The Senate of Canada

Statement made by The Honourable Landon Pearson

Third Reading of the Youth Criminal Justice Act (Bill C-7) Tuesday, December 11, 2001

Honourable senators, I rise today to speak to you on third reading of Bill C-7. I wish to say up front that I believe in this bill. I am sponsoring it because I asked to, not because I was asked.

Honourable senators, I have been paying close attention to youth justice ever since we amended the Young Offenders Act (YOA) not long after I came to the Senate and first sat on the Standing Senate Committee on Legal and Constitutional Affairs. What I have seen are great variations across the country: the overuse of incarceration in most provinces and territories, disparities and unfairness in youth sentencing, too little attention paid to rehabilitation and reintegration, and a lack of respect for the system among youth, their families, victims and others.

To understand the system better, I engaged a young law student two summers ago to cross the country so that he could speak with young people in trouble with the law and gain their perspective. What he reported was discouraging. So it became even clearer to me that the youth justice as a whole was greatly in need of restructuring. Obviously, this was also clear to the Minister of Justice who had already set out to shape a new system more suited to the developmental needs of young people and the long-term security of society. I was privileged to have a small influence on this process by participating in several workshops organized by Justice Canada with youth as well as professionals around such topics as the role of sports and recreation in preventing crime among adolescents and the special challenges confronting aboriginal youth. C-7 is one piece of this process of renewal, an essential one, of course, but only one. Another piece is the federal funding that accompanies this bill and the changes in attitudes and behaviours that will be stimulated by its implementation.

Of course, Bill C-7 is no a perfect response to the complex difficulties of young people in trouble with the law and the legitimate concerns of society about them. We heard lots of criticism from the many witnesses who appeared before us.

Their views varied considerably although witnesses tended to agree on three points. First, there was general agreement on the principles of the Act. Secondly, most witnesses recognized the over-representation of aboriginal youth in the justice system and their special needs; and thirdly, there was affirmation, particularly on the part of witnesses from Quebec, that Quebec was doing a better job with the existing legislation than any other province. Beyond that the differences were many.

At this time, honourable senators, and before I describe how I think this bill improves on the YOA, I would like to correct an impression that may have mistakenly been left by Senator Nolin when he quoted me in his report stage speech. I would like to reassure my colleagues that I never intended to question the Senate`s role in the legislative process as subsequent remarks from the same transcript which he did not quote would show. On the contrary, I truly believe that our capacity to speak out on behalf of the voiceless and the powerless – our sober second thought – depends to some extent on the distance we are able to maintain from the immediacies of the electoral process. What I was trying to express that day, imperfectly I guess, was my concern on how to balance the reality presented to us by the elected ministers from the provinces who appeared before us with our own views of how young people should be treated. As a senator, I represent Ontario and although I disagree with every one of the 100 amendments put before us, I have to recognize that Senator Nolin speaks for a substantial proportion of Ontario`s population. Since the credibility of the youth justice system is essential for it to function well, we have to find, as Senator Carstairs said so eloquently last week, the right balance. This is exactly what, I believe, C-7 achieves.

In my view, the new legislative framework set out in Bill C-7 corrects the fundamental weaknesses of the existing legislation while building on its strengths. Let me now set out how some of the principal changes would make a real difference in the lives of young people.

Proportionality in Youth Justice
The failure of the majority of Canada's provinces and territories to limit the most serious interventions to the most serious offences, as well as the failure to find constructive options for the vast majority of less serious youth crime has led to our disturbingly high youth incarceration rates.

Currently if a 15-year old commits a minor theft, his or her likelihood of serious involvement in the youth justice system is high. The Canadian rate in 1998-99 for bringing youth into youth court is more than 40 per 1,000 of youths aged 12-17 or about one case for every 21 youth. In many countries, programs outside of the formal youth justice system are used to deal with less serious offences. These include police cautions or alternative programs involving restitution or reconciliation with the victim. Canada uses these options less than other countries and relies more on formal charges and procedures, which generally are not as effective as other, less formal options. Statistics show that, in our country, young accused can and do receive custodial sentences for minor thefts. Even when it is their first conviction, 8% of such offenders in Ontario and over 7% in Quebec were sentenced to custody. The damaging effects of custody for young people are well established. Statistics also show that youth sometimes receive a longer period in custody for minor theft than an adult placed in custody for the same offence. The reality is that under the current Young Offenders Act, a 15-year old accused of theft is likely to be treated more harshly than youth in other countries and more harshly than adults here in Canada.

