[Recorded by Electronic Apparatus]
Tuesday, April 30, 1996
.1112 
[English]
The Chair: Order.
I welcome the Canadian Police Association. I'm going to declare a conflict, almost facetiously, because I want to welcome especially Neal Jessop, because he's from Windsor. I've prosecuted with him, I've defended against him, and I've been a victim in a crime that he investigated. So I don't think you want to let me ask him any questions, although I could ask some quite interesting ones.
Mr. Neal Jessop (President, Canadian Police Association): I could give some quite interesting replies.
The Chair: Anyway, it's very nice to have you here. You know the drill. We've got until about 12:30 p.m. I know that there are a lot of questions, and I hear that you've got something burning in your mind that you want to say.
Mr. Jessop: Yesterday, when I was at home reading our brief over this issue, I was notified that one of our members had been murdered in Montreal. It's very difficult for me to speak to this particular act at this particular point in time. As you know, we've just dealt with it, and the ramifications of what has transpired in the previous amendments are yet to be known. It is an important act.
You have our brief in front of you, and obviously we will be prepared to answer any questions you might have regarding that brief or our experience in the area in which we have expertise.
As you know, Mr. Newark is a twelve-year prosecutor in the province of Alberta. I have been in police work since 1969, and in investigation since 1979, and of course have had contact with young people for all of that time.
However, the burning issue for us today - and I would like to make a few comments about it - is government's justice agenda. This of course is an important one, the one we're here to discuss today, but you have before you dangerous offenders proposals and you have not yet acted on those. You have not yet acted on section 745.
.1115
Yesterday, when I read the accounts from the CPA and when I read the newspapers and comments of experienced police officers regarding the shooting in Montreal, it occurred to me that those experienced people... I and a number of prosecutors, and indeed defence counsel, would say the same thing: whoever killed the officer in Montreal, when we find him - and we will find him - will be an experienced criminal. He went so far as to take the officer's notebook, and then he burned the car that he used to make his getaway, which was reported stolen in the first place.
Dangerous people continue to be released on our streets and murderers convicted of first-degree sentences and second-degree sentences where a recommendation in excess of 15 years is made continue to be released. Dangerous people continue to be paroled. Mistakes continue to be made in the parole system.
I heard the comments of my associate Kim Pate before we took this position. It's a view, I guess, of Kim - and I don't mean to put words in her mouth - and some of her associates that we should do away with the justice system. I don't think so, and I don't think many of you agree with her, either.
We should change some things for children to give them a better opportunity to avoid contact with the law. But if any of you think that the bad people are going to go away... I think you, probably having had some of the same life experiences as I have had, know that isn't going to happen.
I think the priorities are wrong. As I understand it, a number of members are not here today because you're dealing with gay rights legislation. Well, my people, the people I represent, are being murdered in the street because the laws are not strong enough to deal with the people who do those sorts of things. In my view, that's wrong. The order is wrong and the priority is wrong.
Mr. Scott Newark (Executive Officer, Canadian Police Association): I don't have anything to add to that. We'll try to answer any questions you may have.
The Chair: Thanks.
Mrs. Ablonczy.
Mrs. Ablonczy (Calgary North): I had a number of questions prepared from your brief, but when the people you represent are dealing with such a tragedy, it's very difficult to focus on some of these matters that have been hashed over a number of times.
I certainly have taken note of your comments that we need to reconsider the priorities of our initiatives in the justice area. I certainly support you in that.
I would like to discuss some issues so we can perhaps, if possible, prevent the development of criminals such as the one who killed the police officer in Montreal - although I agree with you that there are some people to whom evil choices seem to come more naturally than one would wish.
There has been a discussion this morning, in another presentation, about the deterrent effect of alternative measures. In your brief you too recommend the use of community-based, informal resolutions for youth crime, which include alternative measures, such as community service, rather than open or closed custody.
.1120
I'd like to ask you the same question I asked the previous witness. That is, do you believe these alternative measures should be used for both violent and non-violent offenders, and are there any distinctions you would wish to observe in the effectiveness of alternative measures with those two groups of offenders?
Mr. Jessop: This is one area where I might have some sympathy with the chair. I would like, from the chair, because of her experience and mine, to describe to you, first, what alternative measures are, something many people don't know about.
I'm sorry; I don't mean to exclude anyone here, because there are other people, includingMr. Newark, who understand this.
Alternative measures are when the complaint, whatever it might be, is brought to the police. Many of us know - and in my view, little credit is given here - that police officers, when they first come into contact with a young person, do a background check. The first thing we do is check to see if we've had any contact with this person before, let alone whether or not they've been charged. That can be any kind of contact we might have had - as a witness, as a young person or as a child who's committed some kind of an offence. Our first effort is to see if this is the first indication that this young person, this child, has come to our attention. We base our reaction on that to start with.
Then we view the nature of the offence, if it's a property offence, if it's committed alone, without thought, or things like that. We take this into consideration. We take into consideration whether or not it's committed with other children or young persons who also have or have not had contact with us.
Long before we even think of charging a young person we contact their parents. We get an indication as to the parents' attitude toward the crime, or toward, in some cases, the indiscretion, whatever it might have been.
Having done that, if we have the parents' input, sometimes one of the most relevant factors for us - whether or not it's right - is whether or not this child or young person comes from a single-parent home. Almost without exception we find that the young people in trouble with the law come from a family situation where there's only one parent, who because of economic or other circumstances can't pay enough attention to the child, or where there has been some kind of - sometimes - violence in the family, where this child is obviously looking for a way out, or looking for some kind of attention.
