[Recorded by Electronic Apparatus]
Thursday, October 31, 1996
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[English]
The Chair: Order. We have with us witnesses Mr. Hamilton and Mr. Stanhope from their respective insurance organizations.
I understand you have a brief.
Mr. Brian Stanhope (Vice-President, Pacific Region, Insurance Bureau of Canada): We do, thank you very much, and thank you for seeing us today. We have briefs, both of which have been submitted.
I will not read my brief - there's little point in that - but I certainly will give some narrative interpretation to some of the points in it, if that's okay with you.
Madam Chairman, I work for the Insurance Bureau of Canada, a trade association that represents the vast majority of insurance companies in Canada that write property and casualty insurance - that is, insurance against your house, your car, your business and so on. We don't represent any life insurance companies.
My position with IBC is vice-president of what we call the Pacific region. In other words, I look after the Yukon and I look after British Columbia. I notice you were in Whitehorse a few days ago.
The Chair: Yes. It's very cold there.
Mr. Stanhope: I know. I lived there for a while.
We've been aware of crime generally, and the rise in crime, for a considerable period of time. About ten years ago we really began to get agitated about the issue. Accordingly, we became involved very heavily in organizations such as Crime Stoppers. I was on the board of directors of Crime Stoppers for two years. Block Watch is the major crime reduction initiative we currently support. Block Watch is what you would probably know as Neighbourhood Watch.
We are one of the earliest organizations to recognize the merits of crime prevention through vigilance with Block Watch. Quite frankly, we believe an ounce of prevention is worth a pound of cure. Currently in British Columbia over 91,000 homes are involved in the Block Watch program. It has been very successful.
Several years ago we realized that we had to take a broader approach to the issue of crime prevention. We formed a crime abatement committee in conjunction with my colleague here from the Brokers Association. On that committee we have a broad cross-section of employment: teachers, law enforcement officers, insurance brokers, the Attorney General's ministry, the Ministry of Social Services, the Justice Institute, the Insurance Corporation of British Columbia, credit unions and several others.
We made a presentation similar to this one to the House of Commons Standing Committee on Justice and the Solicitor General early in 1993. We were privileged to do that, since I believe we were the only insurance organization in Canada to do so.
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We made a submission the same year to the Oppal commission in British Columbia on crime prevention. We're involved heavily in the B.C. Crime Prevention Association, and until recently, my own president, George Anderson, was a member of the federal committee on crime prevention.
We are members of the Vancouver Board of Trade's property crime task force. I understand you're hearing from them tomorrow morning. We're currently working with Vancouver city police on the recovery of stolen property. Furthermore, we're developing a national database to assist police in recovering stolen property and returning it to its rightful owners.
The insurance industry has a simple solution to the problem of rising crime costs for the insurance industry, which is to simply increase premiums or deductibles. That's not the answer. As I said earlier, we believe that a little prevention is a lot better.
The cost of theft to the insurance industry in general is now more than the total cost of all other claims combined. At one time, fire costs used to be the worst. Now theft costs have far outstripped everything else.
I've included statistical information in the brief we presented, so I don't intend to go through that. It's kind of dry. Suffice it to say that the southwest corner of British Columbia is probably the worst place in the country in terms of theft.
Youth crime is on the increase. Some of that youth crime is organized; some of it is opportunistic. But the problem as we see it is that too many young people, and for that matter too many people of my age, have no respect for other people or their property.
Good manners have disappeared. Try to find some courtesy on the road when you're driving one day. There's a flagrant disregard by people for simple things like traffic crossing signals. As I was driving down here today, I must have seen nine or ten people running across the road against the lights. Discipline itself is almost non-existent either by parents or by society.
The next thing I would like to address is the question of sentencing youths. We have three views on this. Some of these, by the way, are a personal minor embarrassment to me, but I'm going to bare my soul to you. We believe that sentencing must include restitution.
I personally was involved in an insurance claim some years ago when three young people were caught trashing a house. The insurance industry appealed to the parents to try to get some restitution. Of the three parents, two agreed to some form of partial restitution. The third one said there was not a chance of this. They said their child was too young and that we could not force them. There was no legal requirement, therefore, they were not going to give any restitution at all. That young man later ended up in prison.
The second thing about sentencing is that it must be meaningful. A simple admonishment by law enforcement authorities or the courts is just not enough. That is no incentive to make changes in a way of life.
Here's where we get to the embarrassing part. My son, who was underage, was caught with a case of beer by the police. The police simply gave him an admonishment and sent him home. They took the beer from him. I called the RCMP and said that this was not good enough. I said I would bring my son to the police station. I wanted them to strip the hide off him. He has to be told that there are serious consequences to that kind of lawless action. Okay, it was minor, but it could have been worse.
I took him to the police station. I was appalled at the poor show the police made in trying to discipline my son. When I asked them about it, they said I must understand that their hands are somewhat tied. They cannot give out too much discipline without being in court.
The next thing is that sentences must be carried out. Not only does there seem to be a flagrant disregard for the law, but too many young offenders simply ignore the sentence. Just think about the amount of unpaid traffic fines in Canada, which I expect must be in the millions of dollars.
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I have another son who was also caught in a stupid act. His sentence was to do 20 hours of community work. He did his community work, but others showed up who did one session only, and would not go back for any more. They boasted to my son that they would not be disciplined for not completing the sentence, which they never were, to the best of our knowledge.
By the way, both my sons have grown up to be fine young men. They're married and have children of their own now, so it didn't do them a lot of harm.
We also believe that the rights of those people who have been violated must be taken into consideration. Too many times, we hear sympathy expressed on behalf of the victim. We are tired of listening to psychologists telling us about abusive childhoods. Not all young offenders come from broken or abusive homes. We all know of cases in which the troubled teen comes from a loving and caring family. I have several personal friends who are going through that trauma at this time.
Society, the courts and government must support police authorities. There will be a reduction in crime when police are given proper respect, as they were when I was a child, 40 or so years ago.
