Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 12 - Evidence, October 16, 2001

OTTAWA, Tuesday, October 16, 2001

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-7, an act in respect of criminal justice for young persons and to amend and repeal other Acts, met this day at 5:10 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, this meeting of the Standing Senate Committee on Legal and Constitutional Affairs is now in session.

We will hear witnesses on Bill C-7, in respect of the Young Offenders Act. This is our fourth meeting on this bill. At the first meeting we had before us the Honourable Anne McLellan, Minister of Justice. At our second meeting we heard from witnesses from the Victims of Violence Centre for Missing Children, and the Canadian Resource Centre for Victims of Crime.

At our second last meeting, witnesses from the Canadian Bar Association and the Barreau du Québec appeared before us. Today, we will hear form Mr. Roy Jones, Director of the Canadian Centre for Justice Statistics, Statistics Canada. We welcome you back, Mr. Jones.

Before we begin, I have a letter to circulate to the members of the committee from Senator Clinton. Following the disastrous events in New York City, I wrote a letter offering, on behalf of the committee, our sincere concern and our help in any way that we possibly could here in Canada. She responded promptly with a very nice letter, of which you will each receive a copy.

Mr. Jones, please proceed.

Mr. Roy Jones, Director, Canadian Centre for Justice Statistics, Statistics Canada: It is a pleasure to be back here again. I am sorry I was not able to complete the presentation on my last visit, but it is always a pleasure to be here.

As you will recall, I had a small presentation on an overview of the youth justice system in Canada - the statistical highlights of indicators of the system. It should take about 20 minutes to go through the deck, and then I will be available for questions.

I will begin by indicating that the Canadian Centre for Justice Statistics operates under the auspices of the National Justice Statistics Initiative, a federal-provincial-territorial organization with representation from all ministries and departments responsible for justice in Canada and Statistics Canada. The centre is an administrative division of Statistics Canada and it is the operational arm of the National Justice Statistics Initiative.

The centre's mandate is to provide to the public information on the administration of justice in Canada, on the nature and extent of crime in Canada. Today, I will speak primarily to the official sources of crime and justice statistics. These are based on data compiled through our national surveys using the administrative and operational data compiled in the jurisdictions and by the police services in Canada.

The three main sources - national surveys - that I will refer to today are: the Uniform Crime Survey, in the policing sector; the Youth Court Survey, in the court sector; and the Youth Custody and Community Services Survey, in the corrections sector. I distributed some reference materials at my last appearance that included some information on victimization from the General Social Survey, 1999. That material provides estimates of general victimization in Canada based on self-reporting. These are incidents that may not have been reported to the police but were picked up in the survey from the self-reports of Canadians aged 15 years and older in the general population.

If we turn to the first slide in the deck, we provide a general graphic of the trends and the rates of youth charged in Canada at the national level since 1985. Included in this graphic is a description of the youth population, aged 12 to 17, within the jurisdiction under the act. You will note that represents roughly 8 per cent of the total population in Canada, as of 1999. Based on a medium growth assumption in projection, the population aged 14 to 17 will increase slightly to the year 2006, and from that point on, will begin a slight, but not a significant, decline.

You will note from the graphic that the overall youth crime rate, which is commonly measured by the rate of youth charged with Criminal Code offences, increased slightly in the last year. That is the last little dip on the graphic and it stood at about 4,100 charges per 100,000 youth in the general population. Overall, the rates decreased annually since it peeked at 6,300 in 1991. This was following a general period of increase during the 1980s.

With specific regard to violent crime, the youth rate followed a similar pattern, although the increase in the last year was slightly higher at 7 per cent. It declined from its peak in the early 1990s, after a period of fairly substantial increases over the 1980s. I want to note that this slight increase at the end of the graphic is primarily driven by an increase in common assaults, not by the more serious assaults and violent offences.

I also want to note that the annual number of youth charged with homicide is very low. The number has fluctuated between a high of 68 in 1995 and the most recent low of 41 charges recorded last year.

With regard to property offences, in the year 2000 the youth-charged rate has dropped by 4 per cent. This is a continuation of the decline that began in 1992, and again, that followed a fairly consistent period of increases during the 1980s.

Turning to the composition of these offences, the general picture of crime in Canada, as far as youth are concerned, is that virtually one half of the crimes - 46 per cent - are property-related; roughly 22 per cent - one fifth - are violent crimes. The remainder - approximately one third - are crimes that fall under other sections of the Criminal Code, predominantly mischief and offences against the administration of justice, such as failing to appear, escapes from custody and bail violations.

A decade ago, roughly 12 per cent of youth were charged with violent crimes and about two-thirds of youth were charged with property crimes. Thus, there has been a general shift in the composition of offences over this period of time. The increase in youth charged with common assault and the decrease in thefts and break-and-enter, account generally for that shift in composition over this period.

I should also note, and not included on this graphic, the several numbers relating to drug offences involving youth. This number has fluctuated quite a bit over the last period, and in the 1980s, certainly, but it has been on a general increase during the 1990s. It reached a peak of 7900 youths charged most recently in the year 2000. That represents a rate of about 320 youth charged with a drug offence for 100,000 youth. It is not shown on the graphic because the scales make it difficult to illustrate that. Roughly 9 out of 10 of youth charged with drug offences are cannabis related, and nearly two-thirds of those are possession of cannabis.

Regarding the location of these incidents involving youth, according to a subset of our respondents in the policing community, roughly 9 per cent of the incidents involving youth are committed on school property. These are figures from 1997. Violent offences were the highest. They ranked 38 per cent on school property, compared with 14 per cent of violent offences being located in other areas off school property. It is expected that the increase in zero tolerance in schools with regard to reporting to police accounts for a great deal of the increase in that statistic.

With regard to children under the age of 12, these overall incidents account for less than 1 per cent of the total where there is an accused identified. The vast majority of these involve males - roughly 8 out of 10 are male youth under age of 12. Nearly three-quarters of these offences are property related, mostly involving petty thefts under $5,000, mischief, breaking and entering, and 5 per cent of arson.

One-quarter of the incidents involving children under age 12 against persons involve common assault offences. There are a few robberies and a few threats, but we are talking about very small proportions of a very small proportion. We will see this later in the graphic under figure 5 with the age-specific rates to give you a perspective on the relative rates for youth, adults and children under 12.

The Chairman: Perhaps, Mr. Jones, you can keep us updated on which figure you are speaking to as you go along. If we dub these graphics into the film later on, it can be related to what is going on.

Mr. Jones: If we turn to figure 2 now, this is a graphic of youth charged with property offences by gender in Canada for the period 1985 through 2000. You will note that the rate for youth overall through property offences has dropped. This drop has occurred for the last nine years in a row. It most recently declined by 4 per cent overall. The rate for male in 2000 was roughly 2,800 per 100,000 population youth. That is roughly three times the rate for females.

The graphic also illustrates that the decline in the overall rate has predominantly been the result of a decrease in the rates for males, not for females. There has been less of a change in the rate for females in the last decade.

Turning to the third graphic, figure 3, we have a similar graphic for youth charged with violent offences for the same period, 1985-2000. Note that the rate for youth charged with violent crime has generally increased between 1985 and 1995; there was a slight decline between 1996 and 1999. Overall, in the decade between 1987 and 1997, the rate for male youth charged with common assault nearly doubled.

The rate for females charged with violent crime has also generally increased since 1985. Again, this increase is most related to the increase in common assault for females aged 12 to 17. I will remind you that the rate for males charged with violent crime in 2000 was roughly three times the rate for females - a little over 1,300 per 100,000 for males versus slightly under 400 for females.

Turning to figure 4, we have a display of the overall youth charge rates by jurisdiction in the year 2000. Nationally, as I mentioned, the rate is about 4,100 youths per 100,000 in the age group. The rates for the territories certainly fluctuate year to year and can change quite dramatically based on the small base population.

Among the provinces, Saskatchewan has the highest rate at slightly over 10,000 youth charged per 100,000, followed by Manitoba, at slightly over 7,000 youth charged. With the exception of New Brunswick and British Columbia, youth charged were lowest east of Ontario, nationally, and Quebec has traditionally had the lowest number of youth charged per 100,000 at roughly 1900 per 100,000.

It is important to understand when we discuss youth charged that most jurisdictions refer eligible youth to alternative measures at the pre-charge stage. The one exception to that is Ontario, which predominantly runs a regime of referral at the post-charge stage.

On the next graphic, figure 5, I have age-specific rates for both violent and property crime for youth. The graphic runs right up through age 55. These are statistics that relate to accused persons. It provides a general context for the relative volume of youth crime to that of adults. You will note that the age-specific rate for the 14- to 21-year age segment of the population has the highest for both violent and property crime. Generally, the age-specific rates rise sharply between 10 and 14 for both property and violent offences. It stabilizes from 15 to 17, and these are rated on a basis of a 100,000 population in each single year of age.

Although the age-specific rates appear to be very high for the age group 12 to 17, there is a relatively small total population represented by that age group in the Canadian population. Therefore, in numeric terms, the majority of crimes are committed by adults. Roughly 84 per cent of people charged with violent crimes, and roughly three-quarters of persons charged with property crime are adults ages 18 and over.

Turning to figure 6, we have a distribution of age and gender of accused youth. The involvement of criminal activity peaks earlier for female youth than for male youth. Overall, the peak age for young offenders is 15 to 17 years. The rate for male youth accused of Criminal Code offences continues to increase with age and it peaks at 16 to 17-year-olds. For females, the peak occurs at 14 and 15, and the secession begins a little earlier with them.

One point that was raised following my last appearance was the figures for victims of youth violent crime. The majority of victims - roughly 55 per cent - of youth violent crime are other youth. Only 8 per cent of these victims are under the age of 12 and it is relatively rare for a Canadian over the age of 55 to be a victim of a youth violent act - roughly 2 per cent.

Figure number 7 shows a distribution of the most common offences for which youth are charged. The distribution accounts for roughly 81 per cent of the nearly 101,000 youth charged with an offence in 2000. One-fifth, roughly, are charged with theft under $5,000, another 12 per cent with break and enter. Common assault at 12 per cent is another large component of the youth offence composition. Bail violations are about 1 in 10; 7 per cent are mischief; 6 per cent involve motor vehicle theft, and another 6 per cent are possession of stolen goods offences.

That gives you a flavour for the general composition of Criminal Code offences under which youth are being charged.

Figure 8 shows case statistics from the youth court survey. We see the distribution of offences for which youth are appearing in court in 1991 and 2000. Among the roughly 102,000 cases processed, there is a roughly 4 per cent decrease from the previous year and an 11 per cent decrease from 1992-93. The latter forms a benchmark for some distributions because it represents our first year of national coverage.

There are roughly five offences that account for a large proportion of the caseload, similar to the accused distribution I showed you earlier. Those five are theft under $5,000; failure to comply with a disposition under the Young Offenders Act; failure to appear in court; breaking and entering; and common assault.

Overall, the rate of property crime cases appearing in court has decreased by 38 per cent since 1992-93. The rate of violent crime cases has dropped slightly; it decreased 3 per cent from 1998-99 to roughly the same levels we had in 1992-93.

Just over half of the cases in youth court involve youth aged 16 to 17. Younger adolescents, 12 to 14, account for one quarter and 15-year-olds account for the remaining one fifth of cases appearing in youth court.

Figure number 9 shows the relative use of alternative measures by jurisdiction and their associated caseloads in courts. Alberta has the highest rate of youth assigned to alternative measures at 384 per 10,000 youth population. British Columbia and Ontario have some of the lowest rates in the country at 66.

This is explained in part by the differences in catchments between the different alternative measures regimes. Alberta defines "alternative measures" more liberally than do Ontario or British Columbia.

Overall, the rate of youth brought before court at 435 per 10,000 is roughly four times the rate of youth participating in formal alternative measures programs across the country for those jurisdictions for which we have data. The Quebec rate of youth participation, at 165 per 10,000, is most similar to its rate of case appearances - at 201 - of any province in the country.

Nearly three-quarters of the caseload in alternative measures involve property offences. Another 15 per cent are mischief and disturbing the peace; 7 per cent are common assaults; roughly 3 per cent are other Criminal Code and other federal statute offences not listed.

That gives you a general flavour of the relative distribution of the caseloads in alternative measures programs across the country, plus the caseloads coming into courts across the country.

Figure 10 shows our first distribution of court case outcomes. Roughly two-thirds of the cases heard in youth court in 1999-2000 resulted in a conviction, a finding of guilt. That number has been very stable since 1992-93 nationally. Over one-quarter of the cases were withdrawn. Another 3 per cent ended with a not-guilty finding or dismissal.

The proportions vary quite a bit by jurisdiction. Among the provinces, the conviction rate ranged from roughly 60 per cent in Manitoba and Ontario to over 80 per cent in Prince Edward Island, Quebec and New Brunswick.

Another point of interest is the transfers to adult court that have taken place. These represent a very small number and percentage. We have roughly 52 over the last year. These are predominantly 17-year-olds. Although they represent about a quarter of the total caseload, they represent more than half of the transfers to adult court. In proportional terms, it makes sense.

Figure 11 shows outcomes of court convictions by most serious disposition. Among the 68,000 cases that resulted in a conviction, 48 per cent - or roughly half - resulted in a probation order as the most significant disposition. The majority of these were for terms of more than six months. Custody, both open and secure, was ordered in roughly one-third of cases resulting in conviction. Those cases that were associated with the Young Offender Act offences - failing to comply with disposition, breaches of probation and escaping custody - were most likely to result in a custody order.

More than 90 per cent of secure and open custody orders were for terms of less than six months. Roughly half of the cases with a conviction had one sentence associated with it. A little over one third, or 36 per cent, had two sentences and 19 per cent had three or more sentences. For those that had multiple sentences, the most common combinations were probation and community service orders at 19 per cent.

That gives you a flavour of the relative outcome of cases resulting in conviction in youth court.

Figure 12 shows the court data - not corrections data - on orders-to-custody rate for 1999-2000. Overall, the rate for Canada was 95 youth per 10,000 in the population. Again, this has been relatively stable over the last few years, fluctuating within 5 to 10 per cent per year.

Among the provinces, Quebec's custody rate at 44 per 10,000 is the lowest in the country and roughly half the national average. That is primarily a function of fewer cases coming into the court system in Quebec and, to a much lesser extent, represents any difference in the percentage receiving a custody order or conviction rates in Quebec.

