[Recorded by Electronic Apparatus]
Wednesday, May 8, 1996
.1617 
[English]
The Chair: We're late because of the vote. We have another vote at 5:30 p.m.
We have our witnesses today from Defence for Children International, Les Horne, executive director; and from the Canadian Coalition for the Rights of Children, John Topping, chair of the youth participation committee.
I want to welcome you both here and to apologize that one of the things we have to do is vote or the legislation doesn't get through, so we're late beginning. That has nothing to do with our regard for your brief. We will be happy to hear from you. We just ask that you leave us some time for questions at the end.
Mr. Les Horne (Executive Director, Defence for Children International): Thank you very much. We'll be as short as we can.
I'm the executive director of Defence for Children International - Canada, the anglophone branch.
DCI is an international organization, based out of Geneva. Each section is autonomous. We have about fifty national sections. We've been working across the world since 1979, since the Declaration of the Rights of the Child, in the preparation and implementation of rights for children, and we played quite a significant part in the Convention on the Rights of the Child.
I should explain that the brief you have called ``The Young Offenders Act: Getting it Right for Children'', was prepared by John, here. John is the youth coordinator of the Canadian Coalition for the Rights of Children. This originally was planned as a Canadian Coalition brief - I'm the vice-chair - but we discovered two of our members had taken a position slightly at variance with the position we were taking. We didn't have another plan, so we decided to go with it this way.
On the subject matter of today's presentation, I do have some practical experience. I've been working with youth since 1950. I ran street gang services in London, England. Then I came over here and I was director of a correctional school for children in Ontario from 1965 until 1975. After that I was child advocate for the province of Ontario with George Thomson, whom many of you know. It was fifteen years as child advocate.
This submission today is a very specific one, because I've read a lot of the briefs you've seen and heard already, and some that were presented during the last session, and I have seen noted but no great attention paid to the question of Canada's endorsements and commitment to the UN Convention on the Rights of the Child, which the whole Canadian Coalition on the Rights of the Child and DCI consider to be one of the most important documents of this century. It's one that Canada signed and under which it accepted certain responsibilities we believe it's backing away from in what we understand of the changes it's hoping to make in the Young Offenders Act particularly.
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This convention has a binding quality in it to the nations that ratify it. The nations have to appear two years after signing and then every five years after that before the UN Committee on the Rights of the Child. Canada appeared in June 1995 to answer to how it was proceeding with implementation of the articles of the convention. That report from the committee was available in June and the committee asked that it be widely distributed. I don't know how widely distributed it was.
At that time there were already some defects noticeable to the committee, one of them being a reservation to article 37(c) of the convention, which says that a child has a right not to be detained with adults. I think it's probably quite obvious to you why that reservation was put into effect, but the committee expects that reservation to be removed eventually as part of the intent of the convention. From what we can see there's less chance of it being removed now than ever, with the kind of moves that have been made.
In our brief we provided the committee with a review of some of the articles in the convention that relate to the treatment of young offenders and some commentary on how we view what has and is being proposed in Canada in response to the rising public concern about young offenders. Our concern is that this rising public concern is...
Law has a long history to it. The convention took 30 years of careful consideration and putting together of expert advice from across the world to achieve a standard statement. To upset that on the basis of public opinion over a short-term period, very often with a lack of understanding of the real issues, is a dangerous precedent to set. It's happened before in history and it's a very dangerous precedent.
The Government of Canada ratified the UN convention in December 1991. The 1948 Universal Declaration of Human Rights affirmed the need for special rights for children. The 1959 Declaration of the Rights of the Child was an advisory document that started the 30 years of activity, in which Canada played its part, as did Defence for Children. That resulted in the 1989 adoption of the UN convention.
Under the terms of the convention, the Committee on the Rights of the Child is elected, to which countries submit their reports. The concluding observations of the committee were published in June 1995, and it was the recommendation of the committee that their observations should be widely circulated. Our brief identifies some of the concerns of the committee and emphasizes our position that Canada, like the other 180-odd states that have ratified the convention, should hold itself answerable for international instruments to which it has acceded, and particularly should not renege on the promises it has made to its children.
You have a copy of the brief in front of you. We can read parts of the convention, but the brief identifies all those and I don't want to use up your time by covering material you have. Let's leave it at that and leave it open to questions.
