STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 23, 2000

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[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): Tonight we'll be hearing witnesses on Bill C-3, an act in respect of criminal justice for young persons, and to amend and repeal other acts.

First of all, it's a pleasure to be back with my good friends on the justice committee. Things are very clear in clarity—

Mrs. Karen Kraft Sloan (York North, Lib.): And they're very just in justice?

The Chair: —and they're very just in justice.

Tonight we have, to comment on the proposed legislation, representatives from the Ministry of the Attorney General of Ontario. We have with us specifically—there are others I'll call on our official witnesses to introduce—John Muise, detective sergeant, Office for Victims of Crime; and Scott Newark, special counsel, Office for Victims of Crime.

I call on Mr. Newark and Mr. Muise to introduce our other witnesses.

Thank you.

Mr. Scott Newark (Special Counsel, Office for Victims of Crime, Ministry of the Attorney General of Ontario): At the outset, I should just ask for some direction. I think it was expected there would be other witnesses, and we were asked to keep the initial remarks to ten minutes to allow for greater questioning. I'm just wondering, given the fact that there are four of us and I understand we're it until 8 p.m., whether it might be all right if we do 20 minutes, or whether you prefer it to be 10, so there's more time for questioning.

The Chair: Of course, I'm at the mercy of the committee, but I think we should split the difference and have the group take 15 minutes.

Mr. Scott Newark: Thank you very much.

Mr. John McKay (Scarborough East, Lib.): A point of order. I want to be sensitive here. I assume Mr. Wamback will be speaking. I only understand his situation from newspaper reports, but I also understand it's subject to litigation.

An hon. member: Currently.

Mr. John McKay: I would like some comfort that it is acknowledged that all remarks here are recorded, the record is prepared and presumably available to all parties, and there is an outstanding criminal matter going on, so if things are said, they can be used in a variety of ways.

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I'd particularly appreciate some assurance from Mr. Newark that this issue has been canvassed in full with Mr. Wamback, because I wouldn't want to prejudice him or his family's case with respect to this issue. Can we have some assurances on that, Mr. Newark?

Mr. Scott Newark: Yes. As you would expect, it has been canvassed and specifically discussed. I believe what you're going to hear, frankly, are some observations that do not pertain to the specifics of the case that is currently before the court in relation to the existing legislation and the proposed legislation, Bill C-3.

Mr. John McKay: The only other issue I have, Mr. Newark, is that, as you know, having appeared before this committee on a number of occasions, the questioning tends to cover a broad spectrum of areas. I wonder if we could, again, have some assurance that if in fact we're intruding into areas of some legal sensitivity, it will be raised by either counsel or Mr. Newark, or something of that nature.

Mr. Scott Newark: You may have noticed the moment before we started that I asked for some changes of positions precisely to facilitate that.

Mr. John McKay: Okay, I didn't know that.

The Chair: Thank you very much, Mr. McKay. If there are no further questions of that nature, I would simply add to the caution that has been expressed by a member of the committee. I'm certain you're conscious of this—

Mr. Scott Newark: Yes.

The Chair: —so we will proceed with that understanding.

Mr. Scott Newark: Thanks very much. At the outset, I also want to make it clear that this presentation does not represent the position of the Government of Ontario. Our office is set up with a specific mandate to assist victims of crime. In particular, in relation to this, you will hear of a petition that's been circulated with a number of points. Essentially, we offered some support and really facilitated a couple of people in Ontario who had been victimized by crime and had some insights to offer on the YOA and Bill C-3 in relation to that.

Finally, I just want to make it clear, in large part because I think I echo some of the remarks of the previous witnesses, to be perfectly candid, that the complexity of this bill and the extent of it frankly surprised me. That's my excuse as to why the translation of our brief has not been prepared yet. I would prefer, if it's acceptable to you, to await the completion of the translation before formally submitting the brief to the committee. I think that's the appropriate way to handle it. We will make some reference to it and there will be some references to some statistics, but they're all Juristat statistics, and we'll give you the citations in relation to them.

With that aside, I'd just like to introduce Joe Wamback, who will be speaking first. Following Mr. Wamback will be Theresa McCuaig, who I think some of you may know. Following her will be Detective Sergeant John Muise, who is a member of the Toronto Police Service, currently seconded to my office as well. If time permits, I have some concluding remarks, just to sort of get into the discussion. If it doesn't, I'm sure I'll find a way to work it into some of the answers. Thanks.

The Chair: Thank you very much. Mr. Wamback and all of the speakers, Mr. Newark has mentioned his desire to give closing, so don't make me cut him off.

Mr. Joseph Wamback (Individual Presentation): Thank you very much.

To begin with, the members of my family are just very ordinary Canadians who have been forcibly thrust into the criminal justice system of this country. We have learned very quickly the inadequacies of the existing Young Offenders Act. We have also learned very quickly—certainly not with the in-depth knowledge of Mr. Newark—of the inadequacies, or inadequacies perceived by myself and the general public, in Bill C-3.

After my son's assault, I had to decide what I was going to do. I recognized, after speaking with several people, that I would circulate a petition in this country. It was just intended to be circulated locally, to try to raise the awareness of my elected officials of the opinion of myself, my family, and my friends. This subsequently grew into the petition I have here, and I'd be pleased to circulate it to you, just strictly for information. It grew into 706,000 signatures.

We were going to bring them here today, but they're coming in at, literally, an exponential rate. A week ago Monday, we sent 874 electronic signatures to the Minister of Justice in a 30-minute period. We are getting approximately 300 per hour, on a 24-hour basis.

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Canadians are traditionally very compassionate and forgiving people, and we still are. We have no intention of changing, and I have no intention of changing that compassion for minor crimes, property crimes, things of that nature. I know I have the support of a great many Canadians who are extremely frustrated by the lack of accountability in the existing justice system for extremely violent and abhorrent crimes.

One of the things I found that is very inefficient in the legislation is that there's no provision for gang member status for organized crime, which, as we sit here today, seems to be exploding on an exponential level across our country. The number of swarmings that happen in the city of Toronto and the surrounding bedroom communities, such as where my son was assaulted, is staggering. It's extremely frightening.

One of the results is that children are being seriously injured and are creating an undue burden on the existing health system in this country.

We would like victims to be given additional rights under the law. We would like a national program to be established in the public school system for early identification and intervention, with some sort of rehabilitation action aimed at identifying violent youth, to help turn around future potential criminals.

So many teachers I have talked to over the past six to seven months have indicated to me that it would be very easy for them to put in an envelope ten names. I could open that envelope ten years from now and chances would be very high that those named in the envelope would be in prison or in trouble with the law.

I would like predators, regardless of age, who deliberately inflict pain and suffering on any innocent Canadian to be prosecuted as adults under the existing Criminal Code. I don't think we as Canadians should have two separate criminal codes for violent offenders. What I and most of my fellow Canadians, I'm sure, hold more precious than anything on this earth are human lives, especially the lives of our sons and daughters.

I would like to see mandatory counselling provided for all incarcerated violent offenders, with the goal of eliminating repeat offences, assisting in rehabilitation prior to reintegration into society, and identification of dangerous offenders. We would like to see bail addressed in the proposed legislation, so it can be applied equally across this country by a judicial body that would take into account the seriousness of the offence.

Consecutive sentencing must apply to violent crimes and crimes committed with weapons. I would also like to see public identification of all violent criminals, regardless of age.

We have here before us, and I believe you gentlemen have here before you, a window of opportunity that is unprecedented in our country to make a change to legislation that is perceived to be one of the most regressive pieces of legislation that has ever been before this government.

We talk about crime statistics and perception. A reality for you is the Bloorview MacMillan Centre, which is a neuro-rehabilitation centre in Toronto. It just celebrated its 100th anniversary. In the 100-year history of that institution, they have had maybe one or two, at the most, serious head injuries, neurological injuries, related to violence upon young people. Today there are four young men at that hospital with serious neurological damage as a result of swarmings, gang crimes—kids beating kids. And children do not murder other children.

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We would like you to very seriously address the issues I've raised, which come from our hearts and from the very souls of the people across this country. We've received hundreds, if not thousands, of letters from the province of Quebec imploring this government to do exactly the same thing. The letters come from clergy, from police officers, health care workers, correctional services workers, schoolteachers, many of whom are frightened to walk into their classroom today because they do not know what the criminal activity is or the criminal background or the violent nature of any particular student in their particular classroom. A lot of teachers are very frightened.

We need to provide accountability and re-establish credibility in the youth justice system. Thank you.

The Chair: Thank you very much.

I believe it's Ms. McCuaig.

Ms. Theresa McCuaig (Individual Presentation): Good evening, everyone. Bon soir. I wish to thank you for hearing me again on this difficult and complex issue. I sincerely hope my views are helpful to you.

From attending court with victims of youth crime, from parents of the young offenders, and from my personal experience with the youth justice system, I would like to share some of my knowledge and opinions on youth crime with you.

When an adult is sentenced, the Criminal Code sets down principles, which are a guide in the court in imposing sentences. Those major principles involve denunciation of crime and unlawful behaviour, deterrents to the offender, the separation of the offender from society where necessary, and assistance in the rehabilitation of the offender. As well, there are provisions for reparation for harm done to the victim and the promotion of a sense of responsibility in the offender.