On the other end of the scale, Saskatchewan has the highest rate among the provinces at over 200. This is predominantly a manifestation of its elevated crime rate, not a relatively high rate of convictions or an exceptional use of custody in the province; it is just more inflow. When rates are expressed per 10,000 general population, it is reflective of the crime rate, not a change in custody order rates or in conviction rates in that province.

The proportion of cases with short custodial sentences - three months or less - has slightly increased since 1992-93 from about 71 per cent to 77 per cent in 1999-2000. There has not been a great change in the length of orders overall recently.

Figure 13 focusses on offences that resulted in custody orders. A total of 11 offences represent more than 80 per cent of the 23,000 cases sentenced to open or secure custody in Canada in 1999-2000. Young Offender Act offences, failures to comply with dispositions, are represented quite prominently here, along with breaking and entering and failing to comply or breach of a recognizance. Nearly half of the 11,000 convictions involving offences under the YOA resulted in an open or secure custody order. That is an extremely high rate but, again, it is a response to a failure to an earlier dispositional order.

The most significant charge in cases most often resulting in secure and open custody orders were escape and unlawfully- at-large at nearly 90 per cent; murder/manslaughter at over three-quarters; theft over $5,000, which was about half; and robbery, which was about half. Fewer than one in five drug cases that resulted in conviction received an open or secure custody order. The vast majority of these convictions related to cannabis possession or related offences.

Among the 23,000 cases resulting in custody sentences, one-third were for terms less than 1 month; over 40 per cent were 1 to 3 months; 16 per cent were 4 to 6 months; and 6 per cent were 6 months or longer. There really is a concentration in the short custodial orders.

Figure 14 compares the dispositions for first-time and repeat offenders for 1999-2000. Repeat offenders are defined as youth with at least one prior conviction. These accounted for roughly 35 per cent of all cases. We also have information here on persistent offenders, which are defined as youth with at least three prior convictions. They are involved in approximately 10 per cent of all convictions. Males again were represented in a ratio of about two to one in that latter category of having at least three prior convictions.

Repeat offenders were involved in roughly 53 per cent of property cases and 25 per cent violent offences. First-time offenders were much more likely to receive probation orders, at 63 per cent, than were repeat offenders, 42 per cent. Repeat offenders were also nearly three times more likely to be ordered to serve a term of custody - secure custody specifically - at 23 per cent, relative to first time offenders. These offenders were also about twice as likely to receive an open custody order at 19 per cent relative to first time offenders.

As one would expect, the likelihood of receiving a custody order increased with the number of prior convictions. Thirty per cent of cases involving repeat offenders with one prior conviction received a custody term. That percentage increased to 42 per cent for repeat offenders with two prior convictions and 63 per cent - nearly two-thirds - for three or more prior convictions. There is a logical ordering in the severity of sentencing for those who have had repeated convictions.

Figure 15 shows the distribution of the Aboriginal youth in admissions to sentence custody, and this will come as no surprise to anyone, I am sure. There is a significant over-representation in the youth correctional system. In those jurisdictions reporting, Aboriginal youth accounted for nearly one-quarter of total admissions to sentence custody, although they accounted for roughly 5 per cent of the total youth population for the jurisdictions for which we have data. In Manitoba in particular, three-quarters of sentence custody admissions were identified as Aboriginal, though their representation in the general population among Manitoban youth is 16 per cent. The situation in Saskatchewan is very similar, at 74 per cent on admission, while 15 per cent of the general population of youth is Aboriginal in origin.

Those are the data points that highlight the general characteristics of the functioning of the youth justice system. I would open the table to questions.

Senator Beaudoin: Do alternative measures vary from one province to another, or they are the same? I would think they vary.

Mr. Jones: Yes, they vary considerably in terms of eligibility to the program, in terms of nature of the offence and prior offending, and also in the nature of program. As I mentioned while we discussed that slide, Alberta defines its alternative measure program much more liberally than do others. It includes things such as letters to victims.

Senator Beaudoin: Therefore, the picture at the end is not mathematical. If it varies from one province to another, it is an indication, but not much more than that. At figure 9, obviously all the alternative measures are shorter. They are less numerous.

Mr. Jones: Yes.

Senator Beaudoin: It is an indication, but even that is not definitive.

Mr. Jones: No, and we cannot be definitive in terms of some of the other things that go into inter-jurisdictional comparisons, which is something we should be cautious of doing. There is a difference in pre-charge diversion prior to consideration of alternative measures between the programs, as well as eligibility for alternative measures.

For example, in comparative terms British Columbia's rate of use for alternative measures, taking youth caseload as an indicator, is not that far off, more or less the national average. However it does rely on much more pre-charge police diversion, and that accounts for the lower charge rate in British Columbia relative to some of the other provinces. It is a very complex and moving picture on how the pieces come together. Admittedly, we do not have perfect information on program eligibility and practices on enforcement and enrolment to allow us to qualify the inter-jurisdictional comparisons in a quantitative sense.

Senator Beaudoin: Alternative measures might vary from one province to another. This is perfectly legal as demonstrated by the decision in the Sheldon S. case. You might have the ordinary system or you might have alternative measure, but the alternative measure has been tested in court and is perfectly valid. I think this is a good thing, I am glad of that. I think it was a good idea to have alternative measures.

My other question was in relation to the ages and gender of accused as shown in Graphic 6. Males are much higher when they are ages 16 and 17, but at 12 and 13 it is the reverse and the females are higher. What is the explanation for that?

Mr. Jones: These distributions, as a totality, used total males and total females, so they only look at the differences in composition for the total male and the total female. We are showing here that for 100 per cent of the males accused of a crime, roughly 20 per cent of the males are 12 to 13 years of age, relative to the 100 per cent of accused females, of which roughly 14 per cent fall in that age group. We are not comparing between the two genders; we are comparing within the genders.

Senator Beaudoin: When they are 16 and 17, the males are 50 per cent.

Mr. Jones: Yes. For comparison of absolute numbers and for relative rates by age, by gender, I would refer you to some of the other graphics that show you the gender age specific rates where the ratio is roughly three-to-one for males to females in each year for both violent and property offences.

Figure 6 just shows a difference in both where the concentration of age within the accused group by gender is, as opposed to a comparison between genders on the absolute number or the rate at each age. It is a different perspective than the one that is represented by the other one, which compares across the genders.

Senator Beaudoin: The Northwest Territories and Yukon are very high, but of course "l'échantillonnage," as we say in French, or the sampling is small compared to Quebec and Ontario, for example, and Saskatchewan is also in that category. Is it because of the Aboriginals? Is that factor taken into account?

Mr. Jones: Yes. There are many factors. The proportion of Aboriginal population is one of them. The age profile of the jurisdiction is another one, where we are looking at jurisdictional rates. All of these things contribute. There are also enforcement practices and diversion practices. A good number of things impact on the overall rate.

We do not have information from the policing sector on Aboriginal status right now so we cannot make comparisons at that level, which is why the one graphic that had Aboriginal status is in the correctional area.

Senator Pearson: You would think that statistics would clarify things, but sometimes they seem to confuse the numbers. In Canada it is so difficult to create similar categories for these various statistics across the country.

Figure 4 shows us the differences between Ontario and Quebec. In reference to the charge rates, you have stated that in Ontario they send them to alternative measures after they have been charged, and in Quebec it is before they are charged. Is that correct?

Mr. Jones: Typically, yes, that is what happens.

Senator Pearson: That would, in fact, change what these numbers look like. If the youth who went into alternative measures were deducted from the Ontario list, the numbers might be much lower.

Mr. Jones: They would be, absolutely.

Senator Pearson: Sometimes we view the comparison between Ontario and Quebec and it is not quite what it seems.

Mr. Jones: That is right.

Senator Pearson: It is interesting, because those are the two largest provinces. Therefore, the populations are similar, to some extent. I wanted to make that point.

The Chairman: We have no figures, though, on what might have been the before-conviction numbers in Ontario.

Mr. Jones: Yes, we do have the crime figures for Ontario, in terms of youth accused.

Senator Pearson: You can be accused but not charged, right?

Mr. Jones: That is right. For eligibility to alternative measures, the stage at which they are referred in Ontario is post-charge and in Quebec it is pre-charge.

Senator Pearson: Another point that I would like an explanation for is that I cannot believe that anyone aged three years has been accused of a violent or property crime. Please tell me just what that means.

Mr. Jones: None of these under the age of 12 years are charged, but these are the accused associated with a criminal incident. I do not have the specific offences related to each of these numbers of that age group, unfortunately.

Senator Pearson: I find it a fascinating thought, although I do not know what it means. It is not important in the long run.

Senator Grafstein: The Criminal Code indicates that for youth under the age of 10 years, there is no such thing as a criminal charge.

Senator Pearson: We are saying, however, that the statistics indicate that someone has actually accused a three-year old. The child was accused of violent and property crime.

Senator Grafstein: An accusation is not a charge.

Senator Pearson: That is right.

Senator Grafstein: First, you have given a mix between the therapeutic model and the criminal justice model. Quebec tends to be a therapeutic model and the rest of the country tends to be a criminal justice model, even though all of them have elements of a therapeutic model. Youth offenders seems to be a mixed bag.

I wonder what the problem is when I look at these numbers. Why are we, based on these statistics, upending a system at an unknown cost to the taxpayer? We have had 10 years of relative calm on the plateau of violent crimes and a deterioration of criminal code crimes and property crimes.

Where is the clear and present danger to our society? I do not see it in these numbers, except for some isolated problems that we have never addressed: how to deal with Aboriginal youth in depressed and deprived circumstances. However, I look at these numbers and I cannot help but wonder where the clear and present danger for legislation is? I do not see it.

I am not asking you to agree with me, but all the charts are flat of decline for a decade. Normally, you legislate federally because there is a clear and present danger that has to be addressed by a different form of legislative standards or a different model of treatment. I do not see that in these statistics.

I do not know how you will respond because you are a statistician and you tend to be neutral. There is no imminent danger in these numbers. I do not see a danger; do you see a danger in any of these categories?

Mr. Jones: I appreciate your noting that I am not in a position to respond to that. I cannot characterize these numbers.

Senator Grafstein: I have just returned from Europe where I spent some time with one of the leading socio-medical practitioners of youth health care, who is involved in Holland. He presented me with a paper that indicated that Holland treats youth crime in an entirely different way.

They interpret youth crime in an entirely different way - as a therapeutic problem. They have characterized how to find out about a youth that is prone to violence early on, and then they deal with the whole raft of social and therapeutic methods to focus on that child early on in the system. It is like a head start.

In respect of youth crimes, this particular expert said that he does not quite understand what we are talking about. He concluded that by addressing the criminal system to youth, there would be an increase in recidivism. The whole idea in Holland is to work on a therapeutic model, which requires much fine-tuning and money. The conclusion is that it costs $10,000 to sort out, at a youthful stage, a violent child, for many different reasons, as opposed to $45,000 to incarcerate him. Those are European numbers, but I would assume that the numbers are relatively close to that in Canada.

Mr. Jones, have you looked at comparative models of therapeutic treatments versus other criminal treatment in other jurisdictions in Europe? Can you give us any guidance on this so that we can determine the value of this anecdotal information?

Mr. Jones: We typically do not do evaluative research in comparing models of justice administration.

Senator Grafstein: Would the UN do that? The expert from Holland referred me to the UN convention, and apparently they have some numbers that deal with precisely this problem. Is that something we could gain access to?

Mr. Jones: Yes, we could.

Senator Grafstein: Perhaps that would be useful to us on a fact basis. We are taking about a brand new model and we would like to know if this model would be more helpful to society.

The Chairman: We will look into that for you, Senator Grafstein.

[Translation]

Senator Nolin: I would like to return to figure number 4. If I have understood correctly, it is difficult to reconcile the situation in Quebec with that in Ontario unless the fact that in Quebec, there is a diversion measure before a charge is laid.

[English]

Is it possible to have a figure 4.1 that would compare accused in Canada across all the jurisdictions so that we can make sure we compare everyone on the same level? From your answer to Senator Pearson, we cannot compare the figures for Ontario and Quebec in figure 4 unless we keep in mind that in Quebec there is diversion before charge, and in Ontario there is diversion after. Is it possible, therefore, to make sure that we will be able to compare jurisdictions on the same level?

Mr. Jones: For most jurisdictions we can, but in some cases we do not get the information pre-charge from the police, where they do not make recommendation for a charge or lay a charge to allow us to do the comparisons.

Senator Nolin: Which are those jurisdictions?

Mr. Jones: I would need to come back.

Senator Nolin: We need to make sure we have comparables.

The Chairman: We want to compare apples with apples.

Senator Andreychuk: You have been talking about alternative measures. As I understand it, what you are talking about here is a formal system in Quebec, and for other jurisdictions there are charges and any diversion after that. It is hard to define what alternative measures are because the police in every jurisdiction have a right not to lay a charge if they believe it is not warranted, according to the policies of that province or that jurisdiction. Then, if you go into Ontario, there probably is pre-charge a diversion of some kind, and then there is the post-charge diversion. Is that not the case in all of the jurisdictions? Are you saying that your statistics cannot trap all of that?

Mr. Jones: That is the issue. We do not have the pre-charged version, police-diverted information necessary to do those comparisons to fill in the blanks. The alternative measures slide. Whether it is pre-charge or post-charge, it is intake to the formal program and it does not matter what stage it takes place. Those are counts coming into that program.

However, it is the information that does not get into the police system, where there is diversion based on an investigation of a youth prior to the recommendation or the laying of a charge, and/or the referral to an alternative measures program if it is pre-charge. We do not have that information.

Senator Andreychuk: You really do not know what other systems may be diverting. For example, you have talked about many of the common assaults and the violent crimes being within a school system. If there is zero tolerance in the school system it tends to get into the police system. If it is a school process, even the police will not be the predisposition; it will be a school policy system that will do the predisposition to an alternate measure. There may be some sort of program. You really are talking about the point of court to the extent that you can.

Mr. Jones: Yes, and the formal referral to police in the case of school activity. This applies to zero tolerance for violent behaviour or the discretion exercised on property offences within schools. It is variable across boards and across provinces, obviously.

The Chairman: Is that variable even within one province?

Mr. Jones: Yes.

Senator Nolin: The answer to my question is probably impossible to find. Can we compare Ontario to Quebec at least on something?

The Chairman: I also would like to be able to compare Ontario and Quebec on some sort of basis because these are the two extremes and we will be hearing from representatives from both of those provinces. It would be nice to have some figures before us that we could, to a certain extent, compare apples with apples.

