Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 12 - Evidence, October 17, 2001
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-7, in respect of criminal justice for young persons and to amend and repeal other Acts, met this day at 4:02 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair
[English]
The Chairman: Honourable senators, today is our fifth day of hearings on Bill C-7, in respect of criminal justice for young persons and to amend and repeal other Acts. This bill is more commonly known as the Youth Criminal Justice Act. If passed, it will replace the Young Offenders Act in governing Canada's youth justice system, and for the benefit of those who are our guests today who may eventually be watching this on television, our hearings on the Youth Criminal Justice Act began on September 25, when the Minister of Justice, Anne McClellan, and her staff were before the committee. Since then, we have also heard from the Canadian Bar Association, the Barreau de Québec, and representatives from various victims groups, including the Canadian Resource Centre for Victims of Crime. Yesterday we heard from Statistics Canada about the traits and characteristics of youth crime, and from Justice Canada officials, who gave us additional details about the bill.
Today we have two panels, the first representing the policing community of Canada. We will hear from the Canadian Police Association and the Canadian Association of Chiefs of Police. We will hear from the education community later on, including the Canadian School Boards Association and the Canadian Teachers' Federation.
[Translation]
Mr. Vince Westwick, L.L.B., General Counsel, Ottawa Police Force, Vice-President, Canadian Association of Chiefs of Police: Madam Chair, I co-chair the Law Amendments Committee of the Canadian Association of Chiefs of Police. With me today are the Executive Director of the Association, Peter Cuthbert, my colleague Jacqueline Loignon of the Ottawa Police Force, and finally, Clayton Pecknold, Deputy Chief, Central Saanich Police Service, British Columbia, and also a member of the Law Amendments Committee of the Association.
The Canadian Association of Chiefs of Police represents 950 police force chiefs, deputy chiefs and executive members, and over 130 police forces across Canada. The Association is committed to a gradual amendment of laws concerned with crime and issues affecting the security of the community.
It is an honour and pleasure to be here today to talk to you about the act governing the youth criminal justice system.
[English]
I wish to convey to you, Madam Chair, the compliments of Ms Gwen Boniface, Commissioner of the Ontario Provincial Police and the newly elected president of the CACP, as well as David MacKinnon, Chief of Police, Halifax Police Service, and co-chair of the Law Amendments Committee. Interestingly, Chief MacKinnon was scheduled to be here today, but he was also scheduled to be before your colleagues in a Senate committee hearing today in Halifax on the security of ports, although I understand that was cancelled at the last minute.
We have provided to your clerk's office a copy of our brief before the Commons. There seems to have been some confusion over that, although I understand it will be made available to you later.
Simply, our position on the youth criminal justice bill has not changed. Having said that, we do have an important message today that we wish to convey to you. Mr. Pecknold will present our comments.
Mr. Clayton Pecknold, Deputy Chief, Central Saanich Police Service, Member, Law Amendments Committee: Honourable senators, thank you for the opportunity to speak to you. You will note from the brief, when you have the opportunity to look at it, that the CACP has participated in several legislative processes associated with the Young Offenders Act. In particular, the CACP was involved in and supported the two-phase approach developed by the Honourable Allan Rock in 1994 to reforming the Young Offenders Act, including the broad-based review that led to the youth justice renewal strategy in May 1998. In all of these processes, we have supported progressive steps toward the reform of youth criminal justice.
Having said that, our two major concerns with the youth criminal justice bill are that it is overly complex, and the concept of speedy trial and timeliness of disposition is not included.
Let me first deal with the issue of complexity, if I may. The Young Offenders Act included 70 sections and is being replaced by a bill that has some 200 clauses. It is difficult for police officers, let alone young people, to understand the complexities and the subtleties of such a complex piece of law. Think of a police officer working the night shift in rural Nova Scotia or urban Vancouver. Can we really expect him or her to work out the complex statutory interpretation of sections dealing with statements of a young person?
At present, officers must fill out eight pages before a young person can give a voluntary statement, and even then, admissibility in courts is in question. While the new act makes some attempt to ameliorate concerns such as these, in our submission, it does not go far enough. If major revisions are not going to be made to Bill C-7, we ask that the Senate call upon government to allocate significant resources to assist police in achieving the goals of this bill.
More specifically, your police need implementation training, manuals and checklists to ensure consistency of application. They need specialized training, particularly in extra-judicial measures, and they need funding for administration of programs.
We will be required to change the way we do business and that will take resources. A substantial and sustained commitment to those resources is needed.
Permit me now to make some comments related to the need for a speedy trial. Imagine your teenager arriving home late Friday night having breached curfew. You are unlikely as a parent to say to that teenager, "I want you to meet me in the living room on Monday morning to pick a date to discuss this matter." In reality, most parents go directly to the sentencing stage. Yet with our young offenders, we wait weeks, months, and sometimes years to hold a trial. Mr. Westwick tells the story of being with a grade 10 class here in Ottawa in which one of the students was facing aggravated assault charges arising from a knifing incident. This young man was laughing at the delay while his classmates looked on.
Much that is positive can be said about policing young offenders. Many of our member police services have developed innovative and highly successful programs that are in operation in different places in Canada. In Ottawa, the Police Youth Centre has been operating with great success as a partnership between the police and the local community for many years.
In the province in which I work, British Columbia, numerous restorative justice initiatives aimed at youth are in place and working well. Family group counselling, Aboriginal sentencing circles and other community-based programs are reporting substantial success. These programs bring young offenders face-to-face with the real consequences of their actions.
While serving a term as the regional chair of the National Joint Committee of Senior Criminal Justice Officials, I had the opportunity to see many of these extra-judicial alternatives on a firsthand basis. Simply, they work because they put the young people in direct proximity to their choices and the consequences that flow from them.
This brings me to a few essential points about the bill. First, whether we are considering the pre-charge, guilt determination or sentencing stage, the overall complexity of the bill tends to run counter to this principle of prompt connection between actions and consequences. Second, by enshrining within the bill formal consideration of extra-judicial measures at the pre-charge stage, we are increasing the burden upon police officers.
As you know, it will be mandatory for an officer to consider extra-judicial options before proceeding to charge. As we have stated, many police-based diversion programs exist, but they are by no means uniform across the country. Since they have evolved outside of government and are community based, they are inconsistent both in application and in funding.
Allowing each community to demonstrate its individuality is, in our estimation, positive and consistent with community-based policing. However, if we are now to take the step of formalizing police-based diversion, substantial funding will be required to meet administration, training and other needs. To do otherwise is to invite inconsistency and half measures.
Finally, the bill does not give guidance as to how the use of extra-judicial measures will be tracked. Police record-management systems are not yet fully integrated. The Canadian Police Information Centre, CPIC, does not presently provide for collection of records relating to informal police diversion. Therefore, it is important that funding be provided to establish the appropriate mechanism to achieve this.
In closing, as stated, the CACP has supported youth justice reform consistently over the past decade. Subject, therefore, to our comments, the CACP supports the reforms generally as they are applied in Bill C-7.
[Translation]
Mr. David Griffin, Executive Officer, Canadian Police Association: The Canadian Police Association welcomes the opportunity to appear before the Senate Committee on Legal and Constitutional Affairs. The CPA is the national voice for 275 member associations across Canada, representing 30,000 front-line police members in every province, including members of the RCMP, First Nations police and the CN and CP railway police. As the first response to most crimes involving young people, our members have a unique perspective on the problems of youth crime, and the failure of our current justice system to provide meaningful intervention.
More importantly, in considering a new model, we must clearly distinguish between two categories of teenagers: young people who have made a mistake, and will learn from that mistake with meaningful and proportionate intervention, and repeat or serious offenders who fail to take responsibility for their actions or consequences of their conduct.
These offenders are clearly not benefiting from the opportunities provided by a system that favours lenience. A system that does not instill meaningful consequences not only fails to protect the community, but also fails these young offenders. The government has to back up its commitments to young people with funding and standards for community enforcement initiatives, and extra-judicial programs.
The CPA is extremely concerned by alarming increases in serious youth crimes. Statistics reporting youth crime focus on the number of youths charged with a criminal offence, not the number of offences committed. Over the past ten years, police have been using alternative measures to deal with minor property crimes, which reduces the number of persons charged. For example, the rate of property crime charges has decreased by over 40 per cent in the last decade. This does not, however, mean that less crime has been committed, just that fewer charges have been laid.
[English]
In framing our submissions today, we remind the committee that the rate of serious crime committed by youth has increased dramatically over the past decade. Statistics Canada reports that, from 1989 to 1999, crimes of violence committed by youth increased by more than 50 per cent, and by 7 per cent in the year 2000 alone. Most notably, over the past decade, the rate of robberies increased by 50 per cent; the rate of assaults increased by 52 per cent. A majority of repeat young offenders, 60 per cent, committed a new offence within 6 months of completing their previous disposition. Drug offence rates have increased, and the number of female youths charged with crimes of violence has increased dramatically.
You should also know that charges for failing to appear in court have more than doubled. This signals a disturbing attitude toward the judicial system and reinforces the need for adequate supervision in the community to ensure that non-custodial dispositions are fulfilled.
There are a number of elements to this proposed legislation that we support and those are listed at page 3 of the brief we have submitted to the committee.
In our brief time today, I would like to highlight several of the key recommendations contained in our submission. These are listed toward the end of our written brief under the heading "Summary of Recommendations," page 16 in English, page 17 in French.
The first thing I would like to talk about is the creation of a national strategy on youth crime. The greatest weaknesses of this proposed legislation rest with its complexity and the absence of consensus among governments and key officials on the application of the proposed law and its potential to address concerns about current systems and processes. Despite the many positive proposals contained in Bill C-7, concerns about its practicality and feasibility have created considerable opposition to the bill from the stakeholders and agencies responsible for its implementation.
We therefore recommend, first, that the Senate delay implementation of this bill until such time as concerns have been resolved. At our annual general meeting this August, our delegates adopted a resolution calling upon the Senate of Canada to convene meaningful consultations with the various stakeholders engaged in the administration of youth justice in Canada for the purposes of addressing concerns about the current practicality of Bill C-7, ensuring adequate funding and support for its implementation, and identifying the amendments necessary to its success. Also, we urge the Government of Canada to include an amendment to Bill C-7 stating that each province should have the discretion to apply the law as it sees fit.
Our second and third recommendations address, firstly, the fact that the preamble is strikingly devoid of any reference to the need to ensure community safety and protection of the public from crime, and in particular, violent crime.
We also believe that measures are required to provide intervention with offenders below the minimum age of 12, in extraordinary circumstances. We further believe that it should be a specific offence to recruit children 10 or 11 years of age to commit crimes.
We support in principle the expanded use of extra-judicial measures to provide appropriate intervention for less serious crimes in a manner that is more timely, effective and efficient than the current youth court system. We submit, however, that greater direction should be provided in the bill to limit the use of extra-judicial measures for prescribed, non-violent, less serious offences. We submit that the use of extra-judicial measures is inappropriate for a variety of crimes that do not necessarily result in violence, but nevertheless jeopardize the safety of others, including, but not limited to, examples such as auto theft, break and enter, criminal negligence, drug-trafficking offences, impaired driving and failing to stop for police.
We are concerned about the apparent conundrum created by the fact that, while the bill encourages non-judicial proceedings, any police warnings, cautions, referrals and extra-judicial sanctions cannot be entered into subsequent proceedings as evidence of prior criminal proceedings. In other words, a youth who has exhausted any reasonable efforts to correct behaviour through extra-judicial proceedings will be presented to the courts as an offender who has not previously been found guilty of an offence.