The Chair: Did you have anything to add, Mr. Topping?
Mr. John Topping (Chairman, Youth Participation Committee, Defence for Children International): No, not for now.
[Translation]
Mrs. Venne (Saint-Hubert): First of all I would be interested to know what you think of the implementation of the Young Offenders Act.
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As you know this committee has been mandated to study its implementation. The YOA has been in place for the last ten years and the minister has asked us to evaluate its pros and cons. I wish to know what should be the real goals of this committee. Could you tell me what you think of it? What is your personal evaluation?
[English]
Mr. Horne: My personal evaluations I'll cover in a minute.
We are really interested to know whether this government, this Parliament, holds itself answerable to the UN committee for the convention. If it does, then we think that each act that is passed should be considered in relationship to the rights that the Parliament has already granted to Canadian children by signing and ratifying the convention.
Outside of that issue, which is the major point I want to make, I personally, as an Ontario advocate for the child and from my own experience, have always opposed, almost 100%, the transfer of children into the adult system.
I think the Young Offenders Act has become more and more punitive in its application, as though we want to hurt our children for things that we've taught them or allowed them to learn.
Taking those two points, the concern over the question of best interests, which is a clear article in the convention, has gradually been diluted in Canadian practice in the courts and replaced by the best interests of the community. In our view, the best interests of the community are the best interests of the child and should be seen in that way.
[Translation]
Mrs. Venne: It is not my role as a member of the opposition to answer your question. It should rather be answered by government members.
As to how Section 37 of the convention should be applied, you should put that question later to government members but normally it should be our role to ask questions.
However, as you seem to be an expert on the U.N. Convention, I shall ask you how you would rate Canada on a scale from 1 to 10 as concerns the implementation of the UN convention on the rights of the child?
[English]
Mr. Horne: If you're asking that question specifically in regard to its correctional philosophy in regard to children, I would say that it was ranking well above many of the western countries in this world until ten years ago. There has been some loss of position since that time.
I'm interested to know, too, what the attitude of the opposition parties is towards the convention, whether they would support the government in saying that the convention is an important document that should be supported.
So, really, I was not addressing just that. We have the government response in the Canadian report to the UN in 1994 claiming that it's fully supportive of the convention.
But, as you say, I shouldn't be asking questions.
[Translation]
Mrs. Venne: If you wish so we could discuss this later. I have no more questions for now.
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[English]
The Chair: Thank you.
Mr. Ramsay.
Mr. Ramsay (Crowfoot): Thank you. And of course I get what Madam Venne didn't use, don't I?
The Chair: No, not exactly. It doesn't exactly work that way.
Mr. Ramsay: No?
Mrs. Venne: No, not at all.
The Chair: If you want to give up your time to the government, we'll take it.
Mr. Ramsay: I may. I have to be in the House for a speech later on, so I will use the full of my ten minutes and see where it goes from there, Madam Chair.
I appreciate your attendance here. Do you find any portion of the Young Offenders Act that comes into conflict with the United Nations Convention on the Rights of the Child?
Mr. Horne: Of the act as it stands, or of the amendments?
I'm not a lawyer, so I'm not totally up to date and practising in juvenile law. I don't know where the reverse onus decision lies, but that would certainly stand in contravention to the Convention on the Rights of the Child, under the transfer provisions.
The question of best interests is another issue. Best interests is a general statement under the convention, and as I said before, it has become overwhelmed by other interests.
Mr. Ramsay: I have some concern about the requirement of Canada to abide by the conventions set by the United Nations in that once they set a convention, if we are bound by it, then it may not be in the best interest of our country. So I have some concerns about that.
In that respect I turn to pages 8 and 9 of your brief. Article 40(2)(b) states: ``Every child alleged as or accused of having infringed the penal law has at least the following guarantees'', and number (iv) is: ``Not to be compelled to give testimony or to confess guilt''.
Under our Young Offenders Act, we have the principle of alternative measures, but it's only available to those who confess guilt. If they don't confess guilt, then of course what's the option? It's to go into court and face whatever fearful thing that might represent in the mind of the young offender. I can see that this may be looked upon as an inducement or a coercion, an impulse, on the part of the government and the Young Offenders Act to have them confess guilt.
