BRIEF TO THE

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

HOUSE OF COMMONS
40th Parliament, 4th Session

TITLE OF BILL

Bill C-4 Sébastien’s Law

An Act to Amend the Youth Criminal Justice Act and to Make Consequential and Related Amendments to Other Acts

Presented by the Canadian Criminal Justice Association

September 01,  2010

Background of Canadian Criminal Justice Association

The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Justice and Human Rights regarding Bill C-4, Sébastien’s Law:  An Act to Amend the Youth Criminal Justice Act and to Make Consequential and Related Amendments to Other Acts.

Indeed, our Association has some concerns regarding C-4. We outline them here and look forward to your questions and comments.

The CCJA is one of the longest serving non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this committee on numerous occasions. Our association consists of nearly 800 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, and the Justice Directory of Services. We also organize the “Canadian Congress on Criminal Justice” every two years.

History & Relevant Issues Pertaining to the Legislation

The CCJA fully recognizes and acknowledges the profound tragedy and loss individuals, families and communities suffer from violent crimes. The CCJA does not wish to use the diminishing crime rate nor the inert violent crime rate for inaction. The CCJA, however, believes that while addressing violent youth crimes is important, this will not be successfully accomplished through the rhetoric of Tough-on-Crime ideology or accusations of being Soft-on-Crime to delude others in thinking disagreement with the former is a concession to the latter. On this point, we most vigorously and respectfully suggest that the discourse be based on evidence, principles and goodwill. Indeed, we share the goal of continuously searching for ways to increase public safety from the effects of crime.

Overview of Bill C-4 Amendments

The stated intent for amendments to the Youth Criminal Justice Act (YCJA) is:

The proposed amendments are intended to help ensure that violent and repeat young offenders are held accountable through sentences that are proportionate to the severity of their crimes, and that the protection of society is given due consideration in applying the Youth Criminal Justice Act.(Department of Justice Canada, March 2010).

The general thrust of Bill C-4 is twofold: youth offender accountability and public protection. The amendments propose additions to the YCJA that would:

• Hold violent young offenders and those that might be violent accountable for their actions.
• Ensure the protection of society is considered at sentencing by making protection of society a primary goal of the Act.
• Simplify pre-trial detention rules to help ensure that, when necessary, violent and repeat young offenders are kept off the streets while awaiting trial.
• Strengthen sentencing provisions and reduce barriers to custody where appropriate for violent and repeat young offenders.
• Ensure adult sentences are considered for youth 14 and older who commit serious violent offences (murder, attempted murder, manslaughter and aggravated sexual assault)
• Require the courts to consider lifting the publication ban on the names of young offenders convicted of “violent offences,” when youth sentences are given.
• Require police to keep records when informal measures are used in order to make it easier to identify patterns of re-offending.
• Ensure that all youth under 18 who are given a custodial sentence will serve it in a youth facility.
• Reflect the profound trauma experienced by the Lacasse family’s loss of their son Sébastien Lacasse, who was brutally attacked and died as a result of his wounds on August 8, 2004.  

Hold violent young offenders and those that might be violent accountable for their actions

As we read through the amendments, the belief that accountability can be achieved through punishment is clearly emphasized: to ‘denounce and deter’ by increasing incarceration provisions for pre-trial custody and at sentencing. Youngblood Henderson’s and McCaslin’s (2005) commentary could apply:  

Eurocentric thought proposes many theories about justice. The biblical approach of equivalence (lex talionis) and nineteenth-century British theories of intolerable wrongs, deterrence and retribution (vergeltung) form the dominant theories of punishment in Canadian society. They try to ensure that certain individuals physically suffer for their human weaknesses, conduct, and mistakes – big and small. These approaches have not been adequate at curtailing crime or even expressing solidarity with the victims. (p. 3).

Punishment strategies (suppression) that are exclusive of prevention and intervention strategies will inevitably reproduce more violent behaviour.  “The interminability of the spiral is not only to do with cycles of hurt begetting hurt [punishment through denunciation and deterrence] but also with the fact that there is displacement…humiliation is displaced as rage.” (Ahmed, et al. 2001, p. 315).