We therefore request that you clarify the extra-judicial measures provisions in the bill to bar their application to crimes that jeopardize individual or public safety and require the introduction of formal records of extra-judicial measures attempted by the police in subsequent proceedings to assist the court in assessing the credibility of the accused and determining the appropriate sentence.
Part 4 of the bill, dealing with sentencing, contains the most radical amendments to the current young offender law. Our seventh recommendation addresses our concern that serious and chronic offenders must be subject to significant, meaningful and proportionate consequences. Maximum sentences, we submit, must be elevated to provide sentencing courts with greater flexibility in addressing serious crimes and chronic criminal behaviour.
Our eighth recommendation is to direct sentencing courts to include the concepts of deterrence, denunciation, protection of society and meaningful proportionate consequences when imposing sentences.
We believe the principles contained in Part 4, acknowledging the appropriateness of incarceration in responding to crime, should include responding to crimes that jeopardize the safety of others.
Tenth, we believe that the presumption for dealing with serious, violent offences should be expanded to include those charged with defined serious and/or repeat offences and that they be sentenced as adults.
Recommendation 12 deals with protection of the public. Young offenders released into the community under supervision orders of any kind should be subject to arrest for any failure to abide by the conditions of those orders. The bill should be amended to provide police with the ability to arrest, without warrant, a young person who is believed to have violated a condition of release or supervision.
Finally, dealing with implementation, under recommendations 13 and 14, we believe that in order to accomplish the shared goals of safer communities and helping kids avoid crime, we need sustained funding and support for training and standards for community prevention programs, community enforcement initiatives and alternative or extra-judicial programs. We also have to focus resources on ensuring that kids understand the consequences of their actions and on preventing repeat offences.
As stated at the outset, this is a complex bill that introduces radical changes to the manner in which communities must respond to youth crime. To ensure the success of Canada's efforts to reduce the volume and seriousness of crimes committed by young people, the Government of Canada must ensure that sufficient resources are invested in community-based programs, training, seminars and resources that would support successful implementation of this proposed legislation.
Cost savings generated through the reduced incarceration implied by this bill must be directly reinvested in community supervision programs.
I would like to conclude by drawing your attention to a booklet we brought with us. There are copies in French and English on the table. It deals with the National Youth Justice Policing Awards sponsored by the Department of Justice and the Canadian Association of Chiefs of Police. It is an example of the cooperative efforts underway between the police community and the Department of Justice. We believe this showcases some of the innovative and progressive efforts of police officers in dealing with youth crime across Canada.
Senator Beaudoin: I have one question about alternative measures. Yesterday we heard from a statistician who had made a survey of this. I found his evidence very interesting. My impression is that those alternative measures, when they are accepted, are winners. Since you have experience on the ground, I would like to know what you think. These measures seem to be better than the current system. Perhaps I am wrong; I would like to hear your opinion.
Mr. Westwick: I will try to respond, senator, and perhaps my colleagues can assist.
Generally speaking, we think it is an improvement as well. The current alternative measures, if you look at the history of the Young Offenders Act, got off to a somewhat staggered start in terms of implementation. However, within the last few years, great successes have been achieved with alternative measures and with community programs, literally across the country. There is a huge potential there that I think we are just beginning to tap.
This particular bill provides more options for police and the community partners with whom they work in operating these programs. The difficulty we have, and it is a theme you will find throughout our comments, is that we find it complicated. The process is complicated. That is not a reflection in any way of a lack of confidence in our officers to do the job. We will do the job however you ask us to, but it is complicated. I must stop and think about alternative measures, which is the old act, extra-judicial sanctions and extra-judicial measures. Frankly, I continue to get them mixed up. The idea is good, but it is the level of complexity that worries us.
This bill should be presented in a more simplified fashion, and I say that with respect, and not in any way to denigrate the conflicting principles that are being sought. If the bill cannot be so simplified, then we ask you to please use the considerable persuasive powers of the Senate to ensure that governments respond to the bill's complexity by providing implementation training, sustained resources by way of manuals and clearing houses for best practices and that sort of thing.
Mr. Griffin: We have two concerns that I will frame with an example. If a youth commits repeated property offences such as break-and-enters after having been through alternative measures three or four times, the conclusion will be reached that the programs are not working, and under the bill, the court process will be engaged. That young person should not then be presented to the court as a first-time offender.
Imagine the victim walking into court and hearing this youth being presented as a first-offender, when actually he or she is a four-time or five-time offender.
We like the concept of alternative measures that are timely and efficient and that proportionately involve the victims in decision making. However, when that approach does not work, the youth should not get a fresh start. There must be some acknowledgement of those efforts in the subsequent proceedings.
Mr. Pecknold: Senator, you originally asked if these programs were working. Yes, they are. We refer to them as "restorative justice measures." There have been many success stories about community-based programs that are building rapport between the offender and the community, bringing about rehabilitation and bringing the youth face to face with the consequences of their actions. These are somewhat ad hoc programs developed at the community level across the country. If we want to capitalize on that success, then it is only fair that we provide the appropriate resources.
Senator Beaudoin: The programs can vary from one province to another, which is not all bad. We think of federal statutes as applying uniformly to the entire country, but Canada is a big country. The built-in latitude can be a plus. Is that your opinion, too?
Mr. Westwick: Yes, very much so. This allows for communities and police services to work together to present programs that are individual to that community, and that is happening now. Consistency suffers somewhat, but that is why we recommend a "clearing house" mechanism for best practices. Police officers and community workers in Halifax should be able to find out what is working in Victoria, and vice versa. It works.
Senator Grafstein: First, I have a general comment. In the last few years, I have come into contact with the use of extra-judicial measures by police officers in Toronto, and I must say that the two police officers with whom I met provided exemplary guidance to young offenders who were encountering the law for the first time. The officers acted as a therapeutic barrier to repeated bad conduct, just by their firm handling of the matter and their use of discretion.
In one example, a young girl, under age 15, had a bad fight with another girl in a schoolyard, and used a small knife in anger. The police officer handled her with exemplary care and referred her to social services. Without the police officer's image of authority, none of it would have worked. There was little paperwork. The effort was efficient and the sensitivity of the handling was brilliant. Every once in a while, when the teen acts up, her mother, who is a single parent, just reminds her she will have to go and see the same police officer, and the child straightens out and gets back on track.
I believe in non-paper, extra-judicial measures by police officers who have the sensitivity to handle some of these problems brilliantly without impacting on the cost and the complexity of the system, to which you have alluded.
Turning to your statistics from 1989 to 1999, the national centre's numbers are correct, but the year 2000 statistics show a jack-up in the youth crime rate and then a levelling-off. The rate has been remarkably stable ovef the last 10 years. It actually went down last year. In absolute de novo terms, the number of offences by young offenders has gone down, from 108,000 in 1989 to 100,000 in 2000, even though the population rose by 250,000.
We are not seeing large jags in activity. Quite to the contrary, we see a stable rate that is drifting downwards. We have also seen the public perception, notwithstanding statistics, of spikes in criminal activity, resulting in public attention and public outcry. Do you have any response? I would be interested in your views. The Department of Justice told us yesterday that one purpose of this bill is to ameliorate the public perception that somehow we are not treating young offenders appropriately.
Mr. Griffin: Certainly, our interpretation of the statistics is that the primary driver behind the flattening, or in some cases reduction, of the charge rates is the police response to the crime and the actual level of crimes. We submit that the crimes are going up. The number of offences per 100,000 of population is rising. However, because we respond with more cautions, warnings and alternative measures than we did in the past, those numbers are not reflected in the charge rates.
The charge rates for more violent crimes are increasing, although the overall charge rate may be fairly level. We are seeing disturbing trends in particular offences. In the last two annual reports on youth crime, dealing with such offences as robberies and assaults, the numbers are increasing proportionately.
Mr. Pecknold: As an administrator, I must deal with the fear of crime. Statistics show a decline in overall crime rates, but we are struggling with a community perception of decreased safety and fear of youth crime, in particular.
Senator Grafstein: I understand the perception. I am trying to match the perception with the reality.
Mr. Pecknold: I appreciate that. The lack of timeliness and overall complexity that we face in resolving these incidents lead to that perception of growing crime.
Senator Nolin: What statistics are you looking at? We heard yesterday about a definite downward trend. Let me show you the graph. It peaks in 1991, and this illustrates the year 2000. I have the English version, if you wish to look at it. Are you looking at figure 1?
Mr. Griffin: Yes.
Senator Nolin: Look at figure 3 now, violent crime. That is violent crime only. I have a problem reconciling those numbers.
[Translation]
We have to agree on which statistics we deem reliable.
[English]
When I read your brief and your first "whereas," there is -
[Translation]
- a 50 per cent increase in violent crimes, and in their last year, a 7 per cent increase, but we do not see that. Your years are 1989 and 1999. I see that from 1998 to 1999, there is a drop in violent crime.
[English]
Mr. Griffin: What I am saying is supported by the two graphs. Figure 1 shows that total crime peaked and then went down. However, the next line down, property crime, is the one that has gone down the most, or has gone down significantly and proportionately to overall crime. Where there are three, or in some cases six, times as many property crimes as some other crimes, those are the ones that are going down. On the other hand, if you look at the bottom line, which is violent crime, or even the line above it, which is other Criminal Code offences, those are still trailing upwards. Those have not dropped, according to figure 1. If you look at figure 3, again, those are still trending upwards. You can say that they have maybe levelled off somewhat. However, if you were to combine the two totals and compare that to 1985, or even 1991, the total numbers have perhaps levelled off somewhat.
I do not know how these are broken out or what they classify as "violent offences." However, from my perspective, the chart supports what we have said in our brief. The total number of crimes in which charges were laid has gone down because we are laying fewer charges for property crimes, which constitute the largest number of reported crimes.
[Translation]
Senator Nolin: That does not match up. Do not forget that we are talking about absolute numbers, not percentages of the population. This is in absolute numbers out of 100,000 young people, therefore an exact number. It does not reflect the increase in the population. If we factor in the population increase, is there, in terms of percentages, a drop in criminality? If we eliminate all crimes and just look at violent crimes?
[English]
Are you following me?
Mr. Griffin: Yes. I believe this is the rate per 100,000, regardless of whether the population goes up or not.
Senator Nolin: That is what I am saying. The increase follows the population trend. In percentage terms, it is going down.
Senator Grafstein: In absolute terms, it is going down.
Mr. Griffin: If I look at this graph, arguably, it has increased from 1990 to 2000, but has levelled off since 1993.
Senator Nolin: I am looking at the window 1989 to 1999 because your brief is built on those 10 years. I am focusing on that and trying to understand the rest of your thinking.
Senator Grafstein: There is some concern about the numbers. We are concerned that there must be a clear and present danger to institute such a revolutionary and costly change. There are two elements of cost here. We have close to $1 billion in changing to the new system, plus the additional cost that you, Mr. Pecknold, and others have alluded to, to administer the system because it is more complex. We must be satisfied that there is a clear and present need to increase the costs to the public, as opposed to tinkering with or renovating the existing system.
Let me deal with that for a moment. I wish to draw your attention to our visit to the drug court in Toronto. Are you familiar with the drug court?
Mr. Griffin: Yes.
Senator Grafstein: That appears to be working really well. It is a sort of therapeutic model of sentencing. There is less paperwork. It is underfunded because it is the only one in the world, apparently. I congratulate Senator Nolin for taking us there, and it is in my hometown. I had heard about it. We spent a very interesting time discovering what one judge has done. They treat very few people, but their achievements in terms of recidivism are quite extraordinary. I contrast that with your recommendation here to increase sentencing for chronic criminal behaviour to match that in the adult population.
In effect, we already have incontrovertible statistics that our rates of incarceration in Canada are perhaps very high. I am not sure that they are the highest in the world, but they are very high, with some exceptions.