When we get all of those things together, as police officers we consider the nature of the crime. We don't start thinking about a charge until there's no alternative to that. Once the charge is laid, if it's laid, then the diversion process starts again with the Crown, or in many cases, if they've retained defence counsel by that time, with the defence.
I don't think individuals realize what kind of effort goes into this situation before we reach a formalized diversion process. Often the diversion happens long before that.
I have children. I have experience with other people's children. With my own children, I've experienced a situation where a good police officer realized the difference between a crime and an indiscretion and did the right thing for my family and for other people's families.
So when I hear some people talk about diversion, they start talking about it in the area of the court. Anybody who thinks that doesn't happen long before the charging situation begins is, in my view, wrong. I have contact with police officers across the country. Anybody here who has had kids in contact with police officers and has had that sort of problem knows that it's pretty well a standardized procedure across this country.
.1125
In areas of violence we treat things a little differently because we have a victim, a victim who we can see and who has paid some kind of physical or mental price for what has been done to them. On the other side, the conduct has reached violence towards a person. We look at that much differently. I think the crowns do, I think defence counsel do, and I think the courts do.
Mr. Newark: I agree with Neal's assessment that you do not want to underestimate the front-end filter, if I can put it that way, that goes into it before the formal bureaucracy is invoked, now known and sanctioned as alternative measures. We even have it for adults now in Bill C-41. There are many stages along the way. It reminds me of the arguments in relation to section 745. You have to do a fair amount in this country to be convicted of first-degree murder or convicted of second-degree murder with parole ineligibility set at more than 15 years. So there's a front-end filter to the process that is significant in judging what actually comes out the other end.
As a general statement, I think it's fair to say that if we can find anything reasonably successful as an alternative to the criminal justice - especially the youth court - system, we should have a good, long look at it. Just measuring recidivism rates, the reactive process that we call the youth court system is not exactly delivering well.
Secondly, what I take from Neal's remarks and certainly from mine is that there's a difference when there's a public interest in maintaining the record. I obviously endorse his comments in relation to violent offences as being wholly inappropriate for diversion. I would perhaps go further than others and look at the kinds of offences, for example drinking and driving offences, which have specific future consequences if you continue to behave in that fashion, or things like break and enters, where there is actually a violation of somebody's home.
Unfortunately or fortunately, depending on your perspective, it's one of the cardinal features of our criminal justice system dealing with young offenders as well as with adults that it's very much subjective. You have to pick the right people for the process. But as a process itself, I don't think there's anything at all the matter with finding an alternative, if you think it to be effective, other than cranking it through the machinery that is the youth court system. It is an enormous bureaucracy. One of the objections we put on the record with Bill C-41 was in relation to formalizing the process for adults. I think Mr. Ramsay, of your party, made a point in defining it as the criminal justice industry, which is certainly alive and well in this country.
What we're trying to allude to here is that while there's a place for alternative measures, the first thing you want to do is make sure you're getting the right people into it. Secondly, it need not have the trappings of a bureaucracy to administer it.
Ms Torsney (Burlington): Unfortunately I'm trying to read this as I listen to your answers, which have been terrific.
One thing that is quite interesting in your proposal is on pages 6 and 7, with the whole issue of social reform and what we can do to prevent children from getting involved in the young offenders system. I'm interested - and it came up in your answer as well - in the recognition that in single-parent families the children have a tougher time.
There are certainly a lot of police officers in my community involved with minor hockey, Big Brothers and Big Sisters, who are trying to play that supportive role to keep more children out of the system. Do you think there's a social and financial responsibility not only on governments to try to find a way to have more involvement with children, but also on the rest of the community, those without children for instance, to get more involved with our young people so that we keep them out of the system?
.1130
Mr. Jessop: Many of you know I'm a member of the National Crime Prevention Council. One of the good things the National Crime Prevention Council has done through a retired chief of police in Edmonton and a lady who runs a soup kitchen in Moncton, New Brunswick, Claudette Bradshaw, is they've done a very exhaustive study, she along with Doug McNally, on the effects of the prenatal-to-age-six situation for children, and the criminality that might result if that is conducted improperly, let's say, by the parents and by the community. We are all in agreement that that age is critical. We've just seen that in California, where a six-year-old has been charged with beating a one-month-old child. That's critical, and that's the area, in my view, and I've said so in other forums, where the government should be involved, where the money should be spent. In my view, if the government can help in that area and if the community can help in that area, we might make some progress.
Ms Torsney: So you're a proponent of more child care spaces, then, adequate child care spaces?
Mr. Jessop: I'm a proponent of anything that benefits a child of that age. If it happens to be a substitute where the parent could do it instead and just doesn't feel like it... We're all aware of situations where both the mother and the father in the family have to work to provide for the family, but I also know of situations, because I've been there, where people who don't feel like raising their kids pawn them off on day care.
Ms Torsney: Some people have suggested to me that with some of these families perhaps it's not an economic issue; that the fact that legal aid is automatically available to a child exacerbates the situation; that parents who perhaps have the money to pay for a defence might take more interest in their child's upbringing if they had to pay for that defence, rather than leaving them with legal aid. Would you be supportive of a situation where we didn't provide legal aid to every child, or assessed costs to parents who continue to have children in trouble?
Mr. Newark: First of all, to go back to the last point, one of the areas where the federal government could be involved is... For example, I understand Mr. Szabo has a private member's bill, or motion, to amend the Income Tax Act to allow for a greater retention of income by people who choose to stay at home, literally, and raise their children. That's an area where the federal government could very directly be involved. There are alternatives to day care.