Senator Fraser: On this line, I would now ask for clarification of a figure that I previously thought I understood, namely figure 9. Is figure 9 referring only to what happens post-charge?

Mr. Jones: With regard to the dark line, those are intake rates to youth court. Those are all charges on the black line, everyone is charged. The grey line is the rate per 10,000 population for participation in alternative measures. That is a mix of charged and not charged.

Senator Fraser: Does that not give us the comparison that Senator Nolin was looking for?

Mr. Jones: We still do not have the full picture on the diversion pre-referral alternative measures.

Senator Fraser: I withdraw in confusion.

Senator Nolin: Diversion is the answer to the question. I am trying to reconcile at least two provinces, and if we can have all the provinces, fine. However, that was not my real question.

My second question is on repeat offences. Is it possible to have information on multi-year - perhaps 10 years - evolution of repeat offence on a province-by-province basis? When I say, "repeat" it can be multi-repeated offence. I think that this would provide some kind of picture as to whether the system works or not.

Of course, as time goes by, most of them are become adults in the system during the process. In comparison, is it possible to include a young offender who started his "criminal" life as an adolescent, became an adult and a repeat offender when he was an adult? Is it possible to have those comparisons in my province over 10 years?

Mr. Jones: I would love to say yes, but I cannot, unfortunately. We do not have complete coverage for the detailed data to do the linkages year to year. The data I provided are youth court based, which starts in 1992-93, and the linkages are by case record within a jurisdiction, not across jurisdictions.

Senator Nolin: What happens if they go from province to province?

Mr. Jones: We do not know. We do not think the migration is huge but as each age progresses the migration becomes more of an issue for us. Unfortunately, we do not have micro-data at the national level for police statistics. These are linked records in court. We can provide shorter periods of time for some jurisdictions using the definition that I provided here, and we do have some tables on that. I would be happy to make those tables available.

The Chairman: Please do.

Senator Nolin: For me, that is probably the test to see if it works, whether it worked in the past and whether we need to change something.

Senator Joyal: I will start my question to our witness with a quick comment. We had previous witnesses from the Canadian Bar Association and the Barreau du Québec, and as we understood the system is that since it works in Quebec, we want through this legislation to have a system in the other provinces that will work better.

That seems to be the assumption so let us change the system to ensure you will have better statistics when you return here in 10 years probably looking for improvements to this legislation.

I have some preoccupation relating to where we will make changes in the system so that so that the preliminary approach of diversion, which is taken in Quebec, will be taken in the other provinces as well. Otherwise we will mix everything up without getting the results we want.

I phoned your office last week to get some statistics about incarceration after the minister told us that Canada has four times more incarcerations than the United States. That, to me, is an appalling result for the present system. In the present system, without changing anything, Quebec has the lowest rate of incarceration. I am circulating now the document I received in response.

For 1995-96, the incarceration rate in Quebec was 10 per 10,000 youth. In the other provinces, was much higher. The incarceration rate for 1998-99 in Quebec was zero. It was as high as 64 in other provinces and 48 in the Northwest Territories and Yukon.

I am puzzled about this present legislation, which seems to work in Quebec where there is a zero or very low rate of incarceration. We have not been able to reconcile the seemingly satisfactory statistics in Quebec - nothing can be lower than zero - yet we want to change the legislation, especially with clause 61, to give the Lieutenant-Governor of each province the power to adopt a different age. In other words, the new system will not be streamlined; it may be a checkerboard system.

Do we think the other provinces will arrive at the zero results sometime down the road? How we can be assured, if we change the fundamentals of the system, that we can get a better result in Quebec than we have now?

Mr. Jones: I apologize that, in sending this table to you in haste, we somehow dropped the legend for the 1998-99 statistics. Those symbols indicate that data is not available for Quebec, as opposed to showing zero.

Our understanding is much different, but that does not mitigate the fact that Quebec's average is half the national average. It is certainly not zero. As of 1996-97, Quebec was not able to provide the daily-intake counts in the institutions. I apologize for not including that part of the legend on the graphic.

Your point is well-made. In principle, Quebec has a better rate and that point was also made on the relevant slide on conviction. Quebec's rate is well under 50 per cent of the national rate on orders to custody, open and secure.

Senator Joyal: In other words, when a youth is charged before a court in Quebec, the rate is always lower than in other provinces, according to the statistics that we have in front of us?

Mr. Jones: It is a function of the lower intake coming into the courts. Their conviction rate is not that much different. Their orders to custody are not that much different once the youth get into the system. Quebec has a stronger filter up front to keep them out of the court system in the first instance. That is reflected in the rates per population being much lower. It is not how they deal with it once it is in court; it is how they deal with it before it gets to court that makes the difference in the overall incarceration rate for Quebec.

Senator Joyal: Nevertheless, the rate of incarceration is, in the end, lower so the system works better.

Mr. Jones: All I can say is that the incarceration rate is lower. Whether that is better or worse in terms of how you deal with it is a matter of evaluative conclusion. It is clearly different is what I can say.

Senator Andreychuk: On that point, it is clear that you do not know now but you will to try to get for us statistics on repeat offenders.

Mr. Jones: Yes.

Senator Andreychuk: We also want to see the difference from province-to-province. One of the tests would be, if the youth are back before the courts, does they system work? One has to presume that a significant number do not move out of the province and that the police charge in the same way. After a lot of assumptions, we could get some important conclusions from repeat offenders statistics.

Some of the raw statistics were given to us previously from before 1985 showing what was going on in the 1970s with the Juvenile Delinquents Act and how things changed under the Young Offenders Act with increased caseloads.

You should have those somewhere in your archives. We start at 1985 and there is a two-year gap while the system is put in place and people are trained. I want to know whether the young offender system has not been working vis-à-vis the previous system. Can you provide any of those raw statistics?

Mr. Jones: Yes, we certainly do have the police-based statistics prior to 1985 and dating back to 1962. We would be glad to provide the longer time frame to the committee.

Senator Andreychuk: I will show one of my biases - Saskatchewan. If we solve our legal, social and other problems in the Aboriginal community, rather than criminalizing the problems as we do now, the crime rates would be significantly addressed.

Do you have statistics for adult crime rates by province with any variation of the Aboriginal population?

Mr. Jones: We do not have anything other than the Aboriginal indicators in the corrections sector right now. We certainly have the aggregate adult crime rates and the court activities in Saskatchewan. Again I would be glad to send those to the committee.

Senator Pearson: On the assumption that kids grow older, can I ask, are the adult incarceration rates in Quebec any different than in the rest of the country?

Senator Andreychuk: That is why I want to go back in time.

Mr. Jones: I do not have those figures with me. We do have the adult incarceration rates by jurisdiction. I can bring those to the committee.

Senator Pearson: Thank you.

Senator Andreychuk: You said that a significant number of the violent offences are common assaults. Is that correct?

Mr. Jones: Yes.

Senator Andreychuk: When did you start tracking the difference between a violent offence and a common assault?

Mr. Jones: We do not have a lot of qualitative information about how the various referral systems would work, including the school boards. We do have the charge composition by offence dating back to 1962 for youth in that profile. That would be included in the material on the longer time series from the police statistics.

Senator Andreychuk: So we could get that?

Mr. Jones: Yes.

Senator Fraser: I am interested in the data relating to gender. I note that the number of girls charged with violent offences has risen amazingly in the past 15 years. Is there a qualitative difference between the violent offences committed by girls and the violent offences committed by boys? Are girls more likely to slap someone in the schoolyard and boys more likely to hit little old ladies? You just told us they are not likely to hit little old ladies, but you see the distinction I am trying to draw.

Mr. Jones: The distribution is under the violent category, which is a bit of an abstract category in the first instance. The distribution is somewhat different for girls under the age of 17. There is a greater proportion of common assault, but that still leaves a fair proportion of aggravated assaults, assaults with weapon and robberies for young women.

Senator Fraser: So these are real violent offences?

Mr. Jones: Exactly.

Senator Fraser: Is the distribution of the numbers that we see in figure 3 roughly consistent across the country, or are there regional variations?

Mr. Jones: There are slight regional variations, but the aggregate in terms of the nature of offences being committed does not vary nearly as much as the absolute rates. There is more consistency across jurisdictions on that dimension.

Senator Fraser: There is no one region of the country where girls seem to be in more trouble than elsewhere?

Mr. Jones: No.

Senator Fraser: Finally, do we have numbers on the disposition of cases by gender - custody, community service and all that?

Mr. Jones: Yes, we do.

Senator Fraser: I would like to see those numbers. Do you have a flavour of them can you give us now?

Mr. Jones: They are included in the copy of the issue of Juristat, "Youth Court Statistics. It provides some profiling by gender of cases coming into court and their disposition. Generally, if my memory serves well, girls with the same case profile are slightly more likely to receive a probation term than are males, but other than that, there are not huge differences between the two. The detail is available in that summary Juristat for last year.

The Chairman: Before we start a second round of questions, I remind senators that we have the Justice Department officials waiting to appear before us here as well.

Senator Nolin: What is your definition of "repeat offender"?

Mr. Jones: A repeat offender is a youth appearing in court for which we have a record in that jurisdiction of a prior conviction in court. When someone comes into court, we have enough data within that jurisdiction related to an individual and prior cases that we are able to go back and check the database. If there is a prior link or hit for that individual in that jurisdiction with a conviction associated with that individual, they are defined then as a repeat offender with one prior conviction.

Senator Nolin: What about the youth offender who is at the first stage of the process, that of diversion? He keeps coming back but never goes to court. Where is he in that statistic?

Mr. Jones: We do not have the numbers on contacts that do not result in a formal case coming to court in terms of repeat contacts, and we do not have micro-data in the policing area in every jurisdiction that will allow us to make linkages to police contact in court activity. We can assume that there are individual young persons who are continually coming to the attention of the police and it reaches a threshold where eventually they make their way into the system and will be picked up formally with a charge or a court appearance. We do not have that front edge of the wedge in terms of repeated contact with the police.

Senator Nolin: It would be interesting to compare someone who appeared in the process once and came back. He is a repeat offender, but we do not have that information. Just to make sure, we will get some statistics on the repeat offender, if I understand what you have just told me?

Mr. Jones: Exactly.

Senator Grafstein: This question deals with responsibility to society and concern with development of young children and information about youth justice and youth crime. Do you have any longitudinal studies showing the risk factors associated with the rise of percentages that youngsters will be seriously violent offenders? In other words, have there been longitudinal studies to highlight it and be able to focus on the higher risk groups? Do you have any studies of that nature?

Mr. Jones: Yes. The last time I visited, I provided a Juristat profile entitled "Problem of Behaviour and Delinquency in Children and Youth." This material was based on our new national longitudinal survey of children and youth which looks at school activity, self-reported criminal incident activity, behavioural issues, depression - there is a full battery of information that is being collected on that with panels over the long-term, and this represents our first analysis.

Senator Grafstein: When did you start that?

Mr. Jones: This survey started in 1994-95, so we are building the database now.

Senator Grafstein: Was that available in our earlier meeting?

Mr. Jones: Yes, that is one of the three products I left with you and an area we will be exploring with some enthusiasm in terms of our research program down the road.

Senator Pearson: My question is on this issue of what constitutes violence and common assault and those kinds of categories. Where do you put uttering a threat?

Mr. Jones: It depends on the sector. Uttering a threat is not currently in the categorization of violent offences that that we are speaking to in this deck. It is under "other Criminal Code" right now in terms of the police statistics categorization.

Senator Pearson: It is not among the common offences.

Mr. Jones: In terms of volume and frequency, no. I thought it was a categorization question.

Senator Pearson: One of the things we know about aggression in girls deals with "relational violence" - which has to do really with words and not with acts. I guess they do not often get into here until they actually turn into physical violence.

Senator Beaudoin: From Figure 9, I see that the alternative measures are always the winner, so I guess I have some problems with the actual system. If alternative measures are always the winner, is it not time to change the system? I could ask that question of the officials from Justice. Is it not the case that they are always the winner?

Mr. Jones: I would prefer that you would refer that to the policy department.

Senator Beaudoin: I would like to know from you if that is really the case.

Mr. Jones: I would not be in a position to offer an opinion.

Senator Beaudoin: I suspend the question.

Senator Andreychuk: Prior to going to the Young Offenders Act, the age varied from 16 to 18 from province-to-province. At that time, I remember statistics being filed to prove that some young people do move from one province with 18 to another province with 16 to get a lesser sentence. There was some tracking done on that; I cannot recall whether it was provincial tracking between for example, Saskatchewan and Manitoba, or Ontario and Quebec, or whether it was done federally. Would you have any statistics on that in the archives, if you can add that variant?

Mr. Jones: I will add that to the list of things that I will look for.

Senator Nolin: There seems to be a reporting problem in that you are ready to gather all the information but you are not receiving all the information that you need. Is there something in Bill C-7 that will help you with your work in that area?

Mr. Jones: Not expressly, although information sharing is referred to in the act for statistical purposes. Under the Statistics Act, we expect to have as much or more cooperation than we have had under the Young Offenders Act. It is not for want of will. In some cases, the strategies demand that the entire administrative systems be changed in the jurisdictions.

Senator Nolin: In plain words, there is nothing in the bill that states that an organization shall inform you.

Mr. Jones: There is that in the Statistics Act, but again, I am not as familiar with the bill as I probably should be. That is a question that Justice Canada would be able to answer.

The Chairman: Mr. Jones, I normally leave any questions I have to the end because, usually, they have been asked by other senators. However, this one has not been asked.

In figure 1, Criminal Code offences, property crime and other Criminal Code all peaked in 1991. What happened after that time to cause them to decline?

Mr. Jones: That is a good question. We are not entirely sure what has been driving the drop in youth crime. Generally, the reduction in crime for adults occurs in more or less coincident patterns with the other. However, the economy was in difficulty in the early 1990s and during the mid-1990s it improved. There is a strong economic component to the downward pressure on the crime trends. There has been some change in the demographic profile of the country - the absolute size of the population at risk, including young adults.

The Chairman: This is not a gentle levelling off but rather it is a fast descent - a definite break in the trend, in 1991.

Mr. Jones: Yes, it is, and that does coincide with the period of economic recession and the economic improvement. In the longer term we point to improving the prospects of employment and family life in Canada over the period of the 1990s.

The Chairman: Thank you, Mr. Jones.

We now have before us witnesses from the Department of Justice. Ms Latimer, please proceed.

