[Recorded by Electronic Apparatus]
Thursday, May 9, 1996
.0938 
[English]
The Chair: Good morning. This morning we have Professor Nicholas Bala from Queen's University. It seems to be the only university we're hearing from these days. But that's okay; we'll fix that when they go to Windsor.
Professor Bala, we have until 11 a.m., give or take. So you just go ahead and we'll ask questions after. There's no time limit on you.
Professor Nicholas Bala (Associate Dean, Faculty of Law, Queen's University): Thank you very much. It's a privilege to be here. I sent you a very short letter July 14, 1995. I assume you have a copy. It summarizes some of my conclusions in this area.
I am a law professor at Queen's University. My primary teaching and research interest is in the area of family and children's law, although I certainly teach other subjects.
I've articled here in Ottawa, and worked in a legal aid clinic before joining the Faculty of Law at Queen's in 1980. I was also a visiting professor at McGill, at the University of Calgary and at Duke.
While my main occupation is teaching law students, I've also been involved in education programs for lawyers, judges, police officers, social workers and doctors, about a range of issues relating to children, including young offenders, child abuse, divorce, custody and access issues.
I've done some consulting work for the federal Department of Justice as well as for provincial governments in these areas, and also some work for aboriginal organizations.
I have written quite extensively on young offenders issues. Some of my recent articles include work on transfer, on the issue of the minimum age, comparing juvenile justice in Canada and the United States. I've written an article recently in the Ottawa Law Review on the 1995 amendments that were brought forward by this Parliament.
I also have some experience representing young offenders, although I would certainly defer to others who have more experience in working with them. I am at present a volunteer with the Frontenac youth diversion program, which deals with young offenders, but again my capacity is very limited.
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And I am a father of four children, although that probably qualifies me for very little.
The Chair: Medication maybe.
Prof. Bala: I know that the committee's mandate is very broad, so my brief to you was also very broad and general. In my remarks, which I will keep to about 10 to 15 minutes, I will simply summarize and touch on a few issues. I'd certainly welcome questions about any matters related to young offenders.
With regard to the issue of youth crime, its nature and extent, I think it's important to appreciate that all young people are committing offences. Really a part of adolescence is making mistakes and testing limits. So if one goes into a high school class, and, on a confidential basis, asks who has committed an offence in the last year, if one considers things like assaults, mischief, drug and alcohol offences, virtually all, if not all, young people have committed some offences.
A minority of young people commit more serious offences, more repetitive offences. Those who are the more serious, frequent offenders are typically ones who are having difficulties with the education system, learning disabilities, problems with their home life, whether abuse or neglect, inappropriate parenting, or a situation where they've moved into various foster homes, and so on. They often have drug and alcohol abuse problems.
That is a typical set of patterns, and there are others. Obviously there are some people who come from seemingly very normal backgrounds who also commit offences. So one has to be careful about generalizing about all offenders.
When considering the issue of how to respond to young offenders, it's necessary to bear in mind that there is this spectrum of offending, and a lot of variation within it. So we have to distinguish among different situations and respond appropriately in each case.
With regard to the legal system - and, of course, I'm a law professor and a lawyer, so my focus tends to be on that - I think it's important to recognize the limitations of the law, the justice system and the corrections system in dealing with offenders.
If we want to have a safer society, a society where there is less offending going on, then we have to look at a broader range of social issues. The legal system and the law only have a relatively limited impact.
That was very well recognized and stated by the Horner committee, which reported to Parliament in 1993. It's an excellent starting spot for a discussion and study dealing with crime and preventing crime, and leading to a safer society.
That report quite correctly pointed out that issues of social services, health, education, family support, pre-school, and youth employment are all very important in terms of dealing with and lowering the levels of youth crime in a society.
In that regard, I'd have to say I am quite concerned that in some provinces in this country, and in particular in my own province, as we're going through a process that may involve some reduction and cuts to our social service, education, health systems and welfare, we may well see an increase over a long-term period in our levels of youth offending as a result of that. Those are important background factors to keep in mind.
The legal system is a major issue, and of course young offenders are a very substantial matter of public concern. In fact, it's an interesting sociological observation that the level of public concern about young offenders and the amount of media reporting about young offender cases have increased dramatically, whereas the levels of youth crime have seemingly remained fairly constant and perhaps slightly fallen. But it's understandably an issue of social and political concern.
There's a great deal of focus on issues of using punishment to deter a crime, particularly with serious young offenders. Increasing the severity of punishment, having longer sentences or more cases transferred does not have an impact on youth crime. That doesn't mean there's no place for long sentences, but we're not going to get social protection through deterrence.
The reality of most people who are committing these kinds of offences, mostly adolescents, is that they are not considering the consequences. So if you pushed the sentence from three to five years, five to ten years, or ten years to life, you would not have a safer society.
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Interestingly, in the United States they have tried this. As I mentioned, I've written a paper looking at the United States. In many American states they've gone through very much of a get-tough process, which in the United States involves many more transfers, sending young people into adult prisons. In some states it includes capital punishment.
This has not reduced youth crime in the United States. Those states that have been successful in dealing with youth crime have looked at some of the factors and programs I mentioned earlier.
There are things we can do in the justice system, particularly through policing, that will have an effect on youth crime. If you increase the perception of young people that they will be caught, that may have an effect, so policing certainly has an effect.
There are other strategies that can be used to reduce youth crime. There is a place for long sentences; it partly has to do with accountability. Accountability is a part of youth sentencing.
In some cases it has to do with rehabilitation. Some young people, a small minority, need a long period in a residential custodial setting in order to get rehabilitation.
For a very small minority it has to do with incapacitation. If a young person has demonstrated a high propensity to violence, it may be appropriate to have him, or occasionally her, locked away for a long period of time.
But we have to focus always on why we are having these kinds of sentences, and not imagine that we will get social protection through deterrents.
On issues of diversion and alternative measures, it's important to recognize that Canada has one of the highest rates in the world of formal intervention through a youth court system and through custody. In fact, I haven't seen a country that has a higher rate than Canada. Certainly it's much higher than the rate in the United States, England, Australia, or New Zealand.
While there is an important place for a formal youth justice system, we should try to deal with more cases informally in a way that involves families, parents, communities, victims as well as offenders.
By the way, some provinces in this country - and Quebec is a good example - are doing much better in this regard than others. Some aboriginal communities are experimenting with aboriginal sentencing circles.
There are models in Australia, England, and New Zealand that one can look at in terms of more diversion, more use of alternative measures, in a way that satisfies communities, victims as well as offenders and their families, and that provides more use of community-based responses.
That doesn't mean all young offenders can be dealt with in the community, but certainly many of them can.