To date, young offenders have been excluded from these crucial principles. A great deal of emphasis has been placed on rehabilitation rather than deterrents and denunciation of their crimes. Youths have taken this for granted and they boast openly that they can commit any crime they want until they reach their 18th birthday. They do not fear the law. They have not been made accountable for their crimes. Presently there is very little to deter them. How then can we expect young persons to have a sense of responsibility for their offences?

When a sentence is handed down to a violent youth, our laws instruct judges to mainly consider the youth's rehabilitation. That is what Canadians are so disgusted with. There is no accountability, denunciation, or deterrent. The sentencing principles that apply to adults must be applied to young criminals as well; otherwise nothing will ever really change.

The new criminal justice act includes provisions that will allow an adult sentence to be imposed on youths who have a pattern of serious violent convictions. A pattern of serious violent convictions. Imagine that. I guess this means we must wait for violent youths to commit a few violent assaults or rapes, kidnapping, or kill someone before we can ask for an adult sentence. Without reparation for harm that is done to them, how many victims are youths allowed to leave behind before they are made accountable for their crimes?

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Why is it considered minor for a youth to repeatedly commit breaking and entering, home invasion, property damage, and vandalism? Is bank robbery not considered a violent crime? Time after time, youths who commit non-violent crimes are simply being sentenced to probation. Probation rarely helps to solve the problem, and because they are let go, often these youths are eventually charged with more serious offences.

I have seen mothers cry in desperation when told by the police that nothing can be done until their delinquent youth actually breaks the law. The mothers' fears and anxiety increase when their youths do break the law and they are simply placed on probation, leaving the mother with the responsibility of a probation order and a delinquent youth.

An intervention program is needed to help the mother and the youth. I feel that often youths are rebellious because of poor communication skills between them and their parents. An intervention program would be beneficial in helping the parent and the youth come together.

Presently all the youths who have a long history of committing serious crimes are allowed into the Project Turnaround program. That is too bad and I feel we are working backwards. It is imperative that a youth who starts reoffending be allowed into the Project Turnaround treatment program. This program offers many tools to help youths from escalating to serious crimes. Common sense tells us that the faster we get youths into treatment, the better it will be. I find Project Turnaround less expensive and it is a great improvement over our present youth facility institutions.

I congratulate those who have established youth alternative programs for minor offences. This is an opportunity for youths to take responsibility and make reparation for their crimes. I believe this program will be more effective for a first-time offender than simply placing the youth on probation.

You're going to like this one. Last winter a desperate mother who wanted her reoffending son sent to boot camp was not given the opportunity to address the judge. In desperation she picketed the front of the courthouse carrying a large sign that begged the judge to send her son to boot camp. How desperate can a mother be? Her plea was ignored. Today that youth is an adult, and he keeps offending. Too bad this mother wasn't heard.

I'm going to skip over a few things because of time. I will deal with the two or three issues that are very important to my heart.

Many violent youth crimes go unreported. The present statistics on youth crimes are totally false. Unfortunately, those from the professional world who rely on these false statistics when making their recommendation to you end up giving you the wrong solutions. Let me explain that to you. Trust me; I know what I am talking about. I have been there. I go to court, I see these kids, I hear them testifying, I take notes, I walk the streets, I talk with them, and I know what's going on. I live in reality.

Swarming and youth gang crime are on the rise. Many refuse to believe this, but ignoring the problem only serves to encourage it. Criminal offences committed through gang crime activities and swarming are premeditated, calculated crimes that cry out for automatic harsh adult sentencing.

Today's young people have learned that operating in a gang is more profitable and allows them power. That power is fear and domination over others. This power allows them to take control of our city streets, our malls, and they claim that as their turf. Sometimes youths are killed over territorial wars. Their young age and student-like appearance help them to blend in with the crowd. The crowd offers protection from rival gang members and police by covering up for each other and having many lookout persons.

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Gang members come from all kinds of homes. Membership is not reserved for the needy but rather for the greedy. Adults supply drugs, oversee the operation, and collect their share. Some female gang members are as young as 14. They are usually used as sex slaves among the gang and earn big money stripping in bars and prostituting themselves. Often the girls are beaten by gang pimps, but fearing retaliation the girls do not report the beatings to the police.

Young drug pushers like to rip each other off. Playing a deadly game, a phony sale is set up and on arrival the pusher is robbed of his drugs and money. When caught these youths are cruelly beaten. Even while being hospitalized, youths do not want to divulge who hurt them and they refuse to cooperate with the police. The code of silence is great because being a rat can get you killed. These beatings go unreported.

Youth who traffic drugs see themselves as sophisticated business people. They own cellphones and beepers to take their incoming calls, and for their protection they now possess phaser guns. Phaser guns are called a zapper. If you shoot it at someone, 3,000 volts go through you. That person is instantly paralysed, which allows you time to rob and beat. Kids have them today.

Others own dogs, and this I think you had better pay very particular attention to because this is very serious and I have seen it. The pushers have pit bull dogs and Rottweiler dogs now. For their protection they have dogs, and those dogs are trained to attack. This month, in two separate incidents, police have been attacked by these dogs. Too young to own a car, some gang members have personal taxi drivers who allow them to run a tab, closing their eyes to their crimes. These taxi drivers collect large tips.

The Chair: Ms. McCuaig, we still have to hear from Mr. Newark.

Mr. Scott Newark: I've spoken with Detective Sergeant Muise, and I think he too can get in on an appropriate question. We don't want to take up the time for your questions. We could, I suggest, move to the questions.

The Chair: You were very shrewd in getting your 21 minutes.

Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Ref.): Thank you very much, Mr. Chair.

I'd like to ask Detective Muise something. We've heard some evidence of people who are concerned with the relaxation in the statement-taking provisions proposed for Bill C-3, where the judge can now decide to admit stuff that might otherwise.... I'd like to know, because I know your background in working with youth and gang details, what your experience has been with taking statements.

Detective Sergeant John Muise (Office for Victims of Crime, Ministry of the Attorney General of Ontario): Mr. Cadman and committee members, first off, I've been a police officer for 24 years and I'm presently a detective sergeant. Twenty-one of those years has been spent on the front line and the last year has been at the Office for Victims of Crime. I started doing youth crime work—I was one of the co-founders of the original street crime unit, which was an education enforcement hybrid—in 1989. We dealt with a lot of gang or swarming-type crimes, and statements were significantly important in terms of building a case. I can tell you that we were probably some of the very few officers across this country who were actually taking statements, and in fact, so that we could get statements admitted in court, we created what I would refer to as a seven-page cleansing document to ask all the appropriate questions.

I'm sure if anybody sitting in this room has been a defence lawyer—Mr. Mancini is shaking his head. We devised this seven-page document to try to get statements admitted. It was almost farcical. You can well imagine, Mr. Cadman, that for other units, people working in a sausage factory, where the cases are coming in.... Quite frankly, the majority of police officers just don't take statements from young offenders except in the most serious of cases.

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What ends up happening is, if you're trying to seek the truth, get to the bottom of things, solve crimes, help victims, and hold offenders accountable—because that's what we all want, we want to hold them accountable. The statement-taking under the Young Offenders Act, and I'll use strong language, didn't work. We were required to go to extraordinary means. I would say in response to that that we need something simple, like the adult system, where you have to prove that the statement was taken by a person in authority, without any promises, inducements, or threats of inducements. It's a very simple procedure and the standard is very high.

I have been in the witness box dealing both with young offenders and with adults. I've spent literally hours and even days in voir dires at the adult level trying to get a statement admitted. Everybody understands how complicated that process is.

I would suggest that the safeguards that are built in to the tests required for adult statement-taking are perfectly suitable for any young offender. It's up to a judge to decide if that statement is admissible. The practicality of it is police officers don't take statements from young offenders. That's the reality.

Mr. Chuck Cadman: On another note, I was talking to you earlier today and you had some questions and some things about the statistics we're seeing. I wonder if you could allude to those.

Det/Sgt John Muise: Yes. I know there's this notion that youth crime is going down and a lot of people are shouting that from the rooftops and that everything's great. I think it's important—and I learned this lesson actually from the very people who say that, and that would be criminologists. They've always said, take these statistics over a long term because if you take a blip on the radar screen or year to year, it's not an honest statistic.

I'll give you the statistic that in my mind makes it perfectly clear what we're facing on the streets. Lest you think I'm here suggesting that ten kids a day are getting murdered in the streets of this country, I'm not. What I'm saying is, on a daily basis, as we speak, and we're just talking about reported crimes.... Theresa commented on unreported crimes. I would suggest for young offenders it could be 5, 10, 20 to one go unreported. But for crimes like robberies, gang attacks, swarmings, extortions, serious assaults, carjackings, home invasions—this whole new vocabulary of crime that I never experienced as a rookie cop—if you take the Stats Can numbers, the Juristat numbers.... I have a little chicken scratch here. I've included 1986 and 1987 because I think it's important to capture as many years as you can get and make it perfectly clear what the trend is. Violent crime perpetrated by young offenders went up from 1986 to 1998 approximately 120%. The rate per 100 population went from basically 408 to 903.