You might also want, for example, to call Dr. Mark Genuis, of the National Foundation for Family Research and Education, as a witness before this committee to talk about the effects of bonding, if you're interested in those areas.
About legal aid, one of the things that distinguish between the Young Offenders Act and the Juvenile Delinquents Act is it's a very rights-driven system by comparison. The JDA was probably more paternalistic - ``we'll do what we think is in the best interests of the person who comes there'' - whereas the YOA is a delineation of rights. It very much becomes, in my semi-objective assessment, I suppose, driven by legal concerns from the word go.
Obviously it's very difficult, because some young people charged with pretty serious offences obviously should have counsel on things right from the word go. I would suspect, though, one of the best ways of doing this would be to move away from lawyers of choice, the way a lot of legal aid systems work, to a public defender system. You may also want to canvass that experience in the province of Alberta. I believe there are pilot projects in Edmonton and Calgary on public defender systems. It just tends to import a greater air of reality to it than what you otherwise get in lawyers of choice.
Ms Torsney: The issue is specifically that wealthy parents are ignoring their responsibilities and that perhaps hitting them... This is what has been proposed to me: that they are ignoring their responsibility, so assess them costs for that legal defence, whether it's a public defender or legal aid. Would you be supportive of that?
.1135
Mr. Newark: Sure.
If you're ever able to break it down, which would be a very interesting study, I think you'll find that the demographics of the young offender population, while it will have a component part of what you're describing, more accurately will probably not be wealthy people's kids who are out committing crimes and the parents don't really care about it.
By the same token, we did recommend analysis of legislation that would authorize a court in effect to direct costs against the parents where it was felt that the lack of supervision was a contributing factor in damages being created for people.
This came out of some material that was raised by the Attorney General of Manitoba,Ms Vodrey. The idea was put forward that it would be some way of encouraging parents essentially to take responsibility for their kids. While I think there's some truth to that, I suspect that if you looked at a fairly high volume of the people involved in this, what you would have in that order is to try to impose those kinds of order on people, in theory taking care of their kids, who in many instances weren't very capable of taking care of themselves.
While I would think we'll have some validity - and it should be there as a discretionary power - I suspect that you're going to find that the roots of youth anti-social behaviour are much deeper than that.
Ms Torsney: One of the issues that Ms Pate brought up was that, especially in the environment in Ontario right now, if you've identified as a family with a problem in that a child has an anti-social behaviour, the only way you'll get counselling is if that child's been charged with a crime. There are no resources left in the schools, or there will not be within a short period of time. There seems to be great interest in cutting out of the school board anybody who is not a teaching professional. Social workers who may make $50,000 at the top end and help a hundred kids and keep them out of the system are the ones who are being cut from the school boards, perhaps because they don't see the linkage, or because they see that the teachers' unions are too powerful and that's not the role of teaching.
Would you, as a member of the Crime Prevention Council, argue that that's exactly where we should be putting our resources and we should find a way to provide counselling for families who need help in dealing with the children? As you say, maybe the parents don't have the skills. These kids are very potentially your next clients, yet nobody seems to want to put the money there in advance. As a Crime Prevention Council member, what do you say to those comments?
Mr. Jessop: My views on that are relatively old-fashioned. When I went to high school and public school, counselling came through, shall we say, more severe methods than are tolerated today. We were encouraged to take part in organized sports. These were pre-union days. The teachers, who made nothing, were active with us probably from 7:30 a.m. until after 6 p.m.
I think there's a lot of blame to be laid all over the place. Parents are not paying enough attention to their children. They are offing their responsibility as counsellors onto counsellors who, judging by some of the results I've seen, in many cases are not necessarily qualified to give counselling. Teachers have decided to abandon what I view as being their responsibilities outside of the classroom. So I can lay the blame everywhere.
If you ask me what the solution is, it is to get people, including parents and teachers and children, back to reality, to the point where everybody accepts their responsibility. Don't ask me how to do that, because I don't know.
Ms Torsney: Should you cut funding for social workers in high schools and grade schools?
Mr. Jessop: In some cases, if it's not cost beneficial, you should, and in some cases you shouldn't.
Ms Torsney: How do you perform that cost-benefit analysis?
Mr. Jessop: I don't know.
Mr. Newark: I'd like to offer a suggestion. It deals directly with the federal government.
As I'm sure you know, the latest figures are that the public expenditures alone in criminal justice are about $11 billion. What I think is required here is a re-examination of what some of the priorities are.
.1140
We happen to agree - the brief really has the theme running through it - that in reality, when you're dealing with youth crime the appropriate philosophy is ``Invest now or pay later'', but I don't accept... I don't think most people, as they analyse expenditures on all levels of government, would come to the conclusion that there's no opportunity to do anything about it.
Your government, for example, makes choices when it decides that it's going to continue to spend money in the criminal justice system by holding section 745 hearings. Your government makes choices when it decides it's going to spend dollars by not bringing in high-risk offender legislation and by causing repeat parole hearings for individuals with lengthy criminal records by failing to make any distinction in relation to the eligibility for the hearings. It costs money every single time somebody has to go through one of those hearings, and it costs an awful lot of money when the cardinal truth of the justice system is that there is a disproportionately high number of crimes committed by a disproportionately small number of offenders. That all costs dollars, and the dollars not available at the front end are because of the choices we make everywhere else in the criminal justice system.
I would suggest that if you are serious about trying to devote some of those resources at the front end - which we happen to endorse - that's going to require not looking for a new pot of gold but making some choices about what your priorities are in criminal justice.
The Chair: Thank you.
For a five-minute round, Mrs. Ablonczy.