One hopes that the Young Offenders Act will reflect the concerns of the majority and will change for the better. The key seems to be, in our opinion, respect for law, parents and society.
After my colleague Mr. Hamilton has given you his brief, we'll be pleased to answer any questions for you. Thank you for listening to us.
The Chair: Mr. Hamilton.
Mr. Jack Hamilton (General Manager, Insurance Brokers Association of British Columbia): Thank you, Madam Chair. Being able to come to speak to you today is indeed an opportunity we're happy to have.
I have given you a short report. I'll highlight some sections from that. I'll have some other comments as well.
I am the general manager of the Insurance Brokers Association of British Columbia, which is a trade association of 750 independent broker offices in B.C. There are about 250 licensed people who work in those offices. They represent, as Brian said, the insurance companies that his organization is set up for. They sell casualty, property, liability and automobile insurance, and all the other activities involving insurance, other than life insurance.
In British Columbia, our brokers earn about $140 million in commissions. They write about $2.5 billion worth of business. I might add that out of that they pay income tax to the tune of about $100 million.
We've done a socio-economic study in B.C. to find out just where our insurance brokers are in the community. They have a very strong presence. They're generally active in every B.C. community, and are very aware of the values and attitudes shared generally by other members of those communities. Moreover, without exception, our members are centrally involved - many of them are at the executive level - in service, cultural, religious, charitable, political, sports and other community organizations.
They're being told by their clients, their fellow citizens, that while the cost of insurance has reached its upper limit, they're relieved to have that coverage when the time comes to make a claim, such as if their home has been violated by burglars. They're also very upset about the number of break-ins in their neighbourhoods. The loss risks are greater, and their household premiums and deductibles are increased accordingly, as Brian said.
Some areas are worse than others. In this area, for example, and in areas of Surrey and Abbotsford, they're particularly hard hit, and the insurance premiums in those areas go up, as they do in the areas on the east side of Vancouver, east of city hall. In some districts in that area, by the way, virtually every house on every block has been broken into at one time or another.
Then there's the repeat break-in. As soon as the items are replaced, they break in again. This is especially so for electronic equipment and that type of thing after an insurance claim has been paid.
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The insurance industry, of course, passes on these higher costs in higher premiums and higher deductibles.
The other problem is that some residents in some areas, and some commercial clients as well, become almost uninsurable. Some types of businesses cannot get insurance in some areas in British Columbia. And certainly in the greater Vancouver area, it is most difficult to obtain insurance. The insurance companies just can't charge enough to pay for the losses that occur in those areas.
The only other way they can do something about it is to put in costly alarm systems, have watchdogs, put bars on the windows.... All of those kinds of things cause a great deal of difficulty in living in the community.
Another problem we have is that our member brokers in certain neighbourhoods are told regularly by police that they are demoralized and discouraged by seeing criminals, particularly young offenders, prowling the streets the day after the latest arrest. Police tell us that they spend 15% of their time writing up reports, visiting victims and trying to get a list of stolen items...that type of thing. More people are being victimized and more people are concerned about the issue.
Commercial premises are also subject to an increasing number of break-ins. As you are probably all aware, computers are the hottest topic these days. They're the single biggest item for thefts, and, I might say, not only thefts from business premises, but from residences. And thefts of automobiles as well as thefts of sound systems from automobiles are leading to increased insurance premiums for drivers in this area.
With that in mind, I will just give you some numbers so you know what we're talking about in automobile thefts in this area. Startling trends are showing up. In 1995, in the province of British Columbia alone, 29,000 automobiles were stolen, and it's estimated that 70% of those automobiles were stolen by young offenders. They can check that because in this province we have a government auto insurance program and it is very easy to track a lot of these numbers. They recover about 90% of the vehicles. They've been used on joyrides or they're trashed and that type of thing.
On the other hand, the professionals who steal vehicles usually strip them or ship them offshore. In Vancouver, an automobile can be stolen, placed in a container, sent to the docks, loaded on a freighter and out to sea in 18 hours. That is unbelievable. And that is happening at a much increased rate.
Those numbers I gave you earlier are for 1995. In 1996, in the first nine months of this year, automobile thefts are up 40%. The total value of losses of automobiles and thefts from automobiles this year will reach $200 million in British Columbia alone. I think those are pretty significant figures.
It is causing a great deal of difficulty in the insurance industry, and is certainly causing a great deal of difficulty for people who lose their vehicles and have to pay increasing premiums and increasing deductibles.
We have some recommendations we would like to pass on.
We urge you to consider allocation of more directed budgetary resources for pre-crime rather than post-crime policing. For example, it's just not good enough for an urban area the size of Vancouver to have only one police officer responsible for coordinating Block Watch activities. Some suburbs do not have any police official organizing citizen-assisted community policing efforts. We think it's important to increase that.
I had a section on Block Watch as well, but Brian explained that very well. Insurance brokers are also in the forefront of those arrangements. Getting their clients into a Block Watch definitely cuts down crime rates in that area.
We'd also like to see evaluation of the RCMP and justice institute training curricula to ensure that there is a significant community policing component to that training. We'd also like to see a review of the laws and programs surrounding young offenders to enhance the consequences of conviction of property crimes, especially for younger criminals, so that society does not have to pay increasing costs resulting from break-ins of residences by the same criminals repeatedly.
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As well, we'd like to see a study prepared and implemented as to the practicality of requiring criminals, especially young offenders, as part of their penalty on conviction, to reimburse the victim and the insurance company for the full value of stolen property.
Where possible, parents of young offenders should also be held financially responsible for their children. We feel if that happened, more attention might be paid to this important issue.
The insurance industry, of course, has taken the brunt of these losses over the years of breaking and entering. As we are not a totally philanthropical group, you can be assured that the costs are passed on to the citizens of Canada who buy insurance policies. Premiums are raised, deductibles are increased, and if the frequency of claims is bad, then some clients are unable to purchase adequate insurance.