Under the new Youth Criminal Justice Act, there would be statutory limits and principles to promote proportionality and limit the excessive use of the criminal law power against youth. Bill C-7 expressly provides that extrajudicial measures or non-court measures are presumed to be adequate to hold first-time, non-violent offenders accountable. Accordingly, under the legislation before us, it would be very exceptional that a first time property offender would proceed to youth court. Instead, he or she would be dealt with by a police warning, caution, referral or a program. These measures are themselves limited by being proportionate to the seriousness of the offence. More over, in addition to providing principles for sentencing that limit the intervention to a proportionate response, there are explicit statutory restrictions on the severity of the sentence. Notably, the sentence for a youth can not be more severe than that which an adult would receive for the same offence in similar circumstances.

Elimination of Transfers to Adult Court
The story of Maria shows very clearly the problems with transferring youth into the adult system for trial under the Young Offenders Act. Maria, of course, is a pseudonym, but the young person in question has told her story publicly several times, and I have met her on two such occasions, impressed by her courage in coming forward. Maria was 16 when charged with murder in relation to a shooting death. She was driving in a car with 6 other young people when one of them, a young man, shot another youth. After a long period of procedures and pretrial detention, she was transferred to the adult court prior to having been tried or convicted of an offence. It was presumed that her prospects for rehabilitation would be better in the adult stream given that the adult system had a Healing Lodge and other programs. Procedural protections, such as privacy rights, etc. that are part of the youth system are not available if the youth is tried as an adult. Maria's name was made public before she was even convicted of an offence. The charges were reduced to manslaughter and she received a one-year sentence of custody, a length of sentence that could have been imposed by the youth court. However, instead of being sent to the “Healing Lodge”, she was sent to the Saskatchewan Penitentiary, largely a maximum security federal prison for men. After her custody sentence, Maria was released to a halfway house for men. No one in this Chamber would consider this a fair way to treat anyone, let alone a young girl.

Bill C-7 does not allow for a youth to be tried in an adult court. It provides that all youth be tried in youth court under youth court rules that provide for age-appropriate protections, like privacy rights and rights to counsel.

The hearing on the appropriateness of an adult sentence will only occur after a finding of guilt and after all the evidence about the offence has been heard. While there is a presumption that an adult sentence should apply to those 14 and older for the most serious offences of murder, attempted murder, manslaughter, aggravated sexual assault and a pattern of repeated serious violent offences, this is not automatic and can be rebutted. And even in cases where the presumption does not apply, a Crown can apply to have an adult sentence given for any serious offence committed by someone 14 or older. The test for an adult sentence remains the same, whether it is sought by the Crown or triggered by statute. As has been the case since the 1908 Juvenile Delinquents Act, adult sentences can be applied to youth 14 or older in all provinces.

Under Bill C-7, the youth justice procedure for the most serious offences will be speedier, retain age-appropriate due process protections, and be more respectful of the presumption of innocence. The bill also includes a presumption that, if under eighteen, a youth will serve an adult sentence in a youth facility. This is more consistent with the spirit of the United Nations Convention on the Rights of the Child, which is expressly referenced in the preamble of the new legislation.

If Bill C-7 had been in place for Maria, she would have been tried in youth court and her privacy would have been protected during the proceedings. More over, the procedural delays associated with the transfer to adult court would have been avoided. Given that the charges were reduced to manslaughter and a sentence length within the range of youth sentences was imposed, Maria would not have received an adult sentence and been sent to the Saskatchewan penitentiary. More over, she might have had access to the new and federally-supported Intensive Rehabilitative Custody and Supervision sentence, a therapeutic regime to provide help, supervision and support to the most troubled and violent young offenders.

The Intensive Rehabilitative Custody and Supervision sentence is available to young people convicted of murder, attempted murder, manslaughter, aggravated sexual assault and repeat, serious violent offences. For a youth suffering from a mental or psychological disorder or an emotional disturbance, an individualized treatment plan would be developed; and if an appropriate program is available for which the young person is suitable, then the sentence would be given. Since it is an individualized treatment plan, it would be tailored to the needs of the individual youth and could include psychiatric assistance, counselling, peer support, programs for victims of sexual abuse, and so forth.

Rehabilitation and Reintegration
Not only would improved rehabilitative and reintegrative options be available to youth like Maria who have been convicted of serious offences, but they would be encouraged for all youth involved in the youth justice system. Rehabilitation and reintegration within the limits of proportionality are key objectives of the new legislation as reflected, in general and in particular, in the sentencing principles.