I'd like to talk for a minute about dispositions. As I mentioned, Canada has one of the highest rates of youth custody use in the world, if not the highest. It's interesting to pair that with adult offenders.
The United States has a much higher use of prison for adults than Canada does on a per capita basis. But looking at young offenders, we have as high or higher rates in most cases than the United States on responding to adolescent crime. In fact, in this country, with a certain range of what we call the low-end range of offences, it seems that young people are more likely to be in custody than adults who commit the same offences. Some research tends to indicate that, although I don't think we have conclusive data on that. But that would tend to be my view.
We have to have more use of community-based alternatives, not for all young offenders, but certainly for many of them, and this will require a shift in resources. The federal government has an important role to play here, in terms of how it funds and supports provinces and how it can encourage provinces to spend their money.
In terms of legislation, judges should have more discretion about shaping dispositions and more discretion to make use of child welfare responses in appropriate cases under the Young Offenders Act.
With regard to the youth justice system, I would also like to briefly address the issue of due process, use of legal services. Perhaps tied to its very high rate of the use of custody in court, Canada tends to have one of the most formal systems for dealing with young offenders. In some ways it's probably more formal and extensive than it needs to be.
There is an important place for legal services, in particular if a young person is facing removal from the community.
I want to be very careful about generalizing. Some lawyers who work in this area are extremely dedicated, sensitive, competent, and well trained. That is not always the case.
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Right now the federal and provincial governments are providing a great deal of funding for legal services. Some of it could be directed toward ensuring that lawyers who are involved in these cases have appropriate training and qualifications. Perhaps in some cases parents could be called upon to provide some assistance with regard to provision of legal services.
On the issue of transfer, I realize that Parliament dealt very extensively with transfer in Bill C-37. I would share with you the thought that it may be appropriate to eliminate the transfer hearing, not the idea that a very small minority of young people who commit the most serious offences shouldn't possibly have the long adult sentence and ultimately serve part of that in an adult custodial facility. But the pretrial transfer hearings we have are often expensive, cause delay, and are conceptually and practically difficult for judges and lawyers.
Often it's not really clear what should be done and, in particular, how the offence should be dealt with. There's a strong argument for having the issue of transfer dealt with on a post-adjudication basis in a small minority of cases. If you're interested, I could talk more about that.
Finally, I would turn to the issue of age. The age jurisdiction of the Young Offenders Act has of course been controversial. With regard to the maximum age, up to the 18th birthday, I believe that is the right age, particularly with some form of transfer provisions, to deal with the most serious older young offenders. The age of 18 is the beginning of adulthood in this society, and it is typically the end of a period in high school. It also accords with international standards. So I would be very reluctant to see us move away from 18.
On the issue of minimum age - I've written a paper for the Department of Justice on this subject that I mentioned in my letter, and I believe it has been made available to you - 12 is certainly a defensible age. For most children on average, it's really the beginning of puberty, the beginning of a physical, psychological and sexual stage of development.
I'm not sure that serious consideration shouldn't be given to lowering the age to 10. We know that 10- and 11-year-olds are committing a significant number of offences, certainly fewer than older adolescents, but a significant number, nonetheless.
In most countries, the minimum age is not as high as 12. The age of 12 is relatively high; 6 to 10 years is a much more common range.
In theory, in Canada now we are dealing with those who are under the age of 12 through the child welfare system, and certainly for some children this is an appropriate and effective response. In many places it's not working very well, and understandably police and victims are becoming very frustrated with the system.
We've been very fortunate that we haven't yet had a 10- or 11-year-old commit an extremely serious offence - I'm talking about murder or manslaughter - in this country. I'm saying, not yet, not recently.
If we do, we will find that our child welfare system and legislation in no province deals with that kind of situation adequately, and people come back to you and scream, and not surprisingly so.
The vast majority of 10-year-olds have a moral sense of what is right and wrong. To the extent they get any involvement with the justice system, there's no consequence. The message going out there is, until they are 12, they can't be controlled. There was quite a sensational, but nevertheless revealing, CBC show some of you might have seen last year that raised that issue, and quite appropriately.
If the age is lowered to 10, it's important that most children of that age be diverted from any formal response. There should still be an emphasis on child welfare responses and certainly an effort, in almost all cases, to use the legal system as a lever to get the child and parents needed help.
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Those are my formal remarks. I'd welcome any questions.
The Chair: Thank you very much.
Madam Venne, you have ten minutes.
[Translation]
Mrs. Venne (Saint-Hubert): As I was unfortunately unable to hear the beginning of your presentation due to other parliamentary obligations, I will only ask you one question regarding what struck me the most in your brief. If I heard you right, you said that Canada has the highest rate of youth incarceration, even comparing to the United States. Is it what you said?
[English]
Prof. Bala: Oui, c'est correct. I have written a paper, co-authored with Dr. Joe Hornick at the University of Calgary, and Joe Hudson, and funded by the Department of Justice, calledThe Response to Juvenile Crime in the United States: A Canadian Perspective. In this article we go through and compare Canadian and American data on offending, police arrests and rates of custody use. The rate of youth crime, especially violent youth crime, is much higher in the United States.
So if we sit in Canada, especially in English Canada where we watch a lot of American television, and we see the offending going on in Detroit or elsewhere, the rates of youth homicide in the United States are eight to ten times those of Canada, but the rates of youth custody are actually slightly higher in this country than they are in the United States.
This report documents that fact, and I'd be happy to make a copy available.
[Translation]
Mrs. Venne: That being said, I wonder why you are proposing that the minimum age under the Young Offenders Act be lowered from 12 to 10. You will understand like I do that in that case, an even greater number of them will be incarcerated.
[English]
Prof. Bala: There's obviously some force to your question. I think, though, that the issues are somewhat separate.
I would like to see the present system changed so that we have less use of custody. I should mention of course, as you are probably aware or are learning, that there is actually very substantial variation from province to province in the rates of custody use.
In Quebec, where there is a difference in the provincial legislation and in the philosophy, where there is different funding and more use of diversion, less use of custody, the situation is probably somewhat different from that in other provinces.
I would not like to see, and would not expect to see, substantial numbers of 10- and 11-year-olds being placed in custody. In fact, in the paper I wrote I recommend very significant restraints on the use of custody for 10- and 11-year-olds, and indeed arguably one could push that to 12- and 13-year-olds as well.
On the other hand, I think the complete absence of any criminal sanctions for 10- and 11-year-olds is a legitimate concern.
Child welfare legislation, which focuses totally on the best interests of the child, is not the only factor that one would want to deal with in regard to a 10- or 11-year-old.
Internationally, we've seen in a number of countries - the United States and England, of course - tragic offences committed, involving death, by 10- and 11-year-olds.