Senator Nolin: For youth.
Senator Grafstein: For youth. I am trying to find a model that will accomplish all of our goals: help the public feel secure, reduce the recidivism rates, reduce the costs of this, and provide a therapeutic model by which children may be rehabilitated. Have you given some thought to a recommendation on that, as opposed to your other recommendation here, which is for stiffer sentences and putting young children into the criminal justice system, in which we could probably expect little or no redemption?
Mr. Griffin: Again, we do not see the first-time offender coming into the system being treated in that fashion. We certainly support the use of the alternative measures, the extra-judicial measures, and the sliding scale as we deal with more repeat offences, more serious offences. We have problems with chronic offenders in our system. They are laughing at youth laws, and an example was given. They are laughing at the system. They do not see any deterrence. We are not serving them under the present model.
We are not suggesting that sentencing is all about locking people up and not dealing with their behavioural problems. At some point, we must compel them to participate in those programs. We must take them out of the population and concern ourselves with community safety. There comes a point when the interests of that young person are perhaps of less concern to the community than protecting that community from that young person, or at least making sure that every effort is made to see that the young person gets help. The feeling of our members is that the chronic, repeat offenders are not being served well by the current system.
Senator Grafstein: I cannot quarrel with that, and there is some of evidence of that as well. We now know that there are higher-risk groups in the youth population. We do not want to go through it all, but that is a much more targeted response to a problem than transforming the entire system at huge cost, and at the end of the day, not necessarily solving the problem, either for the police forces or for the public. You have helped reaffirm my bias of thought here that somehow we have not come up with a model that surgically targets the problem. We know the high-risk groups, and yet we propose to change the entire system because we do not have a more surgical way of focusing on those that really need rehabilitation and protection for the public. We are not there yet. I want your reaction to this.
All of us share exactly the same, common public-interest goals: How to protect the young person at the same time as protecting the public through the Criminal Code and the criminal justice system. We now have the other problem of cost, and the cost is a killer here.
Mr. Westwick: Senator, the Canadian Association of Chiefs of Police has never appeared before this committee, or committees of your colleagues in the Commons, and in any way suggested that there is an epidemic in youth crime.
In the mid-1990s, when there was a great deal more discussion and concern, we were preaching somewhat against the criticism of the public. We were preaching that our members were not sensing any kind of an epidemic in the 1990s, and that there has never been an epidemic of youth crime in Canada. There are certainly significant problems, and I do not want for a minute to take away from those. However, it is not true that there is an epidemic or a serious, rampant problem.
Prior to September 11, if you had joined any of the chiefs of police across Canada in the community meetings that they attend regularly, youth crime might not even have been on the radar. Depending on the meeting, they would have been talking about traffic, break-and-enters, motorcycle gangs, and certainly a heightened awareness of organized crime and drugs. Interestingly, chiefs of police would often come back from meetings and say the YOA had fallen off the table of public concerns. You and Senator Nolin are on the right track with your questions.
I do not want to escape without commenting on the drug court. I wish to point out that under the leadership of Justice Peter Wright here in Ottawa, we are just a short way away from establishing a drug court similar to the one in Toronto.
Senator Grafstein: Well done.
Senator Nolin: I hope that you will receive the proper support from the provincial government.
Mr. Westwick: We are looking forward to that. We have certainly had unprecedented support so far. I am happy to say that, because I am often sitting in this chair being very critical. There is a responsibility to be equally complimentary.
The drug court has been put in place in Toronto, as I understand it, and certainly in Ottawa, as a direct result of the leadership of the judiciary. The police in Ottawa are participating, but it is through the direct leadership of the judiciary. It is not often that you will see the Canadian Association of Chiefs of Police applauding the judiciary, but we are today, and happily so.
Senator Grafstein: If we have a working, cost-effective model that applies to drugs, could it not be adapted for youth offenders for less violent crimes in a way that would focus the attention on the real problem, which is how to deal with crime?
Senator Nolin: If I may add to that question, the drug court was introduced in Toronto because of chronic offences - not the first offenders, but repeaters. More than 60 per cent of the people in the justice system are chronic offenders.
Mr. Westwick: Often, these programs are targeted at people who might otherwise move out of the system without intervention. This particular program is focusing on those who have already demonstrated the intention to repeat the offence.
The other point I wanted to make, in returning to your comments about the interventions, alternative measures and sanctions, is that I would be doing a disservice to many of my predecessors if I did not say that the police have been doing that for years. The fancy terms of "alternative measures" and "sanctions" and all that are really descriptive of the good efforts of police who work with youth and have been doing so for years.
Senator Grafstein: That was the point of my introduction, that the police have been doing fabulous work that is unheralded and unrecorded.
Mr. Westwick: They are particularly proud of it right now because it is difficult work to do.
Senator Pearson: In your presentation, you said that speedy response was a major issue with which you had concern. That has also certainly been a major issue of concern to the people who drafted the proposed legislation. We are all aware of that fact. We know of too many tragic cases where not only was the response not sufficiently speedy for the young person to learn, but sometimes the process was so long that the young person was actually, intentionally or unintentionally, severely harmed by the experience.
I do not know how you feel about the Declaration of Principle, in paragraph 3(1)(b):
(iv) timely intervention that reinforces the link between offending behaviour and its consequences, and
(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time;
The recognition is there. The problem may lie in how it is implemented. Certainly, there is recognition in this bill of the need for a speedy response. Do you have a comment on that?
Mr. Pecknold: Senator, I applaud that recognition in the bill. The difficulty is with the distance between intention and application, where courts are already overburdened. The more steps we add, such as conferences at the sentencing stage, and ongoing, day-to-day involvement of police officers, albeit at the pre-charge stage as in extra-judicial measures, the more that translates into time. My officers are nine months to a year away from court dates. That is in present circumstances in British Columbia. It is not likely to get better anytime soon.
Senator Pearson: I am interested in your comments. We all recognize that it is an issue. Whether there are measures in this bill that will help, only time will show.
My second point is that everyone needs more resources. We have all recognized that much of the failure of the YOA is because the resources were not dedicated to measures that would have prevented crime in the first place, or would have deflected young people out of criminality and so on. I totally support your plea. I understand a certain amount will be dedicated toward that.
"Complexity" is a word everyone uses about this proposed legislation. I admit that the bill is long. I am not sure you could work with a bill that had three pages to it. I want to support your plea for assistance with manuals and training and so on and so forth. It should be possible to prepare appropriate materials for the different actors in the system.
To what degree now are police officers in training at the police school in Aylmer given knowledge of the existing act?
Are they given courses in adolescent development and behaviour and so on? It is a challenge for any system to create some understanding of the developmental nature of children.
Mr. Pecknold: Being from British Columbia, I cannot comment on the school at Aylmer. I can comment on the Justice Institute of British Columbia in Vancouver. The act would be covered in basic training. It would be covered as part of the study of all legal acts. You can appreciate that the Criminal Code is complex and that there are numerous provincial statutes. We have more and more requirements for new types of training as new challenges come up, not only legal, but other challenges in the face of increasing litigation and the need to keep up-to-date on use-of-force and all sorts of other issues.
Yes, they do get training. They probably do not get sufficient training. The more complex we make things, the more difficult it is.
With respect to the second part of your question, I frankly do not know the answer. I know of none in British Columbia. However, there is certainly informal training and communication that goes on between social services, non-governmental agencies and the police that may sort of lead in those directions.
Mr. Westwick: Senator, if I may, I brought with me a copy of the Ottawa police young offenders statement form. This form must be completed if a young person wishes to say to a police officer, "I did it." That form is seven and one-half pages long. I have copies available. You may want to look at it at your leisure.
Senator Nolin: They are already using that?
Mr. Westwick: They are already using that. However, the provisions of 145 are virtually unchanged. Our point is that that will not change. In my view, it is almost unworkable to have that level of complexity and that level of legal technicality. Lawyers and judges wrestle with it. Police officers and young offenders at two o'clock on a Saturday morning are overwhelmed by it.
Senator Pearson: Is this imposed by the province?
Mr. Westwick: This is imposed by the legislation.
Senator Pearson: The existing legislation?
Mr. Westwick: The existing legislation.
Senator Pearson: Would that be the case throughout the country?
Mr. Westwick: It would be the case throughout the country, and it remains unchanged under the Youth Criminal Justice Act. There is a provision that adds something of a "saving grace' for judges to allow a statement to be entered, but it is a very circumscribed process. You might take a look at it.
We often say that anyone who would give a statement after receiving all this information probably needs other kinds of help.
The Chairman: In support of what you have just said, Mr. Westwick, I can point out that the police in my own region of Peel just basically assume that a youth's confession is useless. They will never use it anyway.
Mr. Westwick: That is counter-productive, and not just from a criminal prosecution viewpoint, but from the standpoint of the message that you are sending to the young persons. They say, "I did it," and then they go to trial, and not only are they not convicted, but the fact that they said they did it is not even admitted. Conflicting principles and pressures are being applied.
Senator Joyal: I appreciate your contribution to the debate today. Senator Christensen raised the issue of Aboriginal people, and you mentioned you represent police chiefs in Aboriginal regions.
What, in your brief, reflects the particular reality of the Aboriginal people of Canada? Statistics have been given to us. If you look at the last figure in the statistics provided to us by Statistics Canada, you will see that the rates of young offenders among Aboriginal people are higher than any other group in Canada, especially in some remote communities. What, in your brief, addresses that special situation in ensuring that what we put into place will be sufficient to deal with that in a more satisfactory way than we do presently? Canada has four times the incarceration rate of the United States, and young offenders represent more than 30 per cent of that. Is there anything in your brief that addresses this concern?
Mr. Griffin: Not specifically, senator. We have not specifically tackled the issue. I would say two things. First, I understand Senator Grafstein's comments about the bill giving us more tools than we had in the past. It does that in certain respects. It provides more of a framework for the extra-judicial measures that we were perhaps doing before. It does provide more flexibility in regional areas, where it is province compared to province, or remote First Nations communities, as opposed to larger urban centres.
It comes back to the social safety net to support the youth justice programs. When we talk about resources, we are not just talking about more police officers; it is having the resources in the community to which to refer the young people to deal with these problems. In the book about the awards, there are instances dealing with First Nations communities where officers have invested much of their own time in efforts to pool together resources in those communities to assist with very specific and unique problems. The social safety net is not there for them in all those instances.
We would submit there is a presumption in the bill that we can make this change fairly quickly and move into this new system. Our submission is that while there are many good things here, we must ensure that those checks and balances are in place and that the resources to support the police officer or the other workers in the community are available. They must be trained on the implementation of this bill, and perhaps we should slow down somewhat on the assumption that they will just take this proposed legislation and move forward.
We have not made any specific recommendations on the First Nations situation. However, it is a good example of some of the difficulties our members will face with implementation of the bill.
Senator Joyal: That brings me to the second point I wanted to raise with you. Your first recommendation is the most troubling for me. The Department of Justice told us that there had been ample consultation for years on the previous Bill C-3, and now on Bill C-7. It has been in the other place for a while. They say the time for consultation is over and now it is time for action, if I can put it in blunt terms. Here today you ask us to delay the implementation of the bill. Being in the field and at the forefront of the alternative measures, you are in the unique position of deciding the route that will be taken - alternative measures or trigger the legal system. You tell us today that you are not in a position to go forward with the implementation. Was there any consultation with the justice department about that?
How did you convey your concern to the people responsible in the Attorney-General's department? We should not delude ourselves into thinking that we have solved the problem when, in fact, a blockage remains in the system.
