[Recorded by Electronic Apparatus]
Thursday, April 18, 1996
.1110 
[English]
The Chair: I call the meeting to order. We now have, from the Canadian Association of Chiefs of Police, Law Amendments Committee, Chief Brian Ford, the chair; Chief Superintendent Gwen Boniface, a member; Vince Westwick, a member; and Denis Asselin, a member as well. Welcome.
We have until 12:30 p.m., give or take. The more you talk, the fewer questions we can ask. I'll leave that in your hands.
Chief Brian Ford (Chair, Law Amendments Committee, Canadian Association of Chiefs of Police): That's interesting.
The Chair: I always found it worked with my parents. Just keep talking and they'll get bored.
Chief Ford: Madam Chair, let me first thank you for allowing us the opportunity to appear before you here today on behalf of the Canadian Association of Chiefs of Police. My name is Brian Ford. I'm the Chief of Police for the Regional Municipality of Ottawa-Carleton, but I speak to you in my capacity as chair of the Law Amendments Committee of the Canadian Association of Chiefs of Police.
I'm joined here today by Chief Superintendent Gwen Boniface, officer in charge of the western region of the Ontario Provincial Police and vice-chair of the Law Amendments Committee;
[Translation]
Mr. Denis Asselin, lawyer and legal counsel for the Montreal Urban Community Police Force;
[English]
and Vince Westwick, general counsel with the Ottawa-Carleton regional police service. Also in the audience is the executive director of the Canadian Association of Chiefs of Police, Mr. Fred Schultz.
We come to speak to you concerning youth justice. We are especially pleased for the opportunity because the topic is especially important to the communities that we as an association police throughout Canada.
Before beginning our presentation, may I say that we applaud the approach taken by the Government of Canada to address this problem. We share the view of the Hon. Alan Rock, Minister of Justice, that it was critical to this process to address acute and serious flaws in the system, which was done at least in part by Bill C-37 before undertaking the more broad-based mandate of your committee. We speak to you and would encourage you to think of the Young Offenders Act in three categories: serious offenders, minor offenders, and all those in the middle.
Serious crime by young offenders and the ability of the Young Offenders Act...in our opinion has done more to undermine public and police confidence in the justice system than any other issue or crime. Earlier this week you heard some compelling testimony from victims of serious youth crime. At the same time Ottawa papers have recently been full of tragic stories of horrific incidents. We share the pain of the victims of these crimes and the anguish of the entire community. In addition to our own individual concerns, it all too often falls upon individual police officers who must, in practically all these cases, attempt to explain the system to distraught victims of these crimes.
While we believe that Bill C-37 has addressed some of these problems, we will have to wait to see if the courts are prepared to interpret and apply them so as to protect the community and respect the rights and losses of victims. While these types of crimes are statistically small, national impact is overwhelming and they have a very high profile in the media.
This committee must continue to monitor the implementation of Bill C-37 and be ready to step in if it fails to achieve its desired results.
The second group is the other extreme: minor offences. It is our view, and the view of many police chiefs across Canada, that we must, where possible, divert young persons from the criminal system and replace that system with a proactive, preventive and rehabilitative program, especially one with counselling, where possible and applicable. This is not to suggest no response, but rather a true alternative response to minor youth crime. Clearly the opportunity exists for partnerships with the educational system, which may be ideally situated to work with probation and alternative measures programs.
With respect to the rest, such as break and enters, auto thefts, assaults, and a broad range of offences making up the remainder of the bulk of youth crime, it's absolutely clear that these offences vary in severity. In almost every case, however, they impact negatively on the community and the individual victims.
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The question that remains open in the minds of police, educators and probation personnel is whether the youth system, as it currently exists, has any real impact on the young person. My colleagues will present some thoughts and recommendations on this topic, but in essence we believe the impact of the system on young persons ought to be the focus of your investigations. There are jurisdictions that appear to be having better success than others, and as a system we ought to be assessing what is done right and at the same time continue to explore more options in the area of prevention, accountability and rehabilitation.
A small example that we are proud of locally, here in the Ottawa-Carleton region, is the Ottawa-Carleton Police Youth Centre, located at Prince of Wales Drive and Hog's Back Road in Ottawa. This is a locally sponsored youth centre. It is really the project of one of our officers, who through his personal commitment is clearly making a difference.
My colleagues will suggest some programs that are achieving some success in other jurisdictions in Canada. I am pleased, again, to present to this committee, Mr. Chair, an invitation to visit the Ottawa-Carleton Police Youth Centre to observe its workings first hand. I would encourage you to visit this and other programs throughout Canada to see what works and what doesn't work.
While these programs are not the only answer, it is clear that resources must be applied to youth crime in a way that is not seen, nor is current, in the adult system.
In conclusion, may I say that the Canadian Association of Chiefs of Police is pleased to be invited to attend your committee. Youth crimes and concerns about youth justice are and remain a serious concern to police and our communities. We encourage you to pursue your examination and investigation.
I'd like at this point in time, if I may, to turn over to Chief Superintendent Boniface so that she can continue.
The Chair: Go ahead.
Chief Superintendent Gwen Boniface (Member, Law Amendments Committee, Canadian Association of Chiefs of Police): First, thank you very much for the opportunity to appear before you. We have provided some briefs, albeit I think you received them just yesterday. I apologize for that.
I'm going to just briefly cover a portion of that and then I'll be turning it over to Mr. Westwick to follow up.
I'd like to say the CACP supported and continues to support the two-phase approach of Bill C-37 and this review. We wish at the outset to assure you that our concerns with respect to serious crime by young offenders remains the same. We believe that serious crime must be dealt with in a serious fashion. That is why we supported the change in transfer provisions and longer sentences for these crimes.
We encourage you to maintain that approach within the framework of this legislation to ensure the confidence of the public at this time. Without that as a fundamental aspect of legislation, confidence in the system will be lost.
In addition, violence in the schools, virtually unheard of some few short years ago, continues to present a serious challenge for educators, for parents and for police, not to mention the victims of this violence. Of course, the evolution of youth gangs in many of our major cities, and indeed in some of our smaller cities, creates ongoing concern, not only in the increased numbers but also in the young ages.
