adult.... Perhaps I shouldn't use the terms of.... I was suggesting that the possibility of penitentiary exists.

Assault causing bodily harm is certainly the low end, but this youth perhaps might commit an aggravated assault, an aggravated sexual assault, or a serious robbery for which the penalty is life imprisonment as an adult. The crown could proceed against that person by seeking an adult sentence because he's over the age of 14 and has two prior findings of serious violent offences. That adjudication could be made, and under the scheme as I went through it in trying to sort out the various clauses, that person could be sent to the penitentiary. That gives me worry. I don't think it will ever happen, frankly, but I think the potential exists given the way the clauses are currently drafted.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Maloney. If you have another question with our limited numbers, go ahead.

Mr. John Maloney: I have other questions in other areas.

The Vice-Chair (Mr. Ivan Grose): I'll let you gather your thoughts.

Mr. McKay.

Mr. John McKay: This is a question that I want to direct to the Quebec delegation. I take your point that you really don't think anything should be done, that we should just leave things as they are because we're doing very fine, thank you very much. That has been a pretty consistent message that we've been getting from Quebec delegations.

The lingering concern I have is that in the context of saying we're doing well, thank you very much, and we should just leave this system alone, there is the implicit and explicit statement that more incarceration doesn't work, that longer custodial sentences don't work, and that they're a terrible thing to do to children. Intuitively, that seems to be correct. However, the corollary is not put, and that is how you know this “kinder, gentler” system actually works. Can you direct the committee to substantive and not anecdotal proof that there are in fact reduced rates of recidivism, that there are in fact reduced rates of criminality among Quebec youths?

[Translation]

Ms. Diane Trudeau: In the brief, at the bottom of page 4, you'll find the statistics on crime in Canada in 1997 and 1998 commented by Anthony Doob stating that youth offences have decreased by 7% and there's been a 12% drop in the crime rate. We also have statistics on a decrease in Quebec's crime rate.

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Mr. Mario Gervais: I have here a document from the Quebec's Justice department. I can't give you the exact source, but in the tables I have in front of me it says that in Quebec the crime rate per 10,000 youths, based on police data, is definitely below the Canadian average. There are major differences. We're talking about a crime rate that has been just about steady in Quebec since the early 90s while there's a marked difference elsewhere. For example, in Ontario, the rate is about double what it is in Quebec while in the Prairies it's three times higher than in Quebec.

If I'm given enough time, I can certainly send you the exact reference as well as the table and that will allow you to verify this information.

Mr. Benoît Gingras: Mr. McKay, there's also something in the federal document on this. It says that, based on statistical data, only a small number of youth commit serious crimes over and over. I would refer you to page 6 of this document that you certainly have.

[English]

Mr. John McKay: Statistically, I think it's true that we do not have a youth crime wave. That's a fair comment. But I suppose the question is whether or not we have a youth crime pattern in Quebec that is significantly different from the youth crime patterns in the other jurisdictions. I appreciate that the charge rates are quite substantially different, that Quebec clearly doesn't charge youths in the same way as other jurisdictions charge youths. But what I'm concerned about is that what you put in determines what you get out. I'd therefore be interested in having you point me in some direction that, to use an Anglo-Saxonism, compares apples with apples and oranges with oranges.

The other concern I have is that while the diversion rate out of the criminal justice system is clearly substantially different between Quebec and the rest of the jurisdictions, there does seem to be a diversion into the child protection system. At the end of the day, at this stage at least, it appears that there are just as many youths in custody. Go in the door to the left and you go to a custodial situation under the young offender legislation. Go in the door to the right and you're in a custodial situation under child protection legislation. The committee is struggling with this because the evidence to date has been very enthusiastic about adopting the Quebec approach to youth justice.

I appreciate that it's not a very precise question. I'm even starting to sound like Mr. MacKay with a speech here. But I'd be interested in your comments on my observations of the day. Bearing in mind that we're well into our evidence here, I'd be interested in getting some feedback on those points.

[Translation]

Mr. Mario Gervais: To answer your question,

[English]

no, there's not a different youth crime pattern.

[Translation]

That's certainly not the case. What sets Quebec apart is how it treats delinquency once it rears its head. It's not delinquency as such that is distinctive from one place to another but rather the reaction to it once it shows up.

As a society, we made a choice. We decided to emphasize resources focused on readaptation and rehabilitation of youths which, in the medium and long term, translates into lower juvenile crime rates. That's where it shows up.