I don't think that a child welfare response is totally adequate, and in fact in some provinces, the way the provinces have written their legislation, if a 10-year-old committed a murder or a manslaughter offence, and the parents said ``It's okay, we can deal adequately with this situation, we just hired a very good psychiatrist and we're sending our child to the United States to be in a treatment facility we've chosen'', or for that matter any place else, there is no basis for legal intervention.
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The way child welfare legislation is written and the scope for involuntary state involvement on the basis of that legislation is such that it is understandably limited and focusing totally on the welfare of the child.
I think that if a child has committed a very serious offence, those are not the only factors to take into account.
I also think that part of the law is symbolism, part of the law is about victims. I don't know how you deal with the situation if a parent says ``well, my 8-year-old child was just stabbed by an 11-year-old child, and the police say, well, we can't do anything about it, but I hope he's going to get some help from his parents''. I don't think that's a totally satisfactory response.
The paper I wrote looks at some of the data on offending by 10- and 11-year-olds in this country. There is certainly less offending than with older adolescents and less offending than with adults. Some of this is distorted in the media, but there have been some very serious offences in this country by 10- and 11-year-old children.
Mrs. Venne: Merci, madame la présidente.
The Chair: Thank you.
Mr. Ramsay, you have 10 minutes.
Mr. Ramsay (Crowfoot): Thank you, Madam Chair.
I would like to thank you for your presentation here this morning, Professor Bala. I appreciate it very much.
Of course, I agree with the need for some kind of criminal sanctions on offences committed by 10- and 11-year-olds, but that does not necessarily mean that if the age is reduced to 10, we're going to see more, or any, of those children in custody. The incarceration of 10- and 11-year-olds does not automatically flow from the reduction to 10.
There's another area I'd like to ask you about, because you have written about it, and we have not had any discussion about it so far in our committee. That has to do with section 3 of the Young Offenders Act.
In your 1994 Ottawa Law Review article, ``The 1995 Young Offenders Act Amendments: Compromise and Confusion?", you indicate that section 3 did not provide significant and necessary direction for decision-makers because Parliament has failed to prioritize principles. You say there is a vagueness to each of the principles and a lack of guidance, thereby providing substantive variation or discretion in how the YOA is applied with very significant differences in sentencing practices and rates of custody used between provinces, as well as in the use of such programs as alternative measures.
Our examination of what has occurred since 1994 is that because of section 3, some judges hand out lenient offences, reflecting the principle that young offenders or young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults.
On the other hand, members of the judiciary continue to deliver harsher sentences, being guided by the principle that young persons who commit offences should nonetheless bear responsibility for the contraventions.
So we and you seem to have identified an ambivalence in section 3 and in the declarations and guidance provided in section 3 of the act.
You didn't comment on that during your presentation. Would you care to comment?
Prof. Bala: You've raised a lot of interesting and important questions. Both with adults and young offenders, but more so with young offenders, there is substantial variation in how cases are dealt with. But on any criminal justice issue you can look and find variation.
With young offenders part of the variation is because of differences in provincial facilities, spending, programs. Part of it is because of differences in judicial attitude, either from one judge to another - and we see differences even within the same city where we have two or more judges who may have very different attitudes...
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There's always an issue of how much discretion one is going to give individual judges and how much one is going to structure that discretion. I think Bill C-37 - and you were very kind to refer to my paper. Actually the title was not ``Compromise and Confusion'' but ``Compromise or Confusion''...
Mr. Ramsay: That's right, it's ``or Confusion''; I'm sorry.
Prof. Bala: I only picked that up in that it is a good question to ask where this ambivalence comes from. My sense is that the ambivalence in section 3 reflects the ambivalence of our society, of parents and of politicians, if I may respectfully say.
At different points I have heard politicians talking in different ways about young offenders, and quite legitimately so, in that at some moments we're talking about accountability, protection of the public, getting tough, and about the inadequacy of our criminal justice system. At other moments we're talking about recognizing that adolescence is a time of making mistakes.
For parents it's a time of... I mentioned that I'm a parent of four children. None of them are yet 12, so I guess I can speak authoritatively about those who are adolescents.
But listening to parents say ``Oh, it's so good when they're young''. Of course, my wife and I are absolutely exhausted. ``Wait until they're adolescents, wait until they're teenagers, then your troubles will really begin.''
There is some truth that both on a social level and certainly on an individual level being a teenager, being adolescent, especially in today's world, is going through a very difficult period of time. It's challenging for teachers, for society and for parents. I don't think we can have a single philosophy or principle that is going to deal with all situations adequately.
Some American states have gone to having sentencing grids, and certainly that's one way one could go to say, with this offence and with this kind of record, you get this kind of a sentence. If one moves to that kind of model, one would substantially reduce the degree of variation in sentences.
In a country as big as Canada, with as much provincial responsibility for juvenile justice as we have, it might be very difficult to get a fair and appropriate grid, unlike the American states, which are relatively small and have only one area of responsibility.
Bill C-37 was an attempt to clarify some of the principles. The 1995 amendments go some way towards indicating the priority between the principles.
If you want to deal with sentencing issues, the place to do that is in this. In 1995 there was some attempt to make an effort to ensure that custody is only used as a last resort.
One of the things that's going to be difficult both for you and for witnesses coming before you is that it's going to take a longer period of time than you'll be having for the hearings to fully assess the effect of the 1995 amendments. I would want to see that those have failed before going and having greater clarity.
But it is a political decision. If you conclude that the paramount principle is to be accountability, and we'll forget about special needs and the special status of young people, then you could say that.
I don't think, though, when you actually put it to most Canadians, that they want to see that. If you ask Canadians the question, do you want a tough youth justice system that holds young people accountable, they say yes. If you say, do you want to have a youth justice system that deals adequately with young people and recognizes their special needs, they say yes, we want that also. It reflects the complex nature of the problem.
Mr. Ramsay: Of course, from my reading of the subject and dealing specifically with this issue of ambivalence in section 3, it appears that some of the criminologists and lawyers agree with your summation.
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In the report I've prepared for this 12-year review, I state that it seems the only way to meet public demands and deal with the complex problem of youth crime is by balancing the welfare principle of the Juvenile Delinquents Act with the legalistic principle contained within the Young Offenders Act. Would you comment on that?
Prof. Bala: I certainly think the Juvenile Delinquents Act... It's ironic because today, when some people are criticizing the Young Offenders Act, they look back and say ``The Young Offenders Act was a mistake; we should go back to what we had then''. They do not realize that if one reads the Juvenile Delinquents Act, and you quite correctly point it out, the only principle and the constant theme there was the best interest of the child, the good of the child.