We're not talking about 55 to 110; we're talking about real numbers, 9,275 through to 22,145. Some people will say “Detective Sergeant Muise, most of those, or quite a big proportion of those, are assaults.” I would say “So what's your point?” Kids are being beaten up by other kids on a regular basis. Again, for every one of these on this piece of paper, there are 10, 15 or 20 that go unreported. And that includes serious crimes that are perpetrated by one young offender on another young person.

Mr. Scott Newark: The source for this—and I'll leave them with the committee—is the Juristat reports on youth crime statistics for 1995-96, and then a subsequent one for 1997-98, and you can go through them. They do an excellent job of breaking down the information by offence type as well, as opposed to just generic offences.

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The one that I would suggest is an equally compelling statistic—and by the way, it's in the material, in the brief, which I haven't got—shows that in the last year, each of the different kinds of categories of youth crimes that are listed are increasing. They're not going up by huge numbers, but the point is they continue to increase.

Let me give you one thought that I think leads into the larger question about the differentiation between, fortunately, still, the vast majority of young people who come in conflict with the law, whose crimes are dealt with as reasonably minor offences, and the ones for which I think everybody, you get the sense, is suggesting there should be a differentiation, which are the more serious and violent. We would add the repeat offenders as well.

In that 1995-96 Juristat report there was a phrase used that said the most troublesome offender for the criminal justice system is the persistent offender, that is, the young offender that has been through the system many times, defined here with at least three previous convictions. So that was somebody who came in on a new offence who had at least three previous convictions. Again, as I'm sure everybody who's worked with the criminal justice system knows, the single reality of our justice system is that there's a disproportionately small number of offenders responsible for a disproportionately large number of offences.

Much of the trick is, how do we deal with that group so as not to necessarily abdicate or junk all the principles you want to have, but don't necessarily have? And you shouldn't apply the same things to that small group.

I looked at the numbers generally—and this is not scientifically precise, but I think it's probably reasonably accurate—and for the year that was reported in Juristat, there was a full caseload of 111,027 offences that were committed. If you take that, as I say, 10% of that caseload of those 111,027 were people who were these persistent offenders. That is, their offence was committed and they had three previous.

So I went in and looked at the charts at the back, and they list the kinds of offences by offence type. I excluded all the break and enters and I excluded all the minor assaults. I just took the most violent offences. I took armed robberies and sexual assault.

Of that number, when you use that rough percentage of what it is, you come up with about 1,100 of that total who were these persistent offenders; that is, they had at least three previous convictions and they were charged with the most serious kind of offence. Appreciate that this does not include first-time homicides and first-time armed robberies. You have to fit into that category.

So there are about 1,100 of those. Some people might say the Young Offenders Act had a provision, as does this bill, to deal with those. It's some method of transferring them to adult court. Do you know how many of the 1,100 for that year were transferred under the existing provisions? It was 74. With respect, that's what's the matter. If I might—

The Chair: We're going to have a lot of opportunity—

Mr. Scott Newark: In part what Canadians were looking for in the sense of reform of this legislation was not more transfer hearings. I would suggest this is where this legislation falls down.

The Chair: Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you, Mr. Chair.

On that point, if I may, and I pose this to you, doesn't the new legislation, with the presumptions in it and the reverse onus...? What we had before in the Young Offenders Act was a burden, if you will, on the crown to prove that this young person ought to be transferred to adult court. There were a whole series of things we had to go through.

My question is, why doesn't the new legislation, with now a reverse onus on the young offender and a presumption that they should be transferred to adult court, meet your objections?

Mr. Scott Newark: I'm sure you've read the sections as well as I have. I have to tell you it's been 10 years—I think Phil Rosen was here the first time I came to testify—and in all the legislation I've looked at, and frankly on bills that often were highly contentious, including Bill C-68, where generally I would say, look, there are some things we may not agree with, but there are some things....

This is a bill that I would suggest has some fundamental flaws to it, including this whole process of transfer. As I read this, and all of the provisions that are in it that lead up to that, this is every bit as complicated, every bit as procedurally difficult. In fact, in some ways it involves things that are worse than the existing Young Offenders Act.

I take the presumption of your question to be, isn't this better than the last one?

Mr. Peter Mancini: Yes.

Mr. Scott Newark: I seriously doubt it.

Mr. Peter Mancini: That's what I was going to say. Isn't this better than that, from your perspective?

Mr. Scott Newark: No.

Mr. Peter Mancini: It's not. All right.

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Detective Sergeant Muise, I just have a quick question on the statement provisions. I appreciate the complex forms that were used in obtaining statements from young offenders in the past, but surely you would concede to me that a 13-year-old girl with a grade 7 education, on her first offence, during her first time in a police station and her first time dealing with a police officer, is in a different category than a 40-year-old who has been through a penitentiary and knows the ropes. Surely there is a difference in determining whether or not that person understands the voluntariness of her statement and is able to be intimidated by or perceives intimidation by persons in authority. Surely there's a difference in those two individuals, and surely we have to recognize that when we take statements.

Det/Sgt. John Muise: Absolutely. For everybody who is in custody and from whom the police are going to take a statement, I would suggest that situation probably provides some sense of intimidation. To suggest otherwise is not being totally candid. But what I would say is that I think that is properly something that should be left up to a judge to determine.

I guess the point I'm getting at is that we don't need this artificial thing that, from a practical point of view, throws statement-taking out the window. If we really are in the business of seeking the truth, and if the law as it's crafted makes it so terribly difficult that some judges have even commented that based on the waiver you have to go through, they're not so certain they believe you, but when they see it on video they believe it, it becomes extraordinary and it becomes bizarre. For any judge across this country, that's what they do for a living, and I would suggest that on this particular issue it is something best left up to a judge.

Mr. Peter Mancini: Part of the reason for more stringent hurdles, if you will, or more stringent protections—that may be a better word—for the accused, not the guilty person, for the accused person—

Det/Sgt. John Muise: I understand.

Mr. Peter Mancini: Our young offender history in this country comes from young people who have served 10 years and 20 years for crimes they didn't commit, because they gave statements or the friends gave statements under pressure. Those should never have been admitted into court, and a factor in their giving those statements was their age.

Det/Sgt. John Muise: In answer to that, Mr. Mancini, I know there have been miscarriages of justice. Nobody at this table, myself included, wants a miscarriage of justice, wants the wrong person to go to jail. I would suggest to you that those are the very things a judge would determine.

I would also go one step further. We live in a technological age, and the kinds of things that judges say today—and I think quite properly and quite appropriately—include asking officers if they have video machines or something like that at their police station. These things cost $3,000, so judges don't quite understand why they wouldn't.

Because we've had some horrible mistakes, we're moving away from jailhouse informants. We're moving away from what I would refer to as lousy evidence. We're moving to better evidence, real evidence, evidence that is on a video, that is real, and that allows a judge to make what I would suggest is a better determination of whether or not it was a voluntary statement.

I would go one step further. If the process is so bizarre and so drawn out, we won't find out because cops aren't going to do it. From a practical point of view, it's not practical. I'm just saying that the safeguards that are built in in court in a voir dire hearing are more than adequate.

I personally have been through lengthy voir dires at the adult level. I would suggest that you could apply all those principles that you talk about to the young person and more. You could write into legislation that I need to take into consideration this young offender's age.

Mr. Peter Mancini: I have one more.

The Chair: You have time for a short question and short answer. We'd like to have a little more back and forth.

Mr. Peter Mancini: I'm told by the chair that I have one more question, and I'm going to direct it where I want.

Mr. Wamback, I have just a quick question for you.

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You made some statements that I take quite seriously, one being that there should be consecutive sentencing. There is a tenor in your presentation—and I appreciate that—that we need harsher penalties, especially for those who commit violent offences. In many presentations before this committee there have been discussions of restorative justice, of an opportunity for the victims of crime to find healing, not necessarily through incarceration of the offender, but through dialogue with the offender.

I had the occasion to hear Archbishop Tutu speak in Toronto about the Truth and Reconciliation Commission of South Africa for people who had been done grievous harm. They managed to sit down with the people who hacked their spouses or their partners to death and find healing. This act makes some provisions for restorative justice. Do you support those provisions?

Mr. Joseph Wamback: The analogy is South Africa, where things are a little bit different, where circumstances are different. From what I understand, we're talking about tribal warfare in many cases. The issue I'm faced with is looking into the eyes of my 16-year-old son who, eight months ago, had a seven handicap on a golf course. Eight months ago all he wanted to do was be with his friends, enjoy his life, look forward to his sixteenth birthday so he could get his driver's license, finish school, look forward to a university education. Today, my son may never walk. He has cognitive impairments that may preclude a university education. His long-term care, which will come out of my pocket and not out of any social agency of this government, has been forecasted at a minimum of $100,000 to a maximum of $4 million.

To answer your question, no.

The Chair: Thank you.

We now go to Mr. Peter MacKay, Pictou—Antigonish—Guysborough.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chairman.