I am in favour of alternative measures, particularly for non-violent offences. If this could be construed as a violation of the convention, then I have great reservations about this government being bound by the conventions set by the United Nations. I have some very serious concerns about that. I would like your comments as to whether or not you feel this may be a violation of this particular portion of article 40 of the convention, where it states the child is not to be compelled to give testimony or to confess guilt.
We have a procedure that we think is in the best interest of children who have committed non-violent offences, to treat them in a way that will bring about a reconciliation between the offender and the victim and to bring out whatever feelings of remorse and so on that a confession of guilt relies upon or that are a result of that process.
We've heard testimony here about sentencing circles, which adopt the very same kind of principle. It is working well in some particular cases where there is an admission of guilt.
I'd like your comments on that. Do you feel that these alternative measures - not only under the Young Offenders Act, but also under Bill C-41, I think it was, the amendment to the Criminal Code, which deals with adults - are in violation of article 40(2)(b)(iv)?
Mr. Horne: I have never heard it raised as a violation, because I don't think it is a compulsion. It's an inducement, but not a compulsion.
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Mr. Ramsay: That's a fine line, though, isn't it?
Mr. Horne: No, I think it's still a voluntary choice, whether you admit guilt or not, or whether you plead guilty or not.
Mr. Ramsay: With respect, if there were only one alternative, that would be fine, but there is a second alternative, and that could be interpreted as an inducement or a compulsion.
Mr. Horne: The second alternative is to go for trial, and if you -
Mr. Ramsay: Yes, whatever the consequences of that might be...certainly it may not be the same kind of treatment and the same kind of experience as alternative measures would be, so I have some concern about that kind of interference by the articles of this UN Convention on the Rights of the Child that might interfere with the best interests of the child.
Mr. Horne: I've never heard it argued that it was an interference, that it was a contravention, nor do I remember Cynthia Price Cohen in her commentary on the convention - which is probably the most effective legal commentary there is in the States - argue that either. But maybe somebody has argued it. I certainly wouldn't.
I went to Nova Scotia and studied their alternative measures long before Ontario had it, and I came back with a very strong recommendation that Ontario should pick it up because it's obviously of benefit to the child.
Mr. Ramsay: I thank you for your comments on the record in regard to my concern in this area.
You've also indicated in the brief here, and I think you also mentioned it during your oral statement, that you don't believe young adults should be transferred to adult court. If a 17-year-old commits murder, do you feel that it's wrong and improper to have them heard in adult court, as is the law - the possibility of that occurring by way of statute? Do you think that's wrong and that should be amended, and if so, why?
Mr. Horne: I believe it's a contravention of the convention we have signed that young offenders... The question of age, whether it was 16, 17, or 18, was always a thorn in the side of Canadian jurisprudence, because we have different provinces with different ages and the Young Offenders Act came in and established 18 years of age. Then, as you know, Ontario was very reluctant to assume that and used and still uses a two-tier system.
The UN convention used 18 years of age at the time. I really think there's enough evidence to show that developmental issues play a major part until the age of 18, and I've met enough horrific young 17- and 16-year-olds in my time to wonder if there's any hope for them. But I still think they ought to get the benefits of the law to protect them until they're 18 years of age, and we should look upon them as changeable.
Mr. Ramsay: In this case, the present Young Offenders Act would violate that directive from the United Nations Convention on the Rights of the Child.
Mr. Horne: Yes, that's so; it does.
Mr. Ramsay: Do you feel because of that convention that we should be changing the Young Offenders Act to comply with the convention?
Mr. Horne: I would be with other witnesses you've had in front of you who said that the major lack in Canada is a lack of resources.
When I ran a correctional school - I ran a correctional school for under-12-year-olds - at that time under the Juvenile Delinquents Act we could put 12-year-olds into correctional facilities. The horrific needs of those kids were beyond anything that corrections could touch now or ever. They had to have one-to-one care. They were - as a friend of mine described some street kids the other day - so hurt that to hug them was painful.
I really believe that's what we have to recognize. When children have been as damaged as many of the children are who arrive in corrections, we really have to look at some way to make them feel strong and well and fit again. We have to bring them up to a condition of health in their minds as well as in their social consciences. This is going to take some real commitment in the Young Offenders Act, which society is not prepared to give at this moment.