I don't think it's appropriate to say that's the only concern, and that goes back to 10- and 11-year-old offenders. I don't think that's the only issue in dealing with 10- and 11-year-olds.
I don't think it can be the only issue in dealing with adolescents. It's very appropriate to say ``For one thing we're going to hold you accountable, but not necessarily as accountable as adults''. We say ``If you're 15, you can't vote, you can't drink, you can't drive; we don't think you're competent enough to do that''. The other side of that is saying ``Because we recognize you're not an adult, we're not going to hold you accountable in the same way as - we won't always hold you as accountable as we would an adult, of whom we would expect more or better judgment''.
So at the end of the day I suspect you're going to continue to wrestle with the need to have a balance and give judges a fair amount of discretion to deal with the young people who are coming before them. The consequence of that would be substantial variation.
There are things you can do, and you've done some of them in Bill C-37, to try to reduce that disparity.
The Chair: Thank you.
Mr. Gallaway.
Mr. Gallaway (Sarnia - Lambton): Professor, I wanted to ask you about your recommendations with respect to the minimum age.
You've stated that you believe it may be necessary to lower it to 10 or 11. We've heard that from other witnesses on occasion.
I believe you also said there is a significant number of offences involving 10- and 11-year-olds. Relative to 12-year-olds, how many offences are committed by 11-year-olds? Is it 50% of the offences committed by 12-year-olds, 75%, 80%?
Prof. Bala: I have referred you to a paper. I don't know if it's been available physically to each and every one of you. I wrote a paper with a student called Responding to Criminal Behavior of Children Under 12: An Analysis of Canadian Law and Protection. That was commissioned by the Department of Justice, but the views in it are mine and not necessarily those of the Department of Justice.
While I wouldn't want to say it's the definitive work on the subject - I don't think one ever could - it's probably one of the most exhaustive recent treatments of the issues by an academic in this country. It traces the history, the variation in provincial offence rates and responses and some of the problems that are there, and comes up with the ultimate conclusion.
I would say that if you're interested in this issue, I'll certainly try to answer your questions. By all means, I would encourage you to look at that paper; it has greater depth.
When ones looks at the level of offending, in fact it starts... And what is offending is one of the definitional problems.
I admit I have a 10-year-old daughter, who is by far the best behaved of my four children, but if we called in the police every time she committed an assault, we'd have to have an officer living in our house.
Children - and this includes adolescents - are committing offences all the time, especially as you move down that age range. So the question is, how do you define an offence? One measure would be, well, are the police called? Do they consider it to be an offence, and is it a technical violation of the Criminal Code?
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If you look at patterns of offending and of police responses, police have been called in with cases involving 6- and 7-year-olds in this country - 8-year-olds, 9-year-olds. It pretty well goes up on almost an exponential curve. Of course one of the realities right now is there's a tendency not to call the police if the child is 10 or 11. People who know - at least those involved - ask why the police should be called. They believe the police can't do anything because it's not a criminal offence.
The best study that was done - and it's not by any means conclusive - was by Stats Canada. They looked at police reports across Canada. To me the threshold is probably about the age of 10. When you look under the age of 10, the level of offences falls off quite dramatically.
Wherever you go, any age level at the upper or the lower end is going to be arbitrary. Someone is always going to choose. They'll say 18, or here's a 19-year-old who's very immature and it wasn't a very serious offence, or here's a 17-year-old who's committed a very serious offence.
At the upper end I think it's appropriate to have some form of flexibility, as we do through the transfer proceedings. At the lower end you're always going to have some kind of an issue. In some states in the United States they have 6-year-olds being brought into a court and dealt with through a criminal justice response. I think there's a point at which one could say the child's understanding of what he or she has done and the child's understanding of the nature of the court process are so limited that it becomes meaningless and inappropriate to have a criminal justice response.
With 10- and 11-year-olds - and I review in the paper some of the psychological literature. By the age of 10, and of course each child is different and they're maturing at a different rate, most children have a pretty good sense of what is right and wrong. They realize they are breaking the criminal law. Many of them fortunately are in ignorance of the lack of response.
One of the difficulties we have is that those children who are most inclined to offend, most inclined to offend repetitively, to be involved with the police, to be influenced by older peers, are those who are most informed about the absence of a criminal justice response. In other words, storekeepers and others say an 11-year-old has been in before and shoplifted and he knows the police can't do anything. They just take him home.
Those are the children who are most aware of the inadequacies of the legal system. I think the law would have an important educational role to say to children that if a child is 10 or 11 years old there is a possibility of being arrested and being brought before a judge and of some kind of criminal response. We want to send them a message.
Mr. Gallaway: I asked what the weight of the number of offences of 11-year-olds is relative to 12-year-olds. Is there empirical data? That's my question.
Prof. Bala: In my paper, which I referred to you, I summarized the work of a 1992 Stats Canada survey of 27 police forces in Canada. The data indicate that offending behaviour by children under 12 is a significant problem, although it's a relatively small part of Canada's total crime picture.
The study indicates that children under 12 committed about 1.2% of all crimes compared to 20.8% by young offenders and 78% by adults. In other words, about 5% of the youth crime problem, which is 1% of the total crime problem, is children under the age of 12.
Mr. Gallaway: If you were to lower the age to 10 or 11, are you recommending it only be lowered for specific offences?
Prof. Bala: I would certainly want to see restrictions on how it is used. There would be a number of ways of doing that. It could be the most serious offences. There could and should be restrictions on the range of dispositions a judge can impose. There should be a major emphasis on dealing with these cases. Most of them could, should and will continue to be dealt with informally by parents and by police cautioning children and parents and warning them - that kind of informal response.
Mr. Gallaway: You've also said the rate of youth crime in the United States is eight times that of Canada. I live close to Detroit. I live 50 minutes from downtown Detroit and I'm quite aware of what youth crime is about in Detroit. It occurs every day.
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It would seem to me there is a societal problem with respect to youth crime in certain areas of the United States. Would you not agree that those - perhaps not on the same scale - types of situations exist in Canada where there's extreme poverty, where there are terrible societal problems? In fact, we could have in Canada - we're one tenth the size, but you could prorate it - the same kinds of problems here where 8-, 7- or 6-year-olds are committing crimes.
Prof. Bala: It's an interesting idea to compare Canadian and American levels and rates of youth crime. In fact, I said the youth homicide rate is 8 to 10 times that in Canada. If you look at other offences, Canada is much closer, and for certain kinds of offences we may be very close.
As you quite correctly point out, there are a lot of differences between Canada and the United States. One that I think is significant with regard to adolescent homicide in particular is access to firearms.