Youth justice is a dynamic process changing dramatically and quickly. Many aspects of the system, including the need for speedy trials and issues surrounding compulsory treatment, are in need of attention.
The question, of course, will be, can this all be accomplished within the framework of the present legislation or do we require fundamental changes in approach? Most of our comments today will reflect broad views and observations on the application of the Young Offenders Act and will in all likelihood be a reiteration of what you have heard from other groups.
In order to provide you with as much information as possible, we canvassed our colleagues across Canada in late 1995 and early 1996. Further to that we held a meeting with partners in the youth justice system in the Ottawa area and as well engaged in discussions with members of the law amendments committee of the CACP.
The following comments are merely a reflection of the outcome of those deliberations. These comments are divided into four major areas. In general, it is expressed that the youth system is failing to address a sense of responsibility in the young offenders. That was a consistent message across Canada.
One submission summed it up by saying that the flaw with the system is that it countermands the basic principle that all responsible parents attempt to instil in their children, namely, to accept responsibility for one's actions. Therefore, it only seems reasonable that a youth justice system should align itself with the principles most responsible parents adhere to: a sense of fairness; accepting responsibility for one's actions; certainty of some consequence; consistency; and, very importantly, timeliness.
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I'll speak briefly on the adversarial system. Many police executives raised questions regarding the true applicability of the adversarial system to young offenders, particularly those who are first offenders or commit minor offences. It is viewed that oftentimes the adversarial approach is too focused on outcome. It appears so often that the legal and procedural safeguards built into the system weaken any connection between the youth's action and subsequent punishment for the crime.
It was further suggested that a more holistic approach to rehabilitation that takes into account the institution that impacts most on young offenders - the family and its ability to have direct input into the outcome - would provide a greater sense of responsibility.
The present provisions of the act with respect to the undefined role of parents as opposed to the role of lawyers restricts the opportunity for parents to be active participants in the process and the outcome, and yet by law they remain responsible for their children. This is exacerbated by the provisions of anonymity of the Young Offenders Act for the protection of the young person, which, while valuable from the perspective of not labelling first offenders, and for all the very valid reasons that we know of, may often be outweighed by the ability of the young offender to deflect that responsibility.
Bringing parents into the court process would encourage responsibility and accountability both during and after the court appearance. Stretching even beyond the participation of parents, there needs to be a wider network involved in the dispensing of justice, as well as the reintegration of the offender into society. This of course calls for greater participation by teachers, police and parents, as well as the young person.
As an example, teachers interact daily during the long period between the offence and the resolution of the trial. The connection between the crime committed and the consequences for the victim, peers and society at large cannot be overlooked.
Such initiatives - and I can't speak to all acts of this - as those that have begun in Australia under the family group conferencing appear to bring together involved parties with a view to reaching satisfactory resolution for some parties. We would ask you to examine that aspect further, and initiatives being tried in other jurisdictions as well, particularly in European countries where offender-victim mediation is taking place.
Therefore, our first recommendation would be to ask the committee to consider looking at alternative dispute mechanisms that include and define a role for parents and other involved parties, with a goal to further establishing accountability and a sense of responsibility for the offender.
Mr. Vince Westwick (Member, Law Amendments Committee, Canadian Association of Chiefs of Police): Madam Chair, if I may supplement Chief Superintendent Boniface's comments on the adversarial system, the Young Offenders Act says in section 3, in so many words, as a declaration of principle, that young offenders ought to be accountable and responsible for their actions. Accountability, in a simple way, is to say ``I did it'' or ``I didn't do it'' or ``this is what I did and I'm sorry''. Yet in a very practical way it's well known, as a rule of thumb among prosecutors, that if you only have a statement of an accused, a statement of a young person, you really don't have much of a case at all, and it's very difficult, if not impossible, to get statements of young persons introduced into any court in Canada.
As an example of that, an issue came to my attention as counsel to the police department, when last week I was asked to give some comments on a draft statement form for our youth officers - we provided you with a copy. As I was looking through that document, I was thinking of the presentation that would be made today and I found myself thinking, it's no wonder that we have problems with an adversarial system in youth court when it takes nine pages of legalese before a police officer is able to say to a potential accused young person, ``Do you want to tell me about this?'' or in so many words, ``Do you want to deal with accountability or responsibility?'' They must go through nine pages of legalese by way of warnings and disclaimers and what not.
The other issue I would like to deal with, with you, is one that is of particular concern to me as a former prosecutor and defence lawyer, and also a lawyer now - but maybe most importantly as a parent.
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My own son last August was witness to what I guess we could characterize as a relatively minor assault. Four high-school-aged boys - my son is 15 - were involved in a situation on a Friday night where they were riding their bicycles and another boy from a different group came along and one of the boys - one of my son's friends - was punched in the mouth, what we would call a ``sucker punch'', and the young lad ended up with about $4,000 worth of orthodontal work. But it was, in the range of things, not the most serious crime that happens in the streets of Ottawa on a given time.
That was in the first week of August 1995. The trial was completed last week, approximately nine and a half months later. As a parent, and for those of you who are parents here, I say to you: think of this situation with your own teenagers. If, for example, your teenager, a youth, a young person in your family, came home and in some way violated the house rules, either broke curfew or broke one of the family rules, and as a parent you were to respond by saying, ``I'll meet you in the living room next Friday at 2 o'clock, when we will set a date to discuss how we're going to respond to the violation of the rules'' and then it goes on and on. You can see that as a parent you immediately say, ``Well, that's nonsense''. While parenting may be an undefined skill at best, we all have an instinct that there must be a response, there must be a consequence, it must be meaningful, and, in our submission to you, it must be timely.
In our submission to you, one of the biggest problems that exists with the Young Offenders Act today is that the responses, whatever they may be, are not timely. Normally, when we make a presentation to this committee, we have a draft bill that has been prepared by draftspeople at the Department of Justice and we come in and we make comments, whether ``or'' should be ``and'' and whether ``it'' should be...things of that sort. We're not doing that this time; that's not the enterprise that this committee's involved in. But we would say to you that whatever else you think about in terms of dealing with issues of the Young Offenders Act, please think of timeliness.