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Mr. Ramsay: I think we've heard testimony so far that would indicate many more resources have to be directed at the preventative end of this whole question of youth crime. There is very serious concern, at least in some parts of the country. We have to wrestle with how we deal with the small percentage of very violent offenders who, after they have served their time, show no signs of having been rehabilitated. If released, they may pose a threat to the lives and the physical well-being of members of society.
So we have to come up with some responses to that. My concern is this. Because of our time constraints, I'll limit it to this. I have real concern about this country being bound by decisions made outside of our country. What it is saying is that we do not know how to handle the problems besetting our unique society. I have some real concerns about this. If you'd care to comment on this, I would be pleased.
Mr. Horne: I hear your argument. I think those decisions were made here. I think we had a discussion in the House.
Mr. Ramsay: Then why do we have an inconsistency between the Young Offenders Act in terms of transferring to adult court and the UN convention?
Mr. Horne: I guess this is my question too. I don't understand it. I think the UN convention was ratified and was warmly welcomed by all the parties in Canada, both here and in the Ontario legislature. I was present when it happened. Everybody said cheers; this is wonderful. Then they put it back on the shelf and have not taken it into account since then in the development of law.
The other issue you mentioned had to do with kids coming back into society still dangerous, still high-risk. When we worked in corrections, the clear evidence we had was what happened to them in the school made no difference whatsoever. What mattered was what happened to them when they left the school and came back into a society that still defined them in a negative way and didn't give them a chance. The resources they met when they came back into society were far more important than anything we could do in this room. And we did a lot of things.
Mr. Ramsay: Thank you.
The Chair: We'll move to Mr. Gallaway.
Mr. Gallaway (Sarnia - Lambton): Thank you, Madam Chair. Mr. Horne, thank you for coming today. I wanted to clear up this whole business of the UN convention.
Mr. Horne, you started working in the 1950s. You were the director of a provincial juvenile facility in the mid-1960s. Would you not say the way young people are treated or dealt with today is perhaps regarded as radically different from the way it was 30 years ago?
Mr. Horne: The whole of society is radically different from what it was 30 years ago. There is no question about that.
Mr. Gallaway: Then in terms of the UN convention, in 1991 the Parliament of Canada ratified a convention on the rights of the child. I'm assuming your group, Defence for Children International, is in some way aligned with this. Can you tell me what the enforcement provisions of this convention are in terms of non-compliance with the 1991 convention?
Mr. Horne: At this moment enforcement is a strong word.
Mr. Gallaway: All right.
Mr. Horne: There is a UN committee on the rights of the child. It consists of ten experts of high model standing and recognized competence in the field who are elected to hear the country reports. Each country is due to report every five years.
Mr. Gallaway: Yes.
Mr. Horne: This committee asks questions of a government delegation, as it did last June with the Canadian delegation. There are responses and there are two days of hearings.
Mr. Gallaway: So in fact, when Mr. Ramsay talks about this business of another body having control over the Parliament of Canada, it's not quite - -
Mr. Horne: It's not controlled.
Mr. Gallaway: No, it's not controlled. All right.
Now in terms of this 1991 document, would you not agree we have to read it in terms of the social context of the day. In other words, if you had read this document in 1965 when you were the director of a provincial institution, might it not have conflicted with the prevalent social attitude towards the treatment of young people at that time?
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Mr. Horne: It did. Rights always conflict. During the time I was running the institution, they gave children the right to not have their mail opened. We thought this was a most dangerous thing. Nowadays, you wouldn't think of opening mail because of privacy.
Mr. Gallaway: If I were to characterize it, and I'm asking terribly leading questions here -
Mr. Horne: That's okay.
Mr. Gallaway: I don't want to put a lot of words in your mouth, but is it not fair to say this is a philosophical framework against which laws involving young people should be judged?
Mr. Horne: I think it has more standing than a philosophical framework. I think the requirements of a states party are fairly solidly stated when you look at some of the early provisions. It says states parties shall take measures to combat the illicit transfer and non-return of children abroad; states parties recognize every child has the inherent right to life; states parties shall respect the responsibilities, rights and duties of parents, and undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present convention.
