Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 12 - Evidence, October 18, 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 11:00 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we are met again this morning to discuss Bill C-7, the Youth and Criminal Justice Act. This will be our sixth meeting on the bill. We are almost half-way through our meetings and the over 60 witnesses that we will be hearing from all together.
This week we have heard from the Canadian Centre for Justice Statistics, Justice officials, police associations and the education sector. Today, we have before us various youth associations, including the Youth Canada Association, the Canadian Council of Provincial Child and Youth Advocates, the National Youth In Care Network, and Save the Children Canada.
Dr. Deborah Parker-Loewen, President of the Canadian Council of Provincial Child and Youth Advocates; Children's Advocate, Saskatchewan: Honourable senators, it is an honour to be here today. Ms Judy Finlay is with me. She is Chief Advocate of the Office of Child and Family Service Advocacy for the Province of Ontario.
I am the Children's Advocate from the Province of Saskatchewan. We are both here representing the Canadian Council of Provincial Child and Youth Advocates.
Our council is an alliance of five provincially appointed children's advocates from British Columbia, Alberta, Saskatchewan, Manitoba and Ontario, plus the Nova Scotia children's ombudsman, the Commission des droits de la personne et des droits de la jeunesse of Quebec and the Children's Commission of British Columbia. Several of us report directly to our legislative assemblies as officers of the assembly, and others report through other processes.
We share a common commitment to further the voice, the rights and the dignity of children. We work together to address national issues related to children and youth, because there are several issues that are not within our provincial jurisdictions independently but are clearly, like this one, of both provincial and federal concern. We do this work by promoting respect for the rights of children and a voice for children and youth.
Regarding youth who are involved in the youth criminal justice system, four of the advocate offices provide individual advocacy services to children who are in custody facilities or who have other involvement, such as probation. However, all of us provide advocacy services for many of these young people as over half of the young people have also had child welfare involvement.
Individual advocacy for us means that we will take a complaint from a young person, or sometimes from his or her advocate, about the non-judicial aspects of the services he or she has received from the provincial government. A youth may call, for example, because he or she has been held, or believes unfairly kept in isolation, or denied a visit with his or her family.
We also engage in what we define as systemic advocacy. We advocate for practice, policy or legislative change to ensure that children are treated with respect and in accordance with their fundamental human rights, including the United Nations Convention on the Rights of the Child. Ms Finlay will go more into that area.
We all have a legislated authority to conduct site reviews, to do individual or broader systemic investigations, and to publicly report on our investigations and our other advocacy work. In the interests of time, I will ask Ms Finlay to speak more directly with regard to Bill C-7.
Ms Judy Finlay, Chief Advocate and Manager, Office of Child and Family Service Advocacy, Ontario; Canadian Council of Provincial Child and Youth Advocates: Honourable senators, there are many parts of Bill C-7 that we as provincial child advocates support, such as the extra-judicial measures, the diversion of youth who commit less serious crimes, strategies for the meaningful reintegration of youth into their community, the redefinition of custody sentences to consist of a period of incarceration followed by a period of supervised support in the community, the specific reference in the bill to the UN Convention on the Rights of the Child, the child's right to have a voice in the proceedings, the therapeutic sentences or intensive rehabilitation, the principle of least restrictive measure, and so on. These are areas we support in the bill.
We have a number of concerns that we believe need further consideration. The first, as noted in Bill C-7, children and youth have developmental needs that are fundamentally different from adults. For this reason, the UN Convention on the Rights of the Child emphasizes the need for special protection for children up to the age of 18. As a society, we clearly believe this to be true.
For example, we say that a 14 year old child cannot vote, cannot consume alcohol, cannot drive a car, cannot get married, cannot pay taxes, needs a note from a parent to be away from school for a doctor's appointment, and cannot live independently. We as a society know their vulnerabilities and put safeguards in place to protect them. Yet, we are legislating that they can go to adult jails.
Ontario has a wealth of daily experience for the child advocate about youth being housed and managed in adult correctional environments. Adult guards are trained to work with adult inmates. They are not skilled to manage the special demands placed on them by youth. Adult jails provide limited supervision. Assaults are common. Youth are victimized and learn criminogenic behaviours. They do not provide a milieu for rehabilitation.
Ontario at this point is actively taking steps to have stand-alone centres for youthful offenders. We are aware that most of the problems with youthful offenders occur while they are incarcerated in settings attached to adult facilities. Even though children are separate and apart, they are attached. We see the infiltration of the adult correctional mentality into the young offender settings.
Ontario acknowledges that. For that reason, Ontario is moving young offenders out of those settings into stand-alone centres. They have learned from painful experience about the importance and value of keeping youth separate and apart from adults.
Second, Bill C-7 provides provinces with discretionary ability to make decisions about level of custody, the age at which the presumption of an adult sentence applies, and the application of extra-judicial measures.
We are concerned as child advocates that political will and the availability of resources will drive these decisions. Offering discretionary powers will reduce the impetus on the part of some provinces to create the least restrictive alternatives.
Also, we would like to comment on clause 35 of the bill. That is the referral of young persons to a child welfare agency for assessment and a determination of the need for child welfare services. Fifty-seven per cent of youth in the young offenders system come from the child welfare children's service sector. Sixty-three per cent of youth in custody have one or more psychiatric diagnoses. These kids graduate from the children's service sector into the young offenders sector because that system was unable to adequately treat and care for these children. Bill C-7 gives the opportunity for judges to refer them back to the very system that failed them. This system is under-resourced and extremely taxed at this time throughout Canada.
A referral back to the child welfare system may result in these young people moving to the streets. There needs to be a provision that ensures that these youth are indeed assessed and that community plans are made that adequately meet their needs. This demands meaningful partnerships across the service sectors.
Finally, we would like to address the principle of safe, fair and humane custody. Currently, in many provinces in Canada, there is a culture of institutional care that inhibits rehabilitation. Interventions are punitive. There is excessive use of force in the management of young people. There is inadequate supervision and poor staff-youth ratios. In some centres there is one staff member for 20 young people. This results in peer-on-peer violence. Peer-on-peer violence at this time in Canada is a major concern. Young people do not feel safe in these environments.
In Ontario there is a renowned centre, one of the best programs that we have. Recently, my office intervened. There was the presence of many weapons in that centre, which is unusual for a centre like that. We assumed that it was the bullies or the more violent young people who were making these weapons and keeping them in their cells or their rooms. That was not the case. It was the younger, smaller children, who were afraid for their own safety, who were making weapons and hiding them in their rooms. They did not even feel safe or protected in their own rooms.
In terms of intensive rehabilitation for the most troubled, highly aggressive or dangerous youth, it is the experience of the advocates in a number of provinces that intensive rehabilitation is often translated into containment or secure isolation of these youth. We have in Ontario and other provinces special needs units that have been developed to look after the aggressive, special needs kids. What that means is 23 and one-half hours a day of lock-up with no programming in the cell. It is a method of management, not rehabilitation. However, because of limited resources and a lack of training and understanding of these kids, it is not uncommon for special needs kids in Canada to be locked up for 23 and one-half hours.
We need national standards of care to ensure that the principles of safe, fair and humane custody are in practice.
Ms Cathy Ann Kelly, Board Member, Youth Canada Association: Honourable senators, I would like to thank you for inviting us to attend this morning. Youth Organizing to Understand Conflict and Advocate Non-violence is a national for youth by youth organization specializing in conflict resolution and peace building.
With me today is Robert Paiement, Senior Adviser to the organization; Rebecca Jaremko, who will be speaking specifically on the legal aspects; and, David Farthing, Executive Director and founder of Youth Organizing to Understand Conflict and Advocate Non-violence, YouCAN.
Mr. Robert Paiement, Senior Adviser, Youth Canada Association: Honourable senators, I had some points with regard to the specific bill itself. Overall YouCAN! Youth Canada Association is in support of the bill. Ms Jaremko will speak to the legal issues with which we have some issues, and Mr. Farthing will talk about our youth to youth in terms of what we do as an organization, in particular working with at risk youth.
The legislation and the funding for programs is important at the community-based level. The focus on the community-based level is the way to go in terms of approaching those who come into conflict with the law. Ms Jaremko will address other aspects.
The one aspect at which we would like the Senate to look is working with youth to youth and national youth organizations like National Youth in Care Network and YouCAN. The need for public education is paramount, I believe.
One of the major flaws in the introduction of the Young Offenders Act was the lack of public education about the act. Research shows that the more educated the public are with respect to any piece of legislation, the less likely they are to be asking for punitive measures. We will need to educate youth on all aspects of the Youth Criminal Justice Act.
Allowing youth to educate other youth on the future Youth Criminal Justice Act is the best way to do that. Our research and our work with youth in conflict with the law show that youth to youth works.