I am always fearful when I hear too often that "more money" is the only solution. The economic figures in this time of recession and fear of deficits are precursors to across-the-board restraint. That is as true for provincial governments as it is for the federal government. We know that Alberta has already taken an important decision to cut $1 billion in spending.
Are we not dreaming when we create a bill that we are not, in practical terms, ready to implement?
Mr. Griffin: The department has been very open in consulting with us, including on implementation issues, as they work to promote the bill. The first two recommendations came from our members on the floor of our congress. They directed us. We did not ask the nation's police officers for their opinions on our recommendation for a delay. Our members told us they had concerns with the direction of the bill.
The communities where we are policing also hold many of the same concerns. There are differences in attitudes from province to province. Our police officers in Quebec feel quite strongly about that, and other police officers in Ontario have very different but equally strong views. That reflects the responses of provincial governments.
We are not concerned about consultation efforts. The department has talked a lot about this bill. Our problem is that there is no consensus among the people who will work with this proposed law on how it will be applied. There are many differing views.
The House of Commons Justice Committee heard some testimony from bar associations, lawyers and others, all disputing certain interpretations of the proposed legislation. We believe there are good opportunities in the direction this bill is taking; but if it is presented in such a way that the governments will argue about its implementation, and the people who must work with the new act claim they do not have the right tools, then we feel it is destined for the same fate as the Young Offenders Act of not meeting public expectations.
We promote more consensus-building efforts, so the provinces and other stakeholders will embrace this proposed legislation.
Senator Joyal: Are you familiar with the situation in Quebec and the views of chiefs of police there? Why does Quebec figure better than the rest of Canada in the statistics on incarceration and rehabilitation rates? Being on the ground, as you say, what is your perception?
Mr. Griffin: I should clarify something; I am representing the officers on the front line. My colleagues are here on behalf of the chiefs of police.
Both inside and outside Quebec, from officials at federal and provincial levels, I have been hearing that the system in Quebec focuses more on the needs of the individual. More effort is put into the social programs that support young offenders. Young people can be referred to resources within the community for support.
Other jurisdictions have either not taken the same approach, or it has not been as successful. Perhaps due in part to the language difference, we in English-speaking Canada do not fully understand the differences in the programs. My Quebec colleagues are quite passionate about their concerns over this bill and have asked to be exempted from it. That is one example of the lack of consensus on this model.
Senator Joyal: There is something contradictory in what we hear. You plead for more money, for more capacity to use alternative measures. The Province of Quebec is not the richest in Canada. It has access to the envelope in approximately the same proportion as any other province, yet it seems to spend the money now available more effectively than the other provinces.
I am led to conclude that this is not only a question of money, but also of the systemic approach to the issue of youth crime. The emphasis we hear is on money. With the provisos I have just given, there may not be much more money forthcoming. Where do we cut the cloth to ensure that we meet the targets of this bill when it is put forward as our national objective for assisting young offenders?
Mr. Griffin: We do see resource implications for policing, but the focus is at the community level. Will the programs be in place? Can the provincial governments provide the social welfare workers and others to meet the referrals that are envisioned here?
In some provinces, the workers in this field are already carrying enormous caseloads. If a young person is referred to a program with a waiting list of 50 or 60, will we really achieve our objectives?
Mr. Pecknold: The First Nations chiefs of police have an association that represents their interests. If they have not appeared, you may find it beneficial to hear from them. I cannot really speak on their behalf. Chief Glen Bannon is the executive director, I believe.
To clarify the recommendation to delay the bill, I do not have a mandate to follow that recommendation from the Canadian Police Association. The CACP is not asking you to delay this bill.
With respect to the resource levels, any chief of police or deputy chief of police will take every opportunity to ask for more money. It is in the job description.
Senator Cools: They are not alone. That is universal.
Senator Nolin: Mr. Griffin, your brief talks about repeat offences and recidivism. We will get some statistics, but do you have any here now?
Mr. Griffin: I have not brought any statistics with me. However, that is where our people see the biggest breakdown.
Senator Nolin: That is exactly what I am asking you. Your material seems to focus on the trends. I, too, am concerned about that. If you can forward those numbers later, please do so.
At page 6, you say Bill C-7 will provide considerable latitude to apply the act in a manner consistent with regional circumstances. You urge the Government of Canada to amend Bill C-7, stating that each province should have the discretion to apply the law as it sees fit. Do you think they already have that in the present law?
Mr. Griffin: The law has been amended to provide greater discretion to the provinces.
Senator Nolin: I am talking about the YOA now.
Mr. Griffin: There is considerable discretion, yes.
Senator Nolin: Do you think there should be more or the same?
Mr. Griffin: Again, this direction came from the delegates at our conference. I did not write this and ask them to approve it.
They came to us and said: "We do not agree, having spoken among ourselves, with the approach of this bill, that this is the best fit," for example, in Quebec or, conversely, in Ontario. This was the compromise position that came from our membership - that they should have greater flexibility within their provinces to apply the law.
Senator Nolin: Are they afraid of losing that?
Mr. Griffin: Particularly in Quebec, they are not embracing this bill as an improvement over the existing law.
The Chairman: Mr. Griffin, then neither you nor or any of your group have actually inspected this bill to see whether or not it does that?
Mr. Griffin: I have looked at and reviewed the bill. Certainly there is an effort to provide discretion, for example, in how the extra-judicial measures would be applied. It talks about provincial directors establishing policy. It does create considerable opportunities for flexibility. Again, my members are reflective of the communities they come from and the differing viewpoints on what is the best approach.
Senator Nolin: That leads me to my final question. I am looking at the interesting brochure that you have provided, paid for by the justice department. That is, the Minister of Justice National Youth Justice Policing Award. I am reading the four factors that influence those awards. I think all my colleagues should read that. If you look at number 2: "The effective use of one or more of the following," the first bullet reads: "Police discretion at the front end of the youth justice process." That means that they already have that.
The fourth point: "The use of community-based resources as alternatives to the formal court process," means that these awards are not just a dream. It means that some police officers have been employing that for the last two years in order to receive those awards.
I am looking at the names and I do not see anyone from Quebec. Is that not strange? I am not trying to be parochial, but if we are so perfect in Quebec, why are those priceless awards given to people from outside Quebec?
Mr. Griffin: There were nominations from Quebec.
Senator Nolin: I saw the nominations, of course.
Senator Grafstein: Page 4.
Senator Nolin: My point is that the present act already addresses many of the things that the bill is proposing. Clause 6, in particular, on warnings, cautions and referrals - you can already do that, right?
Mr. Griffin: Yes.
Senator Nolin: That is not only in Quebec, but across the country.
Mr. Griffin: On your first point about the four factors listed here, the award was created by the Department of Justice in consultation with our colleagues from the chiefs of police.
Senator Nolin: It is a good award.
Mr. Griffin: In fairness, it was created to promote the types of activities that they believe will be expanded under the bill. That is the rationale. We support the use of best practices. Hopefully, other police officers will see this and say, "I have been looking for something in my community and I think this would be a good fit for us."
Senator Moore: As this discussion has been going on, I have been trying to get through your report. Thinking of alternative measures processes and so on, nowhere in here have I seen the words "parent" or "families."
What, in your estimation, is their role or responsibility, and what contribution could they make? You talk about school officials. The only time I saw "father" and "mother" was on this young offenders statement form. That would be the place to begin for me.
Perhaps you could tell our committee how your organizations view the role of parents and families in rehabilitating young offenders?
Mr. Griffin: From our perspective, senator, it certainly does not dominate our proposals on amendments to the bill. We support, and make mention on page 4, that the bill seeks to move yardsticks on parental responsibility. Certainly, the bill anticipates that in the extra-judicial measures, in conferencing, in the types of referrals that may be made, the parents should be notified and involved. Some of our members feel that parents should be held to a higher degree of accountability than perhaps exists in the bill.
That is a difficult issue with which to come to terms. As I read this bill - and in fairness to our existing young offender legislation - it does place some onus back on the parents. Unfortunately, for some of the youth involved in crime, the parenting situation is not necessarily the most desirable to begin with.
Senator Moore: There is the role of the parent as well as other family members, such as brothers and sisters. Did that not enter into the formula, into the thinking here, in trying to have these young people do better?
Mr. Westwick: Absolutely, senator. Years ago, we dumped our police officers who could not do a good job in youth offices. Currently, our best people go to youth offices. They are doing amazing work out there in interacting with schools, teachers and parents. You may have noticed in the paper last weekend, an advertisement by the Ottawa police inviting parents to a session run by Louise Logue, who is also mentioned in this document as one of the nominees. That session was for parents who were having difficulties with their kids, not parents of criminal children or youths who were before the courts. That is the kind of work that police are involved in now. It is innovative and creative.
Senator Andreychuk: Mr. Pecknold, you have said in your documents that you were not concerned about a resource issue. You were concerned that there should be consultation, and that there will be a new act and somehow it will fall into place. When the Young Offenders Act was introduced, there was great discussion about how different it was from the Juvenile Delinquents Act and how much front-end loading would there be to stop serious crime. "To nip it in the bud" was the phrase used all the time.
As I recall that time, everyone said they did not want to preface it on the money. However, when it came down to implementing the YOA, there was a plea for more time to get the system up and running. I recall that at that discussion, chiefs of police and senior officials said they could make it work. The YOA did not work on the ground. There was insufficient training and money. Fine people were struggling with limited resources and limited options. The Young Offenders Act quickly acquired a bad name.
I am hearing from the people on the ground that they are worried about the implementation. I see the same dynamics being set up. I underscore what was said: "Quickly, we will see the public lose faith in this bill." How do we change the dynamic if it is not just money?
Mr. Pecknold: That is a difficult question, senator. I am not sure I am qualified to answer, but I will take a stab at it. I remember when the YOA came in. I remember it being referred to at some of the sessions I attended as "legalistic" and "complex."
I do not know whether or not the YOA has fulfilled its promise. The CACP has never called for its outright repeal. However, are we to proceed with taking what are essentially good programs but that have been done on an ad hoc basis, and now enshrining them in legislation? You will note that the proposed legislation says that it is mandatory for the police officer to consider it. If we are to take that step, I wonder if we have given enough thought to the infrastructure that is required.
I reiterate the comment that the plea for resources is not necessarily for more police. The plea is for the administrative support to carry on, on a formalized basis, these types of programs that are valid and good. As I said in my opening comments, to fail to put in that infrastructure is to perhaps invite half measures and the same sort of discussion 10, 20 years down the road.
Senator Andreychuk: We are saying that if that infrastructure is not there, and well supported, then we will be back facing the situation of good officers using their ingenuity and personal time to try to do something with the children they run into, rather than the system making it possible for everyone to deliver that.
Mr. Pecknold: That is fair.
Senator Andreychuk: That includes judges, caseworkers, et cetera.
Mr. Pecknold: Police officers will always do their best to respond to difficult situations. If this bill is enacted, they will do their best to administer it on behalf of your communities, absolutely. The more help they can be provided with, the better.
Senator Andreychuk: I remember being told when I was a judge, "Do not worry, you will have the resources to deal with those children so they do not end up in custody." The amendment before the act was implemented transferred discretion to release the resources from the judges to the provincial directors of social services or the directors of corrections. That is when we started what was almost a game of very ingeniously interpreting open and closed custody to fit the specification: "The child has to be held. I am going to send him home with the parent and that is called custody." There were insufficient resources.
Will we fall into the same trap here? We will have the same problem, only even more so, because now it is mandated that not only the courts, but also the police officers, will take all these alternative measures.
Mr. Westwick: We have been doing that already. As to what we can do, at the risk of sounding trite, police have recognized that this is not just a policing problem, but they are directly involved in it. Police across Canada are involved in partnerships with municipalities, community groups, schools and educators. This is what this book is talking about. As for what you can do, I would suggest that you encourage the participation of your community groups, the schools and the counsellors.