I would like to thank the witnesses very much for the presentation, particularly Ms. McCuaig and Mr. Wamback. I know you have a very special emotional attachment to these deliberations, and we respect and appreciate your appearance here today.

With respect to a general theme that I think is emerging here, that of public confidence, I'm interested in all of your perspectives here. We've heard Detective Sergeant Muise quote statistics, and Mr. Newark has done so as well. We've heard the perspective of victims and families. There are certain technical elements of this bill that we could try to improve upon, and there are changes and amendments that might be made. However, I would be very interested to hear your perspective on sentencing that will result from this new legislation, particularly for violent offences, for transfers, and even for the interjection of a system that now enables early parole and early release. It's a system that now talks of interjecting delay into the system, obviously due to a new step in the process of preliminary inquiries for young offenders, and for extrajudicial measures and police cautions. It is a system that is going to inevitably result in massive legal challenges and wranglings. It's a make-work program for lawyers. We've heard from judges who said they can't make hide nor hair of many of the clauses and cross-references within this new act. The complexity alone is going to cause the system to completely bog down into a quagmire of litigation.

What do you say to this element of public confidence, knowing it wasn't there for the old system? There was a huge hue and cry for replacing the Young Offenders Act with something new. Are we in danger of making public confidence subterranean if we come out with something that's worse?

• 1900

Mr. Scott Newark: When I started to read the bill, I started at the beginning, of course, and I got into the definition section. When I got to the point of finding the definition in clause 2 of “non-violent offence”, I had to read it a couple of times, because this bill defines a non-violent offence by, certainly potentially—and I would think obviously—including common assault. Non-violent offence means an offence that “does not cause or create a substantial risk of causing bodily harm”. As I'm sure you all know, bodily harm is a legal concept.

If you're looking at getting some legislation in place that's going to restore public confidence, defining a violent offence—and it's the converse in violent offence—by excluding assault, and potentially sexual assault and robbery, is not a great way to build public confidence. In fact, I would suggest to you that quite the contrary, when people find out that this is what is going on in the legislation, which is supposedly to replace a discredited Young Offenders Act, fairly or unfairly, it is going to be wholly destructive of public confidence.

I have probably another seven or eight examples that I would use that I've come across where, in effect, you have to cross-reference in one section back to another to find out what it actually means. And I have to tell you, I have not done the usual kind of reasonably thorough analysis of the bill that I have here, because there's just so much in it.

I'll give you just one other example that I just shake my head at, because it's a step backward from the YOA. I think I caught this part of the presentation from the people from Manitoba who were saying it might be a better idea, if we're defining some of these offences that are predicate acts, to go back to schedules where we list the kinds of scheduled offences, as we traditionally do.

As I'm sure you know, in this act the court has to make determinations that something constituted, for example, a serious violent offence. What are we going to do? Ask the victim of a rape the nature of the injuries she suffered? Are we going to require victims to go through detailing the specifics as to whether what was done constituted serious bodily harm or causing bodily harm? We're actually going to do that?

I would suggest to you that if part of the intention of this was—and I presume it was—to restore some measure of confidence within the public about a separate youth justice system, this is not it. I can only think, as I say, of one example in 10 years of appearing before your committee when I actually made the suggestion, as did a couple of other people, that you should go back to the drawing board. There are so many things fundamentally and practically the matter with this legislation in the sense of how it is going to potentially play out and be potentially destructive to public confidence that I would suggest it's so important that you take a good, hard look at starting again.

The Chair: Thank you.

You have one minute, Peter.

Mr. Peter MacKay: Thank you.

This is like the Minister of Justice: you ask one question and she eats your whole clock.

Mr. Scott Newark: Sorry.

Mr. Peter MacKay: I'd like to specifically direct the question to Detective Sergeant Muise.

Again, regarding the complexity element, you've spoken to the issue of statements. You've spoken to your perspective as a police officer in trying to get some evidence admitted. What do you say—and I know your background is in organized youth crime—to the current perception or reality that association in a gang, when dealt with by a court, is seen actually as a mitigating, as opposed to an aggravating, factor?

Det/Sgt John Muise: Well, it is. That's exactly the problem we face and will continue to face. The fact of the matter is that when we bring young offenders to court as part of a group or gang activity, which all assault by young offenders is.... I mean, that doesn't happen any more, that one on one—and I'm not trying to glamorize this, you know—with fists and boots, two boys sawed off—Mr. Mancini is shaking his head; maybe he had a couple of those when he was young—and somebody jumped in and pulled them apart. That's what they were jumping in for, to pull them apart.

They are groups or gangs on one, and when they come to court, that's exactly the process. Defence lawyers come in, and it's like “My guy was watching” or “My guy was just standing there” or “He tried to kick but missed.” And of course you have a victim who faced fists and boots from 12 people they can't identify. What happens in court for most of those offenders is nothing. I've been involved in those cases.

Mr. Peter MacKay: Are you familiar with the term “curbing”?

• 1905

Det/Sgt John Muise: Curbing is something where a bunch of kids put one kid down, they put his head against the cement curb, and they start putting the boots to his head. These things happen on a regular basis.

Most of them go unreported, because as you can well imagine, the kids are in mortal fear, or they don't think the system's going to work for them, so they get their group or gang....

The point I'm trying to make is in terms of gang/group crime, the legislation doesn't work in the Young Offenders Act, and it's not going to work in the Youth Criminal Justice Act. As Scott said, and I will add, you need to include a component to deal with that because that's what youth crime is today. It's gangs or groups of kids. That's what we're facing and that's what most of these robberies, swarmings, and extortions are.

Mr. Peter MacKay: Thank you.

The Chair: Thank you very much, Peter, and while Mr. Mancini tries to remember when he was young—

Some hon. members: Oh, oh!

The Chair: We have one more seven-minute round left, but, Scott, the next round is four minutes, and you'll be ineligible for that round if we can't bring these questions and answers in a little tighter so we can get a little bit of dialogue going, so that it's a little less of a monologue.

Now, Karen Kraft Sloan is joining our committee today, so I'll go to her first, then Mr. MacKay, and probably back for Mr. Saada.

Mrs. Karen Kraft Sloan: Thank you very much, Mr. Chair.

I'm the member of Parliament for York North, and I'd like to welcome my constituent, Mr. Wamback, here tonight.

I don't think there's anyone who really understands what you and your family have gone through other than someone who has shared your experience. I can't begin to imagine how difficult it has been for you, but I know the community of Newmarket and the surrounding communities have really come to your support, and indeed the communities across Canada.

I think it's indicative of a healthy democracy that gives you that opportunity to come before parliamentarians and talk to them about your very important issues and concerns, as well as allowing you the opportunity to have such a tremendous response to a petition.

The question I wanted to ask you is with regard to one of your recommendations. I find this very intriguing, and I think it's an important recommendation. It's one where you identify a national program that should be established within the public school system for early identification, intervention, and rehabilitative action aimed at violent youth to help turn around potential future criminals. I'm just wondering if you feel the act gets at this at all, and if it doesn't address this even in a minimal way, how you might have some suggestions on how this could be reflected in the legislation.

Mr. Joseph Wamback: I don't know whether this can be reflected in the legislation. To answer your question, I don't think it's addressed at all in Bill C-3. As a matter of fact, I don't think Bill C-3 properly addresses mandatory counselling for violent criminals when they are incarcerated. It's set for a minimum period; it is not set until some sort of results are achieved or obtained.

What I want to suggest to this committee and to the government of this country is that they must work together with the provinces and the school boards somehow to effect a national system so that we can institute a program like this to help the future of this country.

Mrs. Karen Kraft Sloan: Would you see something like this having a legislative base? Do you see that it's important that it be written into the legislation as opposed to just being a policy? Policies and guidelines can change. It's a little more difficult to change laws.

Mr. Joseph Wamback: Again, whether it's written into a Youth Criminal Justice Act, whatever that act will be called, to me is not the issue. As a parent, as a citizen of this country, the actual origination of where we read it, where we find it, is not important to me. What is important is that somehow it is effected and it is made law so that it can be applied equally from coast to coast.

Mrs. Karen Kraft Sloan: Right, thank you.

The other question I had goes back to your statement around the mandatory counselling that you said must be provided to all incarcerated violent offenders. Are you talking about all violent offenders regardless of age, adults as well?

• 1910

Mr. Joseph Wamback: I'm dealing specifically with the young offenders legislation.

Mrs. Karen Kraft Sloan: Okay. I'm sorry. I just saw “all violent offenders”.

Mr. Joseph Wamback: Well, yes, and again, I sort of prefaced my conversation by saying this deals with youth violence today, violent youth, not property crimes—

Mrs. Karen Kraft Sloan: Right. I understand that.

Mr. Joseph Wamback: —not 40-year-old criminals. Maybe that's another day. I don't know. But right now when I see 16- or 17-year-old violent offenders who are incarcerated and, at their option, do not have to take any counselling, that frightens me. When I see in new legislation, proposed legislation, that the counselling is for a limited period of time, that frightens me as well.