All of the workshops will be led by youth at our upcoming international conference of February 21-24, 2002, which focusses on peace building and conflict resolution. Youth react much more positively that youth are attempting to educate them in conflict resolution processes. That is not to say there is no role for adults in any youth organization. I mentor our board of directors and our executive director in policy and programs within the organization. Clearly, youth react positively to youth who are trying to mentor them and adults who are trying to mentor them, but in collaboration together.
In terms of focussing on preventing youth from coming into conflict with the law, I would like to see support and capacity building for youth organizations such as YouCAN and National Youth in Care Network. Resources should be allocated to educate the public.
Ms Rebecca Jaremko, Youth Coordinator, Youth Canada Association: I am the youth coordinator for the upcoming conference in Kingston with YouCAN. I am also a law student. I am speaking to the provisions of the YCJA as proposed, Bill C-7.
I will go directly from our brief. If you have it, it may be beneficial to take a look.
Starting off with the preamble on principles, YouCAN commends some of the features of preamble. Specifically, we are impressed with the inclusion and reference to the United Nations Convention on the Rights of the Child and the enhanced clarity and the mention of equality issues in section 3, the declaration of principles. We feel that the YCJA provides a clearer statement of goals and principles than the YOA did, and for that, we commend the drafters.
However, we are still concerned about the body of the legislation. We are concerned about the extent to which the provisions comply with the UN Convention on the Rights of the Child.
Specifically, we are concerned with the vilification of what are termed "serious violent offenders" and with the increase of adult sentencing. We have noticed in the legislative summary that there will be an increase in the number of youths that will be sentenced as adults. I understand the legislative summary does not have any legal status, but I take that to be a good interpretation of what the act says.
There will be more youths both sentenced as adults and incarcerated with adults. That is a concern for us as well as it is a concern for the children's advocate. We are in agreement on that issue. We are also very concerned about the potential of increasing numbers of youth as young as 14 years of age who would be sentenced as adults.
According to the John Howard Society, Canada over-incarcerates youth. We incarcerate too many youth. We applaud the drafters for recognizing that.
We are very impressed with the inclusion of extra-judicial measures in the new act and applaud the added emphasis placed on this. However, we are concerned that this emphasis on extra-judicial measures is more in rhetoric than it actually will amount to substantive change. Many of these programs are discretionary for the provinces; they are not mandatory. We would like to see these types of programs being mandatory.
We are also concerned that restorative justice would actually be beneficial to some offenders termed "violent." With the vilification of violent offenders in this bill, we would very much prefer to see restorative justice programs being applicable to youths who have guilty findings or who have allegations of violent offences. There has been an increase in schoolyard scuffles being termed violent offences. That is a serious concern.
We support again the John Howard Society idea that the bill should be amended to enable judicial discretion to invalidate charges when the police have failed to consider alternatives. We strongly believe that youth should be represented on youth justice committees.
That goes, again, with YouCAN's youth focus. It is important that a youth justice committee does not turn into another venue where youth are silenced. It is important that they have some input into that process as well.
With respect to sentencing, some of the most profound changes in the youth criminal justice bill are in the sentencing clause. We applaud the articulation of explicit principles. That is important. Clearly, this is an attempt to reduce the over-reliance on custody as a sentencing option. We applaud that.
As we have said before, we have noticed in research that the most effective interventions for youth occur outside of custodial facilities. It is very important that that actually is put into action and that the law as lived actually reflects that desired change to the reduction of custody of youth.
We applaud the procedural change in terms of moving it from transfer hearing to an adult sentencing. That is an excellent change in terms of protecting the procedural rights of youth. However, we are very concerned that there actually will be more youth sentenced as adults and held with adults. That is in violation of the UN Convention on the Rights of the Child. Although Canada has filed a reservation to Article 37, it does not exculpate us morally from the treatment or the violence that youth suffer being held in adult facilities.
The sentencing regime is an improvement, but there is room for more improvement. In terms of publication of records and information, there is increased scope in the YCGA to publish records and information about youths who have been alleged to commit offences. We are opposed to that as well. Youth should have their identities protected.
With respect finally to legal representation, clause 25 of the proposed legislation offers the provinces discretion to be reimbursed for legal fees of legal aid lawyers by the parents of youths who have been charged. We see that as a fundamental problem with the bill. It will do two things: First, it will create a conflict of interest such that the parents are actually paying for the lawyers. Then, the lawyers will have trouble representing the needs of the youth, specifically, which may not coincide with the parents. Second, we will see more and more youths as un-represented litigants in youth court. They already have trouble understanding the processes. To have them without legal representation is a fundamental problem. With that, I will turn it over to Mr. Farthing.
Mr. David Farthing, Executive Director, Youth Canada Association: Honourable senators, we are here to echo the voice of youth in Canada as best as we possibly can. Canadian youth are probably the most diverse group of young people anywhere in the world. We, as an organization, have learned one thing from this exercise that I am presenting to the House of Commons Standing Committee on Justice and to you in this committee: We need to do more to try to hear from the young people, mainstream and non-mainstream, within our networks to engage them on these issues and to listen to what they have to say.
I would like to commend the Department of Justice because they have done an incredible job - perhaps a better job than ever - in creating this bill and in consulting with young people from many diverse groups. In Canada, we need to look at doing a better job in the future and we need to get out there and not only listen to what young people have to say about the youth criminal justice system in Canada, but to try to educate them so that they are able to understand the system. Our training initiatives have taken me to different places. Young people on the one side might agree that we need more punitive approaches without really understanding restorative justice or reconciliation or the different things that will be enabled through this proposed legislation.
The language is not there - it is not part of the youth culture to look at the restorative ways to justice. Much work can be done in that area.
Two issues need to be resolved in Canada for young people. First, there are misconceptions held by the general public about the violence of youth and the crime rate. The public perception is out of control. I do not necessarily have a clear sense of how Canada will respond to this or begin to resolve some of those issues.
Second, youth are over-represented in our criminal justice system. There are many provisions in this bill to try alternative ways to divert youth from the criminal justice system. I do not have a clear sense of what Canada will do to decrease the numbers of young people that we incarcerate, through prevention and alternative ways of looking at justice.
I find it amazing that whether I am talking with people from youth-serving agencies or talking with people from government agencies, it seems that the issue of youth engagement is huge. From everyone I hear the same question: How do we engage young people, and how do we better respond to the needs of young people? One of the biggest challenges I see for our organization, YouCAN, for the Government of Canada, and for other amazing groups such as the National Youth in Care Network and children's advocacy groups, is how to develop in young people, the same type of passion that you might see in youth working in the environmental movement.
I see many youth involved in policy questions, and they know what is happening in the international environmental movement. They know the good, the bad and the ugly because they are engaged. I do not see that same kind of thing here in Canada. I do not see necessarily as many groups of young people moving in circles and talking about policy issues.
The next 10 years will be important for this bill if it is enacted. One of my passions is looking at a cooperative solution with government where everyone will work together to look at how we engage young people in the criminal justice system and develop the same kind of advocacy, respect and understanding that you might see in the environmental milieu.
Mr. Matthew Geigen-Miller, Director of Education and Communications, National Youth in Care Network: Honourable senators, I wish to enter a correction to your information: I am not the Executive Director, but rather I am the Director of Educations and Communications of the National Youth in Care Network.
National Youth in Care Network is an organization of young people who have direct personal experience. We are a membership organization of young people in government care from across Canada. By "in government care" we mean primarily young people who grew up in the child welfare system - child welfare foster homes and group homes, homes that they were taken into for reasons such as abuse, neglect and other problems in the family home.
Over the years, the definition of government care has expanded to include other forms of residential care, such as the young offender system and children of the mental health system.
My personal experience is in the young offenders system, certainly on either side of it. That has motivated me to be so active in the efforts to replace the Young Offenders Act.
I was in the young offender system in Ontario. I served a custodial sentence when I was a teenager. I served secured time, open time and probation. I got the whole works, first offence. I had an opportunity to experience the Young Offenders Act and the different processes that it prompted, at the best and at the worst.
I have experienced caring, supportive youth workers and a great therapeutic program, but I have also experienced abuse and beatings at the hands of prison guards and two months spent alone in a cell in isolation. I have experienced probation officers who were absent and were rotated frequently. I also experienced one with whom I connected and who was very supportive of me. I do have that perspective, and I have seen it all, although I have only been through it once. That is the perspective I speak from.
I also speak from the perspective of my travels for one year to various custody facilities so that I could talk to young offenders - people who are currently in facilities, or who have been - and getting their perspectives. We looked at what the re-integration needs of young people are, and we asked broader questions. That is where I am coming from.
If it were a choice between the bill as it stands and the Young Offenders Act, I would take Bill C-7. However, we do have an upper house and this bill, although it is very strong and contains many good things, merits some second thought.
There are a couple of key pieces. Certainly, I have not addressed all of my concerns or all of the things that I like, for that matter, in this brief, nor will I in my opening remarks. There are too many items - 200 clauses. Has anyone here read the whole thing?