Ms Catherine Latimer, General Counsel and Director General, Youth Justice, Department of Justice: Honourable senators, I should like to introduce my colleagues. With me tonight is Eileen Hornby, Director of Implementation; Paula Kingston, our authority on the correctional elements of the bill and also on some of the international elements; Yolande Viau, who has a particular interest in all of the Quebec elements, together with the judicial proceedings elements in the bill; Dick Barnhorst, who has responsibility for the important front-end measures and the sentencing provisions in the bill; and Bruno Marceau, who is responsible for the financial arrangements with the provinces in terms of our ongoing cost-sharing agreements, which are a large part of driving forward the program support for the initiative.

It is a pleasure to be here on Bill C-7, which is the bill that will replace the Young Offenders Act with the Youth Criminal Justice Act. We think it is important to take a serious and objective look at all the issues around youth crime and youth justice, mainly because of the great number of misperceptions that are out there, as well as the social climate in which new youth justice legislation tends to fall.

As Senator Grafstein pointed out, there are many ways of dealing with delinquent behaviour. Some are rooted in the health legislation, mental health legislation, child welfare legislation, et cetera. The federal government has the responsibility for the criminal law powers. We are attempting, through the legislative component of the initiative, to focus the criminal law in an appropriate and applied way for young people.

We recognize that to be truly effective in dealing with youth crime, there needs to be a broader strategy and we need to work in partnership with other key players in the system, particularly the health, child welfare and other sectors that have a role to play in dealing constructively with youth crime and youth justice issues.

I know that the Senate has seen previous iterations of youth justice reforms and this comes as nothing new. Therefore, to some extent you are aware of the social climate into which youth justice is made. One thing that is clear to us is that there is strong public opinion about youth crime and youth justice. Our polling data shows that across the country approximately 70 per cent of Canadians have no confidence in the Young Offenders Act. Also, the public has a strong visceral response to youth crime. They seem to have a stronger response to youth crime than they do to adult crime, and less tolerance. There is also much misinformation about youth crime and youth justice.

According to opinion polls, the public generally believes that the current youth justice system is not tough enough, that it is far too lenient when dealing with young people. This is quite inconsistent with the data that you have just heard and the information on which we base the legislative reforms. The data really takes shape when you start to compare it with what other countries do between jurisdictions. You start to see what is effective, what is not effective and what seems to be out of line.

One of the things that concerned us was the high rate of youth involvement in the youth justice system, the long reach of criminal law into the lives of young Canadians and the over-incarceration of young people. This is something that presents a problem, and it presents a real problem to come up with a bill that addresses those concerns when the public is approaching it with a different perspective. This is one of the great reasons to have an opportunity to explain the bill before the Senate, where there is a more objective opportunity.

The challenge, as we saw it in terms of dealing with the youth justice renewal, was again to have a fairly large initiative and we needed to look at the limits of the criminal law power. As the custodians of the criminal law power, we wanted to find out why Canada seemed to fail to respect some of the fundamental principles of criminal justice - particularly restraint - when it was using the criminal law with young people.

We also recognize the need for a multi-sectoral approach. We did not think you would actually address problems of youth crime if you only relied on criminal justice legislation. Therefore, we needed to bring in other partners early on and find more constructive ways of dealing with the issue of youth crime.

We also wanted to develop a legislative tool that guided the use of the criminal law power and would ensure it was fairly applied and effective to youth, in a separate system that provided for the additional protections, rights and safeguards consistent with their age and maturity.

Another major challenge was to support implementation. Senator Andreychuk has raised these concerns before. A set of programs is needed if we wish to change the way the youth justice system is delivered on the ground. For us, implementation is a key element in delivering that change. We have many components of that that we would be happy to discuss, the biggest of which is the financial agreements with the provinces. We are charged with the criminal law and criminal procedures but the provinces are responsible for the administration of justice.

We are trying to encourage our policy objectives through fiscal relations with the provinces. We are also helping to prepare the workforce so that it is ready to implement the legislation when it becomes available. We are working on explanatory materials, working with judges and working with many people who need to be informed of the content of the legislation when it is up and running. We are also working on building partnerships with other sectors such as the education sector, the child welfare sector, and others, to have a more collaborative approach to children with conduct problems so that there is not an over reliance on the criminal law power to deal with these issues.

We are keen to demonstrate effective approaches through pilot projects. We have been developing pilot projects to encourage innovative approaches and we are keen to share the results of those. We are promoting and sharing knowledge about youth justice issues through research evaluation conferences. We think it is important to try to correct misinformation and to debunk myths about the youth justice system and youth crime. This is an ongoing challenge because of the misinformation out there. We do that through public legal education and also through communications efforts.

We have some key special initiatives as well to deal with some key areas of concern. One is the area of those under age 12. The government felt some pressure to lower the age of criminal responsibility but it did not do so. It kept the minimum age of criminal responsibility at 12. We felt it was important to develop a strategy to provide some support about what you do with young people under the age of criminal responsibility who are committing acts that might be offensive or a danger to others. We developed an under-12 strategy.

The other area where we directed attention was in relation to the Aboriginal issues. Senator Grafstein mentioned this earlier. This is a key problem for us. There is an over-representation of Aboriginals in the youth justice system as in the adult system. One of the tenants of the Speech from the Throne was to reduce the rates of Aboriginal incarceration over a generation. We are keen to do it faster than that, if we can. We have been looking at community infrastructure projects, capacity building and ways to try to build on the good examples that are working for Aboriginals in the youth justice system now.

[Translation]

The renewal of the youth justice system is a comprehensive multisectoral initiative with an emphasis on key areas: prevention, significant consequences, rehabilitation and social reintegration.

The general objectives of the renewal initiative are the following: reducing youth crime; an equitable, effective and separate youth justice system; reduced recourse to the official justice system; reduced recourse to incarceration; improvement of rehabilitation and social reintegration; a more comprehensive approach to the problems related to youth offences and greater confidence in the youth justice system.

[English]

When we looked at the legislative framework, we were struck with two perplexing issues that really underpinned the direction of the new legislation. One was: Why does Canada, a normally fair and tolerant society, incarcerate its youth at higher rates than any other western country? The second one was: Why does Canada not ensure that fundamental principles limiting and safeguarding the use of the criminal law, like proportionality, restraint and rights, are more vigilantly applied in relation to youth?

Both inappropriate paternalistic and punitive orientation seem to contribute to high youth incarceration rates and the overreaching of criminal law into lives of Canadian youth. Despite evidence suggesting that deterrence does not work and that community-based sentences are as or more effective than custodial ones, some mistakenly believe that tougher measures are needed to correct youth crime. On the other hand, others believe it is necessary to incarcerate youth for longer periods than warranted by the seriousness of the offence in order to treat the youth's problems. This results in youth being subjected to greater deprivations of liberty because they are needy, than can be justified by the nature of the offence. The new bill seeks to avoid both orientations and to promote a fair and effective youth justice system. This bill does not change the ages of criminal responsibility, nor does it increase youth sentence lengths. It also does not include adult sentencing objectives like general deterrence. Moreover, this bill precludes criminal sanctions from being applied for social welfare purposes, while allowing for referral to child protection authorities for assessment and limits any deprivation of liberties by the seriousness of the offence. It builds into the important concept of proportionality and all interventions dealing with young people.

I should now like the run through some of the key changes included in the legislation. First, it is now a principle-driven approach to youth justice. Many had complained that the Young Offenders Act had a set of principles that conflicted with each other and did not establish themselves in some sort of hierarchy. We hope that this bill now contains a consistent set of principles. These are set out in the preamble and in the declaration of principles that set out unique attributes and protections of the youth justice system. This new legislation effectively reverses JJM by establishing a hierarchy of principles and by limiting the intervention of criminal law power to what is fair and proportional to the seriousness of the offence. We attempted to have a targeted approach of the criminal law power so that serious violent crime is to be treated seriously and constructively, and the majority of less serious crime is to be dealt with that in a fair, effective and efficient manner - usually outside of custody and often outside of the justice system altogether.

The essentially contains a de-judicialization and a de-incarceration strategy. We want fewer young people exposed to the criminal law and fewer young people ending up in custody. To achieve this, as our colleague from Statistic Canada's numbers reveal, you have to deliver the front end of the system. The rate of the young people that tends to get custody is dependent on the number of young people who come into the courthouse and who are found guilty. About 30 per cent of those found guilty end up with custody dispositions.

We need to deliver the front end of the system by encouraging more effective and more immediate ways of dealing with the great preponderance of youth crime. We have done this by building in extra-judicial measures at the front end of the system. We no longer call them "alternative measures," which would see them as an alternative to the main bill, which is proceeding to court. We call it an "extra-judicial measure" or sanction. They must pass through that gate before getting into the system. It requires police officers to make a determination that a number of alternatives are not appropriate to hold the young person accountable before they can lay the charge. Those alternatives include a referral of a young person to another agency in the community, a warning, a caution or a program of extra-judicial sanctions that are very much based on the alternative measures programs that exist now. There is a greater effort to deal with things at the front end of the system.

There have been significant changes to the judicial processes. The major one, in my mind, is that young people are no longer going to be transferred into the adult system for trial. Previously under the YOA, young people who are charged with serious offences and sometimes less serious offences, can be subject to a transfer proceeding where, on the basis of that charge, they can be transferred into the adult system and stand trial before the adult courts where they would lose their age-appropriate due process protections merely on the basis of charge laid against them. This was not consistent with the protection of age-appropriate due process and that the appropriate forum to deal with all youth crime is the youth courts, where there are certain guaranteed additional protections like the right to counsel, the right to privacy, and other things we think are important to give young people a fair chance when the criminal law power is being brought against them.

The test has been changed for transfer. It is no longer adequacy of the rehabilitative prospects in various systems, but it is whether the youth sentence is adequate to hold a young person accountable.

In certain limited circumstances, it is possible for a judge in youth court to impose an adult sentence, but there would have to be a trial on the facts; the young person would have to be found guilty; and then a determination would have to be made. Either the young person's counsel could rebut the presumption, if it was a very serious offence, or the Crown could try to make the case that an adult sentence is appropriate. In either case, the test at the end of the day is the same - the adequacy of the youth justice sentence to hold the young person accountable.

Senators had some concerns with the presumptions when they were first brought in. We have been tracking them closely to find out the effect of the presumptions on the transfers into the adult system. We think these provisions may have a lessening effect because they will happen at the end of the day.

There are several cases that I hope you will hear about. One involves Cammy, a 15-year-old who offended, waited two years for the transfer application to be heard and then lost the transfer application. She had been charged with either first- or second-degree murder. By the time the facts were presented, the charge had been reduced to manslaughter. That sentence length could have been easily handled by the change of youth penalties in the youth justice system. That was no longer an option. She was given an adult penalty which she began serving in a provincial adult facility. She was then transferred to Saskatchewan Penitentiary, which is a largely male adult penitentiary. That had serious and devastating effects for the individual and her case highlights some of the problems.

Correctional Services Canada, on the test that existed then, explained that they had some good programs for Aboriginal women - which is true - including the healing lodge and a variety of other things. That does not mean every individual will get access to those particular programs and she did not. She was consequently dealt with in a harsh manner given the seriousness of the offence. I raise this case as an example of how these provisions can make a difference.

Some senators also raised concerns about protections in relation to the admissibility of statements. I wanted to re-emphasize that young people in the youth justice system enjoy additional protections. The Charter is the baseline. Young people would not get less protection than what is in the Charter.

We recognize there is a real problem with taking statements - which are essentially confessions - from young people in the police stations. They are not as adept as adults. Anyone would feel a certain amount of pressure when being questioned by the police, but young people do not think ahead and they will plead to just about anything in order to perhaps get home before dinner and hope that their parents did not notice or whatever. We are not entirely sure why they plead or confess to certain things.

This legislation builds in many protections around when statements can be made and when they can be admissible. There was a concern about clause 146.6 and whether technical breaches could relate to a right to counsel. Right to counsel is not considered to be a technical breach. The police had concerns about all the built-in protections and, in some jurisdictions, they used forms that were 11 pages long to ensure statements were freely given and met all the requirements. On some occasions, the accused might initial 10 of the 11 pages, intending that the statement is to be admitted, but missing a page would be considered a technical glitch excluding the statement on what was considered a loophole. That created a bad impression for the police and for victims and for young people who intended to give a statement but then found it was not admitted.

We allow some judicial discretion - some flexibility - to admit statements in very limited circumstances. It has to be a technical breach. The Canadian Bar Association, among others, thought the original test should be strengthened. We did that by ensuring that the test was the additional protection provided in the youth justice system and not something less than that. We think there is a fairly strong protection for young people around giving statements.

Another key change is in the area of sentencing principles. In your binders at tab 9 there is some background material setting out the statistical issues and concerns that prompted some of the changes. The sentencing principles were one key prompt. There was a clear lack of proportionality in the sentences being given to young people. Our numbers suggested that, for many common offences, young people's sentences were actually longer than what adults were receiving in similar circumstances.

A youth justice system is intended to be a mitigated accountability system, so that a young person's measured accountability at 14 is not supposed to be the same as at 40. Youth are on a learning curve. They are making mistakes. Their judgment is not as good. Their sentences are generally supposed to be lower than what adults would receive but they were not. One of the key things that we built in was a notion of proportionality. We set a limit that the youth sentence must be shorter than what an adult would normally receive in similar circumstances. We are hoping that we are capping the length of the sentences in a way that is proportional to the seriousness of the offence and consistent with what others have received.

We have extended some of the sentencing options, particularly since we are encouraging alternatives to custody in this legislation. We wanted to make sure there were some higher-end sentences that provided some supervision and security in the community for some of the higher-end kids.

We have included attendance programs and intensive support and supervision sentences. There is also a deferred custody provision which allows - even if they get through all the hurdles that preclude custody sentences being met - an option for the young person to serve that sentence in the community until they breach one of the strict conditions. There are many opportunities in the sentencing options to allow young people to serve their sentences in the community. The literature is strong on this area. Community-based sentences tend to be more effective than custodial sentences. Custodial sentences do more damage generally, damage that is not easy to overcome once young people have learned negative things from other incarcerated young people.

We provide for a new type of custody sentence, which is a custody and supervision sentence. That is a basic sentence and it is a key change. It requires a period of supervision in the community following all periods of custody. One of the weaknesses of the Young Offenders Act is that there was not a required or legislated re-integration strategy. Many young people would serve a custody sentence and then be out the door without any support in the community or any plan to reintegrate the person successfully at a vulnerable stage in his or her development.

We have built in a requirement that all periods of custody will be followed by periods of supervision and support in the community. That is a key difference between this piece of legislation and the Young Offenders Act. There is also the provision for young people to be held apart from adults with possible transfers to adult court that are age-related.

