Bill C-10 – Senate
Hearings, 2012 02 22
The focus of today’s hearings was on the youth offender’s
act and the changes proposed. In
addition there was a discussion of victims’ needs and rights in the context of
the youth justice system. There seem to
be several issues under discussion and witnesses provide information and points
of view to enlighten us on those issues.
1.
Senator Lang says that justice must not only be
done, it must be seen to be done. If
youth receive no consequences for their actions they are very likely to
reoffend until the point is brought home to them that crime does not pay. Victims see mandtory minimums for serious
crimes as providing a framework to give victims security against re-offense and
to ensure the sentence will be proportional to the seriousness of the
crime. They see them as an overdue
rebalancing of the system between punishment, security, and rehabilitation,
putting some stability into an out of control youth justice system. They give concrete solutions to a serious societal
problem.
2.
Lawyers have a problem with mandatory minimums
because they focus on the crime instead of the offender. A fundamental principle of sentencing in
Canada is that the focus of the sentence is the offender and the judge looks at
the whole picture surrounding that person in choosing the best sentence.
3.
Social workers and psychologists and
psychiatrists report that youth do not have a sufficiently developed moral and rational
capacity to benefit from mandatory minimum sentences. They do not develop their full capacity until
their early twenties. This deficit of
reason results in a lesser level of responsibility which requires a punishment
response to be mitigated with training, coaching, and supervision toward a more
socially acceptable set of behaviours. The
current version of the Youth Offenders Act has been designed to take this into
account.
4.
Only the judge has full access to all the
information needed to select a solution appropriate to the individual
person. The judges have all the tools they
need to raise a youth to adult court and give an adult sentence when they need
to. Witnesses testified that we have to
give second, third, fourth and even more chances. That if we put that child in jail we lose
them forever. We have to throw everything
other tool we have at the problem first before we resort to jail – unless the
young person is likely to get involved in serious violent crime. Some say mandatory minimums will put more
young people in jail, turning an underclass into “throw away people.”
5.
Some victim groups (but not all) advocate
putting them to work in jail, for wages, and garnishee the wages to give the
victim compensation. Apparently the old
Kingston prison farm is now a laundry service available for contract services.
6.
There was quite a discussion around the issue of
publishing a youth offender’s name.
7.
The need for proper victim services with a
reasonable national standard across Canada that is reciprocal between provinces
was very evident. A prisoner gets
rehabilitation and training and counseling.
A victim’s family may lose their breadwinner, a parent, their security,
their physical or mental health. They
also need income support, grief or shock counseling, and other supports. In some cases, whole communities are
affected.
8.
It is certainly questionable whether there are
enough counseling and rehabilitation supports for prisoners either. One has the impression there are very few
services in provincial remand centres where people often service their 3month
to 1 year sentences. There are certainly
not enough detox, rehabilitation addiction service centres available in
Canada. Big centres tend to have good
services (if not enough of them) but rural communities are not well served.
9.
The main debate is whether minimum sentences, whether
for drug trafficking or incest and sexual abuse actually would provide a
deterrent. The research does not support
it at all and many witnesses stood on that ground. Others relied on their common sense, their
gut psychology, and believed that they would be a deterrent. Two witnesses presented evidence that minimum
sentences do provide a deterrent. Both
criminologists who testified before the Senate agreed with mandatory minimums.
In Panel 5, Justice Merlin Nunn testified as an
individual. He conducted an important
inquiry into the functioning of the Young Offender’s Act in Nova Scotia,
instigated by a young offender who had 38 charges and still had not had a
hearing or done any jail time. He was
running wild (stealing cars and joy-riding) and the system seemed unable to
stop him. Justice Nunn knew nothing
about youth justice, but learned a lot.
He shared the history and his lessons with us.
The first Juvenile Delinquent Act was passed in 1908 and it
survived into the 1950’s. Kids were put
in jail. There was no rehab. There was lot’s of abuse. At your first offence you were put in
jail. In the second half of the 20th
century three events coincided: The
Passage of the United Nations Convention on the Rights of the Child, the
passage of the Canadian Charter of Rights, and the creation of the new Young
Offender’s Act. Canada was one of the
first to sign on to the UN Declaration.
The Charter of Rights recognized that children had rights. But by the late 1990’s, Canada had more youth
in custody than almost anywhere – more even than the USA. We moved to the Youth Criminal Justice Act –
an act designed to put almost nobody in jail.
If it was not a violent offense there was no chance of custody.
Problems arise in the system when the courts get
clogged. Listening to witnesses it
became clear to me that the primary problem is that court is too slow. A youth will fear going to court if it
happens within at least two (preferably one) week of the offence. The consequence is immediate. When there are months or even years of delay
then a youth believes they will always evade having to confront the
consequences of their actions.
The Judge heard much testimony that the system is good and
the system is working for 95% of youth offenders. He recommended that only for really high
flyers they have the capacity to put them in pre-trial detention to prevent any
further offenses. He wanted to open a
very small window without opening the floodgate. The judge also recommended that they put in
language around “Protection of Society” as a value, adding an extra
consideration besides the best interests of the child in sentencing
decisions. He also recommended that it
be stipulated that the changes were for “violent offences” and that language be
put in to describe what is a violent offence.”
I suddenly realized that most of the discussions I had been listening to
were offering opinions on the meaning of this language that was being inserted
– defining “the protection of society” and what offences would be included in
“violent offences.” The judge was
against all measures in the bill that focus on denunciation and deterrence (manadatory
minimums). He said he took seriously the
professional assessment that children do not have the same responsibility as
adults and that these kinds of sentences were not in the best interest of the
child. The UN Convention on the Rights
of the Child puts the best interest of the child at its centre and it provides
a standard that the amendments to Bill C-10 should meet.
An interesting aside.
Sentator Jaffer tried to get a copy of the Federal Assessment of C-10 in
the light of the United Nations Convention of the Rights of the Child. She has been told that it is a secret,
Cabinet document and will not be released.
One has to wonder whether the government is fully aware that C-10 does
not meet that standard and is deliberately opening itself to constitutional
challenges in order to force through mandatory minimum sentences anyway.
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