Senator Joyal: Yes, I read it, I found it complex and I said so in the Senate.
Mr. Geigen-Miller: Thank you. I cannot deal with it all, but I will deal with a couple of key pieces. First, I will speak to the issue of minors being held in adult facilities such as provincial correctional centres and federal penitentiaries. That happens right now. There are not many of those institutions left - about seven or eight across Canada. It is not something that I understand should happen once Bill C-7 is enacted. There are safeguards that prevent it.
However, there is an exception that allows a young person under the age of 18 not to be held in a youth facility if it is deemed to be in his or her best interests, or if it would jeopardize anyone's safety. I would like to caution this committee that I come from the perspective of a group of young people who have had very bad things happen to us at the hands of government services. Those bad things were justified because it was supposed to be in our best interests.
I suggest to this committee that a door has been opened with that tiny little exception. That door will be used to an extent far greater than the people who drafted this bill anticipated.
The Chairman: Which clause of the bill are you speaking to?
Mr. Geigen-Miller: I am referring to clause 76(2), which speaks to a young person's committal to custody. That clause may be described by some as a "technical exception" - something that really is not intended to be used. It will be used.
Although the bill is strong in many ways, there are bits and pieces of it that, if put into the hands of people who do not share the intent of the government, could be very destructive. I think we know well that provincial and territorial governments have very different approaches. We can count on some of them to implement this bill minimally.
I would like to talk generally about the issue of presumptive offences. I am somewhat offended by the notion of a presumptive offence. I am offended by the notion of a person who is under the age of 18 being presumed to be treated as an adult. The notion that it is possible to presume that a 14- or 16-year old, in the context of a criminal offence, is older than they are is ridiculous. There is no evidence that it is a good thing to give adult sentences to children under the age of 18. There is no evidence that it is necessary.
The Chairman: Mr. Geigen-Miller, we are searching through the bill to ensure that we are looking at the same clause about which you speak. Are you looking at the definitions, are you?
Mr. Geigen-Miller: I was going off the top of my head, to be honest with you.
The Chairman: It would help us if you could refer to a specific clause, if you are referring to one.
Mr. Geigen-Miller: I will do my best.
Senator Joyal: On a point of order, Madam Chair, this bill is very complex. I am not the only one to have said it. This is not the only witness who has also said it. Yesterday, we had police chiefs telling us that this is a complex bill. To request from a witness who is not a lawyer to refer to specific clauses by number is unreasonable. We can sort it out after we have heard from the witnesses. Representatives from the Department of Justice are sitting behind us. They have provided notes to everyone giving testimony before the committee. We can make up our minds as to which part of the bill we need to address.
The Chairman: Your point is well made, senator. Thank you.
Mr. Geigen-Miller: We do know that a person can be presumed to be sentenced as an adult for certain offences anywhere from the age of 14 to 16, depending on the whims of the lieutenant governor of the province or territory. We know it is provided for in the bill.
I challenge the social scientists of the world to show how it is necessary to give someone an adult sentence to properly hold them accountable or to protect community safety. I do not believe that presumptive offences have anything to do with those two objectives, which appear to me to be central to the entire bill. It has to do with giving a little in order to make the entire bill more palatable to certain parts of the population so that other great things in the bill can be passed.
That is the kind of thing I would expect the House of Commons to do. I say that because that is the kind of thing I expect needs to be done in order to get something through the House of Commons. I also suggest and hope that that is why we have the Senate. We have an opportunity here to stand somewhat apart from the popular rhetoric of the day and to take leadership. I hope that this committee will bear that in mind.
The next issue I wish to address is the entire issue of the misuse of detention in custody. I refer to this in my brief. I mention one or two clauses of the bill.
First, I wish to point out that we fully embrace the remarks Ms Finlay made about clause 35 and referring people to the child welfare authorities. Often, that is from where they have come, and we are sending them back to a system that failed them. Nevertheless, I have stated in this brief that in combination I support clauses 29(1), 37 and 39(5) because I believe that they clearly state that we should not be using custody or detention as a substitute for some other social measure.
I sort of knew what child welfare services were before I was involved in the young offender system. However, I really learned about how child welfare worked when I was in jail because I was in jail with many people who were wards of the province. As wards of the province, it means that their parents are really the government and their parents had not taken care of them very well. If they had problems that were difficult expensive to solve, or if they were not very manageable or were perceived not to be likable, it was easy to dump them into the young offender system.
In fact, it is easy to facilitate that process because children in care are under such intense scrutiny of the state in the first place. The social service bureaucracy monitors them, tracks them and keeps records about them. Those are the functions social workers perform for quality assurance purposes, but there are other effects beyond that. Young people who are considered problematic in their experiences and care are driven by the system toward the young offender system. They are dumped there.
It is very good that there is some specific language in the bill that suggests that that should not be happening and that there is an explicit prohibition on using detention or a custodial sentence as what they call a "social measure."
I certainly agree with what Ms Finlay said. It would be great to go beyond that and talk about what we should be doing in place of using detention or custody as a social measure. As that area stands, it is adequate, although I certainly agree that we could go further.
I would like to talk about what I call the cycle of incarceration. I do not know if anyone has brought this to your attention yet. I always sort of knew about it but I really got a lot of detail on it when I was doing my tour of custody facilities across Canada.
The idea I would like to put to you is this. You get a kid who is sentenced to custody and also probation. A large number of people get a combination of custody and probation. They serve their custody time. They get out and have a probation officer. If something fairly minor happens - the kind of behaviour that would be considered fairly minor in a criminal context, and perhaps even normal in an adolescent context - that becomes criminal because it breaches a condition of probation. Breach of a condition of probation is a summary offence. You would not expect a large number of people to be serving time for breach-of-probation conditions. However, one in five kids in custody are spending time for administrative charges. My understanding is that it is an objective of this government through this bill to reduce that number significantly. It is a waste of everyone's tax dollars and it is ruining people's lives. It is an absolutely ridiculous, unnecessary and intrusive response to what are the sorts of normal mistakes that happen in the course of an adolescent's life. Whether a person is rehabilitated or not, they still might be an hour late for their curfew one night. That does not necessarily have any relationship to the objectives of the law.
I suggest that we get rid of the possibility of having a custodial sentence under this new law for failure to comply with a sentence or a disposition. The probation officers will not like this one bit. What they will say is we are undercutting all of their power and ability to protect the public and so on. My suggestion to you is that that is, at best, a gross misunderstanding of the situation. At worst, it is a blatant lie.
If a young person has done something serious enough, while on probation, that they should receiving time, then there will be something to charge them for other than failure to comply with a sentence or disposition.
Senator Cools: Mr. Geigen-Miller is making is a very profound point. How does a young person get additional time for an administrative offence?
Mr. Geigen-Miller: I have never been charged with breach of probation. However, my understanding is that probation officers can cause charges to be brought against a young person for breaching a probation condition. It is their job to monitor compliance with the conditions of a probation order. They can cause charges to be brought.
A large number of young people of plead guilty to these charges because they do not believe they can be beaten. Frankly, they are probably right. It is a young person's word against a probation officer. Who will win?
I do not know what the acquittal rate or guilty finding rate are. There certainly are a large number of young people in custody currently who are in custody because they got out of jail and something happened. They made a mistake but not one that warranted such an intrusive response as further custody time.
I was talking to some kids in one jail. They told me that the probation officer in their small town would drive around at curfew time looking for kids who are out five minutes past curfew. To be quite frank, even as an advocate for children and their voice, I did not believe them. I come from a city and I could not imagine such a thing.
Another group of youth told me the same thing in a different focus group in the same facility. There was no chance that they could have had a chance to talk to each other. Another group of youth told me the same thing in another province. It happens. It is absurd. We have probation officers who are abusing this power. It does need to be undercut.
I would like to talk about is privacy and stigmatization of young people and the relationship between publication of records and giving records to other people in authority and rehabilitation for young people.
We can all understand how difficult it would be to have our picture or name on the evening news for an offence that we have committed. It is not a good thing. There are people who would argue that that is a natural consequence of committing a criminal act. There is another group of us who would argue that it is not a natural consequence because young people are more vulnerable and are entitled to greater protections.
I am happy with the parts of the bill that say that the name cannot be published. I am unhappy with the parts that say that this is the exception. I do not see why there should be an exception.
The main thing that I want to talk about today is school boards. I understand that you have heard from the educators. They have come to talk to you.
I have dealt often with educators. I have to the Canadian School Boards Association meetings two years in a row. I spoke to administrators, school board trustees and other such people. They were looking for was more information.
I was delivering workshops among them and talking about how children and child welfare care are not doing well in the school system and the reasons for that. They said that they need more information. I asked what that had to do with anything. They also said that they need the power to determine the education tax levels. Again, I asked what does that have to do with how children in foster care do in the school system?