Mrs. Ablonczy: Thank you, Madam Chair.
The Chair: I'm sorry, it's not you. I will instead give ten minutes to Mr. de Savoye.
Mrs. Ablonczy: Okay. He's better-looking than I am, anyway.
[Translation]
Mr. de Savoye (Portneuf): Please excuse me for being late. Ms Venne shoud normally have been here to welcome you, but she was also delayed. I was asked to replace her at a moment's notice. I'm sorry about this because the Bloc Québécois considers the review of the Young Offenders Act to be extremely important and your presentation to be particularly important. I present my excuses again and would now like to make some observations.
Your brief presents a good balance between concerns for prevention, those of public protection, and rehabilitation. In certain respects, I appreciate the wisdom of what I heard you say to my colleague for Windsor.
In your presentation, you spoke, and rightly so, of young offenders between the ages of 15 and 17. I am going to quote from the report in English because this is the version that I have in front of me:
[English]
- On conviction they should however be housed wherever possible away from adult offenders
and indeed it is this very group which we propose directing resources at in order to modify
behaviour and show an alternative life to one of crime.
What you say is full of common sense. Every time we invest one dollar in order to ensure that a young person gets back on the right track, we probably save hundreds, even thousands of dollars by ensuring that this young person does not become an adult who unfortunately turns out badly.
As well, in your recommendation 4 b), you say the following:
[English]
- That on conviction for a third offence which if charged as an adult made the young person liable
for imprisonment for five years or more...
So here we are talking about a third important offence. And at point (b) you say:
[English]
- b) the offender is liable to a minimum mandatory period of closed custody of no less than one
month followed by mandatory restrictive supervision of six months duration;
Given that you are proposing to set aside resources to helps change the behaviour of young people between ages of 15 to 17, and given that during the hearings that we held last year when they were studying an amendment to the Young Offenders Act, witnesses and experts, among themMs Justice Ruffo, stated that in order to change the behaviour of a young person who is far gone in the wrong track, we should consider a minimum of six months and even generally up until three years, don't you believe that your recommendation 4 (b) is not tight enough?
.1145
Mr. Newark: Perhaps.
[English]
Let me try, sir, to give you the full picture on this.
In our judgment, any court process is reactive, once you've already got to the fact of the anti-social behaviour having occurred. The theory behind which we have been governed for the last twenty years or so, the dominating principle, has been that our system can rehabilitate people. While we may have different views about the emphasis that should be placed on that - in fact, we definitely have different views about that - there is certainly some truth in the fact that a social agency has the capacity, or it's at least worth a try, to try to change people's behaviour while the state has jurisdiction over them.
So what we're suggesting in the first part of it is that's the target group. It may not even be...and frankly, I'm aware of many studies that talk about the formation of anti-social behaviour at a very young age, not sixteen and seventeen. But if you are going to tell somebody there's a way of doing things, that's a better target group and a better place to spend your money than giving people with records that drop to the floor obligatory parole hearings. That's a better place to put the money in and it's a better way of getting those people out of the circumstances where you are trying to change their behaviour.
For example, if you have somebody you genuinely and seriously think you have a chance of rehabilitating them, remotivating them, I can't imagine a worse place to do that than a maximum security prison. They're inconsistent, it seems to me.
What we were trying to get at in relation to some of these other recommendations in there - and these are similar to the ones we put forward back with Bill C-37 - is what is missing in the Young Offenders Act itself is those principles of denunciation and deterrance, which are valid sentencing functions. So this was just an example. It was not meant as ``this is the timeframe that is there'' but as an expression that says these are the triggers, objectively defined, by which we say this is not going right, the probation is not working, the idea of supervision is not working in the sense of trying to remotivate your behaviour; you need a wake-up call.
I would bow to the expertise of someone else who says there should be a longer period. The point for us was the principle that at some point within the youth court system there should be this recognition that these objective acts would be viewed as saying now is time the scale shifted towards using a different message to get the point across.
So it's not meant in contradiction to the periods you spoke of.
Mr. Jessop: I'll speak from a police officer's point of view. One of the things we do - and I've described this before - is when we're considering information, laying a charge or considering what charge to lay, we bring out a person's record. We have an information system that provides for that.
What we see with habitual young offenders is that the courts have reached a level of acceptability in sentencing that is acceptable to them on a guilty plea, perhaps, and barely acceptable to the prosecution and the defence. So what you get is that experienced young offenders who know the system can predict the sentence before they go to court. Often, in our view, to be very frank with you, that sentence has no prohibitive value in the committing of the next offence. They know what kind of sentence they're going to get for what kind of offence they commit long before they get there. If it's open custody, that's acceptable. In our view, they'll commit the offence.
As you know, children are much brighter than we give them credit for. In many cases, once they get that experience, they know exactly how far they can go before they do things. It's certainly not the same situation as for people just coming into the system.
For example - this doesn't apply to this particular session - before I do what I have to do, when I see seven or eight convictions inside of two years for failing to comply with a bail condition where the sentence was five days, seven days, three days, they know just as well as we do the risk involved in not complying with a judge's order. I used to view, and I still view, not complying with a judge's order as being serious. They know as well as we do - they have the same figures that we do - exactly what's going to happen to them long before it happens.
.1150
[Translation]
Mr. de Savoye: I appreciate this clarification and I must say that I do share your concerns.
As you mentioned, there does exist for young offenders a type of preestablished sentence grid of levels of sentences that ensure that we know what to expect.
During sessions of this committee last year, some witnesses said to us that the goal of a sentence was on one hand, of course, deterrence and on the other hand, possible rehabilitation of the young people.