Mr. Gallaway: I hear what you're saying. This being the case, I want to turn to one of the statements made on page 11 of your brief. You say your coalition:
- appeals to the Committee, on moral and legal grounds, to recognize that ``the best interest of the
child shall be a primary consideration'' in all their deliberations on juvenile justice in Canada.
I would put it to you in this fashion. I characterize this as a philosophical framework. It's a guideline. Is it not possible that from a different perspective, what you or Mr. Ramsay or Ms Venne states as being in the best interest of the child is at least arguable?
Mr. Horne: I'm no lawyer. I saw this Supreme Court decision. As I understand it, this decision overturned a lower court decision ruling out that the best interests of the child were primary. The Supreme Court said the best interests of the child were primary. They didn't say that to go to Australia was right. As I understand it, they said the best interests of the child were primary.
It says on page 11 that the best interests of the child shall be a primary consideration - it doesn't say the absolute and only consideration - in all judicial and administrative actions concerning children. So the Supreme Court was in tune with the convention on this decision, although to my knowledge they didn't quote the convention.
Mr. Gallaway: So in this sense, when this Parliament or for that matter when this committee makes recommendations it believes to be in the best interests of the child, would you not concede it may be quite possible your group or some other group would not agree with those recommendations?
Mr. Horne: That's why I brought John along. I think children should speak on their own best interest. I don't think I should say what the child's best interest is. I don't think I'm qualified to do that.
Mr. Gallaway: That's an interesting point, then. I should ask you what you think the role of the parent is in determining the best interest of the child.
Mr. Horne: It depends on the age of the child.
Mr. Topping: It's an interesting point. It was said very succinctly once by someone I heard speak on the issue. It was a comment about what rights are. The comment was that rights aren't something doled out to children by a government, by a UN body or by parents. In our system, and in any liberal democracy, they're something inherent in a human being. In the language of the UN convention, as the child gets older, parents have a changing role in helping the child exercise those already inherent rights.
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In that sense it's finding creative and, as the convention says, alternative measures to help children at different ages exercise those rights, and one of those rights is participation and having their opinions heard. So it's finding different ways. Of course just asking a blunt question of a child or a young person at a different age might not work at some ages. It might work at a later age.
So I think that's the plea. The plea is to help children exercise their inherent rights rather than to give them different rights as they get older. They have those rights at all points in their development.
Mr. Gallaway: I'm certainly not disagreeing with you, Mr. Topping. I agree with everything you've said. But at the same time, as a committee we're not dealing with a rights bill, we're dealing with an extension of the Criminal Code. As you know, laws are not rights bills. They're admonitions, they're prohibitions, about certain kinds of behaviour. Therefore I would ask you about the international convention. Often when we talk about the international rights of the child, is it not foreseeable that at times a prohibition, an admonition, would conflict with what appears to be rights?
Mr. Horne: On your opening statement, when you are considering changes to the YOA, would you consider the role of the Canadian charter when you are making decisions? Why not the UN convention?
Mr. Gallaway: I'm listening. I don't answer questions.
Mr. Horne: I know. It was a rhetorical question, a way of making a point.
Mr. Topping: I think in its largest form the argument we're making is for a consistency of language from documents the Canadian government supports to Canadian legislation. It's an argument for consistency between documents that already exist and things that can help us draft legislation.
Mr. Gallaway: One final quick question. Do you ever foresee a case where the best interests of the society at large would supersede the best interests of the child? Considering this document, could you ever accede to such a concept?
Mr. Horne: Considering this document, I guess the simple answer is yes. The best interests of the child should be a primary consideration, but other considerations may outweigh it at times, yes.
I'm thinking particularly about a certain murder. I was involved with the case as a witness and argued in favour of retaining him in the juvenile system with a certain amount of tongue in cheek because I saw no possibility...because he had been too damaged.
Mr. Gallaway: Could the reverse-onus provisions then not be construed at times to be that way also?
Mr. Horne: No, I don't see that possibility.
The Chair: Madam Venne.
[Translation]
Mrs. Venne: I have a very short question Madam Chair. You know that people are more and more fearful of violence. They even believe that it is more prevalent today than ever before, which is not confirmed by statistics.