I do not think that it has anything to do with it. I can assure you that the educators will always want more information and will always want more control over taxes and their revenues. However, that does not have a lot to do with what I was talking about at their conferences or with this bill.
They will use that information this ways that are quite contrary to the spirit of this bill, I believe, because that is what they do with information about kids in foster care. They use it to stigmatize, to label, to blame, to scapegoat and to deny admission into a school in the first place. It is disgusting.
There are many allegations from young people in foster care that teachers discriminate against them. It would be nearly impossible to prove whether that is the case. I would suggest that there is a significant amount of concern about one group of vulnerable children. We should be concerned about arming the same group of professionals with more information about another group that really needs a second chance.
I would suggest to you that there is no risk presented by failing to provide that information to the school boards. If you take a look at all of these freak shootings, I wonder if any of them had a youth court record. My guess would be no. Presence or absence of a youth court record will not determine whether a young person will commit a dangerous offence in the school.
I look forward to your questions.
Ms Cherry Kingsley, Save the Children: Thank you for inviting me to come here and present information.
I will not talk about specific clauses of the bill. I want to talk about the young people with whom I work and some of their concerns with the bill and the system.
Recently, we did a cross-Canada consultation with young people in preparation for the UN Special Session on Children. Young people in Canada are most concerned about issues such as poverty, addiction, homelessness, and violence, abuse and exploitation perpetrated against children.
If you look at the histories and backgrounds of the young people incarcerated or involved in the young offender system, you will find that those issues are in many of the young people's background - things like poverty, addiction and abuse.
On the one hand, young people are asking their country, their government and their community leaders for help with some of these issues. On the other hand, you will find that the young people in the justice system have those issues in their background.
The young people that I specifically work with are street involved. They are in the sex trade. Many of them are homeless and have long histories of violence and abuse in their life. These young people are concerned because they are typically criminalized.
The criminal system is usually the only place in which they find any intervention. For example, 1,100 requests came out of Vancouver for treatment for addiction and detoxification. Vancouver, because of the resources, could meet 200 of those requests. That means that 900 children facing addiction are asking for help, and they are not getting it. Some of them are dying, and others are being criminalized.
We must really decide as a country if that is where we want to put all of our resources for children. Do we want our only intervention to happen through courts and through custody centres?
Many police officers say that they must intervene. They have to use the law because they want to save that young person's life. Providing treatment would cost less and will be more effective.
I will never understand why we criminalize young people in the sex trade. I do not know why in the Criminal Code says that you cannot purchase young people for sex, but on the other hand, we criminalize them. Again, police will often say that they use the law because they are trying to save people's lives.
Young people are begging for housing, begging for exit programs, and we have no exit programs in Canada. It astounds me. The public perception is that there is a vast array of services and that young people are refusing all of them. That is not the case. We do not have services for young people in the sex trade.
We must look at the activities for which young people are criminalized. They are exploited the in the drug trade. The drug trade is a multi-billion dollar industry, typically at the street level and built on children's backs. The drug trade flourishes with children in communities that are impoverished and besieged by exploitation.
Children are not the ones living it up or profiting. There are many motivations to bring children into the drug trade or sex trade. Typically, it is just an extension of the violence, abuse and exploitation that they are already facing in their lives.
Most young people are concerned that although there are principles laid out in the youth justice renewal bill, they still feel like they will be further punished, criminalized, and institutionalized for things over which they have no control. At the same time, they are asking for help.
Where governments and custody centres cannot criminalize in an above-board way, we are building things called "secure care" and taking away all of their basic human rights. B.C., Alberta and Ontario are at various stages of developing secure care. Those centres allow for forced medical examinations and treatment. They limit the contact that young people can have with families and community leaders. It is not required that the children have any legal representation or even hearings for several days after being apprehended.
As well, the assessment is based on appearance and the hour to which they stay out at night. That is how people make these assessments about who is apprehended. It is gender-based, meaning that although the law allows for people who buy children to be apprehended and arrested, and even boys who are being sexually exploited to be apprehended, typically the law is focussed on the girls and what they look like, how they are dressed and where they are at night.
The other thing that young people said is that sometimes they are abused or addicted and they are begging for services. They are then put into custody, and there is an assumption that assault or rape or abuse is part of their sentence. Sometimes they will be abused while in custody either by other young people or by the staff. It is just assumed that that is part of the sentence, to deal with violence and abuse in a custody setting.
We share many of the concerns that Ms Finlay and Mr. Geigen-Miller mentioned. I did not put together a paper, but I will get one to you for distribution.
We are asking for tangible services for young people who are vulnerable. We know there is enough information about who in our society is vulnerable, and yet we are not addressing any of their needs.
I would ask that when you are negotiating with provinces and when you are looking at implementing this bill, although it says so in the principles, there must be some way to monitor children to ensure that, if we punish children for the crimes they commit, we protect them also.
I was thinking about the Persons Case and how years ago women were subject to the pains and penalties but not the rights and privileges. That is often the state of children in Canada: subject to the pains and penalties but not the rights and privileges. I ask that we try to address that.
The Chairman: I can assure you that although this committee in the Senate has nothing to do with implementing a law, there are representatives of the Department of Justice sitting in this room. I am sure they have been taking notes.
Ms Jaremko: Madam Chair, I apologize, I must leave to be at a meeting this afternoon in Kingston. Thank you very much for your time. My colleagues will take questions from you.
Senator Beaudoin: I have one general question. We have signed the treaty on the United Nations Convention on the Rights of the Child. We recognize in our country that young persons have rights and freedoms. This is stated in the preamble. Of course, I agree with that.
However, that is not good enough, obviously. What I would have preferred is an act to give effect to the United Nations Convention on the Rights of the Child. This is what we need in this country. I raised that matter before the Department of Justice and I will return to it later.
If there is no such act, the treaty does not become the law of the land. It is time that we understand that. It does not become the law of the land until it is implemented in a statute passed by the Parliament of Canada.
I am in favour of the convention; obviously, we are all in favour of it. I hear you with great interest. My impression is that you are not very satisfied that Bill C-7 gives effect to the treaty. This is my concern. It is my only concern.
I wish to know if you think this piece of legislation gives effect to the treaty that we have signed and that we are obliged to implement? After all, if we sign a treaty, we have the obligation to put it into force, because otherwise it is not useful. It is not the law at the federal level. It is not the law at the provincial level. This team is both federal and provincial. We must take that into account: federal, criminal law; provincial, family law.
Are you satisfied that we give effect to the convention? My impression is that you are not.
Ms Kingsley: I agree. It frustrates me that children sometimes have more rights and opportunities once they are in custody than prior to being in custody. That is really scary. I hear young people trying to get into custody just so that they can eat and have a place to live, and so that they can access basic human rights and services. That is frightening.
I have even known of young people getting sick so that health care will pick them up. They get AIDS or hepatitis just to get housing, because they have nothing. I do not think we acknowledge the plight of some of the children in our country: That around us children are being horribly abused, bought, sold and exploited. There is nothing there for them, no way to get help except through the custody system. We must talk about that at some point.
Mr. Paiement: Senator Pearson is a strong advocate of the Canadian Coalition on the Rights of Children. One of their objectives is to educate youth on conventions. Like most non-profit organizations, the real difficulty faced by that organization is serious cut-backs in terms of budgets.
Again, public education is paramount in terms of educating youth, in a language that is clear and specific to them. The best way to do that is by supporting youth organizations that work with youth and care, that work with youth in general - including mainstream youth - and give them the resources to reach out to youth. They know youth the best and they know their clientele. That is my only point.
Mr. Farthing: With regard to the provisions in this new criminal justice bill allowing for young people to be tried as adults at the age of 14, there are already young people under the age of 18 in the penitentiary system in Canada. It is a small number. If that number increases, I think it would infringe on the rights of young people in Canada to be tried as youth. My stance is that there be further analysis. I am sure the Department of Justice has strong arguments for why the legislation is proposed the way it is. Our gut instincts and our discussions with young people say that so many rights are already being infringed upon.
I will share with you a story. Several months ago I was training in a provincial correctional facility with Aboriginal young people. We started off the training on a very bad footing because one of the inmates spent the long weekend in what he called the "digger" - solitary confinement. We had to resolve this issue somewhat before we could even get to the training. By the time we finished, we had spent a lot of time talking about how to break the cycle of anger and how to deal with anger and conflict.
The consensus of those young people, moving out of that training, was that they could apply what we were sharing with them in the context of their relationships outside of the institution but not within it. If we are rehabilitating these young people, and if we are trying to give them the tools to succeed on the outside, not on the inside, my question is: Why are there so many barriers to them practising this in the institutions themselves?
There is much research to show that it has to do with the institutions, the system and the structure. Possibly it has to do with the macho attitude needed to protect the inmates. I do not completely understand it. It raised many questions and concerns, and it validated the fact that there are so many human rights violations. We need something to really enforce this and we need to give all groups, whether non-profit or governmental or other, to truly protect children.