Mrs. Karen Kraft Sloan: If these violent offenders are then tried in adult court and incarcerated in an adult facility, it would then be a requirement that they receive counselling as well.

Mr. Joseph Wamback: Yes. That's what I would like to see.

Mrs. Karen Kraft Sloan: Okay, thank you very much.

The Chair: Thank you, Ms. Kraft Sloan, and thank you, Mr. Wamback.

Mr. Scott Newark: I would just add that you could mandate that, for example, in any of the terms in either this legislation, or Criminal Code legislation, or the CCRA...the specifics that thou shalt take such counselling. It generally can be in sort of a generic term in a probation order or in a parole order. But you would get much more specific in legislation, so it wouldn't be just policy that could be changed.

The Chair: Thank you very much.

Mr. McKay.

Mr. John McKay: Thank you, Mr. Chairman.

Thank you to all of you for appearing tonight. This legislation is fraught with some difficulties, some of which you've pointed out.

I want to direct this question to Mr. Newark.

Mr. Newark, you were quoting statistics quite extensively in your earlier testimony. I think you know one of them is that we incarcerate youth at the rate of something similar to twice what the United States does; some say four times. For adults, the figure is exactly reverse; our incarceration rate is much less than the United States. Yet we have a public argument that the public believes youth crime is going up, much like Ms. McCuaig said, and we have statistics that would say it's going down.

What I don't understand in your testimony is that the sentencing is entirely within the prerogative of justices. Whether it's under the YOA or under this bill, the sentencing, whether it's adult sentencing or youth sentencing, is still going to be within the prerogative of those justices. Therefore I don't understand your criticism of the bill, since arguably we have a very tough youth justice system that puts youth in jail at a pretty brisk rate.

Help me here with your analysis. You said 74 cases and up, out of 1,100. If we switch around the system and front-end load it so that the adult sentence is dealt with after the trial.... We have an Alice-in-Wonderland situation right now where you have, first of all, the sentence, and then you find out whether you're guilty. In my view, we've properly readjusted that. So what's going to change the day after this bill is passed in terms of that number?

Mr. Scott Newark: Let me go back to part of your question where you said there was the YOA or the Youth Criminal Justice Act that allows for this. I'd add one more; it's called the Criminal Code.

I'm sure you're as aware as I am that in our system in this country we generally don't have tariff sentencing. We have very broad discretionary powers.

People miss that sometimes. They think if somebody is transferred to adult court, that automatically means we're locking them up in a federal penitentiary. You can get probation for manslaughter.

I would suggest that what you want to do is not mix the two concepts of the artificiality of a separate youth justice system, including the delay that goes on because you go through all these different steps, with appropriate sentencing. They're not necessarily the same things by any means.

• 1915

What I'm suggesting about this goes back to the point I was trying to make about the small group of people responsible for the large group of offences. What I'm suggesting is frankly destructive of public confidence is this artificiality involved in the process. It takes so long and so many steps to go through this. Why not simply recognize, as you know as well, that there are a number of principles that we balance on each and every person that comes before the criminal courts?

I frankly think it's the genius of our system. It's this offender, this offence. We can easily take into account, and we do in criminal sentencing, somebody's age, lack of maturity, and all the things that can be done. But recognize it for those kinds of offences, like the most serious kinds of offences, even if they're tagged with 16- and 17-year-olds. For those kinds of offences, the balance shifts over onto the principles that aren't in the legislation of either the Young Offenders Act or the Youth Criminal Justice Act, which are the regular concepts in the adult criminal justice system about why we do what we do in sentencing.

You can look long and hard in either YOA or the Youth Criminal Justice Act, but you will not find the words “deterrence” or “denunciation”. With respect, until you do, that group of the worst offenders that is there are always going to cause that public credibility problem.

Mr. John McKay: What is the difference between preventing—

The Chair: John, this is your last question.

Mr. John McKay: What is the difference between “deterrence” and “preventing crime by addressing the circumstances”?

Mr. Scott Newark: A lot.

Mr. John McKay: I would have thought that's just another word for “deterrence”.

Mr. Scott Newark: I would not.

Mr. John McKay: You wouldn't.

Mr. Scott Newark: No, not even close.

Mr. John McKay: Okay, we do know that.

The Chair: We'll now go to Mr. Cadman.

Mr. Chuck Cadman: My question is to Mr. Muise.

In your experience as a police officer, I'm sure you've dealt with extrajudicial measures, as we call them now, or “cautioning”, as you probably call them. What has been your experience with the effectiveness of them? And also the communication between police officers over a period of time regarding specific individuals one may have cautioned and that person comes along a month later, and another...? Do you talk to each other?

Det/Sgt John Muise: It's a good question. I would answer that in two parts.

First, in terms of “cautioning”, sometimes we do and sometimes we don't. It is imprecise. If an officer decides not to put in what we call “a contact card”, then we don't know about it, and if somebody subsequently comes to a scene and deals with the young person again, we may not find anything on file. Or if they don't check.... It is imprecise.

What I would also say on extrajudicial measures is that we already have, notwithstanding the odd mistake, a pretty finely tuned sense as police officers of when to engage in discretionary behaviour.

I'll give you the classic example. If a kid who's 13 years old and has never been in trouble with the police shoplifts $5 worth of stuff, it's rare that they get brought in or charged with an offence. They are not charged criminally; they are released in a discretionary way.

I don't want to be too verbose, but I find the section, first, somewhat insulting. I already know how to caution kids, and the vast majority of police officers know how to do that too. Secondly—and Scott may be able to speak more to this—I understand there's a fail-safe built in, but I'm a little concerned about what's going to happen down the road in court, knowing how these things take on a life of their own and judges start saying “Now, Officer, did you do this? Did you do that?”

I'm also concerned about what offences are going to end up being glommed into.... There's an expectation attached to those offences being pursued by extrajudicial measures, like assaults where there were 10 kids involved. I can see it happening. That's the way the system works.

Mr. Scott Newark: It's the defining statute of measures that routinely are a part of discretion that I would suggest is a bit problematic. If you go through the steps, I don't know how or frankly why in many instances the police would ever keep track of this stuff. There is a decision, compulsory by statute, to take no action. That's sort of like just driving past a mugging in the alley.

Then what's next? There's a warning, then a caution as part of a program, then a crown caution program, and then a provincial screening. It does sort of go, and that's only the extrajudicial measures. The extrajudicial sanctions, which are different—you still don't have to go to court—are also things that don't actually get you there.

The only thing I find about this is that the part of the youth justice system that I think most people thought it did a reasonably good job at was at the reasonably minor end of things. It seems to be pushing them away.

• 1920

Det/Sgt John Muise: If it's not broken, don't fix it.

The Chair: Mr. Saada.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Merci, monsieur le président.

Thank you all for your presentations.

I'm sure you understand that our actions around this table as members of Parliament having to think about these things are very often humbling experiences.

I want to put a question to the four of you. It's not a new question. My colleagues have heard me put this question a number of times. It has to do with publication. Numerous times I've asked numerous witnesses, how does the publication of names help in terms of public safety? The only answers I've been able to get so far have to do with the fact that you have to balance the interests of the public versus the identity of the young offender. That was not my question.

To publish the name of a kid means that the parents are also known. There's an impact for the family and the community. If my son is responsible for an offence that is creating a major problem for another parent, I'm also going to feel the guilt and the pain. What is it going to help resolve to have my name put up front in the papers so that my colleagues at work know about it, my community knows about it, and the hockey team I coach knows about it? What does it resolve? In what way does it help?

Mr. Joseph Wamback: One thing I'd like to say is it's wonderful that you have those compassionate traits where you would feel guilt and you would feel badly if your son were involved in an act that created physical harm for another human being. But not everybody is like that. I wish we lived in that kind of world. It's not like that.

Mr. Jacques Saada: But you do generalize it here because you would wish to have it on a general basis?

Mr. Joseph Wamback: Yes.

Mr. Jacques Saada: So you would put people like me as well as the others in the same bag. How does it help the situation?

Mr. Joseph Wamback: To me it's part of deterrence. It's also part of making the family unit responsible. If a child has grown up with appropriate values, chances are very high that there will be no difficulties with that child. But if the child has not been given appropriate values by his parental unit, then chances are he will offend. The parents are equally liable, as far as I'm concerned.

Mr. Scott Newark: You asked about the specifics of it. I can think of three specifics. You used the phrase “the name of the kid”.

Maybe that's a differentiation I would make. The non-publication was originally intended so that if somebody were caught spray painting fences or even doing a break and enter, fathers like me—who would probably be inclined to say “I don't want you playing with that guy”—didn't want to stigmatize that kid if he was trying to get his life back together and doing something about it. That make sense. I would say there's a difference, however, between that, which is legitimately why you would not publish the name, and somebody, for example, doing armed robberies, severe beatings, or sexual offences.

Again, I go back to the notion that there are different interests involved. I agree very much with Mr. Wamback that by knowing there's this cloak of anonymity there, that's in effect a deterrent to deterrence on the offender himself.

Finally, I suggest to you, and again I agree with him, that not everybody may be so inclined. Knowing the problem it might cause some families, it may cause people to take greater care over what their kids are doing and where they are and everything else and actually stop that.