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If Quebec's experience were to become society's choice in other provinces, I'm sure the results would be similar. In the other provinces you'd see a decrease in youth crime rates because the emphasis will be put on available rehabilitation resources. So the distinction is found in the treatment and not in the original clientele.

Mr. Benoît Gingras: In the same vein, I'd say that light is being thrown on the subject. Before, we talked about a young person having committed an offence, serious or other wise. I think that is the distinction. We talked about treatment. As of the time you recognize the individual for what he is, you're not setting aside the crime or the offence, but you're examining what he is and you're especially examining the services that can be offered to him to speed up his rehabilitation. That gives good results.

I don't know if that answers your question or your concern. You mentioned another act, the Youth Protection Act which emphasizes only the protection of the young person because the latter has specific needs, behavioural problems and I won't go any further in that vein because I don't want to address that matter at length.

The approach taken by the Young Offenders Act identifies the individual with his difficulties. In the case of youth, the problem is not limited to the offence that was committed, there's also the lack of adaptation and behaviourial problems. The offender is sentenced to a service that will help him make the necessary adjustments so he does not commit a repeat offence.

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. McKay.

Mr. Maloney.

Mr. John Maloney: I'll come back to the area of youth protection and custody under the Young Offenders Act.

It was suggested here yesterday by a witness that your perhaps lower custody figures under the YOA are somewhat distorted because you put more youth into custody under the Youth Protection Act than perhaps other jurisdictions do. I've read some material saying it could be as much as 40% custody under the Youth Protection Act. Is that an accurate assessment, and are these youth housed in the same facilities, or are there separate facilities under youth protection compared to YOA? Are you housing youth who have been convicted with youth who are there for their care and protection?

[Translation]

Mr. Mario Gervais: As the system is actually practised, it often happens that the same centre will receive both groups but they will be in different units and there will be a slightly different approach to treatment. Of course, there is greater emphasis on community access, on outside school attendance, and treatment in detox centres. There are far fewer restrictions on freedom.

Very seldom do you find a young person who has committed robbery, for example, in a unit devoted to the rehabilitation of youth under the Youth Protection Act and displaying behaviour that could be dangerous.

This is not an absolute rule and I don't claim that there are never any exceptions since budget cutbacks mean that resources are not quite as elastic as they should be but nonetheless the general principle is maintained. There are more structures for youth protection and they are not quite as coercive as those that fall under the Young Offenders Act.

[English]

Mr. John Maloney: What about your numbers? The suggestion in the material I read is that roughly 40% of the numbers you have are under youth protection.

[Translation]

Mr. Mario Gervais: I'd like to be very precise but I cannot give you a very precise answer. Rather than make a mistake I prefer to abstain.

[English]

Mr. John Maloney: We don't want to make an error, that's for sure.

Here's my last question. Under our transfer provisions in the current legislation there's a transfer hearing, and then if it's decided that the child or youth should be tried in adult court, there's another hearing and a determination of guilt or innocence. What has been proposed under this bill is a hearing on the offence, and then when there's a finding of guilt, that judge would make a decision as to whether there should be an adult sentence imposed. What are your comments on that? Is that an improvement? Do you think it's beneficial? Do you think it should be changed?

Irwin, perhaps.

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Mr. Irwin Koziebrocki: You're putting me on the spot here.

Actually, there's a degree of uncertainty that comes with that kind of situation. Obviously as a defence lawyer you like to know and you like to advise your client as to what the consequences are of a particular proceeding against you, so that you can say “If we proceed this way, if you're found guilty, this is what you're facing. This is what you're looking at.” There's a comfort in that, certainly from my perspective and also from the client's perspective, be it a young person or an adult, because at least you can then say that when you embark on this course, this is what could befall you. Then you make choices based on the knowledge of what the consequences are.

This is like the dangerous offender legislation. You kind of go through your trial assuming that if you're convicted you're going to be sentenced normally, and then all of a sudden the Attorney General of Ontario is knocking on your door saying “Guess what, here's a certificate, and we're going to attempt to find you a dangerous offender.” So a whole new set of proceedings takes place.

I'm uncomfortable with that provision because of the nature of the uncertainty that comes with it and the fact that it's very difficult to advise your client. It's more uncomfortable when you're dealing with a young person, because one of the things you want to do, at least with a young person....