Dr. Parker-Loewen: I wish to respond to the senator's question. Canada fails to meet its commitments on the UNCRC in many areas. The youth criminal justice process is one specific part of that. As an organization of children's advocates, we have a grave concern about that. As a nation, we need to have something in place federally where the issues of the UNCRC can be addressed in a comprehensive manner.
We know that there has been a proposal put forth for a commissioner for Canada's children. We now have eight children's advocates provincially, however we still need something at a federal level. We would clearly support that - a commissioner or some kind of a body that could do this.
If we do not get the UNCRC into our domestic law, we still need a voice somewhere, so that the concerns of the UNCRC and other commitments that Canada has made to our nation's children can be addressed. It needs to be one that is very inclusive of young people themselves in the process, or in that body.
I agree with you completely that we do not have such a body in Canada, and it is an urgent issue for us. We are just giving lip service to the UNCRC if we do not put some meat behind it somewhere.
Senator Andreychuk: Picking up on that point, it seems there is a significant amount of education that needs to be done with lawyers, judges and the community at large to understand that ratifying a convention in Canada does not put it into our law. If we went across Canada to ask, after a federal government signs and ratifies a UN convention, we would find that there is a presumption on the part of Canadians that it has become part of our law, and yet it has not.
Until we bridge that gap, we will not be adhering to our commitments. The confusion stems partly because we hear so much about the Americans not ratifying, and then we talk about that and how we have ratified. However, when the Americans ratify, it is their national law; when we ratify, it is not our national law. It is time that we come clean on that and find a way to deliver what we claim internationally we will do. That is my point to the two advocates here.
Does this bill support more than the Young Offenders Act did? It has some fine new items that, in my opinion, clarify points and encourage more. However, when the Young Offenders Act was enacted, it was the same Department of Justice - perhaps different ministers - who said the Young Offenders Act would use custody as a last resort, not a first resort. Yet, I have heard around the table that there is a paucity of resources, and therefore, we seem to grab on to the court as a way of getting those resources.
Does the bill stand to have the same fate as the Young Offenders Act, if something is not done for the resource issue, as opposed to the framework, the mechanisms and the criminal process?
Ms Finlay: There is discretionary authority on the part of the provinces. The provinces, according to political will or availability of resources, will make determinations about the kind of care kids receive within the criminal justice system. In some provinces, because of their political agenda and because of the lack of community-based resources, kids are incarcerated. I am not talking only about Ontario, but I am talking about many provinces.
Resources are dwindling in the area of children's mental health or child welfare, but the numbers in need are increasing dramatically. We are seeing the nature of the problems that our youth are facing these days; neuro-developmental, housing, poverty and family life issues have escalated the number of children with very special needs. It is exactly these young people that we find in our young offender system. That is exactly the system that is the least equipped to deal with them.
The introduction of this bill, although it does speak to this issue by saying we are not here to provide services to kids with very special needs for mental health issues, by default kids gravitate to that system and will continue to do so until we do something about the broader system and begin speaking with our partners.
Mr. Paiement: I echo the sentiments of Ms Finlay. The real flaw in the bill is that the provinces can opt out. That is an issue. As well, there are $200 million allocated under the youth criminal justice bill. In B.C. on the issue of mental health services and the special needs of vulnerable children, we can spend that easily in one Aboriginal community, for example. Again, pressure must be put on the National Crime Prevention Centre within the Department of Justice, which has been allocated further resources in the area of crime prevention.
We need to focus on existing services, and in particular on building the capacity of organizations such as the National Youth in Care Network, Save the Children and Advocacy Office to actually respond to the needs of children and youth, particularly those who are vulnerable.
For example, YouCAN has no core funding whatsoever. That is a serious issue for any new youth organization or any non-profit organization. Clearly, the government must assist us. We are willing to work in collaboration. For example, within the youth justice directorate, the definition in terms of the funding that we can apply for is very rare, unless we start-up, for example, an alternative measures program or an extra-judicial measures program. We need an organization with the capacity to deliver conflict resolution programs to youth. Without current funding, we are not able to address the need for conflict resolution programs at the community-based level.
Mr. Geigen-Miller: I will pick up the scraps now, but I do not want to repeat what anyone else has said. Everything everyone has said so far has been quite right. There is a relationship between provincial discretion and funding - these very short-sighted provincial governments would rather use jail and would rather opt out of the wonderful menu of extra-judicial sanctions. They do not want that. They want to go for the expensive custody stuff. If they were required to implement the extra-judicial sanctions that will keep young people who do not need to be in jail, out of jail, then perhaps we could re-direct some of those resources for the young people who are nevertheless going to enter the custody system. Of course, in general, there is a great need for services in the area of child welfare and various supports for at-risk families.
Certainly, within this piece of legislation, it would free up resources to take some of the provincial discretion out of the extra-judicial sanctions. They will spend less on custody, which will allow them to devote more dollars per person to ensure that people actually receive meaningful services and programs.
Ms Kingsley: Although the principle may be to try to keep more young people out of the justice system, there are three things that are challenging that principle. First, we are cutting services across this country, not just children's services, but also the services to vulnerable families. We are cutting services, programs and funding. We are making it very punitive, with Ontario demanding that individuals take literacy tests and drug tests. That is just one example. There are many situations where we are making services to vulnerable families and their children a kind of punitive, shameful system for people to access.
The second thing is attitude. People have an attitude that rights do not exist for children. I listened to a debate on public radio on hitting children. I was shocked. I could not believe it. It was not whether you should hit children, but how you should hit them. There was a church group discussing whether to hit children with sticks or belts on bare skin or over clothing. I could not understand that this debate was on public radio. To me, it seemed like a hate crime.
There was no other population that would be allowed to have that kind of debate. If you were discussing native people or women in that context, it would be a hate crime. You cannot talk like that on public radio to incite violence against people.
Children are the most vulnerable. People's attitudes are shocking.
When young people challenged the secure care legislation in Alberta, a member of the legislative assembly, because it was a charter challenge, said, "To hell with the charter." That is a member of a legislative assembly who is supposed to ensure that the Charter exists in this country. They are saying to hell with the charter when it comes to children.
There is a serious attitude issue in Canada that will undermine some of the basic principles of the Justice Act.
The third thing that will undermine the principle is for what we criminalize children. We make up bizarre laws such as outlawing squeegee kids in Ontario. In Victoria, they made a law outlawing bongo drums. Kids were playing bongo drums on the streets, so they outlawed it. Are we going to criminalize children for playing bongo drums and for using squeegees? Are we going to criminalize children for being exploited and abused? Those are the three things that will undermine the principles of the bill.
Senator Pearson: I would like to make one comment because I really appreciate this presentation this morning. Today is October 18, which is Persons Day. Last year, Ms Kingsley was one of the winners of the Persons Award. I would like that to be acknowledged.
Hon. Senators: Hear, hear!
Senator Pearson: My question is for Mr. Geigen-Miller. I want to return to the issue of exchange of information and confidentiality. I feel very strongly that we should not be opening that up. You are suggesting that we might go the other direction and close it even more. You are suggesting that it become more difficult to share information about young people.
Could you expand more on the experience that you have heard from young people in care and also about what happens to them when the information is shared? Are they ever consulted?
Mr. Geigen-Miller: Generally speaking, information sharing between professionals can happen behind closed doors. Provincial mental health acts, for example, generally require consent to share information for the provision of mental health services.
Let me give you as an example of information sharing that might happen between a teacher and a social worker in the child welfare system or between a foster parent and the child welfare system. It might be very informal. There might be discussion about different things. Whenever information is shared between helping professionals, the entire orientation of that discussion will be clinical and pathological in nature. They will be talking about problems and how they should be solved. Labels can be attached to a child and treatment can be imposed to fix that. All of this is in the absence of the person in question. This is not an empowering experience. This is decided behind closed door. It applies to kids with behaviour problems and need special education programs. They may have Attention Deficiency Disorder and some medication would suit them. There are many discussions that happen behind closed doors.
Officially, the young person must be consulted during the decision process. Unofficially, the decisions are already made before someone speaks to the young person. The helping professionals know what they want to do. They have their agendas, and they are not necessarily in line with the wishes of the young person or in the best interests of the young person.
Stigma and discrimination are also at issue. I do not understand why teachers, who we would like to have nice, healthy, positive social interactions with these young people, should be automatically provided with this kind of information. That will not necessarily happen, but it is a possibility under the present legislation. The teachers could be given a dossier of the children in their classrooms who are criminals. This bill does not prohibit that action; it makes it possible. What will we have then?
This inhibits a young person's opportunity to establish a good, solid relationship with that teacher and to make a good impression on them based on who they are now, not based on what they have done in the past. We know from all of the literature and have from the voices of young people that the most important protective factor is a close, caring, effective, supportive relationship with an adult who is in a positive position. For many young people who do not necessarily have the support of family or do not have other people around for them, that might be a teacher.