When you mention a five-day sentence, I don't see it including either deterrence or the guarantee of rehabilitation. That is to say, we fail on both accounts.
Some experts have suggested that the sentence be linked indefinitely to rehabilitation, that is to say that the sentence would not end until rehabilitation has occurred. This approach can obviously take quite some time, but could be quite motivating.
How do you react to such an approach?
[English]
Mr. Newark: Rehabilitation is in the eye of the beholder. That would be my first observation.
We used to have indefinite sentences. We still have indefinite sentences for part XXIV, dangerous offenders. Assuming it ever reaches the point on the agenda where it's introduced, I'm told that the government is planning to bring in long-term offender legislation that will have that aspect to it as well. It's a subjective assessment, though, at best. I think the point of it is that the state assumes jurisdiction over a person because of their antisocial behaviour, whether that's in a custodial setting or an out-of-custody setting where they have jurisdiction to do something.
What I have a problem with - and I think I hear the same thing in Neal's words - is that when we actually establish, by this very legalistic and drawn-out process, that somebody has violated one of those orders that was supposed to do that, not only do we miss the potential effect of saying to somebody that we take this very seriously, but it's counter-productive. We say that we really don't take it all that seriously if you fail to show up for court or you violate your probation orders or the recognizance orders. Whether it's the Crown saying, okay, you can plead to two and we'll withdraw three, or whether it's the court saying, I'll roll it all into one sentence, we are sending the wrong message to the wrong people.
I want to make it clear that I'm speaking now about that reality of a disproportionately high number of offences committed by a disproportionately small number of offenders in the youth court system - the ones who offend again and again and again. In my judgment, whether it's the youth court system or whatever the system is, you want to keep something lenient and flexible for people whose behaviour you have a good chance of modifying.
But you also have to recognize when people aren't getting the point. One example came to my mind. I used to prosecute in an area where drinking and driving was extreme. It struck me that the first time somebody came before the courts, it was a reflection of the fact that drinking and driving was prevalent in our society. The second time the person came it struck me as an indication that the person wasn't getting the point. The third, fourth, fifth, sixth and seventh time they came back, it struck me that the system wasn't making the point.
That is probably our greatest difficulty with the Young Offenders Act right now, at least mine philosophically, and we had this debate on Bill C-37. The words ``denunciation'' and ``deterrence'', which are part of what we've created as a criminal justice system, are not manifest in the Young Offenders Act. They should be. They shouldn't apply to everybody, not necessarily to somebody spray-painting a wall or something, but they should apply to the people I'm talking about. Right now those principles aren't there.
.1155
Mr. de Savoye: Could I summarize your idea here by saying let's sentence right the first time?
Mr. Newark: Yes.
Mr. de Savoye: Thank you.
The Chair: Now I have the order confused, but perhaps we could go to Mr. Maloney for five minutes.
Mr. Maloney (Erie): May I refer you to the area of parental responsibility, which was touched on in your report? You refer to the concept of compensation. Is that strictly monetary compensation or could it be something else, and if so, what?
You also indicate that this is fine, but it doesn't really work with a dysfunctional family, and it's an even bigger problem that has many social ramifications or whatever. Notwithstanding the magnitude of the problem, I'd appreciate your comments on what we do with dysfunctional families who either are incapable of, or don't have a desire to do, proper parenting.
Mr. Newark: I'm not sure anybody sitting at this end of the table has special expertise to answer what is a pretty big question.
I guess the important part, which I hope your committee is going to come to the conclusion to, is that all of us have a stake when children aren't raised properly. There are huge social questions about what we as a society do when we discover that the circumstances of how kids are being raised are socially counter-productive. I think all of us probably have some hesitation about armies of social workers going in and apprehending children.
By the same token, if we want to be candid about this, I think we probably should go and identify - and it's why I recommended in the brief a practice this justice committee used to do - specific case files. I think you're going to find a pretty common theme throughout some of those, that is, this default, if you will, in the way kids are being raised, and where as a society we had all sorts of warning signals all along the way before they even got to the youth court system.
I specifically gave examples of these cases. I know some of the details about the cases, which I hope you examine. You're going to find that not only is that present, but also once they got to the youth court system it didn't do a really good job for precisely the kinds of things Mr. de Savoye and I were just talking about.
So I'm afraid, sir, while I think I have the capacity to identify the question, I don't think I have the capacity to give you an answer as to what it is we ultimately need to be doing.
In terms of the question about compensation, we also made a recommendation on Bill C-41, which was not followed, for expansion of the power of the courts to award costs primarily against individuals who were using the system again and again and again. I don't mean in anything major, but I mean what a lot of us would call the ``nuisance'' kinds of offences, very often linked with alcohol, which clog up our courts. It might not be a bad idea to say, well, you got drunk again and caused a disturbance again, or were involved in a minor assault: not only am I going to fine you $250, but as well, this process isn't here for your amusement, so that's going to be another $250 in costs.
The question is going to be how you are going to enforce that and who you're enforcing it on. I happen to think that maybe it's worth while that you do that, irrespective of somebody's financial circumstances, to show that in fact there is a consequence for them failing to act as parents - now I'm going to take it back - in properly supervising their kids, irrespective of whether that money's coming from an employment income or from social assistance.
Mr. Maloney: Do I have another minute?
The Chair: You have a minute and a half.
Mr. Maloney: You touched on the issue of a minimum age but you really didn't say too much about it in your brief. Are you suggesting the minimum age be lowered? If so, to what age? Are you suggesting in certain offences it be lowered, or are you suggesting perhaps this should be at the discretion of the youth court judge? What are you suggesting, if anything?