The fines situation Mr. Stanhope mentioned is a problem. It has been clear out here that fining people doesn't necessarily solve the problem, because nobody pays. A Supreme Court judge, a close personal friend of mine, said to me some years ago that he had been fining people according to various acts for years. He finally decided to do a study. He found there was nobody in place to collect those fines. Fully 75% of the fines he had been putting out for a number of years were never collected.
That may have changed in the last couple of years, but I'm saying to you, having judges and various systems put forward a fine doesn't necessarily mean the person responsible appreciates the problem when they don't bother paying the fine.
To conclude, as with preventative medical and dental hygiene, money and talent invested now in proven crime prevention and community policing initiatives, such as Block Watch, will pay impressive dividends in building and maintaining healthy communities. We urge you as legislators to act on the general insurance industry's concerns expressed in these presentations.
The Insurance Brokers Association of B.C. urges you, as part of our collective responsibility as citizens of Canada, to adopt a leadership position to make sure our limited financial and community resources are efficiently and effectively organized to protect and safeguard our communities.
You may have a number of other questions. We would be happy to answer those for you.
The Chair: Thank you, Mr. Hamilton.
Mr. Ramsay, ten minutes.
Mr. Ramsay (Crowfoot): Thank you, Madam Chair.
I'd like to thank our witnesses for coming forward. Of course, this adds a new ingredient to this whole business of crime. To the cost of our institutions, our police forces and our justice system, you add this new dimension.
I'd like to ask if you can give the committee any figures or statistics to indicate what the cost of youth crime is. Are you able to separate youth crime from adult crime? I understand in the area of stolen cars you can do that, but what about...?
Do you insure cars in B.C.?
Mr. Hamilton: We're insurance brokers. Our brokers represent the government insurance program in B.C. The insurance brokers in their offices sell ICBC automobile insurance coverage, yes.
Mr. Ramsay: When a car is stolen, who pays for it, the taxpayer?
Mr. Hamilton: The insurance company does. The premiums paid by the automobile owner pay for the losses. In British Columbia, the premiums collected are about $2.4 billion in total for automobile insurance. I'm not sure what portion would be for theft and vandalism coverage, but as I've mentioned to you, they expect the losses this year to be about $200 million. So that's about 10% of the total.
Mr. Ramsay: Can you give the committee a cost figure that you think would be attributable to young offenders?
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Mr. Hamilton: As I mentioned, the numbers they gave me from the insurance corporation showed that 70% of vehicles stolen are stolen by young offenders. If we could relate that to the $200 million, I suppose that would be about $140 million worth of stolen vehicles or items stolen out of vehicles.
Mr. Ramsay: If a vehicle is stolen and they've taken it for a joyride and it's found, it's not the total loss of that vehicle.
Mr. Hamilton: We're not counting the total losses. We're saying the actual amount paid out by the insurance corporations this year will be in the neighbourhood of $200 million.
Mr. Ramsay: I see.
Mr. Hamilton: The fact that some cars are stolen and left two blocks down the street with no damage is not a factor. We're talking about the losses. Often they break in and break windows and dashboards and that sort of thing.
Mr. Ramsay: Can you give us a cost? Can you break that down to young offenders?
Mr. Hamilton: I would say it's probably between $100 million and $150 million in B.C. -
Mr. Ramsay: For cars alone?
Mr. Hamilton: Yes. That's just for the automobile side.
Mr. Ramsay: What about the other thefts? You make a staggering statement here with regard to some areas of this province where you claim practically every house -
Mr. Hamilton: Every house on the block.
Mr. Ramsay: - on the block has been broken into one or more times.
Mr. Hamilton: Brian may have better statistics.
Mr. Ramsay: Do you have the breakdown of the cost factor involved that is attributable to youth crime?
Mr. Stanhope: We've never been able to actually isolate the.... I think the first thing you have to do to find out how much of that is attributable to youth is to catch them, and for the most part, most of these crimes go undetected. It's pretty obvious that if you have a tiny window that measures one foot by one foot, a child must have got in there. That's the entry. But that child may be directed by a professional adult criminal somewhere down the road.
Our members paid out something in the region of $60 million for breaking and entering into houses last year. But it's not possible for us, quite honestly, to.... We only have anecdotal evidence from the police -
Mr. Ramsay: Is that pay-out just in B.C. or is that across Canada?
Mr. Stanhope: That's just in B.C.
Mr. Ramsay: Do you have figures for across Canada?
Mr. Stanhope: Yes, we do. In fact, in my brief you'll see some horrific examples of the difference between here and Alberta. I used Alberta deliberately because it's the next nearest province. The amounts paid out here are colossal compared to the small additional number of policies that are sold here. In tenants' insurance, for instance, we pay out about 160% more, I believe, than is paid out in the province of Alberta, but we only write about 6.5% more policies. The figures are horrific.
But we cannot identify every one of those as youth crimes. We can tell you that the police will tell you that on the schools' professional days when the children are not in school, the incidents of break and enter and youth crime increase. So it does increase on those days. But that's only anecdotal.
Mr. Ramsay: Do you have the figures for the rest of Canada in your brief?
Mr. Stanhope: No, we don't. I didn't put them in for the rest of Canada. I can get them for you very easily.
Mr. Ramsay: Could you provide them to the committee?
Mr. Stanhope: Absolutely, sir. We certainly will.
Mr. Ramsay: Thank you.
The Chair: Thank you, Mr. Ramsay.
Mr. Maloney, you've been awfully quiet today.
Mr. Maloney (Erie): Thank you, Madam Chair.
Some hon. members: Oh, oh!
Mr. Maloney: All of your recommendations make reference to preventive measures, pre-trial interventions. We look at this as being a federal matter, a community matter, a provincial matter, etc.
A lot of the people we've heard from over the course of the last little while say we have insufficient resources in times of government cutbacks. Would your industry be prepared to contribute to some of these preventive organizations?
Mr. Stanhope: We already do. We do very much so under the present -
Mr. Maloney: Would you elaborate on what you do?
Mr. Stanhope: In this province alone I suspect that.... I'd have to dig back into my files. I have a very tiny budget because there are only two people in my office for the province. It's a very small office.