These young people need to have every opportunity to have that relationship. If they choose to disclose that information on their own, it would do no harm. However, it is absolutely necessary for young people to have a chance to make an impression on their own.
There is also the issue that school boards use this information to bar admission to a specific school or to a school board, which is totally contrary to our CRC commitment to provide children with an education. It also makes it difficult for the young person who may have a probation provision that requires they attend school. However, they cannot go to school because the YCJA tells the school board that the youth has a record.
How is that working in the best interests of the young person? The young person is bounced from place to place, and everyone is pointing the finger at someone else.
There is a feedback loop in the legislation. Those are a few of the problems that I would see.
Ms Finlay: My experience with kids who are incarcerated is that the schools expel these kids under the legislation that we now have in the Province of Ontario, the Safe Schools Act. When the kids have done their period of incarceration and we are trying to negotiate them back into their schools, it is hard for them to get there. If the schools are also provided with information about the kind of offences that brought them into the young offender system, they certainly will be excluded from the schools.
We try to get them into other schools instead of the ones they attended previously. The word has spread from school to school. It is on the youth's school record about their offence or their behaviour. We cannot even get them into alternative schools because of that.
The bill proposes to share this information with schools. It is prohibited now, and this information is being leaked to them. It already creates a situation where kids are not freely able to choose the best school placement. This bill would create further stigma for kids and further difficulty to get the education that they need.
Dr. Parker-Loewen: I wish to add to that. We know that many of the children who come into a custody facility have not attended school. In Saskatchewan, children have not been to school for about two years prior to entering into the youth criminal justice system.
The bill provides for many alternative options. There is an onus on the school systems to identify children who are not attending school much earlier and to support and assist those young people in some way before they become that involved in the youth criminal justice system.
These children have either dropped out of school or been disinvited from school in some manner long before they enter into the criminal justice system. We have many opportunities to intervene much earlier.
The issues of confidentiality are one part of it. The other part of it, for me, is that we know that these kids are not going to school. They are getting into trouble with the law partly because they are not in school. The school system has some responsibility - which they typically do not take - to identify those kids and welcome them back into the school system in some manner.
I do not think it is appropriate for children, especially children under the age of 16, to be suspended or expelled from school. In many jurisdictions, they are being suspended from school repeatedly. They may not be formally expelled but after being suspended from school a number of times, they can begin to feel kind of hopeless. We have unexplored opportunities to intervene around school systems. This act does give some opening into that, but I do not think we should not be looking at a justice response to what is essentially a social problem.
Senator Nolin: My questions are on clause 25. I was glad to read that the Commission des droits de la personne et des droits de la jeunesse de Québec is a member of your association.
You raise the question of reimbursing legal fees. The Quebec bar raised the same concern. You have studied clause 25. In reading about the access to legal aid and the special right given to youth - the justice can direct the province to provide access to counsel - what is your position on the fact that access to legal aid and to that special right given to youth is not given for clause 25(2), which deals with access at the time of the arrest in front of the officer?
The Chairman: It says, "advised without delay."
Senator Nolin: They are to be advised without delay about the right, but the access to Legal Aid is given only before a tribunal or the like. I wish to hear your comment on that.
Mr. Paiement: I am not familiar with clause 25(2). Please give me a minute.
The Chairman: Clause 25(2) states:
Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel.
Senator Nolin: To ensure that you understand my concern, clauses 25(4), (5) and (6) refer to Legal Aid and the special right to be provided with counsel by the province. Those subclauses are not applicable to clause 25(2). They are only applicable to clause 25(3).
Dr. Parker-Loewen: I did not understand that to be the case. I thought the right to counsel was broader.
Senator Nolin: The right to counsel is universal and it is stated in clause 25(1).
In clause 25(2), it is compulsory for the police officer to advise the young person of the right to counsel. Clause 25(3) is more elaborate, laying out the entire process in front of a justice and the rights to counsel during hearings. Clause 25(4) deals with Legal Aid; it is available in front of a justice but not with an officer.
Dr. Parker-Loewen: If that were the case, as advocates we would think that the young person should indeed have counsel in front of the police, too. They need to be advised of that and that they should have counsel. If there is a problem in the way the legislation is interpreted, that should be sorted out.
I have a real concern in clause 25 that the parents could be asked to pay.
Senator Nolin: I, too have a problem with that.
Dr. Parker-Loewen: There is a huge conflict there. We know that for many of these young people, their legal parent is the government because they are in the child welfare system. They may be in a conflict with their legal guardian or their natural parent. That is a huge concern. It must be a major violation of the child's right to advice and counsel independent of their parent. How is it that the parent should pay for that? I do not understand.
These young people are typically in some kind of conflict, particularly where the legal parent is the government. Ontario figures say 57 per cent are in that situation, and that is not uncommon across Canada.
Mr. Paiement: Again, this is a very complex piece of legislation. I cannot address your question, to be frank. We are concerned about the potential of forcing parents to pay for legal counsel. That concern is in our brief.
Senator Nolin: Do you wish to consult with Ms Jaremko and write to us later?
Mr. Paiement: We would be more than happy to do that.
The Chairman: Has the Supreme Court not said that everyone, young, old or in between, must be provided with counsel when they are arrested? It would not then be necessary in the bill.
Senator Nolin: They must be advised that they have a right to counsel. Clause 25(1) is perfectly in line with the jurisprudence. The other subclauses cause a problem.
I would like to see paragraph 25(4) make reference to both clauses 25(3) and 25(2). That is why I asked the question.
Senator Moore: Mr. Geigen-Miller, you commented on your work on the "cycle of custody" and the breaching of custody probation provisions. If a young person violates his or her home curfew by five or ten minutes, that can be deemed a violation of probation and they may be put back in jail.
What do you think should happen? I know you do not want the incarceration. Should the same treatment happen on the first or second violation of probation? What do you think is the proper way to handle such situations?
Mr. Geigen-Miller: I do not wish to be overly sensational here. There are not many people in Canada serving hard time for being five minutes late for their curfew. I did use the curfew as an example because it is a very common condition that is in probation orders.
Yours is an important question. I begin my argument with the premise that we are dealing with adolescents where a certain amount of risk-taking or non-compliant behaviour is normal and should not be dealt with in a criminal way whatsoever. Even if they have been previously been convicted of an offence and put on probation, that is still the case. That does not stop them from being an adolescent - or from being human for that matter.
I articulated this argument in the discussion paper prepared for the Department of Justice on reintegration planning. A significant reduction in the magnitude and the volume of offending behaviour is a more important goal than absolute cessation of offending behaviour, which is not necessarily a realistic goal at all.
I spoke to one youth in jail who said he learned his lesson and that he would never do crime again. I asked, "Never?" He answered, "Well, I am going to sell weed."
I said, "That is trafficking drugs. What are you talking about?"
Well, he was in for armed robbery, having fired a gun at someone. He did not actually shoot the person. What he was saying was, "I am not going to have anything to do with a gangs any more. I am not going to have anything to do with firing weapons. I need to make a living so I will probably do what I know how to do."
However, this is a significant reduction in the quality and quantity of offending. I think we need to begin with the premise that that is reasonable. We should not be coming at this with a very rigid, crime-and-punishment approach.
There are many ways to deal with this. All of the sanctions that are available under the proposed Youth Criminal Justice Act, other than custody, could be applied. Most importantly, probation officers - and many probation officers should be given credit for doing this already - could investigate the situation instead of charging someone, to see whether something could be done for the young person and to find out why he or she is doing what they are doing. That personal contact and intervention by the probation officer is most important. If a charge is necessary, there is a whole range of sanctions that are available other than custody.
Mr. Paiement: My experience in terms of working in open and closed custody facilities early on in my career is that it is pretty common for a youth who has been charged with an offence to be breached on a fairly frequent basis. For example, when I had three or four youths under my custody, it was quite common to meet with the probation officer on a frequent basis, probably once a month. I would mention to the probation officer that this youth was half an hour late, which is quite common for any youth. The problem is that some - and I emphasize some - probation officers look at that breach as a first alternative. I think Mr. Geigen-Miller is right that we must look at breaching as a last alternative and look at other alternatives for youth.
When a youth is charged with a new offence, the more breaches of probation he or she has, the more likely it is that that youth will be serving some form of custody. As the breaches increase, the judge will look at this and say, "There is a consistent behaviour with regard to the youth breaching probation," et cetera. The more breaches the youth has, the more likely that youth will be serving some form of custody. I agree with Mr. Geigen-Miller in terms of looking at other alternatives rather than breaching the youths.