While youth may know that their behaviour is wrong, they may not fully understand the nature and consequences of their acts for themselves and others. FurtherRead More ..some young people lack the structure, guidance and support in their communities needed to change behaviour patterns and overcome damaging influences.

Many of the new provisions in the proposed Youth Criminal Justice Act allow for individualized interventions that instruct the youth. Police, Crowns and judges are given statutory authority to warn and caution young people that their behaviour is not acceptable and more serious consequences may follow if they repeat the behaviour. "Conferencing" is encouraged at many stages of the process, which could allow the young person to be a participant in a process with victims, family members and others to learn about the consequences of his or her behaviour and to develop ways to make amends.

The range of sentencing options has been expanded. In addition to sentences that allow the young person to attempt to repair some of the harm caused through restitution, compensation, community service orders, there are also new sentences that provide for close supervision and support in the community. Changing behaviour in the community is key to addressing youth crime. These sentences include attendance orders, intensive support and supervision orders, and deferred custody and supervision orders.

One of the key weaknesses of the current Young Offenders Act is the absence of mandatory reintegration support. This means that a 16- year old returning to the community after a period in custody may not have support, supervision and guidance for the critical transition back into the community. Particularly for the older youth, child welfare assistance may no longer be available for some of their most basic needs, like housing. Problems with schools, families, and peers may still be waiting for the youth when he or she returns to the community. At this critical time, the youth may be without support and encouragement to change behaviour patterns in the community.

The Young Offenders Act currently does not provide sufficient provisions for a safe, graduated reintegration into the community. The proposed law includes provisions to assist the young person's reintegration back into the community, which protects the public by guarding against further crime. It provides that periods of incarceration will be followed by periods of supervision in the community through custody and supervision orders. At the time of imposing the sentence, the judge will state in open court the portion of time that is to be served in custody, and the portion to be served in the community. Breaching conditions of community supervision could result in the youth being returned to custody.

Studies demonstrate that treatment is more effective if delivered in the community instead of in custody. The reintegration provisions encourage continuity between the custody and community portions of the sentence through increased reintegration planning, which takes into account the youth's needs throughout the whole sentence and through reintegration leaves for specific purposes of up to thirty days.

Before concluding, I would like to make a few remarks about the Convention on the Rights of the Child. I have been very impressed with the level of attention that the Standing Senate Committee on Legal and Constitutional Affairs has given to this important instrument, and moved by the eloquence with which some members, notably Senator Joyal, has discussed it in this Chamber. While I agree with Minister McLellan that Bill C-7 conforms with the standards set by the Convention (remembering always that Canada took a reservation on section 37C which requires the absolute separation of youth from adults except where it is not in the child`s best interest), I also agree with Senator Andreychuk that we should, at some time, consider implementing legislation for the Convention. However, slipping it into this bill by amendment is not the way to do it. To do so would lack full respect for the holistic nature of the Convention. Much better that we should have a full and open discussion of the Convention in both Houses of Parliament so that the awareness of both legislators and the public would be raised. That would require a separate piece of legislation and that is what, I hope, our new Human Rights Committee will propose, not only for the Convention on the Rights of the Child but also for other United Nation conventions and treaties as well. In the meantime, I prefer to support C-7 as it stands.

Conclusion
Honourable senators, youth crime is a complex phenomenon and we all know there is no absolute consensus on youth justice. On the other hand, there is little disagreement with the key tenants of this legislation - use the criminal law power with restraint; keep more youth out of the justice system and out of custody; limit the use of the criminal law power by what is a fair and proportionate response to the offence; improve and protect the rights of young people in the system; support and enhance rehabilitation and reintegration of young people; and provide for more exclusive justice that provides a voice for the accused, the victim, and others.

Moving ahead now with Bill C-7 will initiate changes that will make a real difference in the lives of young people. A 15-year old involved with a first time minor theft, will not be swept into the justice system, but will be held accountable in a proportionate and effective way outside the courts. Young people who commit serious offences will not be lost to adult trials and adult correctional regimes but will be provided with due process protections appropriate to their ages and, in some cases, provided with intensive rehabilitative regimes. All young people coming out of custody will not be left to cope with the difficult transition back to their communities on their own but will be supported and guided through effective reintegration plans and programs.

It is my considered view that the improvements in this legislation are clear and meaningful. Bill C-7 addresses fundamental weaknesses of the Young Offenders Act. It is a significant advance in our ongoing quest for justice for young people. I urge you to vote in favour of Bill C-7.