Particularly with young people who are prone to violence, they get angry with one another and don't understand the consequence of their act. If they have a gun, they just pick it up and start shooting. For better or for worse, adults are at least somewhat more reflective about what it is they're doing and have a better appreciation of the consequences of their acts.
You're also very right in saying though that one has to look at the total context of social programs, educational programs and health programs. The comparison between Ontario and Michigan, for example - looking at the levels of poverty, the absence of social programs, the cuts to welfare, the inadequacies of their educational funding - shows that all are related, and I think causally related, to their youth crime.
That's why I mentioned in my opening remarks that I'm certainly concerned about the trend in this country towards withdrawing social services, particularly for poor families, and to withdrawing or cutting preschool programs. There's a reference in my paper to a very important study called the Perry Preschool. They went into a high-risk community, a community where there are a lot of single parents, a lot of people on welfare, a lot of crime, and put a lot of resources into children at the preschool stage.
In other words, they said they would start when the children were aged two to six and they would invest in those children. Obviously, it's a playful not a formal setting - education, nutritional supports, counselling for the parents and so on. They would then follow those children longitudinally for 10 or 15 years. Although certainly some of those children are committing offences, you'll find they have a much lower rate of youth crime, a much higher rate of school completion and lower rates of welfare. That kind of study shows that investing in high-risk children on a preschool basis has a very high long-term social pay-off in economic dollars and cents terms.
One of the problems of course you face as politicians with this is that the pay-off is in 10 or 12 years. I know politicians quite appropriately are going to keep a long-term perspective on these kinds of issues.
We were doing some interesting research. In fact, it was mentioned at Queen's University, which is one of the study sites for the better beginnings programs. The Ontario government has this long-term program and is putting in resources at a preschool stage. I think that's an important part - not the total solution, but an important part - of dealing with youth crime. As I said, unfortunately we may be engaging in a very costly long-term social experiment to see what happens if welfare rates are reduced by 20%.
Anecdotally, listening to police officers, judges and defence counsel, I think we may well have an increase in certain kinds of crime rates, certain kinds of property crimes, for example, in Ontario, with adolescents who say they're not getting enough to eat.
I'm hearing stories about young people who are going into stores and just taking food. I'm not talking about stealing chocolate bars. They're opening up a bag of potato chips or a loaf of bread and starting to eat. The police come along and ask them what they're doing and they say they haven't eaten today and they're hungry. The police ask them about the food bank and they say they can't get on a bus and go to a food bank because they don't have money for a bus.
Those are the kinds of issues we're unfortunately going to start to face in this country. The long-term social and criminal impacts of these kinds of changes may be very negative.
The Chair: Thank you. Madam Venne, five minutes.
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[Translation]
Mrs. Venne: You say in the summary of your brief that we should re-examine the role of the police in the community. If we consider the police response these last few years in cases involving young offenders, we notice that they are being charged in greater numbers like we have been saying for a while. According to some people, it might be due to the fact that police officers are less likely to respond to an illicit act by a young offender in an informal manner.
I would like to know if you see a relationship between the use of police discretion to divert young offenders away from the justice system and the volume of minor cases - very minor cases - entering youth court?
I have a subsidiary question to ask regarding the differing police practices from a province to another. Do you think that this would account for the variation in the number of cases brought to youth court between the provinces? I have very meaningful numbers here. Apparently, in Quebec, 1.74 cases out of 100 involving youth aged 12 to 17 are brought to court, compared to 8.71 in Saskatchewan.
Can this really be attributed to the different fashion in which police officers apply the Young Offenders Act in each province?
[English]
Prof. Bala: You raise many interesting and important questions. One is how we know what the level of offending is by either adults or young persons in any place in the world. The answer is we don't actually know. It's very hard to get a really accurate measure either at any one time or over time.
To me one of the measures on youth offending that is relatively firm is the youth homicide rate because it's not influenced by charging. If you have a body, you know there was a homicide. On youth homicide we've had a flat or slightly declining trend over a significant number of years.
I don't think the youth crime rate is the same everywhere in Canada. It is clear there are real variations and there are also variations in terms of police responses. If one looks at youth homicide figures, over a prolonged time some provinces have had substantially more offending than other provinces.
Quebec is a province that seemingly has an actual rate of offending that may be lower than some other provinces. Youth homicide might be a good example of that. Among the Canadian provinces, Quebec - and I don't want to use a loaded term like saying it's a distinct society - has had a different set of social, educational, legal responses to children from all the other provinces. It's something that's been written about by criminologists, among others.
One indication of this, for example, is the payments that are made to parents when children are born. Obviously that may have an indirect effect on youth crime, but it says they are caring about children, they want to support the children they have. There's an interest and there's also a relatively low fertility rate. But the intermeshing between the youth justice system and the child protection system in Quebec is, in my mind, in many ways a model for what could and should be done in other provinces.
On the relatively high rate of use of diversion, to come into the specifics of your question, for one thing we don't have good data on how much police use diversion.
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One of the comments in a report I wrote suggested that one of the things that Statistics Canada and the police should do is try to keep better records on how many children are cautioned and dealt with informally. We don't really know, but to the extent that we have data, both small studies and other kinds of indicators, it's clear that police charging practices vary a great deal.
One of the things that undoubtedly happened in the 1980s all across Canada, but certainly in Ontario and some of the other provinces, was that the police began to charge young people, where in the past they would have dealt with the case informally. In a schoolyard fight...in Ontario we now have a so-called zero tolerance policy. For anything that a teacher or principal perceives to be an assault, they call in the police.
If you are dealing with a population of children, adolescents, young adolescents, and you ask if any of them have hit one another in the last 24 hours, or today, you find that there's a lot of that sort of stuff going on. If you start calling in the police and the police start charging young people, you can find the statistical youth crime rates are affected a great deal. I'm sure there are substantial variations both between provinces and even within provinces about how much police charge young people. I think that's an important variable.
I'm not sure that the Parliament of Canada can have much direct impact on that, but I think it would be appropriate to look at some of the models in other jurisdictions in England, Australia and New Zealand. In fact, even in the United States they make much more aggressive use of what we'll call alternate measures, such as informal cautioning and police diversion, than we do in this country. I think this is an appropriate cost-effective response for many offences.
The Chair: Thank you.
Mr. Maloney.
Mr. Maloney (Erie): To go back to your minimum age, first of all, is the incidence of crime at the 10- and 11-year-old level such that it's at the point where we really should be concerned about lowering the minimum age, or would it be more appropriate to have a youth transfer at the lower level, as we do now at the higher level for certain types of crimes or certain incidences of crime? If the latter would be proper, what would be the criteria for a transfer?
Prof. Bala: I think your question is a good one. I think one could call it a transfer. I haven't given a tremendous amount of thought to this. I think it's quite appropriate to ask the detailed question that if we want to do this, how do we want to do it, because if we do it, we don't want to dramatically increase the number of children being brought into court; we don't want to have a large number of children in custody facilities.