Mr. Farthing: Just on this note, I was asked to talk to probation officers with the Ontario government about two years ago. I was on a panel discussing restorative justice for the first time. I just want to throw that out there. In my work in the field of restorative justice, I have seen amazing things happen where, instead of zero tolerance policies in schools or communities, young people are given the chance and support to talk about what happened, and the community comes up with an appropriate sentence or sanction on that young person. We had an experience of this at our last conference. A young person went off. Our conference has a very strict rule that the young people must do what they are supposed to do. We did a circle. It was amazing to see. We say very clearly in our literature that if a youth breaks any rules at any of our conferences or events, he or she is shipped home at the expense of their parents. It is clean cut. Ms Kelly and other board members were involved in the process. We came up with a solution that I think made everyone happy.
In this case, the proposed Youth Criminal Justice Act provides that restorative justice means may be promoted, but they should be there and provinces can opt in or opt out. We must look at other systems, such as the probation and correctional systems, and consider restorative justice approaches for dealing with conflicts such as people coming in too late. I think we can come up with better solutions than saying, "Okay, let us charge them with a breach."
Ms Kingsley: Some of the young people that I work with who are charged and then are given probationary orders are not given the resources to meet the stipulations in probation. They might be required to see a drug counsellor once a week or they must reside in a certain place or with their parents. Sometimes they do not have the bus fare to get to their meetings. Some of them have children, or go to school, or do not have a school in their neighbourhood that will allow them in. Sometimes they do not have the resources or circumstances to fulfil the orders that they are given. That must be taken into account.
If you order a young person to reside with a parent who drinks and hits them, there will probably come a time when he or she cannot fulfil that order. If you tell a young person to go to certain meetings and he or she has no way to get to those meetings, or to be in school but the school is not safe or will not accept him or her, the order cannot be fulfilled. There are all these different circumstances in a young person's life.
A young person may not be able to articulate a problem to the probation officer because sometimes it is an adversarial relationship. He or she may not be able to disclose all of the difficulties in their life.
Look at the relationship that young people have with the young offender system: all those predisposition reports that were supposed to help young people find appropriate sentencing actually worked against them. So that young people were more likely to be incarcerated when they did not have parents who showed up for court or if they were in care or had histories of addiction or mental health issues. Therefore, young people over time have learned that they cannot be honest and have honest disclosure in courts and with probation officers because the different issues and vulnerabilities in their lives will actually be used against them.
We must think about what we expect of young people and whether they have the resources to fulfil those expectations. Are we putting them at risk by telling them, "You have to reside here" or "You have to go to this counsellor"? Is it working for them or in some cases putting them at further risk?
Senator Joyal: I have a preoccupation that I have expressed in other places about this bill, which is essentially the following. We put the young person into an adult situation, or we assimilate or equate the young person with an adult in certain circumstances described in the bill. In fact, we put an additional onus on that young person because that young person does not have the capacity of an adult to defend himself or herself. I take the extreme example of when we jail a young offender in an adult prison. We know it happens. I think you can testify to examples. In fact, we create an additional burden on that person to try to defend himself or herself in a system where he or she is not equipped because he or she is not an adult.
What concerns me more is that clause 61, as you pointed out, allows the lieutenant governor-in-council of a province to opt in at age 14. You have pointed out clearly that in some provinces there is a political agenda, and I will not name any province, to be fair to everyone. In some provinces the political agenda is, "Let us hit them hard because they are really a threat."
My main concern is with the philosophical structure of this bill. I do not have a problem with the entire bill. It does contain some very good provisions and you have been balanced in saying that.
Yet I cannot reconcile this clause with the fundamental objective of a youth justice system, as I think we must understand it, as it relates to the United Nations' Convention on the Rights of the Child and all the other commitments that Canada promotes. Can you comment on that? Am I right on this? How would you illustrate that in practical examples from your own experience?
Ms Kingsley: You mentioned so many different things. Certainly, young people are put in situations where they cannot possibly defend themselves and where you know ahead of time that they will be hurt in many different ways. I do not know how people reconcile that; it is just not appropriate. There are no circumstances where it is appropriate. I spoke with the prisoner advocacy officer at Corrections Canada, and he told me that he cannot bear to see children in those circumstances - children being hurt. People know that it will happen - if children go to an adult facilities, they will be hurt many times throughout their stay. I do not know how we can reconcile that.
However, there is the public perception that that is what they deserve. We do not have to mention specific provinces, but there is a perception that young people deserve such treatment and that they do not deserve mercy or opportunity or services. There is a kind of law and order justice mentality that has little to do with real justice.
We are not talking about social justice, and we are not even necessarily talking about a broader sense of criminal justice. We are talking about punishment and retribution and vengeance. There is a perception that young people have too many rights; that they get away with everything; that there are too many services for them; and that we have to start getting tough with our young people. That has nothing to do with the realities of children in Canada, which most people do not recognize. Certainly, the politicians do not promote those realities.
Mr. Geigen-Miller: It is interesting. I hail from Ontario, which is somewhat of a warning sign for what could happen in other provinces if they are given a significant amount of discretion. Ontario had to be taken to court to implement alternative measures. Ontario is a province that still treats 16- and 17-year-olds only minimally as young offenders. They only technically hold them separate and apart from adults. In some cases, they are in the same facilities and subject to the same procedures and regulations under the same ministry. For 16- and 17-year-olds we have Phase 1 and 2 Division, which I am sure you have heard about from different people. Thus, we see what can happen when provinces get carried away with this.
You spoke about shifting the onus. We know that the provisions around presumptive offences, a person charged with a presumptive offence and found guilty, shift the onus to the young person to show why they should not be sentenced as an adult. Another way of saying that is, the onus will be shifted to the young person to show why they should be treated as a young person.
Here is my case to support why they should be treated as a young person. Treating them as an adult has absolutely nothing to do with the objectives of this legislation. It has nothing to do with the prevention of crime. It has nothing to do with meaningful consequences, because meaningful consequences can be achieved through a youth sentence. It has absolutely nothing to do with rehabilitation and reintegration. It has nothing to do with restoring public confidence in youth justice legislation.
If we look at the house committee report, "Renewing Youth Justice," we see that one of the big issues is the public confidence problem when it comes to the legislation. The problem is not because the Young Offenders Act was not tough enough, but rather the problem is that the Young Offenders Act was misunderstood. There is a lack of public confidence because the public - 66 per cent of the population according to some criminological studies - was relying on the media. If you look at mainstream newspapers and evening news, content analysis studies of those two media have shown that 90 per cent of what they write about young people is violent youth crime - getting away with murder and cannot be named under the act.
It is quite clear what the problem is and what must be done to restore public confidence. I tell you that presumptive offences, or adult sentences in general, accomplish absolutely nothing when it comes to the objectives of this legislation.
Dr. Parker-Loewen: I wish to add to what Ms Kingsley and Mr. Geigen-Miller have said. I also have a concern that there will be differences from one province to another. This legislation permits discretion in each province. I do not understand how, when we live in Canada, a child in Saskatchewan or a child in British Columbia or a child in Nova Scotia would not believe that they would be treated similarly under the federal law. It just does not compute in my mind.
That is an issue raised by Ms Finlay in her remarks. I wish to reiterate that. If we are to have 14-year-olds treated one way and 15-year-olds treated a different way, in addition to the issues of the child defined as a person under age 18, we now have introduced another layer of possible discretion from province to province. It seems unfair to me. A child should believe that he or she will receive the same kind of fair and just treatment right across Canada.
Mr. Paiement: As a society, we have to recognize that custody should be used as a last resort. We should look at every other alternative means to assist the youth who come into conflict with the law. We have that basic philosophical understanding that custody will only be used as a last alternative. We would have a shift in the public agenda. I wish to re-emphasize that we need to re-educate the public and we could do a much better job. Once the public is informed of how our youth justice system works, there is less likelihood that they would demand harsher sanctions.
Ms Kelly: In my day job I work as a researcher where we do community correctional reports for male federal offenders. I have the pleasure of working with a number of offenders on life-line, who are on parole and who mentor offenders in the prison. Through my discussions with them, it is extremely clear that youth have no place in prison - they have no place incarcerated with adults. Any person you talk to in the system will clearly tell you that.
Many of them will say that anyone under age 25 should not be there. It is not a safe place to be and it is not a place for rehabilitation. It is not a suitable environment to teach them skills through programs in the institutions and to teach them to implement those skills when they leave. Putting them in a facility with people who have been in prison for over 10 years, is not conducive to learning how to implement those skills when they do leave. That is a real concern. We completely agree with you.
Senator Joyal: Do any of you have particular experience with Aboriginal young offenders and, if so, can you comment on their status versus the status of other young offenders?
Ms Kingsley: It has only been recently that Aboriginal young people in custody are able to access their family, community or culture. Even then it is quite limited. I visit some of the young people in the centres where we have talking circles. We know some of the historical issues that Aboriginal people are facing. Many of the young people only know it in an abstract way, even though it affects their lives, whether their parents were in residential schools or apprehended, or perhaps they have been apprehended. Some of the young people do not know what nation they are from and do not know who their families are.