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I spend somewhere between $10,000 and $15,000 a year on crime prevention measures. It's my pet peeve, quite frankly. That's the reason I spend more on that than I do on environmental issues or I do on earthquake issues; and earthquake is a big issue here, as you well know.
I couldn't tell you what we as companies spend across the country; but again, I can find that out for you. I spend roughly $12,000 to $15,000 a year on that kind of thing.
Mr. Maloney: Out of a total budget of -
Mr. Stanhope: My total budget is less than $20,000. I spend three-quarters of my budget on crime-prevention activities.
Mr. Maloney: What budget is this?
Mr. Stanhope: This is just my regional budget for PR activities.
Mr. Hamilton: The insurance brokers have also been very involved in the Block Watch issue. We've been asked by police groups in various areas, since they don't have the budget, if we can help them in providing brochures and things of that type. We print those for them and they are handed out in the neighbourhoods to get people to set up a Block Watch program.
We have all kinds of other activities we do along that line. We have another give-away we have, a ``door hanger'' we call it, asking ``Have you locked your doors?'' As you go out each day you see this sign.
The police come to us from time to time when they have an activity and we spend that money out of our budget for these types of activities where we can. It's often not so big, either.
Mr. Maloney: Mr. Stanhope, your last recommendation, on page 12 of your brief, refers to the rights of violated victims being taken into consideration, and this relates to property crimes. Could you elaborate on that?
Mr. Stanhope: I've heard this bandied about but never actually seen it in practice. The violator is told or ordered by the court to visit the property of the ``violatee'', if I can call them that, and clean up the property, specifically if they've trashed it. Quite often one of the crimes we come across is plain, ordinary vandalism. We certainly would like to see a lot more of that.
Also, we find that although trauma counselling is given to victims, victims tend to feel doubly victimized after they've had a B and E at the home. For instance, I have a friend who came downstairs after being asleep. Her husband was away. She came downstairs. She was asleep. It was the middle of the night. There were two young people in the house, in the kitchen, as a matter of fact, and obviously they were not up to any good, since they had broken into the house. They ran away. She called the police. The police came and the police said don't worry about them, they won't be back. She went back to bed. In an hour - one hour - the same two guys were back.
This time she screamed. Fortunately she didn't block their exit, so they were able to get out of the door and run away. Had she blocked the exit she would have been violated by them. There's no question they would have knocked her down, to say the least, in their attempt to escape the premises.
When all is taken into consideration, if those young men were caught, her violated rights would not be taken into consideration. There is no civil suit she could lay against those people for violating her property. Nor are we suggesting there should be. What we believe, though, is that the criminal, if they are convicted, should indeed make some kind of retribution - not necessarily restitution, but maybe they should make some kind of retribution action to the victim.
Then victims go to the insurance company and they say to me, boy, I've been violated the second time; you guys don't want to pay the claim, you're awfully mean people, and so on. If they come to me, I have a reasonably good bedside manner, but I wish I could say that for all of our industry.
They do feel violated again. We would like to see the perpetrator take a more active part in talking talking it out with the victim, obviously under supervision.
Mr. Maloney: The issue of restitution is obviously high on your priority list in dealing with perpetrators, offenders. What do we do with the low-income or no-income people, young offenders who come from this type of family environment, which many of them do? How do we deal with that?
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Mr. Stanhope: You're quite right; many of them do. And many of them need the money to feed a habit of some description, usually drugs. I understand from the police that specifically in this part of the world, there are a lot of drug-related factions.
Quite frankly, I don't know what you do. I really don't know what the answer to that is. If I could wave my magic wand, we wouldn't have to sit in this room, I suppose. But I just don't know. I have to be honest with you.
Mr. Maloney: Thank you.
I have no more questions.
The Chair: Mr. Gallaway, you had a question.
Mr. Gallaway (Sarnia - Lambton): I have just one question. It arises from somethingMr. Ramsay was pursuing, and that is litigation damages.
We have heard here that there appears to be a double standard in the way we treat young offenders as opposed to adult offenders. You recommend recovery of damages from the young offender and/or the parents of that individual. I'd like to know what kind of recovery rate you have with respect to adult offenders. Do you in fact pursue them? How much did you recover last year from adult offenders?
Mr. Stanhope: I would have to guess we didn't recover anything.
Mr. Gallaway: So in fact your recommendation that young offenders and/or their families be required to reimburse insurance companies is an add-on that you are not pursuing at the adult level.
Mr. Stanhope: Well, no. If you had asked me that about adults, I'd have told you the same thing.
Mr. Gallaway: All right.
Mr. Stanhope: But, yes, you have a good point. Getting restitution is nearly impossible.
I'll tell you something else. When we get the criminal in court, we quite often believe the criminal's story before we believe the claimant's story. The criminal has nothing to lose when he's in there. We've heard lots of exaggerated claims about how the criminal ran away and jumped over a fence with a chandelier in one hand and a 30-inch TV under his other arm. That's just not possible to do.
Getting the goods back is one part of the problem. That's why we're working with the police to develop a database to try to get some of the goods back.
We have a terrible problem trying to get goods back. People will not mark their goods for identification, so we can never identify them. The police say ``So you lost a Sony television set. Come down; we have 400 Sony television sets. Which one did you lose?''
So we're trying to do that. That kind of restitution itself would help us, never mind trying to get restitution directly from the criminal.
Mr. Gallaway: You made the comparison with respect to claims in B.C. versus Alberta.
Mr. Stanhope: Yes.
Mr. Gallaway: To what do you attribute the difference? Is it a matter of community policing, or is it that people in B.C. are worse than they are in Alberta? Which is it?
Some hon. members: Oh, oh!
Mr. Gallaway: I don't believe that, by the way.
Mr. Stanhope: Let me just gaze into my magic crystal ball for a minute.
My guess is that we are a lot more transient than Alberta, Saskatchewan, Manitoba and Ontario. We are a very transient province. A lot of people come out here to escape family problems, court problems, personal problems, drug problems or whatever problems they have. People have a tendency to come out here.