We also have a new type of custody sentence, a heavily federally funded sentence, which is the intensive rehabilitative custody sentence. This is to be a therapeutically oriented custody sentence for the most violent and troubled youth. This is a real effort to come up with a therapeutic plan that is designed to try and reduce the violence and overcome some of the problems that precipitated the young person's violent behaviour.

We are encouraging a much more inclusive youth justice system in a variety of ways. There is an expanded mandate for youth justice committees. Many jurisdictions have extensive youth justice networks, particularly Alberta and Manitoba; others have quite limited justice committees. The Attorney General can strike a youth justice committee to determine whether the provisions of the legislation are adequate to ensure that young people's rights generally have been respected in the system. It provides greater opportunities to make sure that there are opportunities to see if there are problems and address them early as the legislation is being implemented.

We have also built in the possibility of conferencing at all major decision points in the system. A conference can take different forms. We had really envisioned two types. One type would be a case conference whereby a judge would bring together, for example, a caseworker and, if the young person is already a ward of the Children's Aid Society, others who have an active interest in the young person's care. These people could provide advice about placement, about conditions and probation that might work well for that young person as well as provide greater insight into the individual's problems and what might be an effective sentence.

The other type is a type that may take a variety of forms - whether it is a circle sentence or a family group conference - which invite a broader participation, including the victim, the young person, the young person's family, supporters of the young person and supports of the victim to get together to discuss the event and to come up with advice on what might be an appropriate measure of accountability that should be brought to bear for the young person.

We think this is key because in many cases the young person in the court system is a passive player and does not have an active role. Their views are not sought. They do not have an opportunity to say what types of conditions might work well for them and to give their assessment of what they would like to do to try to repair some of the harm that was caused by the offence they committed. This provides an opportunity for young people to have an active voice in how the youth justice system is being brought to bear against them. We think that encourages them to find it effective and meaningful.

Those are some of the key elements of the legislation, although there are many changes, and we would be happy to answer any questions on any of the specific elements. Before we get to the questions, maybe I could run through some of the key elements of our implementation strategy which are important in terms of actually changing the way youth justice is delivered in Canada.

Some of the key elements are the financial arrangements with the provinces and the territories. Part of our problem when the Young Offenders Act was introduced is that we embarked on a 50-50 open-ended cost sharing, which meant that those jurisdictions that used custody, which is an expensive type of sentence, got the lion's share of the 50 per cent dollars that were being offered. It created a funding and policy inequity: Our policy objectives, which were to keep young people out of the system and out of custody, were being undermined by a funding arrangement which had the reverse effect and provided many resources for custodial options. We sought to reverse that to ensure that our fiscal incentives were lining up with our policy directives.

Two types of financial agreements are available to the provinces. Mr. Marceau is the authority on this, and he will answer those questions. They are either priority-based funding agreements or results-based funding agreements. This is a way of ensuring that the federal policy objectives are helping to be delivered through the fiscal framework. There was a lot of federal-provincial consultation in developing the funding priorities and a lot of agreement on what those priorities are in terms of keeping young people out of custody and out of the youth justice system. We are making good progress on those elements with a few notable exceptions.

We have also provided support to the provinces to assist them with the implementation of the legislation. This is to help them reorient their systems to the new legislation, and there are key categories of resources that are being made available to provinces and territories to assist them. One key one is in the area of training, so that we make resources available so they can ensure their workforce and those that are delivering the youth justice legislation will be trained and ready for the new system. One is an implementation support, so these are things like changing forms and policy manuals and procedure manuals to prepare for the new legislation.

Another area is to encourage partnership approaches so that they become accustomed to looking to other disciplines to help with some of the underlying problems that these young people are facing so there is not an over-reliance on the criminal law power to work in isolation to try to address those problems probably in an inappropriate way.

We are also providing some information for information systems. Instead of requiring the legislation be provided, we are helping them to improve their systems to make it easier for the data to be collected and to be provided to the Canadian centre and for other data needs.

We also have a new category for reintegration and to help them plan for the new provisions - quite a big systemic change - around providing support for young people reintegrating into society after a period of custody. We also have some resources that we are expending ourselves in terms of developing explanatory materials and to try to facilitate the operationalization of the bill. It is a long bill, and it is complicated, but when it is explained based on the various parties' roles you can get it in a clear manner. We are trying to provide explanatory materials that will be of assistance to all those who need training and explanation on the provisions of the bill and how they are intended to work.

We are working particularly closely with key audiences or groups in the system. The first one has been the police. We need to deliver the front end of the system if we are going to make any significant changes in the youth justice system, and police officers are key players in that. We have done a number of things to try to work with the police. We have rewarded innovative approaches that police have taken with young people and provided opportunities for trainers to get together and figure out what types of materials would be useful for them. We have provided a forum where police meet with community officials and community supports so they can get a sense that there is a broad range of community volunteers and programs and others who are anxious to support these young people in trouble, and that there are alternatives to the formal system.

We are working at cultivating partnerships, not only with the police and judges, but also with a whole range of others - including other federal departments - to try to break down silos. We are working very closely with, for example, Canadian Heritage on the role of the arts and recreation sector in trying to stimulate and support pro-social conduct among adolescents with behaviour problems. We are HRDC on their homelessness initiative to see if we can come up with some supports for young people who have particular housing needs and who are in trouble with the law. This has been going well. We are also working with many non-traditional partners, including the education sector, children's mental health, child welfare authorities and a variety of others who had not previously been invited into the youth justice system and how it works. We are keen to engage them and find more constructive ways of dealing with it.

We have initiated some pilot projects that are testing innovative ways. We are evaluating our pilot systems to determine if they work or not. These are intended to be innovative. We are not anticipating that all of them will be effective. We are evaluating them to see if we can come up with some programs or options that tend to work better for certain kids or groups of kids than others.

We are also sharing knowledge, a key element for us, on research, research initiatives that we have taken. We have a number of them. Mr. Barnhorst may want to talk to you about some of the things we are doing with the multi-site studies in order to get good baseline data so we can find out what is changing and what the effects of the legislation are.

We are also working on the police discretion study that may answer some of the issues about how the police have been using their discretion and how they may be using their discretion now that we have given more encouragement and structure to the use of discretion in the new legislation.

We have also done some things that support some key elements, for example, our Aboriginal community capacity building. This has been an ongoing initiative, and one of our concerns was whether we were actually getting to the communities of need or whether we were getting proposals from communities that are good proposal writers and may actually not have the same type of youth justice problems that some of the other communities do.

We took a one-day "snapshot" of Aboriginal youth in custody. That was a collaborative effort with our provincial colleagues, where we basically did a survey of all Aboriginal youth in custody on a single day and asked them what communities they were from, what communities they were in when they committed the offence that led to their incarceration and to which communities they were proposing to return. This was done in the hopes of coming up with some key communities where we might recognize a requisite number that we can work with in order to try and address some of these youth justice problems.

Much to our surprise we discovered that this was a significant western, urban problem where we cannot look only on-reserve. There is a big problem with urban Aboriginal youth that we need to tackle, and we need to find focussed and effective ways to deal with that problem. This goes back to the point made by Senator Andreychuk. These individuals tend to be living in poverty and without the social supports they need. We need to get in there, long before the criminal justice system provides an opportunity to do so, with some of the basic social support. We do have some public education efforts as well.

The Chairman: Could share with us that snapshot study you did? That would be of great value to the Senate committee that is presently studying Aboriginal youth and Aboriginal people who live in the cities.

Ms Latimer: It is still in draft form. We are hoping to get it to the printer and released soon. When we get it back we will be happy to provide you with copies.

Senator Grafstein: You keep referring to the youth justice court, but the bill is entitled Criminal Justice for Young People. I make that as a comment.

Ms Latimer: That is an excellent comment. It was quite deliberate in that what we are trying to do is to constrain and apply the criminal law powers as it applies to youth, and make sure it is an appropriate application of criminal law powers.

Senator Grafstein: I assumed it was a jurisdictional issue.

Ms Latimer: To some extent, yes.

Senator Grafstein: On page 8 of tab 10 your numbers for 1999 show a total of all cases in youth court is 106,000. We have had a gentleman from the Canadian Centre for Justice Statistics indicating that for the year 2000 that number has dropped from 106,600 to 100,000, even though the population has increased. In absolute and relative terms there has been a decrease in the number of cases under the existing system.

Ms Latimer: That is absolutely correct, and we are delighted to see that. The broader initiative of our Youth Justice Renewal Strategy was launched in 1999, and resources have been flowing to the provinces for at least a couple of years now to encourage alternatives. We are not sure whether it is a direct result of what we are doing, and we would not want to wrongly take credit for it, but we like the direction.

Senator Grafstein: You have heard me compliment the department about its drug court in Toronto, which has done a magnificent job but is vastly underfunded and could do more. That therapeutic model is working well.

I will turn to another subject. You have heard my comments with respect to jurisdiction, constitutional issues, and clause 61. Can you enlighten us as to whether or not clause 61 is a delegation contrary to the Supreme Court of Canada?

I thought we were to receive a written memorandum so we could examine that.

The Chairman: I asked for it but Ms Latimer gave me an oral one partway through.

Ms Latimer: The minister is anxious to fulfil the undertakings that she made when she was at the committee, and that included trying to respond to those questions.

Senator Grafstein: Should we defer our questions to her?

The Chairman: My question on constitutionality was on clause 146.6.

Senator Grafstein: My question was on clause 61.

Ms Latimer: We are happy to deal with clause 61.

Senator Grafstein: Is it a delegation or not?

Ms Paula Kingston, Counsel, Department of Justice: I believe it is important. I would suggest that we look at the Supreme Court of Canada case in Sheldon S., which was referred to earlier by Senator Beaudoin. That was a 1990 case before the Supreme Court of Canada about a similar kind of provision, where the act gave to the provinces the ability to have some flexibility in how they applied certain provisions of the Young Offenders Act. That case came before the Supreme Court of Canada on a number of issues and one of them was whether or not it was an unconstitutional delegation of Parliament's authority over criminal law and procedure. The court held quite clearly in that case that it was not.

Senator Grafstein: Was that case not substantially different from this provision?

Ms Kingston: No, in our view it is not because it allows the province to make a particular determination about how they want to apply one aspect of criminal procedure. In regard to that issue the Supreme Court, in the case of R. v. Sheldon S., 1990, 2 SCR, said that there is no limitation imposed by the Constitution Act, 1867, on Parliament's ability to leave the implementation of programs or questions in issue to the discretion of the provincial attorneys general. The provinces have accepted a delegation of responsibility from Parliament in respect of other areas, such as prosecutions, and the discretion to establish programs that were under issue here and, in our view, the discretion to set the age for application of the presumptive offences...

Senator Grafstein: What exactly does it say though? Read the paragraph to which you are referring.

Ms Kingston: That was it, actually. That was their conclusion on that point.

Senator Grafstein: I have not read all the cases and it has been a long time since I have looked at this, but the Hodge case, and the Supreme Court decisions right up until 1980 and beyond, made it clear that the criminal power could not be delegated. There is no question about that.

Ms Kingston: That is contrary to what the Supreme Court of Canada decided in Sheldon S. and based it on a long line of cases.

Senator Grafstein: No, there is a difference in that case, and I will read the facts, chairman, and come back. There is a difference in that case between the administration of justice that is already available within the confines of a province, as opposed to establishing different standards of criminal application in different parts of the country.

An example is - and this line of cases were clear - that there was a conflict between highway traffic summary offences and the Criminal Code. Clearly, the court said that that is not a use of delegation, implied or expressed, because the provinces had that power in any event therefore it was not an inter-delegation. It was just an exercise of a parallel power.

The Chairman: The administration of justice of the court.

Senator Grafstein: Here we are establishing something entirely different, however, which is the age made available to the Lieutenant Governor in Council of the provinces to determine at what age the Criminal Code should apply.

Ms Kingston: I refer you to the cases that are cited by the Supreme Court of Canada. They do say there is no doubt that since the decisions of the Supreme Court of Canada - and they list a number of them - starting with Canadian National Transportation Limited, 1983, that the federal parliament has jurisdiction to confer powers on provincial officials to supervise the conduct of criminal prosecutions, which is what is at stake here. There are other issues connected with that that you have raised about the regional variations and the equality provisions of the Charter, which are also addressed in this case.

Senator Grafstein: The Charter is a different question.

Ms Kingston: Right.

Senator Grafstein: I will read the case, and it is a question of argument.

The Chairman: I believe that you may well be right, Senator Grafstein. I think that the age at which youth justice applies is a substantive matter, and that cannot be delegated.

Ms Latimer: There might be a misperception here in that every young person's criminal liability outside criminal liability at age 14 and above is the same in this country. We are talking here about a presumption, whether the case would be made by the Crown or need to be rebutted by the counsel. The substantive element is any young person 14 and above - which has been the case for a long time - could be eligible for an adult penalty. We have not changed that. The presumption does not change the baseline. It just allows for some variation in who sets the presumption, in effect. The legal test at the end of the day is same one, whether the test arises through the presumption or through Crown application. Substantively, the age is the same and the test is the same.

Senator Grafstein: There is a world of difference between the discretion of the Crown and the application of the lieutenant governor. It is apples and oranges, but that is for argument.

I am having difficulty with the other question of mens rea. We have heard evidence from you that there is a difference between a youth, aged 14 say, coming in contact with the criminal justice system and someone who is older than that, say 17. You have said it. That is your testimony tonight. It is on the record.

Ms Latimer: I think I said 14 and 40.

Senator Grafstein: I did not take exact notes, but you said that when a youth comes into the criminal justice system, they automatically confess because they want to get home to their mother. They are not interested in their rights. They do not understand their rights. Yet you have provided the absence of counsel at a more crucial age in this provision. You have said that it is not a mandatory requirement for there to be independent counsel at age 14.

Ms Latimer: Actually, from age 12 up, as soon as they are eligible to have a criminal law power applied against them, they are entitled to counsel. The minimum age of criminal responsibility is 12, and all the rights accrue to them at age 12.

Senator Grafstein: But at the precise moment they go into the criminal justice system before a police officer, their first contact, they make a confession. They are not able to articulate in their mind a mens rea.

Ms Latimer: There are huge protections around the statement provisions with respect to children because of that, and they have huge rights to counsel at all stages. The admissibility of statements for young people is limited because of that, because the protections are so pronounced, and they should be because they are more vulnerable in this system. That is why this bill does provide for greatly enhanced rights.