There is a weird thing happening now where young people - Aboriginal youth - in the centres almost feel ghettoized when they are visibly Aboriginal because they are automatically transferred to native programming, if it exists. They are automatically placed in the program, even though they might not know their families or nations or even what regions they may have come from.
The point is that they are ghettoized throughout their systemic involvement. If they are visibly native, whether or not they identify with the culture, they are put there, and some of the services are substandard. For instance, I live in Vancouver, in the downtown east side at Main and Hastings, there are thousands of IV drug users near the courthouse. As far as native health, there is no culture there. You go to get condoms, needles, AIDS testing, hepatitis testing, pamphlets on STDs, but that is not cultural health.
At the Friendship Centre, that is where the stroll is. That is where the sex trade is. When myself and other women go stand outside for a smoke. Cars are always pulling over. Yet these people are mandated to be in these programs. They are sitting outside smoking, cars are pulling over and men are approaching them.
The Native Court Workers at Main and Hastings, right across the street at the courthouse, is not even a safe place to be, and we are sending young people there.
I am saying that in some cases with the native programming it is almost as if the pendulum has swung so far to where we must be culturally sensitive that we have actually ghettoized some of the young people without really providing culture. It is not like we are hanging out with our elders, learning our songs and language, building dream catchers. We are ghettoized.
Dr. Parker-Loewen: In my province of Saskatchewan, the majority of children incarcerated are Aboriginal children. Eighty per cent is a reasonable estimate. You cannot walk into a youth facility in Saskatchewan and see visible non-Aboriginal children very easily. Many of these children have come from remote, isolated areas. The closest facilities to where they live in northern Saskatchewan are hundreds of miles away.
Last week I spent the whole week in fly-in communities in the north where children from those communities are flown out to live and serve their secure and, in many cases, open custody time in facilities that are two and three-hour flights away, not drives. There is no road. They have never been out of their communities. They are terrified to go to a secure or even an open facility away from their own community. There may be problems in their communities, but these young people are terrified, and there is nothing for them.
In a youth court in one of these fly-in northern communities, I watched a young person 13 years old appear in front of the judge in cuffs and shackles. The defence lawyer interviewed the young person in the toilet - I saw this myself - with the sink, the toilet and two chairs, and that is where the defence lawyer was interviewing the accused prior to appearing in front of the judge. It is appalling. The issue of Aboriginal children is huge and this bill does not address it substantially, in my view, other than through some of the nuances.
In provinces like with remote and rural areas as in Saskatchewan - I spent a week in the Northwest Territories this summer - there are similar issues. I have had communications with these other provinces. These children are not being served appropriately or fairly. For example, they earn the opportunity for a temporary absence, but they cannot go home because there is no funding to allow them to fly. It costs $1,000 to fly to their community for a visit. No one is paying for their parents to come and visit them. We have had complaints in our office where parents have come to visit their children at great expense and difficulty and are denied the visit because they did not come at the right time.
We are not talking about systems that are particularly amenable to some of the complexities of First Nations and other Aboriginal peoples' lives. I cannot say enough about the need for standards of care and compassionate care, which you speak to in the legislation, but that needs to be implemented in a very clear and systematic way everywhere in Canada - particularly, for these children who are removed from their communities. Many of these children do not speak English. They speak Dene in these fly-in communities. They come to a southern community, and as Ms Kingsley said, there may be programming in the southern community, but it is not even from their own culture. In our province it might be Cree-based or Saulteaux based programming, but it may not necessarily be Dene programming.
I hope, as the legislation is implemented, that it becomes something that is very thoughtfully considered.
The Chairman: It sounds as if we should legislate a bit of common sense now and then.
Mr. Farthing: I wanted to take the kind of conflict resolution training that we do as an organization out of mainstream schools. I asked a couple of people who worked in the Ontario government to take some training into prisons and to start talking to violent offenders about how the application of these skills that we teach could work for them. With regard to the overrepresentation of Aboriginal people. I saw the statistics when I started going into correctional facilities across Ontario. It was incredible. My first trip was Thunder Bay. The second one was the Birch Correctional Facility outside Brantford. I was overwhelmed to be giving training to a group that was 95 per cent Aboriginal. There is a lot of trust building. The training went fairly well.
One of the things that came out of the work there, as well as Winnipeg and Regina, was that there are not enough resources for young people which deal with family violence, how to communicate and where to get resources. I am not speaking just about the Aboriginal community but all communities.
One of the things that I see, and it may not directly apply to this legislation, but federal government funding in Nova Scotia has taken out funding for family violence completely. In light of the healing and the journey that many people are going through to recover from abuse and the need to decrease crime and violence in Canada, it is important that we look as a country and take leadership with respect to the fact that there is a significant amount of abuse going on in our homes and communities - predominantly, Aboriginal communities - and we are not doing enough to give people the resources we need.
Mr. Kingsley: I agree. If we are to develop services or recognize Aboriginal children and their culture, we must be real about it, stop ghettoizing it and stop paying lip service to it. If we do it, we must provide resources and try to strengthen those connections with young people in their communities and their elders and families. We need to be serious and respectful about it. I see now that this is so ghettoized that it becomes this negative thing for young people as opposed to anything positive for them.
Senator Fraser: I have two questions for Mr. Geigen-Miller, and after he has answered, others may respond. On the publication of names, and I am not talking about communication with school boards, you referred briefly to the effects of the publication at large of the names of the young offenders. Could you expand on those effects?
Mr. Geigen-Miller: There are situations in Bill C-7 under which a young person's identity could be published, for instance, the imposition of an adult sentence. The House of Commons committee asked a similar question from a different perspective. A Reform member wanted to know about the heinous crimes and the need for denunciations and public shame. He was willing to stop short of whipping.
Myself and another young person who have been involved in the system before were there. We said that the entire issue of denunciation and shame are not a part of the criminal justice system. They have no role in the criminal justice system, and the system has no role in them. Shaming and denunciations happen in neighbourhoods, in families, on playgrounds, or wherever.
It is inappropriate for the state to play a role in that phenomenon. It is inappropriate to legislate it. It is impossible to legislate it away. There are natural consequences for all these things above and beyond the sanctions under the criminal law. You will damage relationships with family and friends, school and peers.
We should be content to leave it there. I do not think we should manufacture a role for the state in augmenting the denunciations, shame and stigmatization that already happens in families, communities or on schoolyards. I do not see a legitimate role for the government in that.
The media gives broad and frequent coverage to some of the more sensational crimes. We all read the newspapers. Could you imagine that if every time they said that an identity could not be given because of legislation, they gave the name? If that occurred, we would be seeing these people's names repeated over and over again. All the research shows that when that type of information is widely published, people have to run away and hide. They cannot go back and try to fix things. It has become a public problem that has become bigger than them.
There is no role for the government to play in exaggerating shame or denunciations. It is absolutely necessary, for reintegration and protection to society, to prohibit publication under any circumstances, except the one circumstance where it is for purposes of apprehending someone.
Senator Fraser: We have had it suggested to us that allowing publication in cases of severe offences by youth with adult sentences is an element of an open judicial system and an element of public information about the judicial system. By and large, our society believes that an open judicial system is ultimately a protection for the accused as well as for all of us.
We have also been told that victims and neighbours have a right to know who committed the crime, the sentence and the release date. A frequently used example is that people need to know so that they do not hire a young offender as a babysitter.
Could you comment on those two justifications?
Mr. Geigen-Miller: In terms of victims having the right to know, I do not see protecting the privacy of a young person as being in conflict with the entitlement of a victim to that kind of information. I am coming from the perspective of having been a perpetrator of crime, but also having been a victim of violent youth crime committed by other young offenders as well. I was involved with property crime, but we were all ripping each other off.
I fully support that the victim know the perpetrator. I am talking about publication in the mass media. Perhaps there are some victims or families of some victims who would like to see publication. Is that part of their right to know? No, it is not. I fully support a victim's right to have that kind of information and to have other certain kinds of information as set out in this bill.
We must draw the line at publication. That is when we are making it much bigger than the relationship between the victim and the offender and the offence.
In terms of the open judicial system, what would happen if newspapers, instead of writing that the young person cannot be named because of protection under the Young Offenders Act, wrote that anyone could go into a youth court proceeding anytime? It is public. What would happen then? No one knows that.
My suggestion is that the lack of confidence comes from misunderstanding, not because there is indeed a veil or a shroud around the system. The public needs to be educated. That was also a finding of the report of the standing committee in the House of Commons.
The Chairman: I thank our witnesses very much. This has been a most interesting morning. You have given us insight from a different point of view. We do appreciate it. Thank you very much for appearing before us.
Our next committee meeting will be next Tuesday at 5:00 p.m., even if Senate may then be sitting. We will have another series of panels appearing before us.
The committee adjourned.