As a result of the Ascov decision, which applied to all criminal cases across Canada, there is a rule that cases must be addressed roughly in six months. This was a decision of the Supreme Court of Canada in the late 1980s. Our submission to you is that there ought to be what is referred to in other jurisdictions as ``a speedy trial'' for young offenders - no later than 90 days. I don't want to use the words ``a speedy resolution'', whatever that may be, and we'll speak about that in a moment. I can indicate to you that in our deliberations there were a number who argued very strongly that that should probably be 60 days. I leave it to you to consider, in your deliberations with other experts and other people who may appear before you, that you ought to consider something in the range of 60 to 90 days.
Mr. Ramsay (Crowfoot): What about two weeks?
Mr. Westwick: Personally, I wouldn't have a great deal of difficulty with that, Mr. Ramsay, but I'm also very much aware of the practicalities that exist, not only for the police, but also for the system. But if you want my personal opinion, the faster the better. The formal submission we're making to you is no later than 90 days. But I hope, when you're considering some of the briefs and material that you have before you, that my little example of the parent saying to the child ``I'll meet you next week in the living room'' and just how silly that is as a concept will have some impact upon how you consider what is timely and what is not timely.
The other issue that I would like to address very briefly is that if you were to design - and in our submission to you we suggest that you consider this, based on Chief Ford's description of serious crime, of which there's a lot, and it must be dealt with separately and it must be a strong response, but basically dealing with all the rest, particularly the minor crimes... If you were to design a system that said we want a law that allows serious crime to be dealt with seriously, with real adversarial police, courts and all that kind of stuff, but at the same time we want a law that will allow flexibility to deal with the most minor matters, where really you're looking at diversion and alternative measures and all that kind of stuff, and we want an act that allows us to deal in the middle with those middle cases, depending upon the discretion of the people who partake in the system...I hope you share my view that we want that kind of act with that kind of flexibility.
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Our submission to you - it may be a bit of a strange one - is that you have that now under the Young Offenders Act. You have that act now. From our consultation within our organization, the chiefs of police across Canada, our problem with the Young Offenders Act is implementation.
Resources are not being applied either at the federal or provincial level to deal with the kinds of diversion, alternative measures, mediation and all of these other programs. And I'm excluding serious crime where there must be a serious response. But as for all those other cases, it's simply not being done. We're not here on a blame-laying exercise. We're simply here to say to you that it's not being done.
I encourage you. The recommendation included in here is that in your deliberations as you - and I hope you will - go out on to the street, as it were, you compile a best practices catalogue, because there are a number of things being done in Canada in many jurisdictions that work and work well. There are many things that don't work, but there are many things that are being done well.
It might be interesting to compile a best practices catalogue with your resources and to decide which of those you may wish to address by way of statute and which of those you may wish to address to people involved in the youth system by some sort of direction from the Solicitor General or the Minister of Justice in an advisory capacity.
Last, I very strongly encourage you as committee members to personally visit some of the sites, if I can use that term, where youth justice is implemented in Canada. Chief Ford has invited you to the Ottawa-Carleton Police Youth Centre located not far from here. You have an active court house close to you and you have sites across Canada where you can see the good, the bad and, indeed, the ugly of youth justice in Canada.
I have one small caution for you. If you're going to do it, may I make a small suggestion? Please do not arrive at some of these sites as the House of Commons parliamentary committee on justice and legal affairs with the trappings of government. Come in quietly, come in by yourself, come in individually and watch what happens.
I know you all have busy schedules, but take a walk down to Elgin Street, about a three-iron walk away from here, and walk into courtrooms 24, 25 or 26 and just sit there individually for a couple of hours and watch what goes on. Watch the way remands, adjournments and legal aid - the process - move and see if that has an impact. You may wish to look at several different sites to see whether there is indeed a difference in different locales in Canada.
Of course, I am familiar with the Ottawa system and can't speak about all of the situations. From what we heard in our consultations within the CACP, the consensus appears to be that the process is very much like what I'm familiar with in Ottawa.
I encourage your committee to go out. But do it in an unobtrusive and discreet way so you'll have a picture of what's really happening. I think that will do a great deal for you. It will supplement the kind of expert evidence you're going to hear from a variety of groups and will put the kinds of deliberations we hope you will make over the next period of time in the proper context and the proper framework.
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Chief Ford: Are there questions?
The Chair: We have to work first with a ten-minute round and Mr. Ramsay.
Mr. Ramsay: Thank you, Madam Chair. I'd like to thank our witnesses for coming in this morning. I'm encouraged by your recommendations and by some of the statements you've made.
We are looking at a justice system that's costing the taxpayers I guess close to $12 billion a year. Part of that is the YOA system. How are we to deal with this justice industry? Yes, we can walk down to Elgin Street and go into courtrooms 24, 25 or 26. In fact, I don't have to go there because I know - we know - what's happening.
There is what I call a ``criminal justice industry'' made up of components with very strong vested interests in maintaining the status quo. It seems at least some of those parts of our justice system are the least concerned about some of your objectives and your recommendations.
If I were to take my son into my front room and tell him that based upon the recommendations of your association I'm going to adjourn for 90 days the consequences of what he has done, the hearing that ought to be held and the decision that I'd make, it would have the same impact as... I look at your recommendations and I think they're going in the right direction.
I have questions I'd like to ask you, questions on matters such as disclosure. This morning we touched a little bit on this with the witnesses that proceeded you. What are your feelings about disclosure, particularly when it comes to violent offences and repeat violent offences? Is it in the best interests of justice and community safety to withhold the identity of repeat violent offenders?
It doesn't seem to me that it is. If my neighbour's son next door is having difficulties and I don't know about it, I can't help them. This leads to the high rate of juvenile suicide as well. If I don't know my neighbour needs a hand, how can I offer it? How do you feel about that?
I have other questions, but what about the issue of disclosure? What do you feel about the encumbrances placed upon ``the right to know'' about individuals who have demonstrated by their behaviour they can be a danger to society? Do you think that information on repeat violent offenders ought to be withheld?
Mr. Westwick: Let me answer that in this way, if I can. In the CACP we always make a point to speak about disclosure in relation to high-risk offenders whatever we're here talking about, whether it's about young offenders or firearms. We've been here on a number of matters over the last few years. And you've given us the opportunity today to speak about disclosure for high-risk offenders.