Mr. Jacques Saada: I'm sorry, I do beg to differ. If an adolescent has committed a crime for which it is worth publishing his name, how can you assume it's because the parents have not done a proper job?

Mr. Scott Newark: I don't.

Mr. Jacques Saada: How can you isolate this case from the case of a kid who is just simply so influenced that his peers have brought him to this problem? How can you generalize to that extent and demonstrate that publication is going to be a good thing for this family?

Mr. Scott Newark: The criteria I would use would not be subjective. The person would have had to have committed an act that you as members of Parliament defined as a sufficiently serious crime. That would be the differentiation. On that basis, yes, sir, I would have no hesitation in making the judgment that those factors based on that fact merit the publication. It's not subjective.

• 1925

Det/Sgt John Muise: Mr. Saada, I've wrestled with this for years, and I've been involved in advocating for this and that, and I'll tell you that whether it's the Young Offenders Act or Bill C-3, it's about one thing, and it's called credibility. The thing I hear again and again from adults, young offenders, victims, and other kids is that you “get away with murder”. The other thing is that it's hiding behind the act. It's no different from hiding behind a badge or behind a uniform, and that's the problem. Again, we're not talking about the shoplifter or the spray painter. We're saying let's set a list of offences for kids who get put to adult court and let's set certain boundaries. For you folks here at the justice committee and the government, it will be one of the things that returns credibility to the youth justice system. I guarantee it.

The Chair: Mr. Mancini.

Mr. Peter Mancini: Thank you, Mr. Chair.

There are so many questions.

Detective, let me go back to your saying that police exercise discretion anyway, because my experience is somewhat different from yours. My experience is that was true when the Young Offenders Act first came into being. But I spent the last few years of my practice, when I dealt with young offenders, dealing with cases that should never have been in court. They involved things such as an allegation that this guy took money out of my locker, and instead of the school dealing with it, it ended up a day and a half in court; or a kid who was charged with taking a hamburger from the lunch line and not paying for it, and it ended up in court; or the $5 shoplifting charge, because Shoppers Drug Mart and Pharmasave said the policy is they prosecute no matter what.

I appreciate it when you say some policemen might be insulted by it, and they say, look, we're doing it anyway. But it does go some way toward saying let's clear that out of the courts. One of the people from Manitoba said to us, our courts are clogged. Doesn't this go some way toward clearing that stuff out of the courts and saying let's deal with the serious crimes in the proper setting and deal with this other stuff—not to diminish it, because the first time you steal leads to the second and the third—in a different way? Isn't that a better track to go on?

Det/Sgt John Muise: Mr. Mancini, I can't quarrel with you, and you've raised a very legitimate issue. Quite frankly, the vast majority of thefts and mischief and some assaults and one-on-ones, even if the injury is more than transient and trifling, generally should not be before the courts.

But what I'm concerned about is the ratcheting down. For years I've dealt with the problem of getting kids to come forward. In fact, at the end of the day we reduce the reliance on the criminal justice system when we're firing on all cylinders. Take the case where there are four or five kids involved. We try to get the kids to come forward. There might be no injuries. We end up charging two of the five people, and we get a good bail order that stops this.

When the cops get involved and if they need to lay a charge, the important thing is that the likelihood of that thing spinning out of control just drops right off the map. That's what I'm concerned about. We'll have that so-called minor assault or less serious assault, there will be five kids, two are responsible, and we'll be dealing with it with maybe an extrajudicial sanction. What will happen is that either the kid who is the victim will get his group or gang to enact revenge, or, because it wasn't dealt with in an appropriate way, the offenders will say “Now you're going to get it. Now you're really going to get it. You've really made a big mistake.”

So my concern is the ratcheting down that will inevitably happen. Does everybody exercise discretion perfectly? No. Then I'm saying do it in a different way. That clause of Bill C-3 is dangerous. This is what will happen. We will have kids who end up doing horrible things because it wasn't dealt with appropriately.

Mr. Peter Mancini: But in fairness to the police, I would say they needed some guidance in terms of discretion. I don't think it was that the cops didn't want to use discretion. I think everybody got scared and said “This is a youth matter and I don't know how to deal with it”, whether it's the principal, the teacher, or the cop. So send it to court and let somebody else deal with it.

• 1930

Det/Sgt John Muise: Well, then I would suggest it's a training issue and not an issue for federal statute that deals with, in effect, what some of those things will end up.... They're called non-violent, but that includes assault, as Scott indicated. Those things will be included. It's dangerous. I would suggest it's a training issue. I agree. I don't think it has a place in our federal young offender legislation.

The Chair: Thank you very much.

Ms. Bennett.

Ms. Carolyn Bennett (St. Paul's, Lib.): Thank you, Mr. Chair.

I just want to go back over the deterrent piece. The committee has heard a lot here. Last night we had a panel of judges who reminded us that in the last century, as people were being hung for pick-pocketing, all of the people watching the hanging were having their pockets picked. So I'm not sure I'm with you on the deterrent piece.

I was a family doctor. A lot of the kids in my practice got into trouble. My experience has been that the kids actually just need somebody to believe in them and to listen to them. I'm not sure that while they're in the middle of their peer activity, the deterrence is remotely in their mind at all. I guess I'm just having a little trouble.

In fact, the kids from the most strict homes, who did everything their parents told them, end up being the kids who do everything their peers tell them. It's because they haven't been able to internalize the right and wrong. They need a different way of learning how to make decisions on their own because just doing what mom and dad told them, when it comes to the rebellion stage, hasn't given them any skills.

In evidence-based practice, where do we get the idea that deterrents work on youth? Isn't that why we had a separate youth system, because of the impulsivity and the fact that we believe we can turn these around?

I was concerned also with what Ms. McCuaig was talking about, why this kid didn't go to boot camp. We have good evidence to show that boot camps don't work. Basically they don't work and are being abandoned. We need community solutions in terms of follow-up for these kids.

Basically we've been hearing at the committee that resources are the issue in terms of the extrajudicial.... I guess I'm just a little troubled; I'm not sure whether punishment would make this discredited YOA happier with society or whether we've just not done a good enough job explaining to society that we have to actually do things that have been proven to work rather than just make us feel....

I think any one of us in Mr. Wamback's situation would want to go and get the guy. That obviously is a totally normal human response. I would just want to know that we as a group will be doing something kinder in terms of understanding where this kid came from.

Mr. Scott Newark: I don't think you've heard anybody, certainly including us, say they disagree with the notion, or even the emphasis, on what is legitimately rehabilitation as described in this bill or in the Young Offenders Act before it. The problem with what we're suggesting is that it's a universal application without a proper distinction between the people who.... It's not their first time there. Their records drop to the floor. With respect, they're not getting the point when they're back on their 15th break and enter.

The empirical data I'm going to suggest is about two things. One is actually not empirical; it's just sort of anecdotal. Having been a crown for 12 years, I know that different people understand different languages, if you know what I mean by that. Fortunately, most people who come before the criminal courts, especially in my experience with youth courts, are most susceptible to changing the behaviour and are beginning to understand that it's a better idea to do that. Some aren't.

Ms. Carolyn Bennett: Okay, but why does adult court help those kids?

Mr. Scott Newark: I would suggest to you that it's because of the certainty of it, the lack of artificiality of it. I do mean increased penalties for somebody who, for example, is on his 15th break and enter or on the 10th stolen car or on serious violent offences. If you target that specific group for a greater emphasis on the principles of sentencing, which in this case would be deterrents, you're going to get a better result in terms of public safety.

Ms. Carolyn Bennett: So you have public safety, but for how long? As long as the kid is locked up.

Mr. Scott Newark: Let me give you one empirical study I know.

Ms. Carolyn Bennett: I want to know also about the therapeutic—

The Chair: Last question, Carolyn.

• 1935

Ms. Carolyn Bennett: We're hearing from the Institut Philippe Pinel in Quebec. They have the tough kids in there and they think a therapeutic intensive care unit approach is ultimately better for the public good.

Mr. Scott Newark: The best protection the public gets is if somebody decides not to continue criminal behaviour.

Ms. Carolyn Bennett: Right.

Mr. Scott Newark: There's absolutely no question about that. The problem with that is that it is not a universally applicable truth to people and not everybody is equally rehabilitatable. I presume you probably agree with that.

Ms. Carolyn Bennett: Yes.

Mr. Scott Newark: The only empirical study that I'd suggest you maybe take a look at actually doesn't deal with youth; it deals with adults. It's the reoffending rate—

Ms. Carolyn Bennett: No—

Mr. Scott Newark: Let me just finish. It deals with the reoffending rates of those people who are actually detained and kept for their full sentence. If memory serves me correctly, the rate is less than half of that of people who were released early on parole.

To my way of looking at it, what that tells me is that this particular group, the worst group of offenders, understands—

Ms. Carolyn Bennett: Mr. Newark, you are giving us adult statistics for something that specifically—

Mr. Scott Newark: You were asking for empirical information.

Ms. Carolyn Bennett: No. I want to know about kids.

The Chair: Order.