I think at this stage in the process I would submit to you that it's appropriate to say if we decide this is a serious enough problem to deal with, then we want to lower the age. But we want to have clear limitations on that in terms of perhaps the nature of the offences and/or the extensive use of various kinds of diversion mechanisms by police and even by the courts, and restrictions on the use of custody. Certainly for all but the most serious cases I would not like to see the possibility of placement in a custody facility for a 10- or 11-year-old child, although there are cases in which the child should be removed from the family.
Again, I would like to see more linkage to the child welfare system. If the problem really is the home environment, the first effort should be helping children in their home environment, and the vast majority of children, especially under the age of 12, can be helped. Supporting the families and working with the parents on issues like anger management, behaviour control and behaviour modification have to be the primary response.
But for a very limited number of children under the age of 10 or 11 who are committing offences, the offending behaviour is a reflection of emotional problems, abuse in the home or mental health problems that should be dealt with by the mental health system. So I think the appropriate linkages with those systems legislatively and in terms of facilities and programs would be the way to structure that.
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Mr. Maloney: You refer to the nature of offences. Can you give us some idea what offence level would require a transfer to juvenile court?
Prof. Bala: One of the things I would say is that right now the theory is that if you're under the age of 12 and you commit an offence, in most provinces - and my paper deals with this province by province - the police have the authority to apprehend a child and bring the child back to his or her parents if the child has committed an offence, although in some provinces it's not clear if the police have the authority to take a child away who has committed an offence. Then the child in theory, if dealt with at all, is dealt with under the child protection legislation.
One of the problems here is that while the child protection legislation applies, inevitably if you phone a child protection worker who says they have a caseload of 50 children, 10 who have been sexually abused or allegedly sexually abused, so many who are physically abused, a certain number who are at serious risk at home, and now they have a police officer who is saying that a kid has beaten up another kid or a kid has been caught shoplifting for the fourth time, it's just always a low priority.
So while in some cases the child welfare response is working at the present time, in other cases, as a practical matter, as an institutional matter, the child welfare response is not working.
Secondly, there is a problem that child welfare legislation in some cases doesn't respond at all to offences. For example, if a child is caught in a first offence in Ontario, a property offence, the child welfare authority has no legal basis for being involved, let alone any institutional sense of priority. So part of the problem is provincial legislation, part of it is provincial funding, but part of it is just institutional mandate incompetence.
The police and youth court judges view themselves as having a role in protecting society, and quite legitimately so. Child protection workers say their sole focus is the best interests of the child. They don't deal with youth court at all; they don't deal with the police at all; they're not responsible to the storekeeper. They're responsible for the child and his or her parents. So these cases are getting a very low priority.
I'm not sure then that I'd want to use the words ``transfer in'' so much as giving, first of all, police officers and crown prosecutors a message that in terms of their charging practices, the criminal response should be used as a last resort, and secondly, give the message to judges that removal from the home should be used as a last resort.
Let me give you an example. In Toronto there's a very good program for children under the age of 12 who are committing offences. At some point I hope you will hear from these people. It's the Earlscourt Project. They have a program specifically designed for children under the age of 12 who are committing offences. They get referrals from the police and child protection agencies.
One of the problems I see with that program is that a minority of parents say the program is strictly voluntary. They don't want to send their child there; they don't want social workers involved. Sometimes these parents themselves have criminal records. Sometimes they're parents who've been involved with the child welfare system, are suspicious of social workers, and are saying they're not going to do anything. Those are precisely the children for whom an involuntary response is most needed.
The lever of the court system is a judge saying the first thing is for the child and his or her parents to be taking counselling and that they must do that. It isn't a request; it isn't voluntary. The judge is telling them to do that. That's where you need a legal system with judges saying they're telling you to do this.
Secondly, in an isolated number of cases, in a relatively small number of cases, the situation is so bad that the threat to public safety or the need of a child is so great that the child is ordered removed from the home. Earlscourt Project has some residential placements, a small residential facility, and a much larger community-based program. So preferably the first response will be to say that maybe they should send some of these children there on an involuntary basis. Their parents aren't willing to do that.
I don't want to be here to sort of hold this as a threat to you, but if we ever have a 10- or 11-year-old committing a homicide in this country, people will come back and say ``You knew about this problem for years; you don't have any legislation to deal with it''.
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As I document in the paper, most obviously in Ontario - and really I think this is true in all provinces - if the parents say ``Yes, our 10-year-old child has just committed a homicide. Your legislation deals only with the best interest of the child. We have a better plan. We don't need state help here. We've placed our child in a treatment program'' - whether in this country or another country - ``and our child will remain there as long as it's necessary in his best interest.'' There's no legislative mandate to even be involved. There's no question of transferring into a youth justice system. There's no court proceeding going on at all. That, to me, is just a dramatic illustration of the limitations of our present regime.
Mr. Ramsay: What you've just said strikes at the very centre of what a justice system is supposed to be all about. Why not allow the parents to take a 10-year-old child, or an 11-year-old child, who's just committed a homicide and let them deal with them that way? In fact, why not raise that to 12-, 13-, 14-, and 15-year-olds? Why not do it that way? That seems to be the way we have been going ever since we moved from the Juvenile Delinquents Act. Under that act we used to deal informally with them and we had the power as peace officers - and I was one - to keep more of the young kids out of the formal system. We saw that was not beneficial to the child, but we always had it in reserve.
We used to offer to them what obviously appeared to them as an offer they couldn't refuse: here are the consequences of what you have done and here's what could happen to you. You can end up in juvenile court, or we can settle this. We can go to your parents and settle it informally.
We have denied the police that right. I suggest as well that the reason there is zero tolerance - and as you mentioned, it began in the 1980s; I would suggest the late 1980s, certainly after 1984 when the Juvenile Delinquents Act was removed and this other act was brought in - is that the principals and school teachers lost the authority to run their classrooms and to insist that the rules and regulations within the schools and within their classrooms were abided by.
In my day I never heard of a principal calling the police. If we got into a scuffle - and it happened - we were taken by the collar down to his office and the matter was dealt with informally. If it was serious or a repeat situation, the parents were notified.
When you talk about child welfare not responding, you're talking about the parents not responding, the family situation not responding.
We always have so many questions and not enough time. In view of that I would like to refer to what this committee heard from Professor Owen Carrigan from the department of history atSt. Mary's University in Nova Scotia. He pointed out a number of things.