Senator Grafstein: The basic question then is, do you think that someone at 14 is able to have a state of mind dealing with mens rea in the same way that a young person that is say 17?

Ms Latimer: The capacity tests usually have two elements. They have to understand that the behaviour is wrong, and they have to understand the nature and consequences of that behaviour.

Senator Grafstein: Ignorance of the law under the code does not apply.

Ms Latimer: No.

Senator Grafstein: They are deemed to know the Criminal Code, as every adult is. They are deemed to know the Criminal Code and the nature of the specific offence to which they are being directed.

Ms Latimer: To have criminal capacity, they would have to know that that behaviour was wrong. If they did not know that that behaviour was wrong, then they would not have criminal capacity and would not have mens rea.

Senator Grafstein: This gives you no question in your own mind about mens rea at 14?

Ms Latimer: I have many questions about mens rea that relate to specific target areas, such as mental health issues, FAS / FAE issues, but not in relation to a normally developed adolescent of 14, no. I think they are quite capable of forming a criminal intent.

The question is, should they be held accountable in the same way as an adult, and I would say no, because they are still on a developmental process, and that is why you need a youth justice system that takes into account that they are in a stage of development.

Senator Grafstein: We already had that under the Young Offenders.

Ms Latimer: Not really. We can talk about the lack of proportionality in terms of how young people were dealt with. We found that many young people are getting tougher sentences than adults, so they are being held to greater accountability standards than adults in terms of the way the YOA is actually being applied. That is a significant problem.

Senator Grafstein: I will not belabour this. We obviously have a fundamental disagreement here in how we view children in society.

On the Charter question, equality of rights across the country, give us your short answer to that and what cases you would like us to read.

Ms Kingston: That was also one of the main issues in the Sheldon S. case.

Senator Grafstein: You are relying on the Sheldon S. case for both delegation and equality of rights.

Ms Kingston: They were both directly at issue in that case. If I may, I will read the conclusion of the court in terms of that question.

Senator Grafstein: Who was the judge?

Ms Kingston: Justice Dickson, Chief Justice at the time, wrote that in a federal system of government, the values underlying section 15(1) cannot be given unlimited scope. The division of powers not only permits differential treatment based upon province of residence, it mandates and encourages geographical distinction. Unequal treatment which stems solely from the exercise by provincial legislators of their legitimate jurisdictional powers cannot be subject of a section 15(1) challenge on the basis only that it creates distinctions based upon province of residence.

They go on in much more detail, but this is really the nub of their conclusion.

Senator Beaudoin: It is clear in my mind that clause 61, which is addressed not to the legislative assembly but to the lieutenant governor, is a delegated power, which is important, in my opinion. It is not delegated to the legislature. It gets its power from the Sheldon S. case, because the alternative measures vary from one province to another. There is a difficulty, and I am focussed on that question. The only case that we have so far is Sheldon S. It may be that it is all right, but, at first, prima facie, it looks a lot.

My question is different. We have signed the convention. We have a dualistic system, and to become the law of the land, a treaty has to be implemented in our constitutional system. Where is the implementation here? Is it in your bill?

Ms Kingston: We anticipated that question as it been asked of a number of other witnesses. It is important to appreciate that the UN Convention on the Rights of the Child, as you are aware, contains a number of elements that affect the rights of children, many of them within provincial jurisdiction, so it is much broader than youth justice.

For the youth justice elements that are in the UN convention, this legislation and the Charter of Rights work together to ensure that our international obligations are respected. Each provision in the UN Convention of the Rights of the Child can be seen reflected and protected in the charter or even further protected in Bill C-7. For instance, it does not say the UN Convention on the Rights of the Child applies, but a young person's right to counsel is specifically set out.

Senator Beaudoin: You are saying that we have signed a treaty; our constitution and our Charter of Rights - which is in the constitution - are taking care of everything?

Ms Kingston: I mean this bill and the charter. This bill amplifies the terms of the convention.

Senator Beaudoin: The implementation is legislated.

Ms Kingston: Yes.

Senator Beaudoin: Where is that implementation? It is not in our constitution. It cannot be. It is indirectly, but we must implement legislation. It is either in the bill or you have to admit that our laws are perfect and that we do not need to change them when we sign a treaty. I have a little problem with that.

Ms Kingston: When Canada signed the convention, it said that it would ensure that our system of justice respects the obligations in the UN Convention on the Rights of the Child. That is why you must look at each section and identify where the protections are provided. For instance, no child shall be subjected to torture or other cruel or inhuman or degrading treatment or punishment. The Charter of Rights specifically deals with that. However, there are also provisions in this bill that talk about that.

Senator Beaudoin: That is not my argument. I am probably more generous than you are for the charter. It is a masterpiece. I agree with that. We have a federal system that is a good one, but that is not my question. My question is where is the implementation?

Ms Kingston: The implementation is in the provisions of Bill C-7. I can give many examples. Section 40(2) emphasizes the accused child's right to be presumed innocent. We have further protections in Bill C-7 than in the YOA because there is no more pre-trial transfer of a young person to the adult system which, it could be argued, violated the presumption of innocence. We are making changes in the legislation to protect the rights that are in the UN convention.

Senator Beaudoin: You refer in the "whereas" to the conventions of the United Nations, but why does the statute not include the stated objective to implement our international treaties and obligations? That is the only thing that is missing.

Ms Kingston: The reference is in the preamble and the preamble is a broader statement of our commitment to the rights of children.

We cannot implement the whole UN Convention on the Rights of the Child in this legislation itself because the convention also applies to young people, to custody and access, to provincial matters, to divorce - their rights in a whole range of issues. We are taking the criminal law aspects of the UN convention and putting those protections in this piece of legislation.

Senator Beaudoin: It is not good enough to refer to it in the preamble. I agree with preambles and I am fighting for their usage, but I am also fighting for the proper drafting of legislation. The body of the statute is the statute. I say that in passing.

If our alternative measures are so good that we are always the winners according to the statistics, then our current system is not the best. If it is not the best, why do we not build a statute on the basis of the alternative-measures programs? It would probably be better than what we have.

Ms Kingston: That is the intention of this bill.

Mr. Dick Barnhorst, Senior Counsel, Department of Justice: It is interesting to refer to alternative measures as "the winners."

Senator Beaudoin: That is what the statistician said.

Mr. Barnhorst: In general, that is a good way to refer to them. It is also a good way to refer to the substance of this bill because, in contrast to the Young Offenders Act, this bill gives much greater emphasis to front-end measures. It is implicitly saying, yes, that is a better way than our traditional criminal justice system for youth. The courts should be reserved for the most serious matters.

Internationally - although there is some debate about the actual statistics - Canada overuses courts for youth. Other countries have a great reliance on out-of-court measures. We have had success here with out-of-court measures. As you say, they are winners. The whole thrust of the bill, in the principles and in the preamble of the bill, has an emphasis on keeping matters outside of the court. For the first time, if this bill is passed, we will have provisions in law that say, when dealing with a first-time, non-violent young offender, the "normal" way to proceed is not through court. The normal way is to proceed through other measures outside of court. That is a significant statement.

Other provisions say, for example, that, in all cases a police officer is under a statutory duty to consider all alternatives to charging, to see whether those alternatives or extra-judicial measures would be adequate to hold the young person accountable.

It also says we need to be more liberal in our use of front-end measures. I do not know if the statistician was able to get into that on the alternative-measures survey, but it shows that we generally deal only with minor offences and almost exclusively first-time minor offenders.

This bill says at its front end that extra-judicial sanctions, which are the new name for alternative measures, could take on some of the cases that are now in the courts. We could be using things like informal warnings, cautions, referrals to community programs and other judicial measures that are basically triggered by the police, where we are now using alternative measures.

We can have a graduated approach. For the least serious matters, let us use more warnings and more referrals to community programs. As offences become more serious but still with the objective of reducing court use, we should use extra-judicial sanctions, until now called alternative measures. Gradually we will achieve the objective of reserving the court for more serious matters.

Senator Beaudoin: I agree with the alternative measures. I have no problem with that. The Supreme Court has often said that we need a system of justice for youth that is distinct from the adult system. In this bill, I see that the first objective is to protect the society. That is stated in the bill. The youth come second. So you have shifted the objective to a certain extent.

I do not say that is good or bad, but it is my impression that this bill does not provide a system that is more distinct from the adult system. It is less distinct and that worries me.

I do not say that it is unconstitutional. However, the court has said clearly that we must have a system for the youth that is distinct from the adult system. We should comply with the Supreme Court. I look at the bill and I see that we have not.

Ms Latimer: We agree with you that there should be a distinction.

Senator Beaudoin: If you agree with me I do not have any problems.

Ms Latimer: You were probably taking the purpose of the youth criminal justice system from the declaration of principles, and that changed between Bill C-3 and Bill C-7 so that the protection of the public is very much mitigated.

Senator Beaudoin: Has it been changed in Bill C-7?

Ms Latimer: Yes. It should read as follows:

(a) the youth criminal justice system is intended to

(i) prevent crime by addressing the circumstances underlying a young person's offending behaviour,

(ii) rehabilitate young persons who commit offences and reintegrate them into society, and

(iii) ensure that a young person is subject to meaningful consequences for his or her offence

in order to promote the long-term protection of the public;

The key objectives are prevention, meaningful consequences and rehabilitation. This is the declaration of principle, clause 3(1)(a).

We could certainly give you a rundown of the elements of this bill that we think are clearly distinct. Some of the key sentencing principles of which there was strong pressure to include, which would have made it more adult-like, are not in there. There are many opportunities for conferencing and other mechanisms in terms of how the legislation should unfold that are unavailable for adults. This is very much an attempt to make the youth justice system meaningful for the young people who go through it, and to have consequences that are effective. There is a high premium on repairing the harm that was caused as part of an educative function.

Senator Beaudoin: Are you satisfied with the distinctiveness?

Ms Latimer: Yes.

Senator Andreychuk: The difficulty that I have in your explanation of what you are trying to do this time, as opposed to what you did with the Young Offenders Act, is your explanations of what is wrong in the Young Offenders Act was exactly the same kind of scenario that I heard from the ministry of justice when we were going from the Juvenile Delinquents Act to the Young Offenders Act. The criticisms we heard then were that young people were being sentenced for longer periods of time than adults, that they needed a distinct system that would work, that the courts were relying too heavily on the sentencing and custodial provisions, and not exercising the alternative measures.

I have not found one new thing that you are trying to repair in the Young Offenders Act that was any different from what you said you would repair in the Juvenile Delinquents Act. It is really dependent on a number of things. One aspect is that the provinces have the capability to deliver the alternative measures. Many of those alternative measures to which you refer, are really provincial jurisdiction. These are things like mental health, early childhood, specialized services in the schools, and all the kinds of social services that would work towards a maturation of a responsible adult.

You said it then and you are saying it now. People lost confidence in the Young Offenders Act because the federal government started to say the act did not work, instead of sitting down and putting in the alternative measures in greater degrees.

What new monies will be injected into the system to put this bill into place? The money was not put in at the front end and the desperate people within the system had only one thing to rely on - the act, which leads you to custodial behaviour on behalf of the participant. What is different and how many more dollars will it take?

Ms Latimer: I will be happy to answer that but, to go to your earlier point about the arguments for the YOA when the JDA was in place, I go back a long way and I was making some of those arguments before other audiences. It was a monumental shift from the JDA to the YOA, mainly because there was not uniform maximum age, there were many problems in terms of treating the criminal law power, and young people were being subjected to indeterminate sentences and to the criminal law power for status offences. There was a sexist orientation towards the way in which it unfolded because young girls were being picked up in higher numbers for promiscuity and other things. There was a different set of problems.

The YOA went a long way towards addressing the problems of the JDA. This legislation goes a long way to addressing what we see as some of the operational difficulties of the YOA and some of the philosophical problems that have emerged under the YOA in terms of the way it has been introduced. However, I agree absolutely that you do not actually change things on the ground without program support and without funding.

Senator Andreychuk: What I am looking for is not how the money will be redistributed. I want to know what real and actual federal funds there will be. My follow-up question deals with the fact that there was some comment made that these agreements are already in place. I would like to know which provinces have agreed to a financial package and are ready to implement this act, and how many are still subject to negotiation?

Mr. Bruno Marceau, Senior Policy Analyst, Department of Justice: To date, 11 out of 13 jurisdictions have signed the new five-year agreements. Unfortunately, the two jurisdictions that are still holding out are Ontario and Quebec.

Senator Andreychuk: They have signed the five-year funding, as I understand, for youth justice services. Is there not a separate negotiation, subject to the implementation of this act, that there will be new resources? Are you saying they have negotiated that understanding that they will be living under the youth justice, Bill C-7?

Mr. Marceau: That is exactly what I am suggesting. During the negotiations it was clear that the new resources were definitely linked to the new legislation and the initiative in general. The offer was made with the coming into force of the proposed legislation.

The reason we moved forward with those 11 jurisdictions that signed is that it is better to be prepared for the proclamation than to try to rush into negotiating different agreements and establishing programs once the legislation is proclaimed.

In terms of additional money that is provided, over the five-year period that these agreements are covering there is approximately $225 million of additional money, but the total money available is $950 million.

That is only part of the answer. The agreements are designed to ensure that 65 per cent of the total federal contribution is used on high priority services and programs. They obviously include the front-end measures. They also include other programs that are seen as alternatives to custody. There are many different categories of services and programs that are within this high priority list, which was developed in close cooperation with the provinces and territories. If it can be of any help, I can go through those 15 categories.

Senator Andreychuk: Perhaps we can have those provided as opposed to enumerating them tonight. That will save some time.

The Chairman: Yes, please. Mr. Marceau said this money has already been spent, has already been given to the provinces to implement this act even though it has not been passed by Parliament.

Mr. Marceau: No. The money available over a five-year period is $950 million. Some of it has already been spent because the agreements cover the period from April 1, 2000, to March 31, 2005.

The Chairman: This act has not yet been passed.

Mr. Marceau: The act has not been passed; we are fully aware of that. This can be done because of the broader strategy. There are new programs and services that can be implemented under the current act, except for the terminology, which will only change under the proposed legislation.

The Chairman: It would be interesting to hear Senator Grafstein's reaction to that were he still here.

Senator Andreychuk: That was a helpful intervention.

[Translation]

Senator Nolin: According to the document you distributed, the $950 million amount covers the last five columns but not the first two?

Mr. Marceau: Yes.

Senator Nolin: The first two list funds already distributed to the provinces.