My view is that by the time they get to the courtroom, I will not say it is too late, but you are into a different situation. Huge progress is being made before the formal courtroom process is triggered.
Senator Andreychuk: I agree with you that the police are doing this.
It has been suggested that the way to attack youth crime is for the justice system to ensure that young people who have made a mistake learn from it through meaningful and measured intervention. Then we are trying to separate out those who we already know are the serious and violent offenders, because we are probably too late to do the things we should have done with them, or perhaps they are not in the rehabilitative category. If all of that is true, then surely we are saying it is a provincial responsibility to provide those front-end social services, cooperatively with the federal government or otherwise. If you say you are already using these alternative measures, what will be improved if we formalize that?
What is the magic? Where is the need for a judicial intervention to obligate policemen to do it, if you say they are already doing it? If it is dependent on those partnerships, the goodwill and the political will of the provinces and the communities, the parents and the schools, how will that make a difference in the lives of children we are trying to get out of the criminal system?
Mr. Pecknold: In my view, it should not be mandatory. Consideration of police-based or extra-judicial measures should be discretionary on the part of the police officers.
When you make it mandatory, you create the type of resource problems with which we are dealing. Every jurisdiction will have different resources available. Every province has its own challenges in putting that infrastructure in place. In my opinion, the discretion should not be removed.
The Chairman: If these things are happening, and they are worthwhile and valuable, why are so many children in jail?
Mr. Griffin: There is value in formalizing the system at the front end so that young persons understand what the rules will be. If they are given a warning, a caution and then a referral, those steps should be progressive, depending on the seriousness of the crime.
I also fear that the way we are looking at this model, we will get a chart like this one in five years time and we will pat ourselves on the back because youth crime has gone down. We may have more crime, but fewer charges. I would argue that is the situation now. We are using more alternative measures because it is cheaper, faster, easier, and in many cases, more effective. The process should be honest. If that does not work, we should not put it in the closet and forget about it when the young person goes to court the next time. It should be a progressive system. If young people go back to court, the judges should know that they have had five opportunities, have been referred to other agencies, and their parents have asked the police to intervene once again.
That information should be on the record. You should not have blinders on when dealing with what that young person is all about.
The Chairman: I will let it pass, although I do not think that is an answer to my question.
Senator Cools: I was jesting a little, but I was also serious, in the sense that we hear dozen of proposals for more initiatives, more programs, more measures. We hear very little about making more resources accessible to families.
We also hear very little about the families that are producing these troubled children. Some beautiful work is currently being done in the United States that is revealing that the single most reliable indicator of things like delinquency is family structure. It is a greater predictor than race, social stratification or any of the other factors. Depending on the language one wants to use, mother-led or father-absent families are of particular note.
I am interested in the fact that in our debate thus far, this factor has not made its presence felt. The Americans are working on what they call "welfare reform." Many criticisms, analyses and new proposals are flowing around the question of welfare reform.
I tend to think that is the route we should be taking in this country. You may remember the famous American Senator Daniel Patrick Moynihan's report that looked at poverty and crime. He pointed to dysfunctional families as an important causal effect in youthful misbehaviour.
Every witness who appeared here has caused us to be painfully aware that this bill has some very stark insufficiencies. It will need much work and considerably more study. The bill seems to be unravelling like an onion. I would prevail upon senators to take the time to study this bill and do it justice, as we should.
Having said that, Mr. Westwick, the old act governing juvenile delinquents existed from about 1908. Sir Wilfrid Laurier had a lot to do with bringing forward that act and the politics behind it. The original Juvenile Delinquents Act was about 10 pages long.
The Young Offenders Act was supposed to be the "be all and end all" in youth justice. The Solicitor General who brought that act forward was a dear friend. He thought he was bringing in the best solution to all these problems. We have been told now that it should be swept away.
The bill before us has 171 pages. I dare say, at the risk of sounding a little arrogant, that it is beyond the ability of just about anyone to master this bill. There is no judge or caseworker or lawyer in this country who will be able to master this bill. I was reflecting on that as Mr. Westwick said that we must simplify this bill. He said, in a profound way, that we have a duty to simplify this bill.
Can you tell us how this bill could be simplified? As far as I am concerned, without speaking in any stark terms, a 171-page act is madness for any practitioner on the ground. It is insanity. It is about time that we took hold of some of these issues and gave people rules and laws with which they can work. Can you tell me how to simplify it?
Mr. Westwick: I do not know how to answer your question. We identified early on that this bill would present significant problems for police officers. They, of course, are our primary concern. There is also a growing trend in legislation. I made an impassioned plea on the Feeney bill, which was only a few pages long, but inordinately complicated, in my view.
I have debated this trend endlessly with my colleagues at the Department of Justice. I appreciate the difficulties they face, but police officers operate in imperfect situations under enormous pressure, perhaps in the middle of the night and without the resources of a large city like ours. Yet they must make decisions and exercise discretion based on extraordinarily complicated wording. I have some of my personal favourites picked out. I am sure you have yours.
I have no answer for you. For at least the last seven years that I have been involved in this kind of work, the Canadian Association of Chiefs of Police has been making presentations to Senate committees and to your colleagues in the House of Commons asking for simpler criminal legislation.
Senator Cools: Chairman, we simply must deal with this. This bill is simply unworkable. We just cannot keep handing out to the individuals on the ground dozens of pages with which they simply cannot work.
There must be a better way. I do not believe law is so complex that we cannot put the rules into forms that people can master. No parent whose young son or daughter is arrested will be able to respond based on this bill. We have not even yet touched on the issue of how much it will cost any family that needs advice on interpreting this bill. They will be thousands of dollars out of pocket, even assuming that their lawyers will know how to interpret this. I have discovered that the lawyers often do not know.
At some point, Chairman, we really must make a strong appeal to the Minister of Justice to reduce the complexity and volume of these documents. These gentlemen cannot work in this kind of maze.
The Chairman: I have to say, Senator Cools, that I agree with you. I would add a plea for plain rather than legalistic language. Bills are becoming disturbingly more complex. Every time we pass a law, we give more work to lawyers.
We thank the witnesses and remind them to forward their further documentation.
We have before us witnesses from the Canadian School Boards Association
Ms Marie Pierce, Executive Director, Canadian School Boards Association: With me today is Bruce Wallace, from CSBA, and Harvey Weiner and Damian Solomon from the Canadian Teachers' Federation. Unfortunately, representatives from the Canadian Home and School Federation, and the Canadian Association of School Administrators could not be with us today, but they are supporters of our brief and have their names on our presentation.
I want all honourable senators to understand that we are representing all aspects of the education community, including parents, teachers, administrators and school board members, and we are presenting a united position on the proposed Youth Criminal Justice Act.
It is a unique situation when we actually agree on something and have a common approach to the issues related to youth criminal justice. In fact, we have been working collaboratively for the last seven or eight years on issues related to school safety and youth justice. The fact that we have been able to get consensus speaks well for educators, at least.
I will ask the representatives with me to present in brief form the key elements of our presentation. We assume you will read the presentation, but we want to highlight a number of elements and recommendations. I will turn now to Bruce Wallace, who will talk about our interest in Bill C-7, as well as our concerns around information sharing.
Mr. Bruce Wallace, First Vice-President, Canadian School Boards Association: First, we welcome the opportunity to be here this evening and to share this information with you. Besides being first vice-president of the Canadian School Boards Association, I am a trustee on the Hamilton-Wentworth District School Board and a retired elementary school principal.
Why our interest in Bill C-7? We know that the majority of young offenders are of mandatory school age. The children in school are the same children getting in trouble with the law, in some cases. They are not two different groups of kids. The majority of them are in our school system. The disposition of their cases is critical and has a direct impact on school systems across Canada.
A primary concern of school boards, administrators, teachers, parents and grandparents like myself, and maybe others in the room, is that when their children or grandchildren go to school, they will be in a safe environment.
Research has been done across Canada and the United States where parents have been asked their primary expectation of schools. The majority respond by saying: "Before teaching anything, ensure that my child will be safe." That is our main point. We must ensure the safety of the students and staff within our jurisdictions.
We have a moral and legal responsibility to ensure that our schools are safe. In addition, school boards can play a significant role in cooperating with other social service agencies in the prevention of youth crime, assisting with early identification of those at risk of offending, and in the rehabilitation of those who have committed offences.
Listening to the previous witnesses, we know that the police cannot address this issue by themselves. We also know that parents, school boards and teachers cannot do the job alone. There must be a greater collaboration, sharing of information and working together. We cannot operate separately any longer. We do not have the resources to do that.
Our prime issue is the access to information. School board jurisdictions require this access to information in order to ensure the safety of students and staff, as well as to assist with rehabilitation through partnerships with various social service agencies and with parents.
If society is to have a coordinated and cooperative approach to rehabilitation that works, a process must be developed which enables these partners to share information. We must work together. If schools and school boards are to be true partners in the rehabilitation process, they must have meaningful input prior to decisions being made regarding, for example, mandatory school attendance as a condition of open or closed custody or temporary release.
We are asking for a one-word change in the bill that will have a significant impact on whether we can support this proposed legislation. Subclause 125(6) provides that information may be shared with schools to ensure compliance with probation or other orders, to ensure the safety of staff, students or others, or to facilitate the rehabilitation of a young person. This provision is unacceptable. Our support for the proposed legislation is contingent on an amendment to this provision changing the word "may" to "shall." The key word is "may." The proposed legislation is permissive. We are saying it should be "shall." However, there are restrictions related to the "need to know."
I shall read the provision starting from the bottom third of the paragraph:
...any information contained in a record kept under sections 114 to 116 if the disclosure is necessary
(a) to ensure compliance by the young person with an authorization under section 91 or an order of the youth justice court;
(b) to ensure the safety of staff, students or other persons; or
(c) to facilitate the rehabilitation of the young person.
There are some restrictions there. There are checks and balances. The way it is left, "may" does not work. Some may say that there is the opportunity to cooperate. Our concern is that the information sharing is not taking place.
The Canadian School Boards Association has surveyed school boards across Canada and held focus groups to obtain a status report on information-sharing practices and policies. Those working with young offenders in the school system emphasized that information is not being shared. As a result, school board officials' hands are tied. I can speak with personal experience as a principal. If you did not have that information, it was difficult to help that child in school. It has not worked.
The Canadian School Boards Association is taking a proactive stance on this subject. We have prepared a document entitled "The Need to Know: A Guide for Timely and Ongoing Information Sharing Between School Officials and Justice System Personnel with the Youth Criminal Justice Act."
This document sets up those checks and balances to help and protect the young person and enable the school to support the families and the courts.
Again, our primary objective is to amend the bill in order to change the word "may" to "shall" in subclause 125(6).
Mr. Harvey Weiner, Deputy Secretary General, Canadian Teachers' Federation: Honourable senators, I would like to briefly share with you our perspectives on a number of other elements of the bill.
We generally support the principles of Bill C-7. This approach is fairly generalized within the school system. We try to meet the needs of all individual students within public schools.
This proposed legislation would ensure that youngsters who do get into trouble and are dealt with in the youth justice system are referred back to the school situation. This bill does put a strong emphasis on collaboration among many individuals, professionals with expertise. An essential ingredient is knowledge, as is shared information on a need-to-know basis. We believe the bill espouses these principles while trying to balance the needs of the individual and those of the collective. The bill emphasizes the community. In our case, the community is the school.
We are strongly supportive of providing community-based intervention programs and enabling all communities to access information on what works best. That is our second recommendation.