Mr. Newark: I think the point I was trying to get at in the brief was in the context of a bill originally put forward by Mr. Nunziata some time ago that had as one of its features lowering the age down to, I think, 10. The point I was simply trying to make in that is that this amendment was presumably sought because of the perception that society was powerless to deal with antisocial behaviour other than through the Young Offenders Act.
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That's not true. We have ample child welfare legislation under provincial jurisdiction, but for whatever reason - and I could give you my opinion on why it isn't used - it isn't particularly employed. My suggestion to John at the time was, I can understand why you might want to lower it to ten, but unless you deal with that factor, next year we're going to be back, talking about lowering it to nine.
The real point, I think, is what I was just trying to get at. All of us have a stake in how kids are raised. Whether that's done through the reactive process, within federal jurisdiction with the Young Offenders Act, or it's done through the child welfare process, under provincial jurisdiction, we all have a stake when things are going wrong and we just basically turn a blind eye to it.
It's again why, sir, I would recommend you look at the cases I've articulated in here. They're names you should recognize. I'd be happy to supply you with a legion of other ones. You'll see this tracking process, to my knowledge, in each and every one of them, where we start through the child welfare systems and go through youth court systems where we just didn't do a very good job. We left it in the slot, where it progressed until it got to something horrendous.
Mr. Jessop: My view on the question of lowering the age is it's not whether you should; it's when will you be forced to do so. In my view, as an elderly, pessimistic cop, it is going to happen.
The real question is how will you deal with a ten-year-old in the criminal justice system? That's what the YOA didn't do. It never fully accepted the fact that once you do one, you have to do the other. You have to accept the fact that it's going to be expensive, and you have to accept the fact that when a ten-year-old commits a serious, violent act, there's a serious problem with parenting, control, and community support for that child, and it may be necessary to remove the child from that situation and put it into a better one.
Mr. Newark: The point I was trying to make is that what you're likely going to find with that ten-year-old is that you had evidence of that when the kid was four, five, six, seven, eight, and nine years old, before you got to the reactive criminal process.
The Chair: On a point of information, you'll be interested in knowing you're reflecting what... We just came back from the Maritimes. We were in several facilities while we were there and met with a lot of people. With that last remark you're reflecting something we heard frequently.
You'll also be interested in knowing we're in fact looking at individual cases. In keeping with what you said, we had a very interesting conversation with three mothers in Prince Edward Island, who said their biggest problem was getting the police - and I'm not being critical here, as I understand very well the problem - when their child breached. The only system for dealing with a breach of alternative measures or probation was to call the cops, or the probation officer. That's the only mechanism there. When they wanted to, if the breach was a curfew breach or something like that, they couldn't get the police to respond or they couldn't get the probation officer to respond.
These were parents who were prepared to testify that their kid was not in the house at 9 p.m., as he was supposed to be. You just couldn't get the system to come to grips with it.
So you're identifying the same kinds of things we're hearing from individuals. And we are hearing from parents and from victims, and we are looking at specific cases.
Mrs. Ablonczy: This is an aspect of young offenders, particularly prevention, I'd like to follow up on and continue the discussion on. The question is what reasonable means of discipline or control over children and youth would be considered appropriate in order to prevent serious criminal behaviour.
Of course there has been some discussion about section 43 of the Criminal Code and what constitutes the use of reasonable force to discipline children and by whom. In our research there seems to be evidence that these kinds of disciplinary actions are increasingly being abandoned by people in authority - teachers, school principals, even police officers - in favour of laying criminal charges and placing children within the criminal justice system.
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I'd be interested in your comments about the use of reasonable force, say a teacher grabbing a student by the arm in order to break up a schoolyard fight. Increasingly, because of charter challenges, teachers are wary of doing those things, and police officers are giving stern warnings and taking children to see parents and dealing with it in that way rather than by laying charges.
I'm wondering what your observation would be about all of that and the use of reasonable disciplinary measures vis-à-vis involvement in the criminal justice system.
Mr. Jessop: That's a very difficult area for us, but I can tell you how we basically deal with it.
We have young people in that magic age from 15 to 17 who are restrained by their parents in some physical way from doing something they want to do; for example, taking the family car for a drive without having a licence. They call the police and complain of assault by the parent. That's a difficult area for us.
We try to deal with it based on the word ``intent''. Most of us who are involved in the legal situation know that it's quite hard to commit an offence unless you have an intent to do something wrong. So we look at it in that area.
I was at my in-laws' place yesterday and Linda and I were remarking about - he's about this tall, he's a year and a half old, he's very bright - how well-behaved he was, because when his father said ``No'', he knew what it meant, and he toddled off and did his stunt where he was supposed to do it as opposed to where he wasn't supposed to do it. Linda said to me, ``They have a time-out chair''. I was unfamiliar with the term. I asked what a time-out chair is.
A time-out chair is where the father or the mother specifically removes the child to the chair and he remains in his time-out chair until he's understood the error of his ways.
In some cases we, as police officers, see parents who are so afraid of their children that they literally let them ride roughshod over them because of a perceived problem in relation to discipline.
We should get that straight: without being accused of assault, there is a way to discipline children and there is a way to restrain children physically from doing something that might endanger them. We try to explain that to people, but all they do is read newspapers about fathers and mothers who are being brought before the courts charged with assaulting their children.
If it's any comfort to you, it's not as bad as you could think it might be. But in many cases logic and reason have gone out the window.