We wait anxiously, as do many others, for government legislation dealing with the release of high-risk offenders into our communities. There has been no other issue that has been more difficult for police to grapple with across Canada, because you have to strike the balance between the protection of the community and the privacy interests of individual offenders.
I have a problem in answering your question: we are awaiting legislation that will help us address that issue with high-risk offenders. It boggles the mind how you would begin to strike that balance when you're dealing with young offenders. I'm trying to say that the issue is complicated enough when you're dealing with high-risk offenders. It becomes even more complicated when you're talking about young offenders.
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I can't say on this point I am speaking for the CACP, but I happen to believe in rehabilitation in the youth justice system. I am not sure I'd want to make the same statement in the adult system, but I do believe in it insofar as youth justice is concerned. Therefore, I would be very much disinclined to see a process that involved the labelling of people in a public forum that would in some way inhibit that kind of rehabilitation or alternative measures process.
I think Mr. Asselin has a comment on that as well.
[Translation]
Mr. Denis Asselin (Member, Canadian Association of Chiefs of Police, Legislation Committee): Mr. Ramsay, the recent amendments to the Young Offenders Act that came into effect on December 1, 1995 authorize a peace officer to get permission from a youth court to reveal the identity of a young offender in two cases only. First, when this is necessary to help the police arrest the young person, and second, when the young offender is a danger to society. I think this is adequate, and that these should be the only two cases in which the identity of young offenders may be revealed. The purpose should not be to punish young people a second time for their offenses, after they've already served their sentence.
[English]
Mr. Ramsay: You referred to the labelling of people, that it might be detrimental to rehabilitation. You know, if we're going to do anything about the justice system that will approach your concerns and approach the concerns of many people across the country, I think we have to be very practical. When someone does something, it isn't the courts or anyone else that labels them. They label themselves by their actions, and that's one of the consequences of their actions.
What we have done, as a country and a society, is to remove the consequences of actions, the consequences of criminal conduct. We've removed the consequences. We've protected the individual because of our concern for the rehabilitative possibility of the offender. What we have done is to protect their rights, which, as I and many other people believe, is detrimental to the safety of society.
I ask this very matter-of-factly. How can we build a fair and just system when we are prepared to hide - if I can use that term - the truth? How can we build a system that's going to work and provide what we want, which is a safer society, when we fail or refuse to disclose, by statute, the truth of the consequences of a person's actions, whether they have been convicted or whether they have been sentenced? The first penalty we pay when we commit an offence is disclosure. Who robbed the bank? What did the judge give them? That allows society a degree of assurance and a degree of awareness of how to protect themselves and their children.
We heard witnesses on Tuesday saying that very thing. Because of a lack of disclosure, they don't know who to warn their young children to stay away from. They don't know who they should warn if they don't know that the young offender down the block has been convicted repeatedly of drug trafficking or some other criminal offence.
I suppose members of our committee have to prepare themselves - at least I do - for a lot of frustration until we get through this procedure. But it seems if we're going to do something real about reforming our justice system, we have to be practical. I don't think the practicality of disclosure is being addressed within our existing laws. If it worked, it would be great.
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To what extent is it working? In fact, I think it was touched upon by one of the questioners to our witnesses this morning, or else they brought it up themselves. If a person commits an offence, and they know they're not going to have to pay that price - that their neighbours and their friends and society know what they have done against society - then, hey, they're laughing. Some of them will develop that attitude. I don't have to worry about what I'm going to do because no one's going to know about it except the policeman, and he can't tell anyone.
I understand the amendments Bill C-37 brought in, which allow principals to be made aware, and some other... It has affected disclosure to a limited degree, but I think it's very ineffective.
The Chair: Mr. Ramsay, your 10 minutes is well gone.
Mr. Ramsay: So perhaps you could address that, the question of disclosure and whether we're approaching it from a practical point of view.
The Chair: Give them a chance to respond, please.
Mr. Westwick: Generally speaking, I would agree with some of what you said, and disagree with other things. When you say we're withholding from the public the consequences, I can't agree with that. The privacy provisions of the Young Offenders Act protect the release of the name. I understand you addressed that as well, but I think you may have overstated the degree of confidentiality, the degree of privacy, that exists around the Young Offenders Act.
Second, if you reflect back in the committee Hansard or in your own notes to the submissions we made on Bill C-37, we were here before you saying there were some ludicrous situations in place where police officers could not tell teachers, could not tell principals, about students in their school who were charged with serious offences. It was nonsense. To that extent there has been some improvement.
You talk as well about practicality. I'm always caught by practicality. I think that's an important concept. But generally, within the adult system the only difference is that the name of the accused, the name of the convicted person - whether it be as a young person - is not published. The media will point out that they are prohibited at law from publishing the name. But the details of the recent horrific case going on in Ottawa, for example - it's currently adjourned - were on the front pages of the paper last week, put forward to the public in the harsh light of day, which made us all squirm.
So there's a balance. I'm not a sociologist. I can't answer all the questions about the labelling concept and all that. But I do think the act attempts to strike a balance between privacy and protection of the public. I would have little difficulty seeing provisions to deal with the kinds of exceptional situations Denis pointed out earlier expanded broadly - as long as it's within the discretion of a judge, as it currently is.
The Chair: Now to the Liberal side for ten minutes, beginning with Mr. O'Reilly.
Mr. O'Reilly (Victoria - Haliburton): Thank you very much, Madam Chair.
Thank you for coming. I compliment you on your presentation.
In my former life, I happened to sit for two terms on the Ontario Board of Parole. I was there when the Young Offenders Act was introduced. I saw hardened criminals going back out and coming back into the system as young offenders. I also have appeared as a witness in an assault. So those two particular areas in themselves are areas in which I'll ask you to expand on your recommendations.
I made seven appearances in court. I went through two judges, two defence lawyers and two different crowns. It started with the first appearance in November 1991, I believe, and ended in October 1992. I thought I was going to become an old man, or older than I am, by the time it was over.