It's well known, for instance, that this is the worst province, and this is the worst city in Canada, for South American drug cartels. It's not a secret. It just happens to be that way. I think it spreads around.
We honestly believe - although again, we've no empirical evidence - that a lot of the B-and-Es that happen here and a lot of the crime, including violent crime, is drug-related.
Mr. Gallaway: Okay.
The Chair: Thank you very much, gentlemen, for your assistance.
We'll rise for a minute. Our next witness is ready, so don't wander too far. We'd like to wrap this up tonight.
Mr. Stanhope: Thank you, Madam Chair.
The Chair: Thank you.
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The Chair: We're back, and we have with us the British Columbia Civil Liberties Association, Murray Mollard, policy director.
Mr. Murray Mollard (Policy Director, British Columbia Civil Liberties Association): Thank you, Madam Chair and members of the committee.
First of all, and I imagine I speak for everyone who gets a chance to appear, thank you for coming out west. I think it's important in a democracy, and indeed a challenge in Canada, that citizens out here have a chance to speak to you directly. It's hard for us to get to Ottawa. Once before I had the privilege of going to Ottawa, and it was quite a frosty day. I remember skating on the Rideau Canal.
The Chair: Let me just tell you that it's warmer in southwestern Ontario today than it is in Vancouver.
Mr. Mollard: Is that right? Is it as sunny?
The Chair: Yes.
I don't know, I don't have any idea. I could be lying through my teeth.
Mr. Mollard: The fact that it's sunny out here is sometimes unique too.
Anyway, let me get more to the point. The association, as some of you may know, is a non-profit association, working to promote and protect civil liberties in British Columbia and Canada. It has been around for thirty years. We have a board of directors made up of a variety of people with varying backgrounds: professionals, people in academia, social workers, educators, etc.; even those feared lawyers are on our board.
We work on both policy and law reform, but we also take on case work. That partly is my job. Individuals call us and we do receive calls from young offenders and people involved in the criminal justice system and concerned about particular issues.
I've had a chance to read some of the submissions before you previously, including in the spring, and I'm trying to focus on the issues I think are really important for you. One of those I've identified is the idea of changing the ages to which the act applies, both the maximum age and the minimum age. I wanted to make a few comments first on those.
About maximum age, the act applies, of course, to youth who are up to seventeen, but beyond that the Criminal Code applies. We think this is sound. We think this should remain. We don't think the age limit should be reduced. In other words, the Criminal Code should not apply automatically to individuals who are sixteen or seventeen. We think the Young Offenders Act should retain the age limit.
The reasoning behind this is really about society's philosophy of dealing with offenders. In society we have broad classifications for individuals. We have children, typically the very young. Adults, parents, make the decisions for them, for the most part. We have youth, who are growing, learning, maturing, experiencing, making mistakes, learning from their mistakes. We typically treat them differently in society, and for good reason. Then we have adults who, we decide, can make decisions on their own and also be treated with full responsibility for making those decisions.
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We think reducing the age of the act to apply only to individuals of say up to fifteen years of age would ultimately undermine the rehabilitation objectives within the act. If we treat all offenders at the ages of sixteen and seventeen within the adult criminal justice system, I think it ultimately undermines the goals of many who've come before you who want to protect society's interests in terms of protection against crime. We think treating them within the adult system is contrary to that, and ultimately contrary to the interests of the young offender as well.
On the minimum age, the perception and statistics here, you've probably heard much information, many submissions regarding statistics whether youth crime is on the increase, whether ten-year-olds and eleven-year-olds constitute a large part of youth crime and whether the act should apply to them. We also know the perception of citizens out there: there are many people who are calling for more stringent measures against young offenders. But perceptions are important, and I'm sure you've also heard information about the impact the media plays in that regard. Nevertheless, statistics aren't always right and don't always reflect reality, and people's perceptions are important. You as representatives of the electorate need to take those into account.
Nevertheless, the association again believes the philosophy behind the age differentials that exist now in the act are sound. We treat children under twelve outside of the youth criminal justice system for good reason.
I know you have been speaking with Justice Gove here, and you may have had a chance to talk to him or hear his views about the importance of child welfare legislation. My understanding for one of the impetuses behind people calling for the act being able to apply to children under the age of twelve is that child welfare laws just aren't able to deal with these kids.
In preparing for this submission I took some time to look at our child welfare law in British Columbia, which actually has just been changed after all the information that's come out of the Gove report. It is very limited in the way we can deal with children who commit very serious and heinous offences. The question remains, though, do we want to take the approach to use the youth justice system to deal with these rare exceptions, or do we want to look at amending child welfare laws in order to deal with them in a way that can deal effectively with them, including things like secure-custody facilities for children in order to treat them, in order to deal with the problem?
I point you to the province of Quebec that seems to have a system in place in provincial child welfare laws that is able to deal with children under twelve in a relatively significantly way, including secure custody, if in fact there is the rare case where that is required.
I'd like to move on to the issue about public identification of convicted young offenders. The association is concerned that there are calls for the weakening of the privacy protections within the act.
We see that there have been changes recently. Bill C-37 changed the act to allow for the sharing of information with professionals such as school principals where in fact there was a need to share that information. We think that makes sense. Indeed you may consider amending the act in a way that allows, in the very exceptional cases where a young offender poses a significant threat to society, some ability to release information to those who need to know.
However, we think the reasons and the rationale for those privacy protections are still generally sound. Generally speaking, we think the impact of publication of young offenders' identities are ultimately going to undermine society's interests in protection from crime rather than facilitate it.
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One of the arguments we've heard for this rationale to reduce privacy protections is that, really, we should leave it up to parents to make a decision about whether or not they should have access to this information to supervise who their kids hang around with.
In our view, that argument doesn't work. The chief reason, in our view, is that it's probably not effective. There's so much information out there, one could ask how effective a parent can in fact be in keeping track of the possibility of the notification of young offenders.
Second, it's very difficult for parents to necessarily keep track of who their kids associate with.