Recognizing financial constraints, we believe that the federal government can play a leadership role in facilitating the development of programs that will make it easier for communities to share, and benefit from, best practices.
In this integrated approach to dealing with youth crime, we are led to make the connection with another area in which we have had close collaboration with our colleagues, school boards, parents, and a number of community-based organizations, that being the National Children's Agenda. We are dealing with issues that are rooted in social problems such as poverty, and other factors.
It is absolutely essential that the same integrated approach of supporting families, and working with parents, schools and social services, be applied when youngsters are going off the beaten track and have to be brought back into the school community and the broader community at large.
As to our third recommendation, we are strongly supportive of an integrated, community-based approach - recognizing that one size will not fit all - to both prevention, which is key, and rehabilitation, and which recognizes the specific role of the education system as a full partner in the process.
I defer now to my colleague, Damian Solomon.
Mr. Damian Solomon, Acting Director of Professional Services, Canadian Teachers' Federation: I believe that the Canadian school boards, our organization and the other partners represented by this brief, all share the belief that early prevention and intervention are key. It is one of the thrusts the proposed legislation speaks to. We believe it is important to have an integrated approach, or it will not be effective.
One of the things we recognize is that there are some stumbling blocks with respect to, for example, treating kids under the age of 12. I have participated in round tables, coordinated by the Department of Justice, that bring together people from different child agencies to discuss what can be done to prevent such children who offend from becoming part of a legal process. Perhaps we can head them off before that happens, so they do not become part of the legal justice system.
One of the problems, and one of the issues to be addressed, is the inconsistent provisions and applications of provincial legislation dealing with young persons under the age of 12. This is a role for the federal government to address, working in partnership with the provinces and territories. Legislation dealing with young offenders under the age of 12 varies from province to province. There is a lack of clear, concise information in both the YOA and provincial legislation on this whole issue.
We are proposing, in recognition of this issue and this concern, that we support the development of a resource book on existing provincial-territorial regulations, so that various personnel involved with these children are aware of the options available to them. Again, it speaks to the issue of coordination and partnership. We will not make progress on this issue if there is no partnership.
We heard the police association representatives talk about the work they have done with teachers and with other parts of the community. The community has to be involved. One of the things that I have heard much of is "community conferencing," which is a progressive way of dealing with young people who offend. I believe it is very successful in New Zealand and that some of the people at the Department of Justice were interested in it. I believe some of them went to visit that country to see how it operates. Those are the kind of things that we see as being important.
Children spend a great deal of their time in the schools. Their parents give them over to us, and, as Mr. Wallace said, they expect them to be safe. They give them to our care. That is why we need to have sharing of information, about which we will speak again.
Another issue we are concerned about is that it sometimes takes too long for the young offender to be dealt with. The process is not speedy enough. We recognize that this is because of backlogs, and perhaps time, but for children, two hours seems like eternity. To us, it is just one more day, but to them it seems like months. It hinders the process of rehabilitation that they need to undergo. We are making a plea for speedier processing and resolution with young kids, especially the young ones who come into conflict with the law.
We recognize the importance of respecting the rights of young people when they come into conflict with the law. As an organization - I belong to the Canadian Coalition for the Rights of Children - we believe that young people's rights should be respected, and we are pleased to see that they are addressed in the bill, which speaks to young people not being charged and not admitting offences. I know it has been a problem for other people concerned with the justice system, but it is important that young people have their rights respected, even when they commit offences. We are all liable to make mistakes, and they should not be penalized for life if they so do. I will pass the floor to Marie Pierce from the Canadian School Boards Association.
Ms Pierce: My colleagues have summarized some of our key points. I want to reiterate the fact that our associations did support this proposed legislation when we presented before the House of Commons committee. We advocated and lobbied to get the amendment on information sharing, because for us that is the crucial element. We were unsuccessful. As a result, we made a decision to withdraw our support for the bill. We have indicated in our presentation many of the components that we like. However, the provisions around information sharing were so significant for us, that because we could not get that amendment, we could not support the bill.
All of the involvement of the education system is contingent on getting the information we need to be full partners in any rehabilitation, reintegration, prevention, whatever process you want to deal with, in the life of a young offender.
It was with regret we made that decision, and we come before you with a request that that amendment be made, so we can work as full partners with the young offenders and with other elements of society who work with them.
As school boards, whose key role is to make policy, we have made extraordinary efforts to ensure that our members are aware of the bill and have policies in place. We developed our handbook based on the previous iteration of this proposed legislation, and some of the sections referred to are not current. We will have to revise it once the bill is passed. We have made an effort to ensure that boards have policies in place. We have undertaken a huge number of workshops across the country, training our board members on the proposed legislation and what its requirements are, to ensure there is a balance between the rights to information and the rights of the young offender. However, I cannot reiterate strongly enough that the access-to-information provision is critical and core to our concerns about this bill.
The Chairman: Just to be absolutely clear on this, because subclause 125(6) says "may" rather than "shall," you are withdrawing your support for the entire bill?
Ms Pierce: Yes, we are.
Mr. Weiner: May I add briefly, on behalf of teachers, we are given a very important role to play in society that has been recognized in other legislation and in various regulations, departmental edicts and governmental directives, and that is to act in the place of parents in many instances.
We do have access to all sorts of personal information about students in a general way, and that is very important in enabling us to carry out the educational process. We deal with that information in confidence. In a critical situation, such as when a young offender is reintegrated into school, that type of information is even more essential. At the moment, we have a "may." The "may" has not worked, and we have the evidence to demonstrate that. A number of appalling situations have arisen that could have been prevented, and my colleagues can speak to one or more of these, because that disclosure was not made.
Senator Joyal: Did you testify in the House of Commons when the Bill C-7 was debated? Did you make that same recommendation in the House of Commons?
Ms Pierce: Yes, we did.
Senator Joyal: What was the response from either the department or the various members? What was the reaction?
Mr. Weiner: There were a number of reactions. Perhaps the most prevalent was, "Well, we want this youngster to be reintegrated, to have a true second chance, and if the information is disclosed, it might prejudice the way in which the teacher might deal with that student," et cetera. There was some feeling on that. It is similar to the presentation that took place prior to ours. The department was saying that when alternate measures are tried and do not work, and then the youngster goes to court, it is a first offence. It is similar to that argument, that somehow this will make it more difficult for this youngster to be reintegrated into the system and dealt with fairly. As I have explained, from the perspective of teachers and school boards, that is ludicrous, because we deal with so much information, for example, health or learning disability based, that is essential for us to do our job appropriately.
The second level of argument, and I had this discussion personally with Minister McLellan in June, and I am not sure I understand it, was that a number of provinces were adamantly opposed to this because they felt it would be an extremely costly bureaucratic measure. It would require all sorts of record keeping or means of transmitting the information that would be cumbersome, et cetera, and therefore it was unacceptable to a number of provinces.
To my knowledge, those were the two major arguments raised. Neither, of course, is acceptable or reasonable from our perspective.
Senator Joyal: Do you know if there are provincial department of education policies on young offenders who are back in the school system? Are there guidelines? In your professional ethical capacity, do you have access to any recommendations on how to deal with someone who has been in breach of the law and needs the support of his or her milieu to reintegrate?
I am sympathetic to your view to a point, but I have two concerns. I am sympathetic because I know that teachers and schools are important for kids. They can learn crimes in the schoolyard, or they can learn how to behave properly in society. The school sometimes compensates for deficiencies in the parents' influence. We heard witnesses yesterday on the sociological profiles of young offenders - kids coming from single-parent and/or low-income families, and all kinds of descriptions of social conditions that can explain why a large number of young offenders find themselves in that condition. I certainly understand how the school is important and can compensate for that.
On the other hand, schools tend to classify students as good, and less good, and we do not want to create discrimination for children who go back to school, which is their first milieu. That is where the kids spend most of their time outside home.
There is a conundrum between "may" and "shall." "May" means that in some circumstances, we see it is as helpful for the school or the teachers to know with whom they are dealing. On the other hand, there is a risk of discrimination. "May" might be just the glass half full or half empty.
Mr. Weiner: We are talking about the word "discretion." Ms Pierce spoke about specific examples, but people will exercise discretion differently in similar, if not identical situations. "May" could mean disclosure in every circumstance if the individuals who have the information are prepared to do so. However, that discretion has not been exercised in any consistent manner even within provinces, let alone province to province, and in many cases in situations that were extremely serious and had repercussions both for the young offender being reintegrated as well as for other students in the school.
Ms Pierce: We are only asking for the "shall" under three specific conditions, not for information on every young offender. We would not be able to handle all that information anyway. We are asking for it under the conditions in clause 125, relating to compliance with a court order, school safety and rehabilitation, and that has to be stressed.
As school boards, we have put in place policies dealing with confidentiality on young offenders, but also on students in general. Every province has privacy legislation that protects the rights of the individual. School boards have to ensure that when they deal with issues related to young offenders, or all students, that they comply with both the young offender legislation and provincial legislation on protection of privacy. We are aware of our obligations.
I will give you an example of where information was not disclosed. This was in a school in Newfoundland. It was a small community, where a young offender who had committed a sexual offence was returned to the school without notification, and his victim confronted him in the hallway. The victim did not know the offender was coming back to the school. The school did not know the individual was coming back to the school. We had a serious situation on our hands when that victim felt victimized again. That information was not shared. If it had been, we could have dealt with it by looking at alternative educational opportunities such as home schooling or placement in another school, so that both the rights of the victim and the young offender would be respected. That is not unique. There was a similar situation in Alberta. We want to ensure that those situations do not happen.
Our experience since 1995, when the Young Offenders Act was changed to say we "may" have access to information, is that it has not been consistent. We have done a lot of work with our boards, asking them if it is working. We did a lot of work in training our board members on the various provisions. There was not the same kind of work done on the youth justice side to inform people about their obligation to share information.
Based on those six years of experience, we say it did not work, and therefore we do not want the same provision in the new bill. Even with the new provisions around rehabilitation, the same situations will occur.
Mr. Solomon: Teachers are currently obliged to report any evidence that a child is being abused. Teachers are already obliged, under penalty of a fine, to share that information with the proper authorities. As members of the educational community, we need information in order to do two things. Teachers can help with rehabilitation; they are often specialists in counselling and have taken psychology courses. They look for solutions for youth who have difficulties in learning or in behaviour. Also, we need the information to protect the rest of the school community of students, secretaries, teachers, janitors and aides.
Criminal behaviour can be triggered in students with psychological or mental difficulties by very small incidents. A teacher who is unaware of the youth's circumstances may inadvertently comment or act in a way that sets off violent behaviour toward the teacher or other students. Do we want to run that risk?
The Chairman: If I can interrupt, you are talking about sharing information with more than just the people who are in charge of the school. You are talking about sharing this knowledge generally throughout the school population.
Mr. Solomon: I refer only to people who may need to know. Sometimes counselling can be given. I have been a teacher in Ontario for many years. You are aware, having been a trustee, that principals guard Ontario school records very carefully. Teachers are not given information unless it is specifically required to deal with the child.
Mr. Wallace: When I was a principal, years ago, it helped me to know - from the justice system or from the parents - which children had tempers. In organizing classes, you do not put the firecrackers with the matches. That knowledge can help facilitate a good start for each child. Without that knowledge, a blow-up can occur on the first day. The "need to know" basis is critical. As professionals, principals and teachers do not go into staff rooms telling everyone which children are on probation and for what.
Senator Andreychuk: I am pleased to hear this debate. I am persuaded, as Mr. Wallace said, that teachers stand in loco parentis. They are there to guide and help the child, so they need to know as much as possible about that child to help with rehabilitation.