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This particular person was a female who had committed an assault, and by the time the sentence happened she was almost a grown woman. In fact she was pregnant at the time she was sentenced, which influenced the sentencing system. She ended up with six months closed and six months open. This was a high-risk repeat offender.
I also wanted to say that with incarceration, there is no such thing as a short sentence. If you've never been to jail, one night is a long time. Having worked in the institutions, I was always glad I was allowed to go home at night.
I look at the Young Offenders Act, and the improvements that need to be made to it are in three categories. First of all, first offenders have to be dealt with separately from repeat offenders, and perhaps you're touching on that. Then you have the age category, from whatever it starts at to that magic age of 15 or 16, where treatment should differ from that of repeat offenders aged 16 to 18. I want to touch on that.
The facility part of arrest and incarceration, where all of that is mixed in together, creates tremendous problems for the people who work in the system, and not only for the offender, particularly a first offender coming into that type of situation.
I want your comments on the background information from school records, which is so vital. Sometimes it's available and sometimes it's not, depending on the confidentiality rule. In particular I want you to expand on your recommendation number 1 in the area of non-parental support for an accused in the system.
A section of your recommendation number 2 says most cases presently before the court would be lost because of the backlog and the overburdened system we are presently in. I want to know how my example of the 7 appearances over a period of 11 months would fit into that. And that's not counting from the time the offence happened; it's from the time of the first court appearance. The offence was actually well before that. It was probably six months later that it ended up coming into court.
I want to know how we would overcome the lost cases that would happen in that recommendation number 2. I've kind of put all my questions in one basket here so I won't have to repeat. I'm learning from Jack.
Some hon. members: Oh, oh!
Mr. Westwick: It was a big basket.
Let me deal with the last first, if I can, and then I'll go from my notes as I can recall. In terms of the timeliness, I share your view. I share your view very much. I feel very strongly that courts should enforce - and I don't like the term, because it sounds a little too American and conjures up different images - efficient trials, as opposed to speedy trials, quickly.
You might guess that I might be inclined to even see it be 30 or 60 days, but judges have to be able to say to people this matter will be heard next week or in two weeks or whenever it's being adjourned. Right now there are so many other pressures, and I don't want to come in and just judge-bash. That's not my intention.
To some extent, as Mr. Ramsay described, it's the criminal justice industry. There are all sorts of pressures, not the least of which is the charter of course, in terms of how the judges have to balance that kind of issue. If a statute is firm and explicit that a trial must begin before a specific date, the court will then have a clear direction as to how they are to exercise their discretion.
There's just no question that the number of adjournments that go on... As a defence lawyer, it's a tactic. If you can get an adjournment, you're sometimes doing a good job. You can wait until the witnesses don't show up or whatever.
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It's important that the matter be heard quickly. I leave it to you in your deliberations as to what time you deem to be appropriate, but I think it has to be very timely.
On your question in terms of background information, I'm not sure about that one. You have to make a couple of presumptions. If you're talking about dispositions and sentencing under the Young Offenders Act in terms of what they do, I'm of the view that a court should have before it all information, and that would include background records, Ontario school record cards and the equivalents in other provinces, and whatever else is necessary.
For just about any significant disposition that is being handed out in Canada now, there will be what they call a predisposition report, which is compiled by a probation office. It reviews a broad range of issues, and that kind of information should be included.
The second category where that kind of information would be considered is where you're dealing with non-adversarial options. If you're into an adversarial court-like setting, then background information has no place, but if you're dealing with mediation, alternative measures, and that whole other scheme of things, then that background information is important. It's not just information, but, quite frankly, background people. Bring the principal in, bring the teacher in, bring the next door neighbour in, bring the victim in.
Some interesting experiments have been happening in different places in the country, and these are working. They're not appropriate for every offence. Clearly they're not appropriate for the serious offences, but they are very appropriate for a large range of offences. When you're within that range, then that background information and the source people are critical.
The only other comment I'd like to make is on a couple of your points that deal with prevention. In the criminal justice system we do a lot of talking about prevention but we often don't put our money where our mouth is. The police must plead guilty to this criticism as well. Prevention is extremely important in real and tangible ways, and to some extent community policing is prevention.
When you're talking about preventive programs, you have to do real and tangible things, hopefully within a partnership with the educational system, to get the message out. In high schools and lower schools across Canada you have a captive audience. They're captive every single day. Why are we not using that vehicle as an opportunity to get across a prevention anti-crime message on a much broader basis?
What you have now are attempts to do school resource officer programs and a number of preventive programs with limited resources within police departments. I'm particularly proud of the Law Day program we had yesterday. In Ottawa we had two mock trials, one of which was chaired by Mr. Justice Sopinka, which was a bit of a coup for us. The second was a French mock trial chaired by Associate Chief Judge Lennox of the provincial division, where we had literally hundreds of high school students watching a Young Offenders Act trial.
That was good and it was a success and everybody clapped and I think they learned something, but that's one day a year that we get that kind of hard core message out. In my opinion, that kind of message should be delivered on a much more regular basis, not just as part of special programs but as part of the curriculum.
I'm sorry; I'm going on too long.
Mr. O'Reilly: Are you then advocating that OSR reports - -
The Chair: You've used up your time.
Mr. O'Reilly: Oh, I'm sorry.
The Chair: That's okay.
Mr. Ramsay, you have five minutes.
Mr. Ramsay: Bill C-41 allowed for alternative measures for adults, and we have that for youth as well. Do you support alternative measures for all offences, including violent offences, or would you limit the use of alternative measures to non-violent offences? You have listed serious crimes, minor crimes, and all in between. Would you support the use of alternative measures for all crimes?
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Chief Ford: It goes back to what I was talking about earlier. To say we support the use of alternative measures for all crime...I think one has to be careful you don't throw everything into the same basket, so to speak. There is a ``violent offence'', such as Mr. Westwick related from his personal experience in talking about the length of time a trial becomes... It is in essence a violent offence for somebody who was assaulted and there was some violence associated with it.
I have no idea what the background of that case is, but using it as an example, depending on whether that case was a first offence or not, I think alternative measures can be used even in some violent offence cases for the rehabilitation of a young person.