Third, if a child doesn't want their parent to know who they are associating with, there are ways to get around that. So we just don't see that logic as being effective.
I want to talk quickly about admissibility of statements. Again, we see there are sound reasons for these protections in the act. If you look at some of the literature - and I commend to you an article in the McGill Law Journal regarding admissibility of statements and the vulnerability of youth to persons in authority with respect to statements and confessions being made - there are sound reasons for this. We don't think that should change.
The very last point I want to make before you have a chance to ask questions is the notion of transfer to adult court. In looking at some of the issues involving young offenders legislation, this is an area the association has flagged as being particularly troublesome from a civil liberties perspective. There are difficulties with the present transfer process and significant delay in terms of getting the child or the youth from the transfer hearing process into actually having adjudication of the trial.
If you look at some of the statistics, the delay can take six months to a year before the child actually gets tried in a court, whether it be youth or adult court. In the meantime, while they're waiting for this they're in pre-trial detention centres, hanging around and being exposed to those criminal elements we don't want them to be exposed to. It's important to note that this delay undermines one of the primary rationales for the creation of the young offenders system, speedy access to justice. That is the first problem with the transfer process.
The second problem is the nature of the hearing itself. The hearing is administrative. It's been characterized as administrative. The rules regarding evidence are relaxed such that the judge is supposed to assume guilt and assume the worst-case scenario presented by the crown in terms of evidence. Hearsay, double hearsay, triple hearsay - all of this can go in the assessment about where the youth should be sentenced, which is really what the transfer hearing is all about.
We think this is very problematic. This essentially undermines the notion of the fundamental principle in criminal justice that one is innocent until proven guilty.
A third practical problem is that for youths who go through the transfer hearing process, there's an incentive for them to appear to be rehabilitated in a shorter period of time in order to be retained in the youth justice system. In order to show their propensity for rehabilitation, with psychiatrists and psychologists who examine them it's in their interest to profess some responsibility for the crime. Yet when it comes time for the actual adjudication of the trial, they may take a very different approach. They may plead not guilty.
So there's this catch-22 situation that we say is really quite bizarre and quite intolerable. This whole transfer process really needs to be looked at seriously.
One recommendation we have is for you to actually change the location of the transfer hearing process from before the trial, and the merits to after the trial, where we say sentence considerations really should be. If that change were to be made, there are some questions about procedural advantages or procedural options a youth might have in an adult court system that they wouldn't have in the youth court system.
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You would have to make the changes that have been made recently under section 19 for murder trials. The youth is allowed to elect to be tried by judge and jury - by a superior court judge - and to have access to a preliminary inquiry. We suggest that be extended.
So, very quickly, those are my thoughts - in a fairly random manner - and I'd be open to answering questions now.
The Chair: Mr. Ramsay, you have ten minutes.
Mr. Ramsay: Thank you, Madam Chair.
I'd like to thank our witness for making this presentation to us. I hope that your group takes a hard look at Bill C-55 as well. I'd sure like to hear your comments on that bill.
Some hon. members: Oh, oh!
Mr. Mollard: We actually are. In fact, we will possibly have an opportunity to appear before you.
Mr. Ramsay: Good.
I can't agree with some of your conclusions here, of course, and I hope that what I suggest to you.... I hope you have a bit of a thick skin. This is not personal, of course.
First of all, I'd like to deal with the area of the maximum age. You know, of course, that Bill C-41 allows for alternative measures where even adults need not be faced with a term of imprisonment, including those who have committed a violent act.
We were concerned about that and made an amendment that violent offenders be exempted from that provision, but the government saw fit to include them. It really wouldn't matter if 16-year-olds and 17-year-olds were raised to adult court. They still have that very sure option that is available to them in terms of alternative measures, which in most cases would not see them face the penalty of imprisonment. I just make that comment in passing.
I want to deal with two other items and I want to ask you a question. As for disclosure, again, it seems to me that your recommendations and your conclusions - and I'm sure you'll correct me if I'm wrong - come down squarely on the side of the offender. We have to balance the rights of the offender with the rights of the victims and the safety of society.
In the area of disclosure, although you have indicated that in cases where it is clear that the offender poses a threat to society there should be a provision made for the disclosure of that name, you went on to make the other statements, which would deprive me, as a parent, of the information that I might use or at least attempt to use to protect my children from associating with people who would move them into the drug culture and so on.
You would deny me that right. Whether or not I would be successful is beside the point. You would deny me the right of access and the advantage that access to that information would provide me in any attempt that I might make.
On the other side of it, if I knew of a young person in difficulty and was so motivated to attempt to help the family and to help the young person, I would not be able to do so, because I'm deprived of that information. It flies in the face of what we see in some of the isolated communities and the not-so-isolated communities that are using the sentencing circle, where disclosure is a public affair. Everyone who wants to attend can attend, and there's no such thing as disclosure. And in those small communities everyone knows what happens anyway.
In fact, I will just quickly make mention of a witness. An aboriginal leader from Manitoba appeared and told us about a curfew that they've established within their community. Anyone found driving a vehicle after midnight loses their vehicle. If it happens to be a young person, the parents are fined $20, and not only that, it is announced on their local radio station the next day.
So although I understand the value on the side of rehabilitation and I recognize the rationale and the fact that it's sound, we have a balancing act to do here. We must balance the possibility of rehabilitation and the benefit that will accrue to society in the long run with the protection and safety of society.
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The question I want to ask you deals with the minimum age. Should we or should we not lower the age below 12? What has motivated my question and my concern in this area is the testimony of Professor Bala before the committee, and he comes with some pretty heavy credentials. He recommended that the age be lowered to 10. He says this about the lower age - and I'm quoting from his testimony here:
- 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 say 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 other place, there is no basis for legal
intervention.
Mr. Mollard: Would it be successful now, given the way the laws are written?
Mr. Ramsay: Yes. In your opinion, would it be successful?