You've changed the tenor of these acts over the years. When I got involved it was the Juvenile Delinquents Act and it was done in a courtroom where the judge put his arm around the accused person and wagged his finger at him and said “I want to see you here every week to make sure you're going to school” and that kind of thing.

It doesn't happen that way any more. It's like a real court and a real trial goes on. You call witnesses, and there's this adversarial system that exists now as if we were doing it in a Supreme Court somewhere with a jury sitting. In some cases that's fine. In the more serious cases that's fine. In the other cases I think we've lost some of the familiarity that comes with dealing with young people so that we can watch out and be protective of their needs and the community's needs.

This is another step of taking that away and making it an adversarial type of system. I've found that over the years what's happened here is we've moved dramatically away from that and we've made it this adversarial system.

One of the good things about this legislation, assuming that governments do it, is the availability of different remedies. It's always been a pet peeve of mine that when dealing with an accused person, young person or adult, a judge should at least have a full gamut of means to deal with that person so it can be tailored to that person's needs and to the community. Very different responses can be made with respect to one young person, where you can see there is a light there, or another young person who is a lost cause for whatever reason. Hopefully none of them are. That's where this legislation helps. Adopting this legislation with a wider gamut into the present legislation probably would work.

I hate to say this, but I looked at this and I thought the tax department drafted this legislation. I'm getting older, and I'm having trouble following things as I get older. If you're going to ask me to learn this one, boy, I think I'm going to become a carpenter.

Voices: Hear, hear!

Mr. John Maloney: How is the current system? Isn't there a little bit of prejudice? If you in fact are elevated or booted up to the adult court, is there an element of prejudice as to guilt or innocence because it's so serious and so bad that the individual should be dealt with as an adult? Have you ever found that?

Mr. Irwin Koziebrocki: I've done several trials in the past, jury trials involving young people. I'll tell you, when you're sitting there and there's a 15-year-old sitting in the dock and there are 12 people trying that person, it's a very unusual experience and it's a difficult experience. A lot of hand holding goes on. There's a lot of trying to make everyone understand what's going on here, including the young person sitting there. All of a sudden they've put him in a suit and put him in the dock to deal with a jury of 12 adults and a judge sitting up there with robes and a big crest on his or her chest.

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It's a very intimidating experience, and I'm not sure that does anything other than for the media, to tell you the truth. They seem to have a field day with presenting issues of youth crime. It's an important issue for the media, but when you look at it for the community as a whole, I think there are better ways of approaching it.

Mr. John McKay: We take great comfort in the fact that defence attorneys never play to the media.

Mr. Irwin Koziebrocki: Not in most cases.

[Translation]

Ms. Diane Trudeau: I'd like to make a comment about your question on the transfer to adult court. Of course, we are opposed to any extension of presumptive transfer to youth aged 14 and to the addition of a fifth category of offence, which does not appear to be at all defined and implies all sorts of crimes as our colleagues from the other group mentioned. We are also against adult sentences for youth.

You did, however, raise a question about the process, that is placing this transfer at the end of the judicial process. In other words, an adult sentence would be imposed at the end. This new process is interesting for the young offender. Provision is made for a notice to be given by the Attorney General concerning the requirement for an adult sentence. This provision is to be found in section 63. As for the process itself, we consider it interesting to move the transfer to the end but we are against the presumptive transfer starting at age 14 and we are also against the creation of a fifth category of offences and the imposition of adult sentences.

Mr. Mario Gervais: What is often forgotten in the presumptive transfer is that it does not mean that 14 and 15-year old youth cannot be transferred to an adult court. They can be transferred to an adult court if a motion is made by the public prosecutor. I represented a 14-year old charged with premeditated murder and who was transferred to adult court. The matter was contested but the court's decision, confirmed on appeal, was to order the transfer of the adolescent to adult court at the age of 14. The present Act does not make such a proceeding impossible. What we object to is a presumptive transfer, that is the presumption that the youth system does not apply to 14 and 15-year olds.

[English]

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Maloney.

At this point I would like to thank the witnesses. I would also like to remind you that you have not lost your audience. Don't feel bad, we have overlapping commitments here and we can't ask for a remand. We simply have to do what we can.

From a personal point of view, obviously not being a lawyer, I'd like to tell you that I understood or thought I understood everything you said. Thank you very much for your time.

The meeting is adjourned.