I don't think we should ever say that no, you can't use alternative measures for violent cases. I think that would be an interpretation of what violent cases are. If you're talking about murders, that's one thing. Are you talking about assaults or are you talking about other issues such as robbery? If somebody uses a knife in a robbery, that's a violent offence. Although no one is hurt, it's still considered a violent offence.
I think we have to be very careful not to say that all violent offences will be dealt with this way or that way. We have to have an open mind when we're dealing with these issues.
I believe strongly, and the CACP believes strongly, that alternative measures do play an important part in the rehabilitation process with young people. There are a number of very good examples around of the benefit of alternative measures, and in some cases those have been in violent cases.
Mr. Ramsay: Thank you.
I want to turn to another area, and that is the degree to which legislation has hampered police officers in dealing in an informal way with youths who have violated the law, perhaps in what your submission has referred to as minor or some of those offences that would fall into the all in-between category.
Back in my day, when I was a peace officer, we had considerable discretion to deal informally and keep the kids out of the system. I see now that peace officers, for goodness' sake, can't take a statement unless they go through this procedure. Part of their job is to gather the information, including whatever the offender may wish to reveal at the time.
To what extent has the legislation hobbled our front-line police officers in dealing with the minor categories of crime over the years? Has it grown more cumbersome for peace officers to do that or has it remained pretty well the same over the years? Where is it at now?
C/Supt Boniface: I have a couple of comments on that. I think there is probably a perception that, using your words, it has hobbled them more. That probably is more a perception. I think it has hobbled them to an extent. I don't think you can look at this and not say it changes the way I do business if I'm on the street today versus 10 years ago.
I think one of the things that would be beneficial for the committee to do - and that's why we referred to the notion around best practices - is to look to some of the innovative programs that are going on. I come from the Ontario Provincial Police, and a program I have been made aware of is where we're running a teen court in a high school and the court that sits is one of peers.
So I think within some framework, sir, there is the ability to do it.
When you deal with specifics like this type of thing in terms of the number of pages one goes through to explain to somebody what their rights are...I think as a parent of a teenager reading through this, at the end of the ninth page I would wonder what the message was to me as a parent, let alone as a child. To some extent I think it has changed the way business is done.
I think there's some work out there being done within the confines of the legislation. That is limited to the minor offences and to those on the bottom scale. So, certainly, as soon as you put this statement before a police officer to work with, it makes the system cumbersome.
The Chair: Thank you. Mr. Knutson.
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Mr. Knutson (Elgin - Norfolk): The issue of the form was raised with me by the head of the detachment of the OPP in Tillsonburg, which is in my riding. Is this a recommendation for us to adopt this form, or is this just a description of the current form?
Ms Bethel (Edmonton East): That's what it is.
A voice: That's the actual form.
Mr. Knutson: Can you provide us with a recommendation as to a new form?
Mr. Westwick: Only half facetiously, I'd say throw that one away.
Mr. Knutson: Right, but can you, not today necessarily, maybe send me a revised form?
Mr. Westwick: That's why I gave you that form in the context of remarks about the adversarial component of the youth justice system. If the system is operating in an adversarial way, then that's the kind of form... It could be something like it. You can play with the wording, or you can try to chop it out, but much of it is charter-driven.
Mr. Knutson: Which we're not going to change.
Mr. Westwick: No, I wouldn't have thought so. But if you're talking about non-adversarial approaches, which is all that other range, then you don't need the form. You don't need any form at all, because you're then talking about - there are so many words to describe it - dispute resolution and all those kinds of things.
Mr. Knutson: Fair enough.
Mr. Westwick: What you need in the act - in large percentage it's there now - is the discretion to divert one way or the other. But once you're down the adversarial track, then you're looking at a form something like that.
Mr. Knutson: Well, fair enough. I don't disagree with anything you've said, but my understanding is this. Say you pick the kid up and you go over this form virtually within minutes or hours of getting him or her to the station. Presumably you take a statement from him before you make a determination as to which route you want to go.
It seems to me, regardless of the improvements we might make to give you more discretion and better diversion, you may end up with a form for everybody at the end of the day anyway. I could be wrong there, but I'm just saying we should assume, for the sake of argument, that at the end of the day, we're still going to end up with a form.
I'd like to see a proposed new form. Is that a fair request to make?
Mr. Westwick: The difficulty you have is that the entire adversarial approach of the Young Offenders Act is based on due process. It's based on a rights-oriented model, much like the adult system.
Mr. Knutson: And hundreds of years of history.
Mr. Westwick: And that flies directly in the face of the declaration of principle, which says you ought to take responsibility and be accountable for your actions. They're completely irreconcilable.
If you have, for example -
Mr. Knutson: I do hear you on that point. I'm just saying that, realistically, where are we going to be three years from now? It's going to be a mixed system, with some diversion, some adversary. There will probably be a form at some point in the process, likely at the beginning. I'm just guessing. I just thought it would make sense that if you wanted to make a recommendation as to a new form, this would be the place to do it. But if you don't want to, that's fine.
Mr. Westwick: Sure. If I may, we can take that away and maybe submit something later.
Mr. Knutson: Let me deal with the issue of age. You mentioned Ontario a couple of times. I'm familiar with, at least on a superficial level, the Ontario child protection law. My Children's Aid people in my local community tell me that when someone 10 or 11 years old commits a crime - let's say they burn down a house - if that child is not in need of protection - in other words, they're not being abused - there's nothing they can do.
That's the message that goes out to the community. That infuriates the community. It's the recommendation of my local director of Children's Aid that we should lower the age. Maybe we can get your views on that.
Chief Ford: Lower the age from 12 to -
Mr. Knutson: Yes, as a way of giving authority some leverage to intervene. People in the community think Children's Aid should intervene, and Children's Aid can only intervene when there's a child in need of protection.
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Chief Ford: We've had some concerns about that process. We feel there are cracks in provincial legislation vis-à-vis young offenders issues, etc., that need to be beefed up and shored up. I know our provincial counterparts in legislative amendment committees across the country are looking at beefing up that.
As to lowering the age, the position is no, we don't see it necessary to lower the age. The number of incidents involving young people under the age of 12 committing those types of offences is not that significant.
C/Supt Boniface: I'll add to that.