Mr. Marceau: For the years 1998 and 1999, the funds have already been distributed. For the years 1999 and 2000, some of the money has not yet been spent. It is a minor amount, approximately two or three million dollars.

[English]

Senator Andreychuk: The Young Offenders Act, at its inception, did not have the transfer provision with the reverse onus, if I can call it that. When that amendment came in, myself and others questioned whether it violated the United Nations Convention on the Rights of the Child.

Officials came forward to this committee and said the bill was in full compliance with the United Nations Convention on the Rights of the Child and that, as far as they were concerned, there was no need for anything more, that the act complies and that Canada was living up to its obligations.

We have since found out that is not the case. The United Nations has questioned the high degree of youth custody in Canada.

Why are you not prepared to put in enabling legislation, which Senator Beaudoin has just suggested is the best way? You have now put in all of the adult concepts. Bear in mind that the majority of difficulties arise when a violent young offender is arrested. We will have elections and all of the things that were previously in the adult court system. Do you not think this system looks more like the adult system than ever before?

Second, are you prepared to include somewhere in this act, some clarification that should there be any difficulty in interpretation of this act, that they should be interpreted by the courts in the future on reliance on the UN covenant? In other words, the covenant would be the guiding principle for the courts in interpreting this act. It does not say that now. It simply says we are a party to that covenant. Would you accept a stronger intent to let the covenant drive the interpretations of this act?

Ms Latimer: On your first question, as soon as the maximum youth penalty exceeded 10 years, all of those protections - preliminary inquiries, right to a jury trial - kicked under the constitutional protection. I do not think a young person should have fewer rights than an adult or certain liability when he or she is facing the criminal law power. Additional rights, like the preliminary hearing, which is optional, should not be denied to a young person.

Senator Andreychuk: That is not my question. Once we go down the road of creating a court, we start giving the protection. I am asking if this is the right model to use if we really want to encourage the maturation of the young person into a responsible, accountable adult, rather than funnelling him or her into the justice system? As we all know, the younger a person enters into the criminal system, the longer they stay and the greater the negative influence of the older inmates upon them.

Ms Latimer: The intention is to have fewer young people in the system and to reserve the courts. The court system is a fair and just place for adjudication of a serious offence, but it may not be the best place for a young person. There is no better place for the serious offenders because when the criminal law power is brought to bear on a young person, that young person should get the full panoply of protections.

We agree that you need to work hard with seriously violent young persons in terms of therapeutic regimes to address their problems. Otherwise they will be in the system for a long time and will continue to be a danger to the public. That is why we introduced the intensive rehabilitative custody sentence. There are currently negotiations going on for additional funds for that program. That is a very strong effort to provide support for the most violent and dangerous young people that would not be available to adults. The regime that a young person would face - particularly a seriously violent one - is quiet different than that faced by an adult.

Senator Andreychuk: And the question of the covenant?

Ms Kingston: The convention, as we were discussing earlier, is reflected in the legislation, in the protections, in the specific provisions. The UN Convention on the Rights of the Child is a legally binding treaty that Canada has entered into. Because of that treaty's status, the courts will use it as an interpretation aid and as an indication of international norms in this area.

Senator Andreychuk: That is the nub of the problem. The convention is not legally binding until we pass enabling legislation and put into our law.

Ms Kingston: Perhaps there is some confusion on that. Certain types of treaties do require specific legislative changes. Some of those are now being discussed in terms of anti-terrorism measures. Canada signs some treaties that require legislation that states specific things. The UN Convention on the Rights of the Child is not that kind of treaty; it is a treaty of general application. It does not require specific legislative provisions saying that the UN Convention applies here in this way.

Senator Pearson: I am a fan of the UN Convention, but it is not the most perfect document in the world. I do not want to be stuck with an international treaty when we can do better.

I am satisfied with regard to the differences between self-executing treaties versus other kinds of treaties versus our common-law traditions. I am not a lawyer, but I have been educated in that for 20 years now through research and through listening to various experts.

I think your point about it being of general application is important. There are four principles in the convention that the Committee on the Rights of the Child has brought to our attention. One of them is the voice of the child, which I think is amply represented here. The child has the right to participate in legislative matters or administrative matters concerning the child. It is not always so well done in some provincial areas, but that is another issue.

The non-discrimination is like the Charter, and that is fine.

Survival and development is not relative here, save insofar as development is relative. We certainly do not put kids into the system in order to do them in. There may be some issues at the provincial level too that are now being investigated, but that is not what we are discussing here.

The other one is best interests of the child. You have to look at the reservation that we took in terms of that principle of best interests, because there were times when keeping children separate from adults meant taking them thousands of miles, as in the North, away from their families. The best interest of the child was not necessarily served by being put into a separate facility when we have these peculiar geographic aspects of our country.

The whole issue about whether or not the covenants on human rights ought to become implemented in Canada by legislation is a different question. That is not the way it works now. This is the way it has been working. This is the way the covenants were brought into Canadian legislation. The Charter of Rights and Freedoms fully enacts them in some ways, but it is not enabling legislation for the covenants on social and political rights. This is not a problem for me. The route that we are going piece-by-piece is a route that suits our particular system of laws. I wanted to put that on the record because the Convention on the Rights of the Child is a very important document, but it is a compromise, and I want to make sure we can do better.

Senator Fraser: I have been particularly interested in Part 6 of this bill, which has to do with the publication of young offenders' names and their records and information. This section starts out by saying their names shall not be published but then immediately says that protection does not apply for what could be a broad list of young people: Those who get adult sentences, those who even get youth sentences if it is a presumptive offence, et cetera.

There is a very wide list of people who can access the young offender's records with not very much control. A police officer can give an insurance company access to a record, and then presumably the insurance company, can, if it wishes, insert a notation in its own records saying, "Johnny Jones is a bad risk; do not insure him."

I look at the UN Convention on the Rights of the Child, which I understood you to say this bill was respecting, and I see that it says the child, the young offender, has the right "to have his or her privacy fully respected at all stages of the proceedings." No qualifications.

Rule 8.1 in the UN Standard Minimum Rules for the Administration of Juvenile Justice - the "Beijing Rules" - says:

The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.

Rule 8.2 says, "In principle, no information that may lead to the identification of a juvenile offender shall be published." I note that the UN commentary says:

Criminological research into labelling processes has provided evidence of a detrimental effect of different kinds resulting from the permanent identification of young persons as delinquent or criminal.

If you tell a kid he is a criminal and you tell the world he is a criminal, he is likely to stay a criminal.

I find it impossible to reconcile these UN texts with Part 6. Help me, please.

Ms Latimer: There is no question that the privacy protections are different in this bill than they are in the YOA. For those young people you mentioned who are being transferred into the adult system, their names are not released until after a conviction. Under the previous regime, the existing regime, the YOA, their names go out as soon as they are in the adult system. They could be acquitted of the offence against them and their names would still be tarnished and their reputations blighted by having their names made public.

We agree that this is a bad thing in terms of the overall reintegration of young people. The release of young people's records and names should be guarded carefully and closely.

We do feel that we are in compliance with the UN convention because it says at all stages of the proceedings, full stop. Proceedings, full stop.

Ms Kingston: To repeat, it is at all stage of the proceedings. Once there is a finding of guilt, there are some exceptions made in the bill, but the young person's name is protected generally for the reasons that you said.

There are some exceptions when it is a very serious offence and the young person is found guilty of a serious offence and receives an adult offence. There are limited circumstances for serious offences.

Senator Fraser: The Beijing rules do not say, "at all stages of the proceedings;" they just say, "at all stages." They go on to warn about the dangers of stigmatization. Why would you write into this new bill in which you are trying to create a wonderful new system rules that say, "Oh, but the protection does not apply"? Some of these kids are 14 years old.

Ms Latimer: Privacy protections are probably one of the most contentious areas around youth justice. We have had consultations with many people, and the parliamentary committee has met with many groups. There have been consultations far and wide, and there is a strong voice - I am surprised you have not heard it yet - that there should be more access to youth records and that people have a right to be exposed to a visible youth justice system. They have a right to this information and a right to know.

We disagree with that. We have resisted broadening of access to young people and young people's names. It is a very limited, tight circumstance, and it really is only applicable if there is a situation of violence or where there is an issue of a very serious offending.

Senator Fraser: I hear what you are saying, although we do not seem to agree on what constitutes narrow and restricted exceptions. You are telling me that the reason for allowing a 14-year-old's name to be published, even if he has not been given an adult sentence, is that the public wants it.

Ms Latimer: We are saying that there is a perception that this young person's behaviour, now that he is found guilty of it, constituted a violent risk, and people - particularly victim's groups - will argue that they do not want to mistakenly hire that child as their babysitter. They want to know if there has been a serious incidence of violence for which this young person has been found guilty. They see it as a way to insulate and protect themselves from the violence.

It is a difficult issue, and that is the rationale. Many people believe there should be openness in the justice system and that some rights are lost by the seriousness of the offence after the proceedings and after they had been convicted and that there is a societal interest in knowing.

Senator Fraser: Whose are the voices that argue against publication of the names?

Ms Latimer: I can give you a list of those as well. They are mostly childcare workers, child advocates, academics and defence counsel.

The Chairman: We will hear tomorrow from the Canadian School Boards Association and the Canadian Teachers' Federation. They want publication.

Ms Latimer: They want greater access to information. It is a difficult issue.

Senator Joyal: Do I understand, Ms Kingston, that you are part of the team that will participate in the reference to the Court of Appeal of Quebec, to prepare the factum of the Canadian Justice Department?

Ms Kingston: Yes, we will both be involved in that.

Senator Joyal: Do you know when the federal and provincial governments will be tabling their factums? Has there been a meeting among counsel of the two parties at this point?

[Translation]

Ms Yolande Viau, Counsel, Department of Justice: We have not yet received the Quebec factum. It is therefore impossible for us to develop our arguments and present our own factum. We were told that Quebec would be unable to table its own factum until fairly late this Fall or perhaps even early in the next year. Ours will follow.

Senator Joyal: Some of the questions raised this evening illustrated reasonably well the issues that will be covered in the presentations. The questions that refer to the appeal court discuss the extent to which there is compliance with sections 7 and 15 of the Charter, and in particular an extremely important item - this is one of the first times the question has been put so clearly to the Courts - to wit compliance with international instruments related to children's rights under the youth criminal justice system.

I am trying to understand the underlying philosophical differences between a youth justice system and a criminal justice system. There are factors in international conventions - two were given in the reference to Quebec and Senator Fraser mentioned two more - and the Supreme Court of Canada in the Baker judgment, the Burns and Rafay judgment and the Keegstra judgment, in which it was clearly confirmed that the manner in which international human rights instruments are construed is used to interpret Canada's obligations under the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act. The Courts do not wait for an official disposition of the Parliament of Canada to give effect to obligations stemming from international instruments such as those referred to by Senator Fraser for example. Others could be included in the Bill for incarceration.

What, according to you, are the principles which, in a system of justice for children, differ from those in a system of justice for adults? You will have to state your case before the Quebec Court of Appeal and perhaps the Supreme Court of Canada when the time comes to say that the Bill meets Canada's international obligations.

It is not enough to state it in the preamble, it needs to be included in each of the substantive provisions of the Bill. Otherwise, all acts could have a preamble saying, "We comply with Canada's international obligations," but in practice, one must do more than simply say it. It needs to be incorporated at every step in the criminal system or the justice system if it is to be implemented.

[English]

Ms Latimer: We actually started our development around the principles section, which was clause 3. We started with a sense of what we thought were the unique attributes of a youth justice system and where we thought the operations under the YOA were not meeting those. We looked at where we could make improvements to achieve what we believed were the key elements of a youth justice system, as opposed to an adult justice system.

There are many of them but there are three key areas of consideration. The first is that it should think seriously about prevention, because it is still at the developmental stage, and if we can keep young people out of the criminal justice system, that is an important opportunity. Secondly, it should include consequences that are meaningful to the young person, and those are quite different from an adult regime. A sense of timing is very important to young people. A sense of immediacy, constructive involvement of the parents, and of the victim - a whole range of accountability measures that attempt to show the young person that the behaviour was wrong and caused damage and gives him or her a chance to repair the damage. These are hallmarks of a youth justice system that are not as emphasized in an adult justice system, where there tends to be a penalty and then off you go. There is a sense of trying an educative function.

The final key element is a much greater emphasis on rehabilitation and reintegration. It recognizes that adolescents are still at a developmental stage in their lives; there are opportunities to change their lives around. Much of their behaviour can be experimental and testing the limits and does not necessarily map out a life course.

We need to encourage changes in social conduct and give them an opportunity to put that experimental behaviour behind them. This means a greater emphasis on privacy and the fact that records do not pursue them into adulthood. This is a one-shot deal and can be over with in the youth system.

Therefore, there are many key elements that distinguish the youth system.

Another key element is, if the criminal law is being applied to young people, they need, and should have, greater rights and protections in facing those criminal law procedures. You will see that in many of the procedures that have been built in throughout the act.

Those are the hallmarks. They are pretty much set out in the declaration of principles, where we try to indicate what the distinctions are and what a unique youth system would look like.

Senator Joyal: Can you provide us with an analysis of where in the act you give greater rights and greater protection when the references are made to penal or to adult system justice? For instance, where will you have the capacity to convince the court that this is a genuine system on its own? Even though it seems to - and I try to make your case - clothe itself with some aspects of the adult system, in practice, are there safeguards that ensure that we are not negating the very objectives stated in section 3 and in the preamble?

This is to me the key argument that you will have to convince a court that the bill is constitutional, and it is in compliance with the international instruments that Canada has endorsed and that the Province of Quebec has endorsed.

[Translation]

We are speaking specifically with reference to Quebec, but if it were to end up in the Supreme Court of Canada, the attorneys general from the other provinces would probably intervene and ask to be heard. Debates would eventually become a matter of national interest because the points of view of the other provinces would necessarily have to be stated. The Court would take these points of view into account.

This is the key factor in any of our efforts. You have heard the other senators around the table. We are all concerned by this aspect of the Bill, which as you yourself said at the beginning of your presentation:

[English]

You were influenced by the polls saying we have to be tougher. They have to be in prison. The sentiments of Canadians generally were that we were too lenient. The system was not efficient enough in terms of being hard on the youth.

We want to be to be convinced that the starting point of the department, which was that Canadian public opinion in reference to youth offenders felt the act was not strong enough. The department decided that they would make it strong enough, that it would be made as harsh as an adult system on some aspects.