Mr. Mollard: I think you've raised a completely legitimate and very important point. I have to admit that I think B.C.'s child welfare legislation right now has some gaps when it comes to dealing with those exceptional cases of the child under 12. But the point in my urging for you, as a committee, is to not take the simple and easy response, which is to create.... Don't just make the Young Offenders Act apply to all 10-year-olds and 11-year-olds. Rather, work with your colleagues.
I saw that Justice Gove was here. I wondered if you had the opportunity to speak with the new child commissioner in British Columbia, Cynthia Morton, about ensuring that there are adequate provisions in the child welfare regime in each province before you use the criminal justice system. I'm sure you've heard evidence and testimony that projecting individuals into the criminal justice system often counteracts the goal you want to achieve, and that is to prevent a person from committing more crime.
So my response is yes. I think I agree with you if you're suggesting B.C.'s laws aren't adequate right now. I took a quick look at them and I think there are some gaps, which means we have some work to do in this province. I also think that in speaking very candidly with the people responsible for child welfare in this province, you have some work to do to deal with these rather exceptional cases as a committee.
We're not talking about a lot. It comes down to a philosophy, however, and I think that's really important here. For the child under 12 who commits either the relatively petty offence or the very serious and heinous offence, how do you want to treat him? Do you want to treat him as someone who should be injected into a criminal justice system that will likely perpetuate that? Or do you want to have responses at the child welfare level that can deal with legitimate concerns about protection of society - for example, secure facilities? That's a real issue in British Columbia, but in the example of Quebec we see child welfare laws that can respond to that concern.
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So what I'm urging you to do is to look at that option first - I don't think it has been looked at - rather than taking the quick, easy out by amending the Young Offenders Act to apply it to 10-year-olds and 11-year-olds. And down the line, if you aren't able to work with your colleagues provincially to make sure those provisions exist, maybe that's an option in which the protection of society requires a 10-year-old or 11-year-old to be dealt with in extreme cases.
In preparing for my submissions here, I read the remarks by the attorneys general of Manitoba and Ontario. Both of them recommended to you to lower the minimum age in the Young Offenders Act. What I didn't here from them was whether or not they had bothered to take the time to look at their own child welfare laws to see whether or not those laws could be changed in order to deal with some of the societal protection interests, custody treatment, etc., to ensure that there are those societal responses and that they are adequate. I think the example of Quebec shows that there are. I'm therefore urging you to look at that option as a committee before you go chasing after 10-year-olds and 11-year-olds.
So that's my response to you on that one.
Mr. Ramsay: Thank you. I'm out of time.
Mr. Mollard: Can I respond quickly to a couple of the other points?
The Chair: Of course you can.
Mr. Mollard: An interesting note about the sentencing circle in smaller communities is that they already know who the young offenders are. Why do you need to change the act -
Mr. Ramsay: What about other areas?
Mr. Mollard: In the other areas, I would suggest.... You talk about balancing. I think that's an important point. Our association tries to take very balanced views, and societal protection is a completely legitimate and sometimes overriding interest - for example, community notification about sex offenders. We take the position that if the risk is there in certain circumstances, then there is a legitimate need to notify the community. However, that notification has to be assessed by the proper authorities, those who are able to make the assessment, those who have the expertise to make the assessment.
So what I'm suggesting is that in that balance, there is a privacy interest and a rehabilitation objective, which is indeed a prevention of further crime. The balance comes in avoiding the labelling of kids into a self-fulfilling prophecy by telling them they're criminals, only to see these kids go out thinking they are criminals because everyone thinks they are, so they continue to commit crime. The balancing here occurs by insuring there are experts who are able to assess the risk. Rather than simply making this available to anyone - which includes the media or any parents who, in a vigilante sort of way, publicizes it on their own - what we're saying is that there is a balance here, and it's not appropriate to simply make any young offender who's convicted known to the public. It's not appropriate to make it possible for just anyone to have access to their identity, because we don't think that strikes a balance. So I would disagree to you there.
Finally, on alternative measures for the 16-year-olds and 17-year-olds, I think that's making the case a little bit of a straw-man there. I think there are significant differences between the young offender system and the adult system, given the fact that the adult system has alternative measures now. There are still strong, significant, fundamental differences for the 16-year-old who commits a relatively minor offence - which is nevertheless serious and you certainly do want to deal with it to ensure this type of behaviour doesn't reoccur. I would really hesitate to say Canada wants to start treating 16-year-olds who are not guilty of violent offences in a way similar to the way in which it would treat them as adults.
The Chair: Thank you.
Ms Torsney, do you have any questions?
Ms Torsney (Burlington): I think Mr. Gallaway was ahead of me.
The Chair: Oh, I'm sorry, Mr. Gallaway.
Mr. Gallaway: No, I don't have any questions.
The Chair: Ms Torsney, then.
Ms Torsney: In your transfer provisions, I noticed that you had identified where we could make some changes in light of the changes that you have already made to Bill C-37. I wanted to know if you could elaborate a little bit on the implementation of those changes. How would you propose to do that? I think it's in your second or third-last paragraph. This is for the record, because it's not just us here.
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Mr. Mollard: The way it works now, of course, is that 16-year-olds or 17-year-olds charged with these four offences are automatically raised to adult court, subject to the youth's application to be brought back down to youth court. It's the inverse of what the situation was before. So what we've suggested is....
I'll just clarify the question. Is it how my recommendations would impact on the system that exists at present?
Ms Torsney: The reason I'm asking for a bit of elaboration is that all too often across the country people are unaware that in fact 16-year-olds and 17-year-olds can very easily be tried in adult court for the ten most serious crimes. Since we seem to have a lot of reporters here, I thought it might be an opportunity for you to identify, first of all, how that is being done, and secondly, what could be done to make that system more effective for the protection of our communities.
Mr. Mollard: Well, I'm at a loss. I'm still not sure I understand the question.
I think what's important in my submission to you is that the present transfer process fundamentally undermines many of the basic principles of criminal justice. It deals with what is really a sentencing issue and a sentencing consideration before the trial, before we even know whether the young offender or the accused is guilty or not guilty. In our view this operates as a fundamental aberration from criminal justice principles. In fact, a court of appeal in Alberta likened this situation to a scene out of Alice in Wonderland. There's a quote in there that quotes the court of appeal.