Mr. Scott Newark: Maybe the committee should go look for it.

The Chair: There's a very sophisticated explanation for the numbers Mr. Newark is referring to. I think he knows what our explanation of those numbers would be. We don't have time to do it here. As Carolyn mentioned, it is about adults. I wouldn't want it to be left hanging that it is necessarily an established fact that those statistics mean what—

Mr. Scott Newark: No, no. I'm giving an interpretation. The other interpretation is that we're keeping the wrong people in detention.

The Chair: Mr. Peter MacKay.

Mr. Peter MacKay: I'll tell you, around here it's pretty hard to hang your hat on any of those stats these days.

The issue of parental responsibility is one we haven't spent a lot of time on. There's also an issue of transfers, which we've heard from a number of witnesses. I have a haunting image of a couple of twins from Burma who were leading an army of about 1,200 people. I don't know if anybody else saw it. One of them was a chain smoker and they both felt they were invincible and killed who knows how many people. That image of a young person who was capable of such violence really struck me.

We're talking about a really small portion of youth who are involved in crime. For 10- and 11-year-olds who do go down that road and do pose that serious risk, whether it be through repeat offences or violence, shouldn't there be some triggering mechanism to get them into a system, particularly a system that is supposedly geared at the front end? You know, preventative measures, alternative measures, restorative justice, something that's supposed to be kinder and gentler and keeps them out of the traditional systems, doesn't put them in jail. Shouldn't we have something that would avail a 10- or 11-year-old of that system sooner?

Ms. Theresa McCuaig: I spoke to a children's aid worker specifically on that issue not too long ago. I asked her what happens to, let's say, a 10-year-old who commits a crime. She said that's a good question. Very often, 8-, 9-, and 10-year-olds who are troubled set fires. Sometimes people die in those fires or they'll destroy furniture. They'll hurt little animals and so on. They're very ill.

I asked what happens at that point. She said the parents turn them over to the police and the police turn them over to children's aid. I asked what happens after that. She said, “That doesn't mean we're going to take his case. That doesn't mean he's going to become one of our clients.” I said, “Oh, wow. What happens if he doesn't become one of your clients?” She said, “Well, I don't know.”

Mr. Peter MacKay: What do the police do?

Det/Sgt John Muise: Mr. MacKay, from a practical point of view, this is what happens if an 11-year-old who's as big as you—and there are some out there—sticks a knife in somebody's belly.

A voice: [Inaudible—Editor]

Voices: Oh, oh!

Mr. Peter MacKay: A very respectful government. Go ahead.

Det/Sgt John Muise: That's all right. I was in Question Period today; I understand.

Mr. Peter MacKay: Yes, you've seen Question Period.

Det/Sgt John Muise: So he sticks a knife in somebody's belly. The police do get called because, oh my God, we have a serious case here. We apprehend him as a child in need of protection under the Child and Family Services Act or the equivalent in Nunavut or in British Columbia. I think they're pretty much all the same.

Certainly in Ontario we'll take him to a place of safety, unless he happens to have some kind of serious illness. He'll walk into that place of safety, and if he is as big as you, because he's been eating his Wheaties and he's 11 years old, he can walk out the back door and that's it. We have not served the community at large well because he's clearly a public safety risk. We have not served that young man well. Something horrible is going to happen.

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I don't want to string up 10- and 11-year-olds for shoplifting. I don't want to hang them in the town square. But I certainly think there needs to be a mechanism to deal with 10- and 11-year-olds who commit serious violence crimes. I'm a police officer, not a lawyer, but it seem to me, if we're talking about criminality, that's the purview of a federal bill.

Mr. Peter MacKay: If we had this type of transfer in the system, equivalent to the transfer from youth to adult court, isn't this like—and I don't put too fine a point on the analogy—DNA evidence? This is also about exoneration. This is also about giving a 10- or 11-year-old rights that they might not have in a children's aid system.

Ms. Theresa McCuaig: Right.

Mr. Peter MacKay: There's no consistency across the country. If there were the ability to transfer a kid into a system, it would also work in his favour and get him assistance earlier.

Det/Sgt John Muise: They should have rights. If it's a mental health issue, then you deal with it. There are provisions in provincial mental health legislation. If it's not a mental health issue and they have committed serious crimes, they should have rights. They're citizens of the country.

Mr. Scott Newark: The thing that worries me about this act is that next year we're going to be doing it with 9-year-olds.

Obviously, it's out of good intent and everything else, and insofar as the criminal justice system might be able to do something that would help in some way in an intervention, that's all well and good. But I think you want to be careful criminalizing potential behaviour, even though the predicate act is itself criminal. We may really be pointing to a shortfall in existing child welfare legislation, as opposed to bringing them in under this.

As I say, what worries me is that next year we'll find 9-year-olds doing stuff like this too—and we will. I think the idea is an important one, but I'm not sure the solution is the right solution.

The Chair: Thank you very much.

I will have to excuse myself and ask Mr. Grose to take the chair. But if members don't mind, there's a question that's troubled me, and I'd like a brief answer from the panel.

There's been a lot of reference here to public confidence, which is to some extent a euphemism for the fact that regardless of what's really going on.... Scott a couple of times actually held himself back from making a judgment as to whether public confidence is fairly or unfairly critical of the former legislation, and so on.

The question becomes, if we're forced as a committee to choose between doing the right thing, where we believe there's considerable evidence to suggest we should go a certain route, but we also recognize that the public's perception of all of this is quite different from what we believe is the right thing to do, at what point is it wrong for us to pursue a course of action that we know to be wrong, but that we also realize the public believes to be right, in the interest of public confidence in the youth justice system?

This is a critical question, because every time people come here they talk about that. We debate the statistics and sometimes actually park the debate, so we don't really know about the statistics, but the reality is we know what people think. We have the debate at that place rather than the empirical place that should govern public policy.

Where would you have us go? Should we go where we believe we should go on the basis of right, even though that means we have a huge public relations or educational challenge, in terms of convincing the public that this works, or do we fall in with the overriding public feeling that the system has to get tougher for the sake of getting tougher?

Mr. Scott Newark: At the risk of revealing something, it almost sounds like a question at a Reform Party assembly about what exactly the role of an MP is.

Let me be absolutely—

The Chair: I've never been accused of being a Reformer before, but go ahead.

Mr. Scott Newark: The question's been debated. It's actually an important philosophical question in a democracy. I have spent the last part of a career, I suppose, in some ways attempting to convince members of Parliament of particular views. I don't have any hesitation whatsoever in saying do what you think is right.

The Chair: Thank you.

Mr. Wamback.

Mr. Joseph Wamback: I have to reiterate what Mr. Newark has said. We all have to do what we believe in our hearts and our souls is right. Is it right for ourselves or right for the country? That's the question I think you have to ask yourselves.

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Det/Sgt John Muise: Credibility in the act, and—I would go one step further—doing what's right in terms of seriously violent criminals is part of this, and if you return credibility to the youth justice system, you will have done what is right.

Ms. Theresa McCuaig: If someone's child is murdered by a young offender and he gets two years in jail because, gee whiz, it's proven that this is the right thing to do to correct him and bring him around, how do you justify that to the public? They do not accept that.

The Chair: Thank you, and Ivan is right here.

Mr. Scott Newark: By the way, we told you to do it right.

Mr. Paul DeVillers (Simcoe North, Lib.): I'm sorry for being late. Regarding Mr. Wamback's answer that he makes a distinction between what's right for the committee and what's right for the country, I was intrigued by that response. I wonder if you could expand on that a little bit.

Mr. Joseph Wamback: I think the 706,000 people who have contacted me and signed my petition are telling me something. They're telling me they have no faith in the existing system.

They're also telling me—and it's what I personally believe—that we as a society must recognize the abhorrence, the distasteful act, of taking another human life. We must recognize that as an offence that is punishable by incarceration.

It's not to be taken lightly. I believe with my soul there is nothing more precious than a human life, whether it's a child, an adult, or a senior citizen, in this country and we cannot take the extinguishing of a life lightly. We must take it and it must be entrenched in our law that the consequences for wilfully maiming or murdering another human being are very serious and they will be dealt with very seriously.

Mr. Paul DeVillers: But the context in which the chairman presented the hypothetical was that all those circumstances had been taken into account and there was an option between what was in that context considered the right thing or what was the popular thing.

Mr. Joseph Wamback: I understood that question to be the right thing in terms of looking at proceeding with this legislation in its current form. I apologize if I misunderstood that question.

Mr. Paul DeVillers: Yes, that was why I was....

Mr. Scott Newark: Can I point to one thing, though, about that, if we're talking in larger terms? Seriously, I would suggest that each and every one of you ask yourself if it's right that the legislation you're being asked to consider defines “violent offence” in the context of excluding common assault. I would suggest to you that it isn't.

That's not so much a larger issue about whether I succumb to what is this perception of a demand for something else. I think that's the way, if I could, that there is a reconciliation between doing what you individually think is right, or the Edmund Burke approach—a noted Liberal—to the obligations on a member of Parliament, and the public responsibilities. I think that's the way you do it, but you go through the specifics of it, and it's a long, complicated, and complex bill. But I think that's the way it gets reconciled.