What do you tell them when they say that we are not strict enough, that we should have more punitive laws, more controls for young people and that they should be put more often behind bars? What is your answer and how do you reassure people with those very real fears?
[English]
Mr. Horne: When the world is in a state of hysteria it's very hard to reassure anybody about anything. But all my experience tells me you do not make a person less dangerous by treating them harshly, punitively, by hurting them. You only teach them more and more the role of the outlaw, the role of the outcast, the role of the person for whom people don't have time.
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All of the children with whom I worked wanted to belong somewhere, and many of them had nowhere to belong until they came to a training school that really cared. I can boast that we did provide that.
Actually, that training school is under investigation because of one complaint over 10 years. The investigating officer told me that the amazing thing was that when he went to find some200 children across the United States, across this country, nearly every one of them told him that it was the best time of their lives; it was where they belonged.
I really believe that we can change the way in which we deal with children and make the world very much safer, but the whole community has to be involved. It's not just a matter for a few professionals and individuals. The community has to change the way in which it deals with criminal behaviour for children.
The Chair: Ms Torsney.
Ms Torsney (Burlington): First, I'd like to say thank you very much for coming today, because I think all of us need to remember that we are leaders in the international front and with the UN. We work in many countries and judge other countries by conventions such as this. Yet sometimes we forget to take a look in our own backyard to see what we are doing. So I thank you for coming and reminding us of our obligations and educating some of us as well.
I wanted to ask you further, Mr. Topping, about the rights that are inherent and indivisible in each of us because we are born to this earth. Also, what else do you think we should be doing in the implementation of the law, which is not really within our jurisdiction? Unfortunately, we only set the law, not implement it, in each of the provinces. But what are some of the things that you think we should actually be doing on a proactive basis, and what are some of the changes that you would like to see brought in to help children be all they can be?
Mr. Topping: I guess I can speak to the education front with the most insight because it's been something on which the Canadian Coalition for the Rights of Children has been working. I think we met a difficulty ourselves. When I was speaking a moment ago about finding ways to grasp youth opinion on what the Young Offenders Act is about and what their rights are, there's a difficulty, because asking direct questions isn't always the right way. So finding ways to make effective the education process about what rights are has been one of the coalition's goals.
What the coalition is doing presently will be released in about a week. It's a youth-written edition of the UN Convention on the Rights of the Child.
Ms Torsney: Oh, good.
Mr. Topping: What we met when we were looking for youth opinion for this brief - there would have been a section on the back concerned with what young people think about the Young Offenders Act - was a lack of knowledge about what rights were and a lack of knowledge to make the participation informed participation.
So in terms of implementing any piece of legislation or making any convention or any international document something that's living or something that people feel is interior to them, that are inherent and are not just given to you by the UN or not just imposed on you by the UN, one starts by getting a feeling that those rights belong to you, not given to you by the UN. I think if any legislation is going to work, it starts with that sense.
Ms Torsney: I also emphasize to young people in my riding, all the people in my riding, that unfortunately or fortunately, with rights go some responsibilities as well.
Mr. Topping: Right.
Ms Torsney: Speaking up is definitely one of their responsibilities, too. Otherwise, we don't hear.
To you, Mr. Horne, I know there are certain things that may seem inconsistent or there are certain things that some of us wish were different. But the reality is that we're operating in a political environment and there are forces that are saying to throw out the Young Offenders Act completely. They don't like kids to vote, but certainly once kids have broken what's considered to be a rule in the community, one should throw the book at them and treat them just like adults. There are some days when I'm not sure whether they're advocating capital punishment for some of our young people. It gets so crazy.
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So sometimes we have to walk a fine line and ask whether we are saving the most or the best or are we adapting this so we can keep the program going as much as possible, recognizing that the community is at a point - they've been whipped into gear in certain areas - where they will actually forget all of the conventions and preoccupations in Canada and throw the whole darn thing out.
We need, through both of your organizations, to refocus and to be forced, as the government and as individuals, all of us as opinion leaders, to remember that we talk a big talk about young people being our greatest resource, but we seem to be so unwilling to devote resources to them. It happens only they're in conflict, in which case we throw the book and put them away in a facility for the rest of their life, if that's what we think will help in the short term.