He said the heart of the problem of young offenders is in parenting. He said there is a lack of love, discipline, ethics, and values taught within the home. He said the school books, as well as the schools, used to be filled with values education, but values education was removed from the schools, as well as from the textbooks, by 1944, a long time ago. He said that the young offender is a product of homes that do not teach ethics and values.
If what he is saying is true - and at least in some of the things he said he sure made sense to me - and when we look at the program you have referred to in the United States where they went into a high-risk area and they were successful...in fact, according to Dr. Carrigan, what the program did was replace, or at least very strongly reinforce, the parental home situation to give those children the structure, to teach them some degree of values and ethics that allowed them to have that structure, and to have those values as a base upon which they could build their adult life and go on as successful adults.
I would like you to comment on some of those things I have said.
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Prof. Bala: I think you raised a lot of interesting and important observations and understandings about the nature of the youth crime problem. I think our society has changed over the last 50 years, and very dramatically. Our family life has changed. Our values have changed. The influence of media... For example, I don't think we necessarily had an increase in youth crime. I'm a little agnostic about the final issue. I think, for example, that it may well be that we have more problems in some of our schools with weapons than we did in the past. It's not just a perception, it's a reality that we're seeing greater access to weapons, so school teachers and principals may have a different kind of situation than they had.
We certainly have very different kinds of family life, and I don't think it would be realistic or in my view appropriate to say let's to back to the life we had in the 1930s and 1940s. Indeed, I think one can romanticize what was going on in the past. I mentioned that article about the Juvenile Delinquents Act. I think sometimes we suffer from amnesia. We don't know. When you were an officer...I think there's a tendency to say that things were much better in the 1970s and 1960s. Maybe in some ways they were, but they certainly had a serious youth crime problem.
Mr. Ramsay: I'm not saying that. I'm saying we had the tools to deal with it. The peace officer and the teacher and the principal do not have the tools to deal with it now, and there appears to be a rise in youth crime because it's being processed formally when before it was not processed formally.
Prof. Bala: Well, I would certainly agree with the notion of giving police more discretion, more instruction in dealing with cases informally. We can talk about more police cautioning, more police screening, and I think most other jurisdictions have more legislative direction and perhaps better training for police officers.
I think as a society we've come to rely too much on formal legal processes, and that's happening in all kinds of contexts. If there's a problem, one of the things principals and police officers are concerned about is what happens if the parents or the victim complains. They're concerned it will be said it hasn't been dealt with properly, so the easy way to deal with it is to charge somebody and have a paper record here, to say ``I've done my job; it's not my problem''. I think we do have to recognize the limits of the law and the limits of a formal response. Often an informal response is better. Certainly giving police more discretion and involving parents more would be a cost-effective way.
Mr. Ramsay: What happened to their discretion? They had it at one time. What happened to it?
Prof. Bala: It's a very interesting question, because I don't think their discretion has been taken away by the Young Offenders Act. One of the complex challenges you face is if you deal with the legislation as a statute, it's one thing. If you deal with federal spending, it's another. Then you have all the issues about provincial implementation, provincial policies, provincial police policies. Why don't police officers have this discretion? The Young Offenders Act gives them as much discretion as they had under the Juvenile Delinquents Act, and in fact in some provinces and in some forces they are continuing -
Mr. Ramsay: I disagree with that. The taking of a statement...
The Chair: Mr. Ramsay.
Mr. Ramsay: Yes, I understand.
The Chair: We're at about eight minutes now of a five-minute round.
Mr. Ramsay: I'd like to come back, because this is a very interesting discussion.
The Chair: Well, get a grip. Did you want to finish your thought?
Prof. Bala: I think it's an interesting question. It's clear to me that in both paragraph 3(1)(d), the principles, and section 4, the alternative measures provisions, police officers do have a discretion not to charge. They are encouraged not to do that, at least on the face of it.
When the Young Offenders Act came into force...we don't have just one thing. I mean, we don't live in a country or world where you can say the Young Offenders Act came into force in 1984 and here we are in 1996, so all we can do is look back and say the Young Offenders Act is the only thing that has changed. So much has changed, as you point out. Our school systems have changed. The nature of parenting has changed. The media have changed. The way young people dress and act has changed. All those things have gone together and you can't pull out or change one thing.
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To me the solution of the youth crime problem is not going to come just out of the federal legislation. There have to be a lot of things. It's a part of a change.
The question is going to be if you're writing about the legislation, that's one part of the problem. If you're looking at spending by the federal government, that's another part. If you're looking at provincial policies and training for police officers, that's another part.
I would certainly encourage us federally and provincially, and for that matter municipally, to have policies that encourage police officers to deal with cases informally. I think if that's one of the things you want to do and one of the ways you want to go... In England, for example, they have a process of formal police cautioning, encouraging police to keep records about these kinds of things. I think it works better than many of the things we're doing in this country right now.
So in that sense I think, yes, there are things we can learn from both the past and other countries.
The Chair: Thank you.
Ms Torsney, you have five ``Ramsay minutes''.
Ms Torsney (Burlington): I think it's interesting that this morning your testimony had various components. Everyone seems to have focused on the 10 versus 12, your minimum age. Again I'm going to fall right into that trap.
I find it interesting that you've acknowledged that there are limited dollars, that there are conflicts with our spending on social programs versus on incarceration - although you didn't exactly elaborate on the real cost benefit analysis there - and that you'd advocate setting up a system in this current environment of 1996 for 10- and 11-year-olds, when I think you know from some of your research that the response is going to be ``We'll just wait until they've committed these serious crimes and then we'll deal with them, because we're going to put them in some kind of facility and we'll work intensively with them''.
If the 10- and 11-year-old problem is so great, why haven't you come here this morning and said we should be working on laws that obligate people to work with 3- and 4- and 5-year-olds who are clearly at risk and we should be beefing up the child protection system so that when we have a situation in which a parent says no, it's their full responsibility and they're going to deal with it, they're going to take their kid to the States and that's the way it's going to be...we should have the responsibility to get in there and intervene with those families and those children at risk. Why do we have to wait until there's a problem?
I'll tell you, right now if you are a family in Ontario and say you're at risk, you have a problem in your family, you're having trouble controlling your child, and you need some counsellors, they're going to say sorry, since your kid hasn't committed a crime, we'll wait until your kid commits a crime and then we'll give the kid some services because we are so limited right now.
You know that in certain provinces, where they're talking about boot camps and everything else, your 10- and 11-year-olds are going to be stacked up in facilities rather than get any help.
Prof. Bala: I think you have certainly raised a good issue. I guess it's not surprising that when questioning, people have focused on the question of minimum age, although it's certainly only a small part of my overall views about the subject. It's probably the part that sticks out in the sense that I think many of the things I would have said about other issues are part of what many people in the field would think.