Det/Sgt John Muise: How come somebody who is 18 years and one month old is part of the sentencing principles, including general and specific deterrents and societal denunciation, but if you're 17 years and 11 months old, you aren't?

I think it's just a matter of separating killers and kids with crayons who damage property. That's all. That's fundamentally what we're asking, along with a few other things. That will bring the credibility back, and I would suggest that's doing what's right.

Mr. Paul DeVillers: Yes, but that question of cutoffs applies to anything. Mr. Saada just mentioned the age of voting, the age of majority. Our society functions on arbitrary lines.

• 1950

Det/Sgt John Muise: Right. I'm just a cop, but I'm having trouble understanding the difference between an 18-plus-one-month-old killer and a 17-plus-11-month-old killer. I don't understand that. I think there's room for movement there, and I understand that we create arbitrary measures, but I'm suggesting they shouldn't apply to something like this. It's public safety we're talking about.

Mr. Scott Newark: In that sense, the more relevant issue is not the age, it is the offence. That balance shifts a little bit in that sense when you're looking at the nature of the offence itself.

The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.): Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair. I'd just like to make a comment that it isn't just among the public that we get those perceptions. I actually heard a judge once say—and this was a judge known for his leniency with young offenders, with people—when he sentenced a 15-year-old young offender to life in prison with no parole for seven years—along with his cohort who was 19 years old—because the young offender had masterminded the offence, the robbery and murder, he wished he could give him what his older cohort got, but Parliament would not allow it. And that came from a relatively lenient judge.

My question was to Ms. McCuaig and Mr. Wamback. I'd just like to get your views on extrajudicial measures and, when you feel they're appropriate, alternative measures.

Ms. Theresa McCuaig: I'm for alternative measures. I'm for anything.

They tell me today that a troubled child can be spotted at five years old. At 12 years old, the teacher can tell you who's going to end up in jail and who is not. I say if they can be so easily identified, why don't we invest some money into our youth, really work with them and have intervention programs for them, have grants for sports to keep them busy and off the street? For the money we put into them up to age 15, we might save millions down the road in penal, probation, and funeral costs.

I do like the alternative program. Do you know why? I've seen it. It's nice. I'm not talking now about giving them 15 chances. I'm talking about one time. But at least it's better than when he goes to court, gets probation, and doesn't even know what just happened in that courtroom. I've seen that time and again.

So when he meets the victim head on, willingly, is willing to make amends, well, there he's making reparation. He's taking accountability and responsibility for his crime. The ones who work in this tell me that often the victim and offender become friends. They become buddies. They get attached to each other and it ends up as a big brother type of thing. At least that's more fair than telling a youth, go home, you're on probation, and report once a month—if you feel like it.

Mr. Joseph Wamback: I do agree that extrajudicial measures are appropriate, but why does this particular piece of legislation leave the victim out of the process? I think the victim should participate.

Ms. Theresa McCuaig: Oh yes, definitely.

Mr. Chuck Cadman: With extrajudicial measures, they usually do.

Mr. Joseph Wamback: That's not my understanding.

Ms. Theresa McCuaig: Some victims do not wish that.

Mr. Joseph Wamback: These are minor crimes we're talking about. This is not—

Mr. Chuck Cadman: Well, that's my point. At what point do you say they're appropriate and where are they not appropriate?

Mr. Joseph Wamback: For minor property crimes. In my opinion, they are not appropriate in violent crimes against another human being.

We must recognize as a society that protection of the innocent is paramount.

Mr. Scott Newark: I'd just add that perhaps what you might also do in looking at the extensive use of alternative measures is to examine it from the perspective of how it impacts on the victim, because there are, in fact, circumstances where there's not the ability, for example, for the victim to have any say about whether or not it's going to be prosecuted. The act itself goes a long way toward taking away the power of an individual citizen to disagree with the exercise of authority by the crown and to privately prosecute something. I'd suggest you take a look at that, as well as at how a victim would actually get notification that this decision has been taken, who the person was, and what actually happened to them.

It's deficient. I don't want to go through it in the little time left, but if you look at those sections in that overriding context and ask the justice officials, assuming they're coming back, whether or not it specifically deals with that issue, I think you will see there's need for some change here too.

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

Mr. Maloney

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Mr. John Maloney (Erie—Lincoln, Lib.): I have two areas of questioning.

On that last issue of victims not being able to participate, victim impact statements would be allowed under this act. The victim will be requested to consider extrajudicial measures and the appropriateness of them. The victim certainly has a greater amount of participation under this act than under the Young Offenders Act, and I think it's important that they do. It's throughout the act.

Ms. Theresa McCuaig: We have that report.

Mr. John Maloney: Well, there's a stress on it, an emphasis on it.

My last line of questioning is a comment and a question to you on the question of credibility. It's amazing the number of people who have appeared before us on the consideration of this act who start out by saying the Young Offenders Act wasn't a bad act but it just wasn't implemented properly. It's become the act that everyone loves to hate, notwithstanding the fact that when you ask them what they don't like about the Young Offenders Act, they've never read it. They don't know anything about the Young Offenders Act.

We even had a young lady here yesterday whose brother was a police officer killed by a young offender in a car chase. She was amazed, after her crusade on this issue, at how many of his fellow officers didn't know specific provisions of the act.

Will you see how this new act works or will you defeat it before it even gets started? Will you give it a shot?

We sit here around this table and we have one group of witnesses come in and tell us it's the best thing since sliced bread. The next group of witnesses comes in on the same section, saying that's horrible, just awful. The dilemma of all parties sitting here is what to do with this act. There's no way we're going to keep everybody happy, but we're trying to do the best we can with the tools we have.

Mr. Joseph Wamback: I can answer that with the only analogy I can really understand. My background is in engineering and construction. When I receive a set of drawings that are fundamentally flawed and I direct a group of engineers or architects to rework or redesign to compensate for fundamental flaws in that design, I end up with something that is far worse and has taken a lot longer to produce than if I had sent them back to the drawing board from day one and had them prepare an appropriate set of documents. That's my analogy.

Mr. Scott Newark: I have read the Young Offenders Act. I can give you a list of things that I think are wrong with the Young Offenders Act. I'll be happy to give you, at the end of this, sir.... I identified issues—and I stopped when I got to 12—that are at least as bad as the Young Offenders Act or worse in relation to victims of crime. I'll give you the list afterwards, with section-number-specific references.

Mr. John Maloney: In your brief?

Mr. Scott Newark: Yes.

Mr. John Maloney: We'd appreciate that.

Det/Sgt John Muise: I've read both the Young Offenders Act and Bill C-3, and we've touched on a number of things. I could get going ad infinitum. We could just start off with the definitions and move to the declaration of principles, talk about extrajudicial sanctions again, talk about transfer provisions, and go on and on.

I understand your initial comment and I hear where you're coming from. There's some truth in what you said, but I think Bill C-3 is but a shell game. If you want to do the right thing and you want the right kind of justice system in place, which I would suggest includes credibility, I would listen carefully to Mr. Wamback's analogy. Thank you.

The Vice-Chair (Mr. Ivan Grose): Mr. Peter MacKay, surprise me. Take us out with a short, crisp question and answer.

Mr. Peter MacKay: Well, not to be over-philosophical, but Mr. Newark referenced that great Liberal, Burke. I think he said that in order for evil to triumph, all that's necessary is that good men and women do nothing. I don't think this committee is prepared to do nothing.

We very much appreciate your input. Public opinion does matter. Your opinion matters. It changed the government's policy on the NHL, so we know it does matter. It can change quickly.

I have a very quick question about this policy of presumptive release. As soon as this meeting wraps up, we are going to embark on how to disassemble statutory release in the adult system. Aren't we putting statutory release in this new Youth Criminal Justice Act?

Mr. Scott Newark: It's too bad Mr. Scott's gone. We used to discuss this in happier times.

Mr. Peter MacKay: I'm sorry that I couldn't be briefer.

• 2000

Mr. Scott Newark: I think you should go back to the drawing board, but if you're starting out with something new, I cannot think of a heavier piece of baggage to saddle this youth justice system with than the existing CCRA provisions in relation to release and its secrecy, the way it artificially deals with sentences for crimes committed on parole. There's an absence of things in there. We could go on for quite a while. I don't think it's a very good idea at all that you're doing that.

Again, most people aren't aware of the fact that the net effect of this in relation to the.... It's not tacked on to it. It's now a part of the sentence as well. I would suggest that if you are going to do this, find a different way from the CCRA.

The Vice-Chair (Mr. Ivan Grose): Thank you, Mr. Newark. I thought you and I got along very well together, but you very quickly bemoaned the fact that Mr. Scott wasn't here any more.

I'd like to wind up here. I'd like to thank the witnesses, especially Mr. Wamback. Being a parent and a grandparent, I cannot imagine the pain you have. I thank you very much for bringing a perspective to us that none of us here have. Thank you very much again.

Mr. Joseph Wamback: Thank you, Mr. Chair.

The Vice-Chair (Mr. Ivan Grose): The meeting is adjourned.