[Translation]

Ms Viau, the system seemed to work in Quebec. Generally speaking, according to the statistics, there was a diversion approach.

[English]

At the early stage of the proceedings, a better understanding of the principles that you were explaining to us, and now we are going to change the system and it is supposed to work better.

[Translation]

Almost all of the stakeholders - I am not speaking of the politicians - tell us that that it will not work, and that we are on the wrong track. We will attempt to reconcile these contradictory messages in terms of both the legal aspects and in terms of implementing the system. Those are our concerns.

[English]

Yet, in Ontario or Quebec or in Saskatchewan or any other province, in relation to what we want to achieve - that is, we do not want to come back with yet another bill as we did in 1984. I was part of the Parliament of Canada when the Young Offenders Act was adopted. I was listening to the minister maybe three weeks ago, and now to you, and I said we have tried, but we failed. We have a level of incarceration that is one of the highest in the world. Certainly, we have done something wrong there.

How can we be assured that 15 years from now, if we ever have to reconsider this, we will not be in a worse or equal situation than we are now?

Ms Latimer: You raised some excellent points. We are happy to do the analysis to demonstrate where the youth elements are in this system, including differentiating those from the adults.

Second, I raised the public opinion elements at the beginning only to show the benefits of having a Senate and a bureaucracy, both of whom tend to work out of the public glare and have a tendency to look at things more objectively. I take Senator Andreychuk's point that, to some extent, you build in discontent or discredit your own legislation when you buy into public opinion that the way to address youth crime is to toughen the penalties. They did that twice with the Young Offenders Act; the theory is increase the penalties and that will calm public fears about youth crime.

In this instance, we did not go with a legislative initiative but a broader one that was attempting to do something more enduring with the complex problem of youth crime that a legislative fix in and of itself would not work.

I raised that to show that we have not toughened the youth justice system. We have not lengthened penalties. There are many things that we have not done. I raised it for a specific point. I am sorry if I left you with the impression that we were drafting legislation to meet public pressure to toughen penalties and to toughen the justice system because we did not go there.

[Translation]

Ms Viau: I would like to add a point to what Ms Latimer said. I will refer to the comments you heard from the representatives of the Quebec Bar. I am referring to the brief they tabled when they appeared before you.

The Bar raised the same questions that you are raising, namely as to whether we are contravening the Convention on the Rights of the Child. For example, to comply with the Convention, the arrest, detention and imprisonment of a child are measures that are only to be used as a last resort, and for as brief a period as possible.

With respect to arrest, Bill C-7 provides the police with better tools to hold young people accountable through extrajudicial measures rather than arrest.

The extrajudicial measures in Bill C-7 go well beyond the alternative measures we have in the Young Offenders Act, in which the extrajudicial sanctions nevertheless have reasonably significant consequences for the child. For example, the record remains on file for two years.

From now on, to meet the requirements of the Convention, we provide front-line caseworkers with tools that will enable them to impose extrajudicial measures that will not create a record, but nevertheless make young people accountable, because their offences are less serious than others.

In Bill C-7, temporary detention while awaiting trial is mentioned. However, the burden to convince a court to keep a young person in detention until trial is very difficult. In other words, it will succeed in very few cases. And there is an additional factor. If the judge decides that a young person is to be kept in temporary detention until trial, the judge will have to ascertain that there is a responsible person in society willing to take the person into custody until trial.

The third factor is that imprisonment is used only as a last resort and ought to be for as short a period as possible. This is in section 39 of Bill C-7, which we did not have in the Young Offenders Act. It is exactly what we are doing with the bill. You need only look at the wording of sections 38 and 39, along with the sentencing options contained in section 42. Things are so arranged that the young person receives the lightest possible sentence under the circumstances, both to hold that young person accountable and to take into account the needs for that person in terms of rehabilitation and social reintegration. All the programs are to be put in place from the first day, if it is decided that custody is required.

Section 94 of Bill C-7 is very specific about the fact that the provincial director must designate a youth delegate immediately to hold the young person accountable, but to successfully rehabilitate that young person into society.

Senator Joyal: Could you respond to the objection raised by the Quebec Bar with respect to the designated offences in section 62? The representatives of the Quebec Bar gave us an 18-page list of all the offences in the Criminal Code that would be subject to section 62. These consist of all offences of which a young person could be convicted, and which would be subject to adult punishments and hence the punishments of the Criminal Code.

How would you describe this situation? All or nearly all the offences are in the list. The remaining offences are minor and have virtually no social impact.

The key component of the brief from the Quebec Bar is that the emphasis was specifically placed on the penalty, on the offence itself, rather than on the young person.

[English]

There is a discrepancy related to the fact that we think according to what should be a juvenile system. The emphasis should be on the person of the youth, while in an adult system the emphasis is put on the penalty and the fine, punishment or the exemplary decision that is taken following the commission of an act. This is a contradiction between what is the legal analysis that you make of the bill and the other analysis, which will be arbitrated by the court. It is not enough to say that it is not this way. There will be a court decision on this sooner than later, I hope, and I am not requesting that we delay our decision until the court ruling. I would never argue that because it would become easy for any province to make a reference on any discussion and then the Parliament of Canada will be impaired. That is certainly not my consideration.

As a legislator, I must convince myself that the arguments are sound. I say that with the greatest of respect for the Department of Justice. In this committee I have taken part in other discussions when the Department of Justice told us that something was constitutional, not to worry, and when we received the judgment it was 9 to 0, the other way around. Therefore someone somewhere did not read the same statute that we read.

This is a key issue. It is not a traffic statute. It deals with the rights and freedoms of an individual at the early stage of his or her life. This is serious and encompassing in terms of consequences.

Since we will benefit from these witnesses throughout our entire process, it might be wise for them to read the evidence of the other witnesses who appear and have them back to respond to some of that other evidence.

The Chairman: I should tell you, honourable senators, we intend to have the department officials back at the end, as well as the minister. They will have a chance at that point to once again attempt to answer some of our concerns.

[Translation]

Senator Nolin: Given what you have just told us, I will restrict my questions to the current alternative measures and to future extrajudicial measures.

Ms Viau, in your reply to Senator Joyal, you highlighted the fact that there were new avenues and you referred to new tools that the police would have to divert the adolescent or young offender rather than use the judicial process.

Earlier, we heard a statistician brilliantly demonstrate that these diversion measures existed already in Quebec and that that was why there were fewer young people entering the system and hence fewer young people leaving the system. It is a rather basic law of physics.

In section 4(1)(a) of the current Act, under alternative measures, it is provided that a process can be introduced by provincial authority and jurisdiction, and I quote:

(a) the measures are part of a program of alternative measures authorized by the Attorney General or his delegate or authorized by a person, or a person within a class of persons, designated by the Lieutenant Governor in Council of a province.

These alternative measures make the Quebec statistics different. Do these Quebec statistics take into account the fact that the current Act did not wait for you to introduce the sections mentioned, including section 4, which contains some very sound principles and objectives, and sections 5, 6, 7 and 8, which refer to principles and objectives, and to the warnings that a police officer can give for a referral? Diversion here has already become referral.

Has Quebec already implemented these measures, which, based on your response to Senator Joyal, you appear to consider a great improvement over the current act?

Ms Viau: It is true that the current Act provides for alternative measures. You heard a statistician demonstrate, for example, that the crime rate was lower in Quebec than elsewhere.

On the other hand, you were also told that it was important to understand that the manner in which the alternative measures programs operate from province to province can occasionally mean that, as in Quebec, it may have been wisely decided to refer young persons to alternative measures before officially laying charges in court, whereas in some other provinces this is done afterwards.

You asked the statistician to reorganize the figures to determine whether or not, with the adjusted data, we would see much difference. I would therefore expect that you will receive the information. This too needs to be taken into consideration.

The statistician also demonstrated that Alberta, for example, was currently making heavy use of alternative measures. It is sometimes difficult to make comparisons, because various different factors can enter into it.

Nevertheless, it is true that in Quebec we have a system of alternative measures, just as we have them in all the other provinces. Quebec has a good system of alternative measures, makes considerable use of it, and this is a good thing.

They will now be able to do somewhat more. Bill C-7 will make it possible not only to use the current alternative measures, which, I repeat, nevertheless establish a record that remains on the books for two years, but there will be alternative measures at two levels. The current alternative measures under Bill C-7 will be for the second level. The first does not exist yet, but it will come into being with Bill C-7.

Senator Nolin: When you speak of the first level, is this before entering the court system?

Ms Viau: It is before the charges are officially laid, but without recourse to extrajudicial sanctions. Because in Bill C-7, there are extrajudicial measures and extrajudicial sanctions.

The way in which extrajudicial measures are structured means that a record or history as such is not established. The young person is not labelled, but is given a chance. Whereas at the time an extrajudicial sanction is imposed, which is the current alternative measure, the young person is labelled.

Senator Nolin: The statistician told us not three hours ago that the Quebec diversion measure took effect prior to the court process. That is why we do not have statistical data. If Quebec does this, and I presume that it is acting within its jurisdiction which, according to the Supreme Court, constitutes constitutional delegation, it means that the measure stems from a federal statute.

Is that not the section I just read you? Does not Quebec already have the right to implement extrajudicial diversion measures to implement these measures?

Ms Viau: Except that there are nevertheless important consequences attached to these measures. In the new Bill, this sort of measure is extended to allow for intervention without necessarily giving rise to major consequences. When we speak about a record or history, it is important to understand what this means for the young person. It often means that the young person cannot find a job or has difficulty entering university.

Now most universities check for a record and refuse entry to young people on this basis. The caseworkers are given an additional chance to hold the young person accountable and ensure that in spite of everything the young person is not labelled for the long term.

This method of doing things has been very enthusiastically received by the front-line workers, even in Quebec. I would say that they are very happy to see this measure applied.

[English]

Senator Nolin: I have more questions on other areas.

Senator Fraser: You kept talking about Quebec's jurisdiction but I assume you meant any province?

Senator Nolin: My point is that all the provinces had all the authority, all the room, to manoeuvre, but it is not the case.

[Translation]

Ms Viau, we have a misunderstanding. We are told that no statistical information is possible. There is therefore no record.

Ms Viau: Under subsection 44 of the Young Offenders Act, it is clearly stated that an alternative measure establishes a record and that the record remains active for a period of two years.

Senator Nolin: Why did the statistician tell us that there were no statistics on alternative measures?

Ms Viau: The statistician answered a question that was very different from the one you are now asking me.

Senator Nolin: We will ask him the question again later. An alternative measure means that a youth is not brought in to the court system.

Ms Viau: The alternative measure is nevertheless recorded. There are also statistics on alternative measures.

Senator Nolin: All right, we will look into all of that.

[English]

Senator Beaudoin: My question is very simple. Canada has a dualistic system: When we enter into a treaty, we must legislate. If we do not legislate, the treaty is not in force. This is our system of constitutional and international law. If we do not legislate to give effect to the treaty, the treaty has no influence on the law of the land. It is our system.

This is my only point. Of course we have a constitution; of course we have the rule of law, but this does not solve everything. When we enter into a treaty, we must legislate to give effect. We have a moral obligation. If we do not do it, I think we are at fault because of that moral obligation at the very least.

If you say this bill is answering all our obligations under the UN convention, then I say bravo. Yet I am not so sure after listening to what Senator Fraser said.

I will ask the same question in two weeks and I hope you will say that, "yes, the implementation of this the bill covers everything in the convention." If you say that, I will take your word.

The Chairman: When you come back, please be convincing.

Senator Joyal: Ms Latimer, would a sunset clause in this bill be helpful? We are defining new objectives that were well explained a minute ago by Ms Viau. It would be helpful for Parliament, within a reasonable period of three or four years, to review the objectives of the bill to see how the implementation has satisfied the goals. Many pieces of legislation now are systemic in terms of their objectives.

Ms Latimer: We will monitor the implementation of this bill in a variety of ways. We would be happy to come back and present on how it is going, whether we are achieving our objectives, and what problems we are facing. Does that require a change to the legislation? I do not know. We would be happy to report back.

The Chairman: Ms Latimer, you said this bill is built around clause 3, the declaration of principle. In response to Senator Beaudoin, you said that it is built around the youth. You pointed to clause 3(1)(a):

...the youth criminal justice system is intended to

(i) prevent crime by addressing the circumstances underly ing a young person's offending behaviour,

(ii) rehabilitate young persons who commit offences and reintegrate them into society, and

(iii) ensure that a young person is subject to meaningful consequences for his or her offence...

Those three subclauses all eventually refer to the goal of promoting the long-term protection of the public. Really this bill is built around the long-term protection of the public and not the rehabilitation of the young people.

Ms Latimer: I would argue that is not the correct reading of Bill C-7. It is probably the correct reading of Bill C-3.

The Chairman: It is Bill C-7 that I am reading.

Ms Latimer: Yes, but the objective of the legislation is to do the three major things as listed.

The Chairman: In order to promote the long-term protection of the public.

Ms Latimer: That is a side-effect of achieving those three main objectives.

The Chairman: "In order to" refers to the desired end effect.

Ms Kingston: They are not competing objectives. This feeds into the fact it is in the long-term interest of society to see a young person successfully rehabilitated and reintegrated into society. It is not either/or. That is how we achieve the long-term protection of society.

Senator Andreychuk: If I were sitting on the bench, I would be guided in my interpretation - if there were two or three options - by the one that would have furthered the protection of the society, as opposed to one that might be good for that child. One must make a choice. We hope the choices do not compete but, if they do, a judge will go with the protection of society.

Mr. Barnhorst: The question here is this: What is the role of the criminal justice system and to what extent can it make a contribution to the protection of society?

One of the more significant differences between Bill C-3 and Bill C-7 is the reference to the long term. That implies we do not want to have short-term expectations about quick fixes to prevent crime and to protect society.

In any crime-prevention discussion, one must take a long-term view. A criminal justice system for youth must do the three things that Ms Latimer referenced - prevent crime, rehabilitate, address needs with proportionality. This is not a short-term fix. If we focus on those three issues, the criminal system can contribute to the protection of society.

Let us be realistic. This is a long-term kind of approach. That is why it is not reasonable to look at this bill in terms of, "When in doubt, go for the protection of society," because that message is not contained here. This bill does not say to lock up the young person when in doubt; it is says something very different.

This bill says, clearly, we are to look for ways of responding fairly and in a proportionate way to address the needs of the young person to rehabilitate the young person. That can be the contribution of a criminal justice system for youth toward a longer-term protection of society. I see the bill differently from the way you described it.

The Chairman: Thank you.

The committee adjourned.