I was a little worried about going off the track on to the safety issue. As I understood it, the subclause refers to a provincial director, youth worker, attorney general, peace officer or any other person engaged in the provision of services for young persons. The critical cases do not trouble me, because if the information is significant, those people should be triggering its release to the school.
This act, though, is about rehabilitation. If the school is standing in the position of parent for eight hours a day, the school needs to know. The trigger here is not the school. These other services already have heavy caseloads; they do not need to add one more application. Probably that is why it is not being done. We need collaboration with the schools.
Are you after the safety factor, or the best interests of the young person? To me, that is critical.
If a child is in the custody of provincial social services, that department takes on the role of parent and the information is shared. If a troubled child still lives with a parent, the information is not shared. That is discrimination against kids in protective care, which troubles me. We want to zero in on criminal activity so we cure or prevent it.
Mr. Weiner: Clearly, we share both concerns because we have both responsibilities. As a teacher, the major concern is meeting the needs of the individual child, but within the context of a classroom and a school community. It is not one or the other; it is both. We can do neither well without that provision. That is what we are saying.
I do not know the rationale behind an inconsistent disclosure of information for kids at home versus kids in care.
Senator Andreychuk: Why are you seen as "the public," as opposed to a professional resource that will treat information appropriately? Why is there a hesitancy to entrust you with this information? Why is informing you seemingly lumped in with making a public disclosure?
Ms Pierce: I do not know why it was done that way. As a school board, we have legal obligations to keep records confidential and to ensure our processes can guarantee that confidentiality. I do not know why there is a perception that the school system cannot undertake that responsibility.
I have not been given specific examples of where school boards have been negligent in those areas. In some provinces, our member associations have been trying to encourage their departments of justice to ensure sharing of information, with varying degrees of success. We cannot leave this decision to the provinces, because we want every child in every school to be in a safe environment. We want them to benefit from whatever assistance we can provide, in collaboration with other agencies.
On the question of either/or, safety or rehabilitation, this bill contains a new aspect of rehabilitation. We had both provisions in the Young Offenders Act and so we see our role as a dual one.
The facilitation of rehabilitation goes hand and hand with the new, increased emphasis on alternative and extra-judicial measures. The education system can play a huge role, through conferencing or whatever.
The implications it will have for school board policies and the role of staff in some of those other measures must be worked out. If we get involved and it becomes more common, then the sharing of information around rehabilitation will be even more critical, particularly with the new provisions on reintegration once an individual returns to the school system.
It is important for us to look at the student's needs in order to provide the best education environment for that student. It is better for us to have been given the information, as opposed to hearing it somewhere else. We need accurate information to put the programs and services in place.
Mr. Wallace: In my opening remarks, I pointed out that it is not an either/or situation. We must work cooperatively so that there is no duplication, such as a situation where social services is working in the school on one thing and counsellors are working on something else, and they never talk. We must work together, come up with an action plan on how to help these young people, and decide who carries the ball, whether it is to be the school, social agencies, the probation officer or someone working in the police department. We must coordinate. We do not have the resources to have everyone doing his or her little bit.
Mr. Solomon: If I may add to that, as has been said, it is not an either/or. Teachers have always tried to get their students to develop their potential in the best way possible. When they are confronted with students who have problems, they try to resolve them.
We have students who have learning difficulties. Psychological tests are done and that information is shared with teachers so they can help. We are there to help those students become useful citizens and develop their potential so they can enjoy satisfying lives.
When we look at the present situation, if we do not have the information, then we are being in some way hindered. Teachers always balance the privacy of the students with the need to help them. No teacher wants to stigmatize a student, but if they do not have information that can help those students, then there can be frustration in trying to achieve success with them. This is the difficulty. If we do not have the information, we sometimes cannot help the student. We do not want to stigmatize them. We want to make sure that they get the best treatment, advice and help that they can.
Mr. Weiner: Your question is interesting. I can give two reasons that have been given to us for not making this obligatory. For instance, "It seems to me that the more people who know what that young offender did, the greater the chance that that individual will not get a fair shake or a second chance." How can you possibly apply that in a school situation to a teacher who acts in loco parentis, has certain legal obligations, and has access to a large amount of privileged information about youngsters in order to be able to help them? It does not make sense.
Senator Pearson: I appreciate the general sense of your request, but it seems we may be using the wrong tool. I am trying to envisage what this actually means. "Who does what to whom" is the kind of question one must ask oneself.
I would feel happier about this, in my concern for the rights of children and their privacy, if the young person consented to the release or was encouraged to share the circumstances of a situation with someone at the school. The kind of messages I have received from young people in care - and we will be hearing from the National Youth In Care Network - is that the sharing of this kind of information is not always to their best advantage.
We are all imperfect; teachers are imperfect, kids are imperfect and school boards are imperfect. That is the reason for our interest in human rights, because we must ensure that we have in place the protections that prevent unintended consequences. I do understand that that has not been happening. It is kind of a permissive thing, and it has not been happening. Therefore, the question would be, why is it not happening? I would try to address that problem, rather than put into the legislation something that may have unfortunate and unintended consequences.
Mr. Wallace: I have already mentioned diminishing resources. Caseloads are getting larger. This is at the bottom of the checklist. They intended to contact the school. They never got around to it because they have such a large caseload.
In reality, as a principal, I knew every kid in the school who was on probation. That was because of the network within the school. Kids told you. Parents would come in and say, "I heard so-and-so is in my son's class and has been in court for assaulting so-and-so. I want my child out of that class." I could not, even as a principal, say yes. One is handcuffed.
Senator Pearson: How would this make it any easier? You would know this kid was on probation. The parents would still come in and demand to have their kid out of that class.
Mr Wallace: The way it works out is that you have a program where that child is placed in a special class, and you go through a procedure if they need that special help, such as working with counsellors, working with resource teachers and working with all those pieces of information that come together.
Senator Pearson: My real concern is the same one I heard from some other young offenders, who say the more you talk about their best interests, the less freedom and liberty they have and the more their rights are infringed. It is a dilemma between access to information and privacy. It is the constant tension that we feel. I understand the dilemma you are working with, but I feel that there may be some other ways of addressing the problem that you are talking about that will not unleash certain negative consequences.
Mr Weiner: Senator, if I may, how can we possibly work collaboratively with those who have a responsibility? The first recourse is to try to rehabilitate and ensure the young person does not re-offend.
Senator Pearson: Presumably you get the community, the school and the parents all together.
Mr Weiner: How can you rehabilitate if you do not have the information that will give you a basis for developing a consistent, coherent, integrated plan that will address the needs of that offender? If you accept the fact that the school is an important part of that youngster's life, that youngster will be spending a good 25 to 35 hours a week, 40 weeks a year, within the school, working with a principal, a teacher, or a guidance counsellor who all have an important responsibility in that area without the right to know. Do we pick it up, as the principal does, via the grapevine, third hand, get some distorted version of what happened and try to piece it together?
Senator Pearson: It is not that you are not allowed access to the information.
Mr Weiner: We are not getting that information, though.
Senator Pearson: That is the problem. How do we change that? I do not believe the bill will change the situation. Something else needs to be changed so that people will work in a more collaborative manner. I agree that a collaborative effort is absolutely important, but the person who needs to be involved in that is the young person, along with the others. Some of the new methods being used with youth in care, where the children are deeply involved in working with a social worker, are showing some promising results. I would rather go with that method. I know that when they start to cut spending, then all those programs, such as the one that I spend 22 years on in prevention and conflict resolution, are cut.
We must respect the human rights of adolescents. I am convinced we need more information sharing, but I am not convinced the way you are asking for it is best.
Mr Wallace: We are only talking about three things, not every child.
Senator Pearson: You are talking about rehabilitation, but who will define that?
The Chairman: You are talking about every child under paragraphs 125(6)(a), (b) and (c), with an authorization under section 91 or an order of the youth justice court. That is every one of them.
Mr Wallace: To ensure compliance.
The Chairman: They want it to be necessary, and that means every one.
Mr Wallace: No, the only word we want to change is "may" to "shall," and it is still conditional with "if." They still have that condition saying, "No, we do not believe the school has to know because it will not be involved anyway."
Mr Weiner: If the youngster did some shoplifting at the neighbourhood store, we do not need to be burdened with that. We have enough problems and issues to deal with.
Ms Pierce: To get back to Senator Pearson's concerns - and we understand them - we have tried as an association to look at various approaches to this issue. We have tried to develop resources. We just spent a year looking at how we can foster collaboration in our communities.
We are looking at a multi-faceted approach to this. We also recognize, from experience, that if we do not have the requirement in legislation, there is no obligation to try to work with us. That is what we are trying to say.
We will continue with the other kinds of methods, but they do not go far enough. They have not worked well enough. We are trying to strike a balance. We want to respect the rights of the individual young offenders. We all have good intentions. Sometimes we have unforeseen consequences.
As a result of our discussions with our boards, and our almost six years of experience, we came to the position of requesting that the wording include "shall." We thought long and hard about the balance needed. We felt that by restricting it to those conditions, we were providing that balance and going as far as we felt we could.
We will continue with the other things we are doing. We have a variety of mechanisms in our schools and school boards for who gets the information in the first instance and who determines the right to subsequent disclosure. Every case will be unique. Some school boards, such as the Ottawa-Carleton School Board, have committees that are the primary first contact for sharing of information. They make decisions about individual students, about subsequent disclosure and the kind of programs that students need to facilitate rehabilitation and safety.
We have tried many approaches. In asking for the "shall" and the obligatory right to have that information, we are looking at many models. The school boards have put in place policies to ensure that we can go the extra mile in protecting the rights of both the young offender and the other students.
We have definitely come down to this request for a "shall" under those conditions.
Senator Beaudoin: It is true that "may" and "shall" are very different. I remember some cases where the court construed "may" as meaning "shall." There is perhaps not always much difference, but it depends on the context. There are some cases that speak to this.
You say you need the word "shall" in 125(6). I agree, providing this is no exemption. Is that always the case? Do you want an absolute right? If (a), (b) and (c) are complied with, it is mandatory in all cases, no exemption. That is what you want.
Mr Wallace: Yes; however, if I might add to that, it could go no further than the superintendent. They know about it and they say, "It does not have to go any further; there is no need for the school to even know about this because it does not apply."
Senator Beaudoin: This is why I said at the beginning that there is a certain discretion given to the courts in the interpretation of a statute. Sometimes they may say that it is mandatory, or obligatory.
Clause 125(1) is exactly the reverse. Do they need such power? It is vague:
A peace officer may disclose to any person any information...that it is necessary to disclose in the conduct of the investigation of an offence.
Who is deciding that it is necessary? The minister?
Senator Joyal: The police officer. The police officer will decide to disclose. It is discretion. There is no reasonable ground or any qualification. This is discretion without any qualified grounds or motives.
Senator Beaudoin: It is "may," and it is vague. There is no obligation. He may do anything he wants.
Senator Andreychuk: You trust the peace officer.
Senator Beaudoin: You trust that person 100 per cent. You say he is the judge in his own case. In the second one, when it is a teacher, you say, you must do this if there is compliance with (a), (b) and (c), and that is in all cases.
Mr Weiner: These are situations where the youngster is being reintegrated into the school situation under conditions.
Senator Beaudoin: You say you need that obligation?
Mr Weiner: Somebody within that school situation will be able to evaluate, within an educational context, the extent to which any further disclosure is required in order to meet the rehabilitation needs of that youngster. That is the distinction.
Senator Nolin: You must read (a), (b) and (c), together; they are related. The individuals responsible for ( a), (b) and (c) are right there.
Senator Beaudoin: It becomes obligatory.
Senator Nolin: It is not obligatory; they are asking for that. The way the bill is written, none of them has the discretion to send them the information that will influence their job. Do you follow me?