Mr. Horne: I totally agree with you. Again, my experience tells me that expectations are really important. Nobody is placing expectations on communities at this moment to really care for their children. In fact, there's more support for the voluble person who talks about getting rid of the Young Offenders Act. There are no strong voices saying not to do that.
History will tell us. We can look back through history in every country in this world and say, what happens when you do that kind of thing? Go back to England of the 18th century or Australia of the colonial times. Is that what we want, or do we want to say that children are a valuable asset and we are going to make them a valuable asset with everything in our power? We're going to treasure them.
Ms Torsney: For the record, what was going on in England and Australia?
Mr. Horne: There were hangings and all kinds of miserable punishments because of minor offences. The child became the enemy of society. Sometimes when I read the reports now, I think the child is the enemy of some societies here in Canada.
Ms Torsney: Because they represent change?
Mr. Horne: Because they cause fear. You respond in fear to fear, and you create more fear.
Ms Torsney: It's quite a challenge.
Mr. Horne: Yes.
The Chair: Thank you Ms Torsney.
Mr. Ramsay.
Mr. Ramsay: Thank you, Madam Chair.
Talking about fear, if the statistics hold true, in the next 12 months, there will be 42 people murdered by young offenders. That's causing concern across the country. From 1962 to 1992, there was a very significant increase in young people getting involved in criminal offences.
What do we do as a justice committee, government, and society when these murders take place at the hands of young people? What would you recommend? Should we focus entirely upon rehabilitation and say that there must not be a penalty for taking the life of an innocent person because the offender is in fact a victim themselves of society and that rehabilitation is the answer and only recourse? Should we remove the penalties entirely? Would you recommend that?
Mr. Horne: The penalty at the moment is incarceration.
Mr. Ramsay: Would you remove that?
Mr. Horne: No, because this person has behaved in a very dangerous manner, and the first rule in any treatment of people, adults or youth, is to preserve safety. The individual's just as much at risk in the community as the community itself.
As for rehabilitation, again, I think it's already been pointed out to this committee, or it was in the last series of hearings, that rehabilitation is the wrong word because many of these kids have nowhere to go back to. They never came from anything. So you're not returning them to some condition that they were in before. You're having to rebuild or to build a personality and a value system that doesn't exist, which takes a long time, a lot of care, and a lot of patience.
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With our little kids, we did it with teddy bears. Nobody had ever thought of giving them teddy bears. They'd never seen a teddy bear in their life. They'd never learned to play. They'd been little adults since they were four or five years of age.
There are all kinds of different ways of approaching it, but certainly whatever you do is with the best interests of that young person in mind. Otherwise, you've trained somebody to be something pretty horrific when you eventually let them out on the street, as you will have to one day.
Mr. Ramsay: As I've mentioned earlier, two areas of concern are emerging. One is the possibility of keeping more young people out of the system by putting more resources at the front end in preventive programs. Of course the other area is what we do when all of that fails, including the upbringing of the children when whatever organizations they go through in completing education fail to imbue them with a sense of responsibility strong enough for them to obey the law and they become a threat.
We have to look at both ends of it, and we are doing so. We have a responsibility to make recommendations. Either the Young Offenders Act is fine and should stay the way it is or it should be amended.
When you appear as a witness before the committee - I refer to both gentlemen - what we're looking for is something that will work. If it will work, then I really don't care what it is.
If it will, number one, keep society safe... Prior to Bill C-37 someone convicted of murder spent three years in closed custody. Apparently we have individuals in that situation now, in some of our closed custody institutions, where they will be out after spending three years, whether rehabilitation has worked or not, whether they pose a continued threat to society or do not.
What can we do about that?
There are answers, but whether they're the right answers is something else.
What can we do about the fact that values are not being taught in the home and the child is not being prepared?
When Professor Carrigan appeared before the committee in Halifax, he said we're fooling ourselves - this is the impression I got from his testimony - unless we begin to do whatever can be done to insist that values and ethics will be taught within the home and within the school and at all levels of society.
When we listen to witnesses who come before the committee, we're looking for answers. We're looking for ideas that will give us answers.
Mr. Horne: When I appeared here, I appeared basically on the issue of presenting the convention from my own experience.