In the previous submission we made there was some suggestion that the committee may wish to look at whether there should be a mechanism to pull children who are in extremely serious circumstances... At the time we appeared before this committee the Bulger case was going on in England, and I think we made some suggestion then that if you created a mechanism that allowed, in those very exceptional cases, pulling them into the broader system, that may be a way of dealing with the very serious ones.
I think Chief Ford's assessment is that maybe, as opposed to looking at broadening it, we need to look at what the provincial legislation does in relation to the child welfare cases.
Mr. Knutson: Okay.
The Chair: Thank you, Mr. Knutson.
Mr. Ramsay, you have five minutes.
Mr. Ramsay: Thank you, Madam Chair.
To follow up on that, I disagree with you on this, because the capability is there for the older ones to use the younger ones, who are immune to any kind of police action, to commit offences. Ten- and eleven-year-olds are committing criminal offences now.
Under the old Juvenile Delinquents Act the police and the courts had the authority to deal with any criminal act regardless of age. If we do not adopt that approach... What is wrong with that? What would be wrong with lowering the age? That's what I would ask, and that's what many people are asking. If the age were lowered, how would it impair the whole objective of a safer society?
Out west in my province of Alberta, one child stole car after car after car. If their rights were to be upheld, the police couldn't even take them home, because it's a form of custody when they take them into the police car in order to take them home. What if he says ``I don't want to go home''?
It leaves society wondering why. Why are you recommending this to this committee? I'd ask you that from that point of view. What would be the danger in reducing the age perhaps to 10 years?
[Translation]
Mr. Asselin: Section 38 (h) of the Quebec Youth Protection Act provides that 11-year olds who commit serious crimes definitively have significant behaviour problems, and that their behaviour is proof that their parents are not able to deal with the problem adequately. In such cases, the young persons fall under the jurisdiction of this act, because the same staff, resources and tools are used as would be used if the same offense were committed one year later, at age 12.
For us in Quebec, reducing the age is not appropriate, because the Provincial Youth Protection Act can be applied with the same measures and solutions as if the child were 12 years old. In Quebec, the provisions of the federal Young Offenders Act require the same staff and resources as the Youth Protection Act.
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[English]
Mr. Ramsay: Yet we heard Mr. MacNamara point out on Tuesday that in some provinces there aren't the resources within the social programs to deal with it. He was urging that surely in cases like this, society should empower their police forces to deal with the criminal acts of children under the age of 12. Notwithstanding what you have just said, I see no danger to society and I see no danger to the youth who come in conflict with the law if the peace officer has the authority to deal with children under 12 years who commit a criminal offence.
Mr. Westwick: This was discussed when Bill C-37 was before this committee, and had the age been lowered to 9 or 10 or whatever you want, you would have a situation where 9-year-olds and 10-year-olds would be faced with the same kind of form to take a statement that grown-up lawyers can't deal with. So one has to balance.
You may find that the position the CACP has suggested in the past has some appeal. It's like the transfer provisions in the adult system. It's a transfer system from below, where those rare cases exist. I'm not a legislative or constitutional expert, but it seems to me a strange approach to law-making to address a federal law simply because there may be gaps in the appropriate provincial legislation across the country.
Mr. Ramsay: Members of society across this country are sure expressing some concern about this when they look at it and see that nothing is being done to protect them, their property and their own children against people committing offences who happen to fall into that age category. I don't think we're serving society well if we ignore that.
The Chair: Thank you, Mr. Ramsay. Mr. Discepola.
[Translation]
Mr. Discepola (Vaudreuil): I hope I will have enough time to ask three questions.
My first question is to Mr. Asselin and it is about the need to disclose the names of young offenders.
In answering a question asked by Mr. Ramsay, you said that you were satisfied with the current legislation. However, could we not make it mandatory that police officers, school principals or other individuals involved in the case disclose the names of young offenders?
I'm not talking about a case like the famous one involving the Toope family in Montreal, because, generally speaking, the community is already familiar with the names of such young offenders. However, if the young person moves elsewhere in Canada, I think I'm entitled to know whether there is a young murderer or young offender attending the same school as my children. My children must at least be aware of the fact.
[English]
The second question is for Mr. Westwick. I subscribe totally to reintegrating youth into society and subscribe totally to making sure they are accountable and responsible for their actions. But I'd like to pick up on the point you made about the young person having received $4,000 of orthodontal benefits. In the question of responsibility, should the parents not be obligated to compensate the victim of such an act, whether it's a B and E or vandalism of any sort, always taking into account the ability of that family to pay? I don't care if it takes that family or that youth his lifetime to pay back, but I think the sheer fact that he should be obligated to compensate the victim should be looked into.
My last question is for the police chair, Mr. Ford. I would like to have your comments on allowing more flexibility in detaining young offenders beyond their original sentence. Right now they are given an X firm sentence and at the end of it, they are out on the street.
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Again, I use the case of the Toope murder because the 13-year-old who was sentenced was tested, and it was shown that reintegration of this person into society would be very difficult. Under the old law he is going to be out in the street, in my community, in my street where he lives, at the age of 16. Should not greater flexibility be given to the youth justice system to allow intervention at that stage so that if the person is still not able to be reintegrated, we can detain them further?
[Translation]
Mr. Asselin: As I said before, under recent amendments to the act, the youth court may authorize the disclosure of young offenders' names in cases where they are a danger to society or where this is required in order to make the arrest.
However, other changes to the act were made as well, and they allow a peace officer, without even going to a court, to tell school officials that a released young offender is dangerous or violent. The objective is to enable school officials to provide the necessary follow-up and take the steps required to protect other students.
This type of information can also be required when young persons are supposed to meet certain conditions. School officials are in the best position to ensure that these conditions are met.
Second, you spoke as the father of a child who may have been the victim of a criminal act. However, it could happen that your child committed the offence, despite your best efforts and despite your desire to bring him up properly.
If your other children, the other members of your family, your neighbours and your friends are told that your son committed an offence, this could be quite harmful to you, and it's not clear that this information is going to better protect future victims.
[English]
Mr. Westwick: With respect to your question about the damages, if you're talking about the rights model, if you're talking about after a trial, in this particular case there was a reasonable doubt and there was no conviction. You can't ask a person who has been found not guilty to take responsibility for damages they've been acquitted of.