Mr. Newark: In response to the comments about the police not responding in relation to that, I'm sure you're aware of that too. I've encountered similar circumstances. In large part people within the system often don't respond not because of malevolence or laziness or anything else like that, but rather because they know what the result is going to be. They know that if they process somebody on a charge of breaching reconnaissance because they weren't in there, the system is not going to do anything about it. There's not going to be a consequence.
I'm searching my memory to try to get the exact details. I recall, just before leaving as a prosecutor in Alberta, some controversy within the Solicitor General's ranks there because there were specific directions about not laying charges of breach of probation. It's one of the things I've found fascinating about our adult corrections and parole system. In my judgment, they actively discourage breaches, because we like to be able to say that our systems work.
When you see the phenomena of that kind of a response, on one level, yes, it is people not reacting to it. But you might want to go a bit deeper and ask why the people who populate the system don't do it.
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About the use of force in discipline, it is, I suspect, one of the reasons why the Criminal Code is littered with the word ``reasonable'', a subjective assessment, because as I'm sure you can appreciate as I do, there are instances of when I try to tell my twelve-year-old son it's time to go to the time-out chair and it's not going to work. There are also circumstances where people use physical force under the guise of disciplining children and it's excessive and it's wrong.
It's a subjective system we've developed, one that says on the one hand we're going to make a judgment based on what constitutes a crime, and on the other hand we've recognized over a couple of hundred years of social evolution that disciplining children...that they don't suddenly get born on the earth with the wisdom of whatever age we happen to acquire. We don't know how to make a definition for it, and I caution you against people who tell you there is a correct answer in relation to that subject. It's far more difficult, because you're dealing with human beings.
The Chair: On the government side, Mr. Wells.
Mr. Wells (South Shore): I have a few short questions I'd like to put to Mr. Jessop, first.
You made a comment earlier that kids know the sentence before they commit the offence, or words to that effect. Are you basing that on any evidence, or just your own experience with the act and the youth?
Mr. Jessop: I'm basing it on both. One of the things I do in my other job is during the evening and on weekends I go before the justice and lay the information. That used to be a simple process. It is no more, because we require all the information a justice needs to accept that information and proceed with bail conditions.
Over a period of going on twenty years of doing that particular job... And I suppose if I went home today before it got dark I could produce twenty situations where you bring the record out and you see exactly what has transpired in relation to the history of this person. If you were to visit us, we could pick out certain people where this situation has transpired. In many cases you'll see they've reached the level under this particular offence they're committing where in fact they know approximately what the sentence will be.
Mr. Wells: You're not referring across the board, then. You're referring to a repeat offender, the one who has been before the courts on a number of occasions, as opposed to the first-time offender.
Mr. Jessop: Sometimes you can almost define it on the basis of the type of offence, along with the repeat offender.
Mr. Wells: Just as a matter of interest, when we were down east last week we heard evidence totally to the contrary, about kids knowing the system as well as you suggest they do. It's not unusual throughout this process to get people disagreeing, but we heard evidence directly to the contrary. I wanted to mention that just for the record.
Mr. Jessop: I'd be interested to hear who you heard it from.
Mr. Wells: I don't remember who it was, but I know it's on the record. We heard that evidence from a number of people.
In your recommendations, your sixth says to reduce the maximum age of youth court jurisdiction from 18 to 16. Do you mean under 18 to under 16, so it would apply only to 12-, 13-, 14- and 15-year-olds?
Mr. Newark: Yes.
Mr. Jessop: We're talking about 16- and 17-year-olds.
Mr. Wells: In other words, from 17 to 15 is what you should say. It doesn't apply to 18-year-olds now, does it?
Mr. Newark: Correct. That's the ceiling, yes.
Mr. Wells: It applies under 18. So it's under 18 to under 16. So you're suggesting it apply only to 12-, 13-, 14- and 15-year-olds.
Mr. Newark: Correct.
Mr. Wells: I just thought that should be clear. I thought that was what you meant, but that's not what your brief states.
Mr. Jessop: I'm sure you're aware 16- and 17-year-olds are referred to in the system as ``senior young offenders'', whereas the others are referred to as -
Mr. Wells: I understand. I just wanted to clarify that.
Mr. Newark: We assumed you were familiar with the parameters of the act.
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Let me reverse the process, if it's acceptable. I'd be fascinated about the specifics of somebody and their experience within the criminal justice system that said - if I understood you correctly - there was no ability to determine even an approximation of the kinds of sentences that repeat young offenders were going to get. Is that the sense of it?
The Chair: I think what they were saying was that there's no consistency. If there's no consistency in a system, then you can't predict.
Mr. Newark: Okay. I don't agree with that, but -
The Chair: With respect, unless you have a lot of statistics that I don't know about, I doubt that it's possible to comment on what happens in a particular community. These were particular communities that we were in and we were trying to study in depth. That's what I was trying to relate to you earlier. From what we're hearing, there is a very serious problem in terms of consistency of sentencing.
In terms of treatment, it's problematic for the institutions to have someone who's in for two years for a non-violent offence and three years for a violent one at almost the same level of seriousness, if it was a Criminal Code matter. It is very tough for them to know how to treat them or how to handle them in the institutions.
Mr. Newark: I don't think that's the point Mr. Jessop and I were addressing.
In relation to your original question, Mr. Wells, I acknowledge that really what we're giving you is anecdotal evidence in that sense - although, curiously, I come from Alberta and Neal is from Ontario and my insight is identical to his.
We're not talking about the rationale as to why a person convicted of this kind of an offence gets such-and-such a sentence whereas a person convicted of another offence gets a different kind of sentence. Instead, it's the repeat B and E artist who is up on his ninth, tenth, and eleventh B and E, having known what his last sentence was. I've seen gauging what sentence they're going to get for that specific offence being exercised amongst people in custody as a sort of pool to while away the time.