I would go back to the issue of when those children are released. I have placed many children. I worked with Steven Truscott many years ago. That was one of my first murder cases. I've worked with a number of others since then. I've placed children from New Brunswick who were murderers into Ontario. I must admit that the population didn't know. They've not reoffended or anything like that.
I believe the question of re-placement into the community is the most important thing. Again I'm saying what I said before: it's not what you do with them in the institution, not how long you keep them, because you can break them and destroy them there, but it's what you do with them when you get them into the community and how you safeguard their future and meet their best interests when you re-place them into the community.
That's what we're deadly short of, in the Young Offenders Act in particular.
That was something it took away from the Juvenile Delinquents Act that was there before, and the change of circumstances in Ontario has pointed that out.
The need for a face-to-face, one-to-one, personal meeting between people is something that we're losing in our society.
But that's philosophical.
The Chair: Mr. Wells.
Mr. Wells (South Shore): I'll try to keep my questions on the convention. I appreciated your presentation, because it comes at it differently from previous ones, as you mentioned at the beginning.
At what age does the convention apply, and how does it define ``child''?
Mr. Horne: Up to the age of 18.
Mr. Wells: Does it have a minimum age?
Mr. Horne: No. Many articles in the convention apply to a child right from birth. In fact, it's been tried to apply it before birth, because the Vatican ratified the convention.
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Mr. Wells: If you've been following this - and I know you have been - you've heard some people in fact advocate that the age in the Young Offenders Act be reduced to below the age of 12. Would that contravene the convention? Does the age now - with a minimum age - somehow contravene the convention?
Mr. Horne: To my knowledge, there's no minimum age specified in the convention. I would strongly argue against extending it downward, because, having worked with those children... They're much better when worked with under different circumstances and they should never...the worst thing we did with them was to take them away from home or from a home setting. It was disastrous.
Mr. Wells: I think most of us agree with that. I'm just trying to apply it to the convention.
Mr. Horne: Yes. To my knowledge, I don't remember any kind of a bottom age in the convention.
Mr. Topping: I can't find it here, but I can keep on looking. There isn't a specific mention of a specific age, but there is a mention - and if I can find it, I'll give you the reference - that states parties must set a minimum age at which criminal responsibility does not apply.
Mr. Horne: There's no age in the convention.
Mr. Wells: From your experience, you're happy with the 12 to 17. Is that...?
Mr. Horne: Yes, I am.
Mr. Topping: It's in article 40, section 3:
- 3. States Parties shall seek to promote the establishment of laws, procedures, authorities and
institutions specifically applicable to children alleged as, accused of, or recognized as having
infringed the penal law, and, in particular:
- (a) The establishment of a minimum age below which children shall be presumed not to have
the capacity to infringe the penal law;
Ms Torsney: It's in here. It's on page 9 of their presentation.
Mr. Horne: If you would like, I can send you a copy of our DCI document, which is beautifully illustrated.
Mr. Wells: I have one last question. You said at the beginning - and I'm not sure of the context - that there were two members who had a varying position on something.
Mr. Horne: They have already presented to this committee, to the last committee.
Mr. Wells: Do you mean two members of Defence for Children International?
Mr. Horne: No, they were from the Canadian Coalition. They were teachers' groups. It wasn't a strongly variant position. It was basically a question on...I have the briefs somewhere here. It's a question about the use of zero tolerance and things like that, which we feel are not appropriate. I have all the briefs somewhere here.
Mr. Wells: So where they varied was...
Mr. Horne: They were from the Canadian Teachers Federation and from the Canadian Home and School and Parent-Teacher Federation.
Mr. Wells: Those differences of opinion are already on the record.
Mr. Horne: They're already on the record and, as I say, they're not strong. When I looked at them I thought they were strong. I thought they were coming out in favour of the reservation in 37(c) because that's what they told me.
Mr. Wells: Thank you, Madam Chair.
The Chair: Thank you very much.
I want to thank both of you for appearing today.
Mr. Horne: It's a pleasure.
The Chair: We're very happy to receive your brief and to hear a slightly different perspective from that which we've been hearing all along. Thank you very much.
Mr. Horne: Thank you.
Mr. Topping: Thank you.
The Chair: We're adjourned until tomorrow.