In the paper I approached the issue of minimum age with some caution in the sense that there are trade-offs; you are right. There's not going to be a perfect or an easy answer. One of the realities today, though, is that I think in a tight dollar environment there is actually more money for things called corrections policing than for things called social services. If that's a way to get access to services, and certainly some of the people I've talked to who are working with those under 12 who are offending - and you are alluding to the situation in Ontario - are actually saying maybe we're better off as an agency saying we're dealing with 10- or 11-year-old offenders than saying we're a child welfare preventive service agency, because we're more likely to get money if we're designated that way.
I think some of the agencies and resources are there. To some extent the kind of system overall that I'd be advocating should not be more expensive. For example, custody is about the most expensive thing we can do. I would like to see, and I hope I said this clearly, substantially fewer youths or young offenders in custody.
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Some young people may need as long a sentence as they now have and perhaps longer ones with appropriate services, but for a small minority of 10- and 11-year-olds, I would see the possibility of some non-family placement. For the vast majority of them I would see a simple, informal system: the police cautioning, which we're already using now.
One of the problems that police officers now have in dealing with 10- and 11-year-olds, especially if the 10- or 11-year-old has any experience, is that all they have to tell the parent is that the child has committed an offence and...it's not next time we might have to take you down to youth court, it's next time it'll be like this time, that they can't do anything but phone a social worker, who may or may not choose to do something about the situation.
I'd like to see police officers having a little more, having a lever, so they can say ``Your child's done something wrong, you know that. I hope you're going to deal with this effectively, because if you don't, something else might happen.'' I'd like that as opposed to saying ``Your child's committing these offences and there's nothing anybody can do about it''.
Ms Torsney: Why then have you focused...? I appreciate that you're a lawyer and I appreciate that your work has been on juvenile crime, but given that you are clearly interested in all the rest of the aspects and you're commenting about social programs and everything else, why haven't you come and said ``There needs to be a different tool or a beefed-up tool. I'm a lawyer. I look at this. I know about international conventions.'' Why haven't you come - I'm saying this as if I were you, since I'm not a lawyer - and said we need to beef up the child protection act? Why haven't you said we need to place obligations on government and on people who implement the federal laws to say there has to be something else to deal with young people, and it has to be before they're 11-year-olds and they're on their fourth shoplifting incident with the police? Why haven't you said they need intervention sooner and that we need another tool other than the YOA, knowing that we don't implement...? We may have all the best intentions, but there's the Reform Party saying to deal with them harshly.
Mr. Ramsay: Be careful.
Prof. Bala: You raised a very interesting question, which is what is the nature of and why do we have a criminal justice system or a youth justice system at all. The answers, for many reasons but at least in part why there is a criminal response, and I don't view it exclusively as criminal... One of the messages to offenders, to children committing offences, their parents, victims, and communities is that, yes, we consider this wrong. It's morally wrong. It's legally wrong, and there may be consequences and sanctions for it at least in part for notions of accountability. I don't think it's wrong to say that.
The only question is what's the minimum age? I don't think it's wrong to say to an 11-year-old - and I discussed in the paper that there aren't many of them committing serious offences, that some of them are committing offences with weapons, and that there are even occasional sexual assaults - that they've done something very, very wrong and we're not just talking about their best interests, although that's very important, but also about accountability, about the protection of society.
The argument you make has been tried in this country for 12 years and hasn't worked. In other words, part of the issue is that the provinces are going to say you're the federal government, and not only are you the federal government, but you're the justice and legal affairs committee, so you tell us what the criminal law is and we'll decide what our social programs are.
I want to say that if I could recreate Canada, I don't know that I would divide up all the levels of responsibility. In fact, our system almost couldn't be worse. One level of government makes...
I must say I love this country. I personally want it to stay together, but I wouldn't divide things up exactly the way they are. It's not a very rational system, but it is the system we have and I don't believe we're going to easily move away from this. There may be good symbolic or practical reasons for having a uniform criminal law across the country.
The American system, which has state criminal law, doesn't work that well either.
Ms Torsney: Professor Bala, why haven't you come here this morning and said that there needs to be accountability for the fact that federal and provincial governments are not working on children who are at risk and choose instead only to work with children when they are 12 years old and are in conflict with the law? Why haven't you said that we have some legal responsibility and some moral responsibility and financial responsibility to work with children who are at risk, because frankly it's cheaper to work with them when they're at risk instead of after they have committed a crime?
Why haven't you told us about the tools and the laws that you know about as a professor and as a lawyer that would charge us with those responsibilities or that need to be beefed up rather than waiting until kids are in trouble?
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Prof. Bala: I believe I have said that to you, both in my written remarks and orally. I agree with that. The only question, in the area of disagreement or controversy, is whether we should also have a criminal response for 10- and 11-year-olds.
Ms Torsney: We do have one.
Prof. Bala: It's not instead of. The number one thing I would certainly say is prevention, social services, education services. I would like to hold the federal government and the provincial governments and our society to that. In a certain way I think the United Nations Convention on the Rights of the Child puts that in there and is part of it. That should be our priority.
On the other hand, I guess the lawyer in me and the realist, if you want, has said we can't set up a legal framework that is going to hold governments accountable in that kind of a way. It's interesting that some people were talking about something we hadn't talked about and I don't support, and that is let's hold parents accountable if their children commit offences. I understand The Citizen is going to be writing a story about that in the next few days.
I don't support it legally. To me, if young people are committing offences, maybe it's the state that should be responsible and held accountable to victims and so on. I don't think you can have a legal regime like that that's going to work. I think giving police, judges, and social workers another tool, namely the criminal response for 10- and 11-year-olds, would be another useful thing to have, particularly with the history of the last twelve years.
Twelve years ago I was where you were, in the sense that everyone was saying let's deal with this as a child protection response, that's the way to deal with it, that's the best way, that's the humane way, that's the most effective way. Well, unfortunately it just hasn't worked. The political and fiscal reality of this country is that it has not worked.
Ms Torsney: We haven't tried it.
Prof. Bala: Maybe we haven't tried it. If we haven't tried it in 12 years, it may suggest that we're not likely to try it or to try it as fully as one might want. I think it's a fair comment to say that in some provinces they have tried it and it's working reasonably well. In other provinces, I think in most provinces, it hasn't been tried enough. I think there are always going to be institutional and legal problems that will never make it a fully optimum response.
Ms Torsney: Thank you very much.
The Chair: That was a very good imitation of Mr. Ramsay's sense of time.
Professor Bala, I want to thank you for sharing your expertise with us. We're grateful to you for appearing. Ms Clancy said to say hello. She just called.
Prof. Bala: Thank you. It's a privilege to have been here.
The Chair: Thank you.
This meeting is adjourned.