Senator Beaudoin: Subclause 125(1) is vague. Subclause 125(6) is absolute if paragraphs (a), (b) and (c) are complied with.
Senator Andreychuk: If the amendment were made.
Senator Fraser: Mr. Wallace, I have not met you before, but I did have the pleasure of an instructive session with your colleagues the other day. I was impressed by the depth of their dedication to the interests of all the children in their care. They did not persuade me. They still have not, I must say, particularly the more I read this clause.
If you got what you wanted, a "shall," and this took root, we would be talking about very wide disclosure: "shall" disclose to any professional or other person engaged in the supervision or care of a young person. That is not just the school principal. That is every teacher, classroom monitor, volunteer parent supervising the cafeteria at lunch, sports coach and Sunday school teacher. That is sweeping. The child's privacy rights would, it seems to me, be greatly endangered there.
However, I think you would still be at risk of not achieving what you wanted, even if we agreed to pass this amendment and sent it back to the Commons and they saw the light and said, "Gosh, yes, we accept." You are dealing, as Senator Pearson suggested, with a problem of institutional culture, and the clause would still contain this gigantic loophole "if the disclosure is necessary." Someone has to deem whether in fact it is necessary, and in a culture that does not believe in passing on information, it will almost never be deemed necessary, especially not if every Tom, Dick and Harry that meets the child would have a right to receive the information.
I come back to the question that Senator Pearson raised, and that I raised with the three of you when we met. Are you not coming to the wrong source here? I appreciate that going to the provincial and territorial governments is far more time consuming and difficult and expensive, and I am sure you all have limited resources, but they are the ones who, faced with a new law, will have to reassess their procedures and cultural patterns anyway. Is it not to them that you should go and say, "It will be very important for your provincial directors and for your social services and indeed for your police forces to be told, "You change"? They can change their patterns. We have seen it in cases of battered spouses. They used to be dismissed, and then governments said to the police forces and the Crown prosecutors, "Change your policies," and they changed. If they are told to change, they will change. Would it not, in the end, be more constructive, even if more difficult, to go to them, rather than asking us to make this sweeping change in the bill?
Ms Pierce: If necessary, we will. We came here because this is federal legislation. We want to ensure there is some consistency across the country. If we deal with each province separately, we will have situations where some will have the information and others will not. We are trying to ensure, whether in Quebec or British Columbia or Nova Scotia, that we can have the same abilities to assist that child or assure safety and security. We came here because it is federal legislation.
We do advocate on many fronts, and we will mobilize our provincial counterparts if we have to, but first and foremost, because it is in the committee right now and it is a federal piece of legislation, we are here.
We also recognize that there are a whole variety of discrepancies in available resources across the country. Sometimes, that lack of resources may dictate whether they want to do this or not. As they prioritize resources, having an obligation may make them treat it a little differently, because they may recognize how important it is to ensure that we get the information.
For all those reasons, we are starting here. We will continue to reiterate our position and have our members reiterate it to their own MPs in their own constituencies.
We did think hard before we decided to withdraw our support for the bill because of this clause, and that direction came from all of our members because of its importance. We are trying to convince you, as we feel strongly about the importance of a federal approach to this issue.
Senator Fraser: I think that you are running up against the nature of the federal system, which is that it is not uniform. The educational system is one of the parts that are not uniform.
The Chairman: The least uniform, yes.
Senator Nolin: That is exactly the line of questioning I intended to pursue. Could you tell me more specifically, do your various organizations have members in the province of Quebec?
Mr Weiner: We do. We do not represent all of the teachers in Quebec.
[Translation]
We represent teachers working in schools under the jurisdiction of anglophone school boards.
Senator Nolin: Does the CEQ belong to it?
Mr. Weiner: The CSQ, the Centrale syndicale du Québec.
Senator Nolin: What about the CEQ, the Centrale de l'enseignement du Québec?
Mr. Weiner: We are on good terms with the CEQ, but it does not belong to our federation.
Senator Nolin: You refer to the new acronym, to which the majority of teachers belongs?
Mr. Weiner: Yes, I am referring to the new acronym and the new name.
Senator Nolin: And who belongs to your federation?
Mr. Weiner: Just the 7,000 teachers who teach in anglophone school boards. This includes francophone teachers who teach in anglophone school boards.
[English]
Ms Pierce: In Quebec, the members of our association are the English language school boards. The French language school boards are not members of our association.
Senator Joyal: You are dammed if you do and dammed if you do not. I can understand, and I am repeating a point I made earlier, the necessity of involving the school as a supportive service for a young person who needs to be reintegrated in the normal course of life. This is obvious as the light during the day.
On the other hand, I am concerned about the young person who has gone through a difficult period and comes from a social background that is difficult and so forth. Giving a wide open disclosure is an additional burden that that person has to deal with. I am not talking about you personally, of course, but the school system will say, "We do not want that rotten apple back because we have enough problems in the school. We do not need that."
I am trying to be sympathetic to your objective of, say, ensuring compliance by the young person with an authorization under the section. The youth justice might have said, "You go back to school. It is part of the rehabilitation. You have to be back to school and report there and be there." That is part of the rehabilitation, and it illustrates my earlier point of ensuring the safety of staff, students and other persons. Which one prevails in different instances? That is what I am wrestling with. I do not want to be unfair to a young person by creating an aura of, "This is a bad guy." You know how discriminatory school can be. Believe me, I was young, and I have been to school.
I do not want to start giving details. We all have to fight our way through for all kinds of reasons. I can understand, Mr. Wallace. You are a principal, you want to have an orderly school, you have all kinds of problems to deal with, and the less you have of that kind of problem, the better. I am also sympathetic to that.
We are trying to wrestle with the philosophy of this bill. What is it aiming to achieve, and what are the best means to do so? In my opinion, it is not only money. To me, it is a buzzword, the easiest code word. Give more money and everything will be solved. Everybody asks for more money. As the chief of police said to us, it is part of our job description. There is much more than that. There is the human milieu of those people.
I am trying to see how we balance the two. You have professional responsibilities, administrative responsibilities, and your essential role as teachers is to be there for the person and devote more time to that one because that one needs more care for whatever reason, and you only have so many hours a day and so forth. We are all sympathetic to that, but where do we cut it?
Mr. Weiner: I appreciate the dilemma and how you have outlined it. I can toss it back to you and other members of this committee. The way subclause 125(6) is written now, there is a balance of elements here: ensuring compliance by the young person, ensuring the safety of staff and students and facilitating the rehabilitation of the young person. In the proposed legislation the House has given to you to consider is clearly a recognition that the school environment is important in the rehabilitation of the offender, but in that rehabilitation under court order, there is also the factor of the safety of the other students. You give the discretion to someone to determine when and if information that we are saying is essential will be disclosed. In fact, you are trying to deal with it in the bill as it currently exists, even without the amendments. You are not dealing with it. You are not balancing it.
Mr. Solomon: When the court sends a young person back to school, it has put the problem in our hands. It has put the care and the rehabilitation of that student into our hands. However, at the same time, it is also restricting us, to some extent, by making sharing of information dependent on somebody else's decision. We are all conscious of the need for balance and the need to protect young people. We do not want to stigmatize them or set them apart from their colleagues in the schools, but we want to help them reintegrate. Sometimes, we need to have that information.
Senator Pearson commented that young people should be part of the decision. I respect that, but sometimes we send young people to school and entrust the schools to make decisions for them about their needs. We can also work with them, but sometimes, young people may not always know what they need, and sometimes we, from our training, can help and advise them. While I respect the need for young people to be part of it, sometimes they may not even be aware that this is help they need.
The Chairman: With respect to what you have said, Mr. Solomon, the decision is still going to be made by someone. You are saying that you want the decision to be made within the school system, rather than within the system that has sent the child back to the school.
Senator Nolin: They are not saying that.
The Chairman: Yes, because the system that sent the child back to the school is the Attorney General, the youth worker, the police officer or other person engaged in the provision of services. That is where the decision now rests in this bill as it stands. If we change it to "shall," still the decision is made somewhere within the school system, from what you said. The superintendent may make the decision or the principal may.
Mr Wallace: The board would have a policy.
Senator Joyal: To add something to the answer that Mr. Solomon gave, it is important to know the structure of the decision making on this.
Ms Pierce: We have provided some alternatives to school boards in our handbook. For example, it makes sense for a fairly large school board to have a centrally designated person at the board level who would receive that information and make decisions about subsequent disclosures. In very small school districts, where they do not have a great deal of resources, it may be the principals. However, the board could put in place clear policies about who would receive initial disclosure of the information. Subsequent disclosure would be based on what kind of decisions had to be made for those individuals about their schooling. Therefore, it would not be uniform across the country, but we have put in place very clear sample polices and procedures and key decision points that boards have to make about policy and subsequent disclosure. We are trying to ensure there are procedures in place that respect the balance, and also, quite frankly, adhere to the laws on confidentiality and young offenders. We are trying our best to ensure there are provisions in place.
Mr Wallace: In terms of safety in schools, we are not speaking of two kids in the playground getting into a fight. Reading the papers down my way, which is Hamilton-Wentworth, we are talking about young offenders and murder. The school may not get that information. We may not even know that. We are not talking about what we had as kids, a little fight. In many cases, gangs are involved, and 16- and 17-year-olds, and there will not be much rehabilitation in school with those. I will admit that right now. However, you have to think about the safety of other students. Getting back to the first point I made, as parents, as grandparents, you expect your child to go to school and to be safe, not to be hit with a baseball bat on the way home.
Senator Nolin: You just said that in the past, it happened that a judge had decided to send the young offender back to school, and you were not informed?
Mr Wallace: The word may get around via the grapevine.
Senator Christensen: I am not a member of the committee. However, in a distant life, back in the 1970s when we dealt with a very simple, 10-page Juvenile Delinquents Act, I was a justice in the Yukon. It was, in fact, a very simple act to administer. We had options at that time. We dealt with the probation officer, the caseworker or the arresting officer. We brought in the parents, if the parents were there, and we brought in the teacher. We discussed it and tried to come up with the best solutions to help that child. The child was there as well, so that we worked as a team.
There is a dilemma here because of all the persons that will be dealing with that child who has committed an offence. The teacher and the school system will probably have more care of that child than anyone else and have to deal with him or her on a regular basis.
Yet, Senators Fraser and Pearson have made very valid arguments. By changing the "may" to "shall," you are opening it not just to teachers, but to everybody. That is the problem. I am not sure how we overcome that.
I have been talking to some of the teachers in my area, the Yukon, and they have mentioned the same concerns as you. In our main high school, the children from the Yukon Offenders Centre are brought down every day in a blue bus, but no one is supposed to know who they are. They are brought down each day and deposited at the school. They go into the classrooms, come out of school, get back on the bus and go back to the young offenders centre.
Some of them are in classrooms with persons whom they have assaulted. How do those children feel? It is a major problem.
I am not sure that changing the "may" to "shall" will overcome it, but I think that somehow, we have to find ways of getting the principal caregiver involved. I am not sure how that is to be done.
The points you make are very valid. There are good teachers and bad teachers. There are good probation officers and bad ones. We must try to come up with solutions that will achieve a better rate of children reintegrating into our society.
The Chairman: If I can just raise something at the very end here - and it is really what I started with - you want to change the word in one part of one clause, "may" to "shall," and because that one word is in there, you are saying categorically that you prefer to continue operating under the present Young Offenders Act. You are against this bill?
Ms Pierce: Yes, we are against the bill.
Mr Wallace: It is so important to us.
The Chairman: Thank you very much for coming. We sympathize with your position. Whether we agree with it or not is another question.
The committee adjourned.