It is not a matter of the rationale as to what it should be in relation to another offence, but, rather, the predictability of it in relation to what they're getting sentenced for.
The Chair: We've got your point, but I think Mr. Wells is saying that in some jurisdictions it's not possible to predict because it's so inconsistent. That was all.
Mr. Wells: We had heard that evidence from the youth themselves. We had interviewed or spoken to some of the kids inside, and they were commenting on how other people in the same institution were treated so differently. They saw people come in for very minor offences and they thought they had sentences that were too long. In many cases the ones I spoke to personally said ``I thought my sentence was fair. I thought I deserved what I got, but I don't think he deserved what he got.'' There was certainly a recognition by the offenders themselves that there is a total inconsistency in the application of the act.
One of the briefs I read today talked about educating the judges and others involved in implementing the act, and that's one of the best suggestions I've seen. I'm not sure if it was in your brief or not, but it was in one of the ones I read today.
Mr. Jessop: I don't know whether experienced people will agree with me or not, but I think you'll find that generally where you have very busy courts that are overloaded and they have a huge problem in putting people through the system the sentences are reduced. It's not a fault of the people in the courts; it's a fault of the system, because they have to accept a lower level of sentencing in order to get the people through.
This will sound extremely strange to you, but another thing you'll see is that when we get a person in a situation where they have a choice between three years in the penitentiary and two years in the provincial system - what we call a deuce less - they'll take the three years, because it's probably their first offence and in the federal system they're not known. So they will do a sixth of three years, which is six months, and then they'll be eligible for some kind of parole, whereas if they finally reach the level in the provincial system where they get a deuce less, which is two years less a day, and they're known in that system by the parole people and by the courts and by the police, they'll generally have to do two-thirds of it, which is 18 months or thereabouts.
There are all kinds of terrible inconsistencies in the system, and those are some of them.
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The Chair: Thank you. Mr. de Savoye, five minutes.
Mr. de Savoye: If I understand this, inconsistency means
[Translation]
that the sentence does not correspond to the crime. But we can predict that the sentences will be inconsistent.
[English]
The inconsistency is a predictable fact between the sentence and the crime itself. So I don't think there's any divergence between what you said previously and what we've just heard. The problem is, some people have not been sentenced according to what should have been. That's inconsistent. They know that will happen, and that's predictable.
Mr. Newark: I think that's true, and that's true in an adult system, too. Some American jurisdictions have gone to straight to tariff sentencing, as they call it, where they literally do a grid of x number of offences and the nature of the offence. If you fit, say, here on the grid, that is what the sentence is.
While that has the benefit of certainty to it, I for one don't think that's the way our system should work. I think part of the genius of our criminal justice system is that it literally works on the principle of this offender, this offence. The flip side of that, however, is inconsistency in sentences. I don't think you can acquire that kind of mechanical certainty, frankly, without likely producing some pretty harsh results that are unintended.
I always took the view as a prosecutor that I had an appeal court I could go to as long as I could bug my department enough to launch the appeal. I got my shot in court to make the point and to make the arguments as to what the appropriate sentence should be. Part of what I find disturbing about the Young Offenders Act is that it's missing, I think, a big chunk out of it in the principles that apply everywhere else, those of deterrence and denunciation, when you're dealing with that repeat offender group. I think that's what's wrong with the process in sentencing.
Unfortunately, our system is moving toward mandatory sentences because of some of these difficulties with perceived inconsistencies, or perceived leniency - repeat drunk driving is an example - but I think we sacrifice something about the very humanity of our process. I've never really been accused of being soft on crime, but I say that in the full sense that this is what our system should be about.
Mr. de Savoye: Thank you.
The Chair: We're just about at the end of the time. I have a question, with my colleagues' permission.
One of the things you talked about was the first introduction - you used the phrase either in your brief or when you were speaking - of the kid to the justice system. I took from the comment that it was sometimes inappropriate for them to even be in the justice system, in some cases, and in other cases the first introduction comes at a time when we should have been able to predict, three or four or five years before, that this kid was going to get into trouble, and that there's a problem there.
Looking at the situation where you have someone who comes into the justice system for the first time, although I know this isn't the bulk of the kids who are dealt with, does the problem - and I will call it a problem; it was always a problem for me when I was prosecuting - of private information enter into this where you have stores charging kids who are on a bit of a toot shoplifting when that could be dealt with in some other way? Does that clog your system, or does it cause a problem?
Mr. Jessop: My experience here is limited, but generally in those cases our policy will override the policy of the vendor, so to speak. They will understand what we're attempting to do. As you know, in most cases of shoplifting, the bulk of them, I would say 90%, would end in a referral to parents, and we would never see those kids again.
There are those where the young person will make a statement, or it will be indicative that they've done it before or that they intend to do it again, things of that nature. We probably still won't lay a charge, but we'll have a long talk with the parents.
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The real problem for us, of course, is that sometimes we find them back in the same place a week later, doing the same thing. They're caught again, and then we have to proceed and incur the wrath of the people who are operating the business.
The Chair: I want to thank you for your presentation. Today was a tough day for you, I know. Your other comments are accepted and we'll pass them on.
Neal, you mentioned a study earlier - now I can't remember the context - a study you had or you had access to, on prenatal and post-natal care. If you have a copy or a reference, we'd appreciate having it.
Mr. Jessop: I'll see that it's sent to you.
The Chair: Thank you.
We're adjourned.