However, if you're talking about the range of options - alternative measures, dispute resolution - I suggest that these are not only a benefit for the young person accused but are also a benefit for the victims. They often have an opportunity to get the matter off their chest, to vent some of their frustration.
I'm by no means an expert in mediation, but we're seeing a mediation-like process, alternative dispute resolution techniques, being used in a broad range of applications such as employment law. We're seeing it finally used in minor adult criminal matters. Clearly the option exists, and without getting into all the facts of that case, it might very well have been appropriate. I think the parents of the young boy with the teeth damage might have been very happy to have said that if somebody made some kind of concession, everybody could have gone on their way. The result that occurred was satisfactory to no one, save and except the defence lawyer who made money on the deal.
Mr. Discepola: Compensation was given.
Mr. Westwick: Yes, absolutely.
The Chair: Chief Ford.
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Chief Ford: With respect to flexibility in detaining people longer than the sentences they've been given, I'm not familiar with the aspects of that particular case. The maximum sentence until recently was three years, but we've been grappling, from an association point of view, with violent offenders in the adult criminal population in custody and keeping them in custody longer than their sentences. I think we've made a number of presentations with respect to that.
I think it falls within what we're asking this committee to look at, which is youth offences from serious offenders to minor offenders and all those in the middle. I think that flexibility should be there when you're considering serious offenders, such as the case you presented to us. There are obviously going to be those cases where you have to have the flexibility in the system to allow for treatment of very serious cases where people are not rehabilitable, in the view of the people who are treating those people - both adult and young people - who have more expertise and have the capability to determine what that person may or may not do in the future.
The Chair: We have just a couple of minutes left. Do you have anything further to add, Mr. Ramsay? I am going to hold you to two minutes.
Mr. Ramsay: With regard to this draft questionnaire, and to follow up on what Mr. Knutson was asking, I understand this procedure that's to be followed by peace officers when questioning a young offender is driven by the law. So this format can't change unless the law changes, including the Charter of Rights and Freedoms. That's basically my understanding.
If, as you say, this is driven by the charter and by legislation, and until such time as the legislation or the charter changes, you're going to have to follow this procedure.
Mr. Westwick: I'm not a constitutional expert. I think you could create a system for taking statements and accepting responsibility that would be considerably less complex than this, without having to undo the charter or employ a notwithstanding clause. It may take some creative drafting, but I'm satisfied it could be done within an existing model. But it would certainly contemplate changes to the YOA.
Mr. Ramsay: You definitely want that.
Mr. Westwick: Sure.
Mr. Ramsay: Thank you.
The Chair: Ms Bethel.
Ms Bethel: Thank you, Madam Chair.
I too am from Alberta, and while I'm sure there are some there who think boot camp is the way to go... There has been a lot of progress in Alberta, especially with community justice panels. We're really quite proud of that. In Edmonton, of course, we call them police services and not police forces.
There are what we might consider to be best practices in Alberta, and that gets to your recommendation number 3. You say you think we should be comparing provincial roles and producing a catalogue of best practices. Would you go so far, for instance, as considering an operational audit to really and truly assess the effectiveness and efficiencies of these best practices? Who would be best to do that? Do you have any suggestions for us on how we might get provinces to agree?
If you can answer that in one minute, I have another one.
C/Supt Boniface: You're probably much more skilled at getting them to look at that than we are.
Ms Bethel: We're talking about Alberta here.
C/Supt Boniface: I think it's essential when you have a compatible system to your legislation, or presumably compatible, to look at it in the context of how the implementations are being done across the country and in terms of how effective it is.
Quite frankly, on the question of best practices, we are even looking at the various organizations we come from to see what's going on and questioning - across the Law Amendments Committee our representation goes from Alberta right through to the east coast - having an awareness of what's going on in our own province in terms of police practice around youth programs. So it is a responsibility that likely falls to all of us in some regard in that way. I think it's just essential, if you're going to review it in the context of what this legislation is, that you review it in its application.
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Ms Bethel: But in terms of resources for alternate measures, they're clearly a provincial responsibility, and clearly, in my view, there are provinces abdicating that responsibility.
C/Supt Boniface: Certainly in terms of information from our members there is a complete difference of interpretation by the provinces across the country.
Ms Bethel: How can we accommodate, or I guess encourage...?
Mr. Westwick: Maybe by developing a catalogue of best practices. It may be more here of moral suasion than of exercising some kind of federal muscle. If it can be proven that something works in one province or another and that it has cost-saving benefits - and I'm unaware of any government in Canada that's not looking for ways to save money - if the best practices from a particular region are applicable elsewhere, that may be the strongest ammunition to convince -
Ms Bethel: The last part of that question was, who would be best to do this analysis of best practices? Hopefully it would be an operational audit. But who would be best to do that?
Chief Ford: When you're talking about an operational audit, you're talking about whether or not it's a successful program. It depends what the measuring stick is in determining the successfulness of the program.
In my view, if I may, with the youth centre we have... I've been to Edmonton - I lived in Edmonton when I was a young man - to look at the community policing programs there, and I went to Calgary as well. They're excellent programs. As a matter of fact, we've taken some of the models and used them here. With our youth centre, one of the criteria we used to determine its effectiveness was some of the crime rates in the neighbourhood surrounding that youth centre.
Ms Bethel: It's not the method. It's simply who, what group, what organization, would be -
The Chair: Perhaps I could give you some assistance. There already are some federal agencies dealing with that, including the National Crime Prevention Council and others.
Chief Ford: The National Crime Prevention Council and the ministry of the Solicitor General, both provincially and federally, are the best overall bodies to look at those kinds of programs. As a matter of fact, the solicitor and attorney generals, depending on the provinces, have people in place. For instance, I'm from Ontario. There's a policing services division right here within the province under the Solicitor General. They do audits of police departments to determine effectiveness of different programs within it. They monitor them.
The Chair: I want to thank you very much. I don't know if you realize it, but what you presented really dovetailed with what the churches presented earlier today. So it's been a really productive morning. We really appreciate your approach. Thank you.
The meeting is adjourned.