What we're suggesting here is that you could change the system, and you could change it in a way that takes the transfer hearing process to fall, as it should, behind the actual adjudication of the accused and base it on that. Then you wouldn't have to have a court presuming guilt, taking the worst-case scenario, and making a judgment about whether the sentencing should occur in adult court or youth court.
I don't know if you've had anyone come before you and make this suggestion. I can't claim responsibility for it. In reviewing and preparing for this submission.... A provincial youth court judge, I believe in Ontario, made this suggestion. In thinking about it and talking with people, I thought it made some sense.
If you changed the act to make the transfer hearing process after the trial, you would have to make some other changes, I'm suggesting, but you could still keep the provisions that allow for automatic sentencing of 16-year-olds and 17-year-olds in adult court, subject to the possibility of their applying to be sentenced in youth court. You could still keep that for those particularly significant and serious crimes.
Do you follow?
Ms Torsney: I do, and I know other people have made the suggestion, but some people have some real problems with it, in that you would have sentencing in one system and the trial in another, and that's somehow inconsistent or perhaps -
Mr. Mollard: It is, in the sense that for example if you're going to get sentenced in adult court you wouldn't have access to preliminary inquiries and you wouldn't have access to the election, which of course would violate the charter. By ``election'' I mean trial by judge and jury. In the Young Offenders Act you've already extended those types of options, which are in a sense due-process options, to the advantage of the accused. You could extend those to these other crimes.
These are the types of crimes the transfer hearing process involves, I think, if you examine the record. It's the most serious crimes, as it should be. What I'm suggesting is if you make an amendment to take the transfer hearing process and put it behind the trial, in order to be consistent in case the youth gets sentenced in adult court you would also have to give them some of the options they would be able to avail themselves of if they were tried in adult court.
I don't know if that answers the concerns some of the people have. It's a bit tricky.
Ms Torsney: It is.
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The other thing that's been suggested in certain areas is that we somehow introduce some civil or criminal responsibility of the parents for the actions of their children. I wonder if you have addressed that. I don't think you did in your main submission.
Mr. Mollard: Not in our submissions, no, but in fact our association has met and talked about this. As you probably know, right now there's nothing stopping a victim of a crime from suing the parents of the perpetrator, in tort law. There isn't anything to prevent that now.
There are the questions of causation, of whether in fact there is a responsibility, of whether in fact they violated a standard of care - all the principles of tort law, such as negligence, etc. Those exist. We don't see why those couldn't be used if people wanted to use them.
We do have serious problems, however, with the law, such as in Manitoba, that if a child is convicted, the parent is automatically presumed to be responsible: there is a reverse onus on the parent to show they exercised due diligence. We have a serious problem with that.
The Chair: The charter might have something to do with it.
Mr. Mollard: Well, it very well might. Time will tell.
If there's a reason it may violate the charter, it's that there's a principled reason to object to it. It's up to anyone who claims to be harmed by another's actions to prove that. It's not up to one to say this child committed a crime, and therefore we presume the parent to have been an inadequate parent.
We don't think the push for parental responsibility through civil or restitutionary claims makes sense from a principle point of view. What does make sense is the idea of having families involved in the outcome if a youth is convicted - of having the parents and the families involved, if they can be and if they're responsible, in order to be part of the solution.
Ms Torsney: Yes, but it's also perhaps inconsistent to charge the parents, because of course once again that would be removing some accountability from the young people themselves.
Mr. Mollard: It would.
It would also, in our view, most likely affect the single-parent family - the mother who's struggling, working at jobs during the day and attempting to make ends meet. There might be a negative impact.
But I take your point about accountability, in the sense that it takes away from the accountability of the child as well.
The Chair: Mr. Gallaway had a brief question and so did Mr. Maloney.
Mr. Gallaway: I'll pass to Mr. Maloney.
The Chair: All right.
Mr. Maloney: Mr. Mollard, you've presented a very reasoned argument on the points you've addressed, as I would expect from someone from the Civil Liberties Association.
Mr. Mollard: Thank you.
Mr. Maloney: Looking at run-of-the-mill young offenders' offences, we've heard today some interesting diversion options. The success rate at Maple Ridge is roughly 93%, which is a very -
Mr. Mollard: Of diversion.
Mr. Maloney: They have a 93% success rate of not reoffending within one to two years, which is a great record.
Mr. Mollard: Yes.
Mr. Maloney: So there has to be an acknowledgement of responsibility for the acts they've done. How do we balance programs like that, which...?
We're concerned about youths reoffending, going from small shoplifting to B and E to joyriding and perhaps to offences resulting from drug and alcohol abuse, etc. How do we balance your civil liberties position with the end results, when a quick disposition of this - ?
Mr. Mollard: Right. Interesting question.
We made a submission to you last year on young offenders. I see some of you nodding your heads. In that submission we took the fairly strong stance of supporting diversion, as we do at the adult level.
The key point in terms of the civil liberties issue is the taking of responsibility in order to be diverted. The key civil liberties principle is that once you've taken responsibility in order to be diverted, the state can't then use that admission of responsibility to process you through the criminal justice system. So we see that as a reasonable balance and a protection. In order to extract, in a sense, a confession, the state can then use that confession if the diversion didn't work.
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At the same time, we think the principle about using the least invasive, the least restrictive means in order to deal with the problem is a sound one. We see diversion as doing that. It seems to make sense from so many different perspectives: from a civil libertarian perspective about minimum infringements on liberty, from a public policy perspective in terms of funding. It certainly is less expensive to place young adult offenders in a diversion program than it is to put them in jail.
I think it's reconcilable, and our association has taken a strong position in support of diversion programs. If that's the success rate, then it shows there's a good reason to be following that approach.
The Chair: Thank you very much for your contribution, Mr. Maloney.
The meeting is adjourned to the call of the chair.