Predictive evidence (Agnew, 2005) supports Executive Director of the Child Welfare League of Canada, Peter Dudding's contention in respect of Bill C-4 (as per his testimony before the Standing Committee on Justice and Human Rights, May 27, 2010) , that punishment as a method of social control to ensure public safety will backfire:

These children whose behaviour was deemed dangerous and unacceptable to society were sentenced to lengthy incarceration. The results were predictably bad in creating angry and dysfunctional adults and too often career criminals, who present a lifelong threat to public safety. (p.2)

Recommendation toward Youth Accountability

Youth accountability must be part of the core principles that address the causes and correlates of crime through prevention, intervention and suppression. To focus legislation on suppression or retribution alone will increase the threat to public safety,  as described above. Capuzzi and Gross (2004, p. 22) have addressed the most common antecedents of at-risk behaviours from the research of Dryfoos (1997). Importantly, to engage the needs of young people, their families, schools, or communities,  prevention assessment strategies should include primary prevention: proactive planning; secondary prevention: intervention during crisis periods [e.g. being caught in violent behaviours); and tertiary prevention; reduction in the amount of residual impairment resulting from the violent behaviour. (Capuzzi and Gross, 2004, p.25-27).

Ensure the protection of society is considered upon sentencing by making protection of society a primary goal of the Act

The CCJA supports the intent of including the protection of society as one of the determining factors in sentencing but does not support the amendment as a tool to increase the potential for lengthening the term of incarceration.  The reference to the Honourable D. Merlin Nunn’s report, “Spiraling Out of Control: Lessons From a Boy in Trouble,” in the Department of Justice Backgrounder, suggests that it was his intent to use  the protection of the public as a determining factor in the length of a youth’s sentence. Indeed, The Honourable D. Merlin Nunn was quoted by Mr. Scott Bergman, stating:

There is no evidence anywhere in North America that I [Hon. Nunn]know of that keeping people in custody longer, punishing them longer, has any fruitful effects for society.

They have gone beyond what I [Hon. Nunn] did, and beyond the philosophy I accepted. I don’t think it’s wise (Mr. Scott Bergman, Section Member, National Criminal Justice Section, Canadian Bar Association, presenting to the Standing Committee on Justice and Human Rights, Number 021, 3rd Session, 40th parliament, June 3, 2020, part 1105).

The adage that if it’s predictable, it’s preventable rings true. When the bell rings loud that punishment doesn’t work, when there is much evidence to suggest meaningful rehabilitation (education, employment, parenting skills, approaches, etc…) is highly correlated to reduce recidivism, then tough-on-crime approaches can be said to resemble more science fiction than truth and do not stand up to the light of day.  Lipsey and Cullen (2007) in the Annual Review of Law and Social Science (December 2007, Vol. 3: 297-320) report:

The effects of correctional interventions on recidivism have important public safety implications when offenders are released from probation or prison. Hundreds of studies have been conducted on those effects, some investigating punitive approaches and some investigating rehabilitation treatments. Systematic reviews (meta-analyses) of those studies, while varying greatly in coverage and technique, display remarkable consistency in their overall findings. Supervision and sanctions, at best, show modest mean reductions in recidivism and, in some instances, have the opposite effect and increase reoffense rates. The mean recidivism effects found in studies of rehabilitation treatment, by comparison, are consistently positive and relatively large. (p. 297)

Recommendation to Increase Public Safety by Reducing Violence

The CCJA recommends the immediate diversion of funds from the capital expenses for increasing the number of prisons to rehabilitation treatment. “Once again we see an extensive list of programs that would prevent crime [and recidivism]. Imagine what a difference a $100 billion would have made to these.” (Waller, 2008, p.51).

Simplify pre-trial detention rules to help ensure that, when necessary, violent and repeat young offenders are kept off the streets while awaiting trial

&

Strengthen sentencing provisions and reduce barriers to custody where appropriate for violent and repeat young offenders

“Simplify pre-trail detention…. and Strengthen sentencing provisions …” are spoken to here as one item. In both of these Backgrounder pieces, the explanation for increasing incarceration is based on the assertion that a) ‘serious offences’ are poorly defined; and b) that the application of existing laws and procedures are too easily averted because of “inconsistent and insufficient application”. The proposal then is to better define what a ‘serious offence’ is and to enhance prescriptive sentencing patterns (i.e. reduce the discretion of the courts).

The argument for re-defining a serious offence, according to this position is the limit on which the Supreme Court of Canada defined a “violent offense”

The Supreme Court of Canada defined “violent offence” under the legislation as an offence in which the young person causes, attempts to cause or threatens to cause bodily harm. This definition does not capture situations in which, while no one was injured, reckless behaviour nonetheless posed a risk to others. For example, at the moment, a young offender who leads police on a high-speed chase through a residential neighbourhood could be given a custodial sentence only if someone was injured as a result(Department of Justice Canada, March 2010)

The CCJA believes that to redefine a serious offence or a violent offence beyond the iteration of the Supreme Court of Canada and to include the risk of a future criminal offense, the series of amendments will not withstand a constitutional challenge without legislation to include due process similar to the Dangerous Offender provision contained in Section 753 of the Criminal Code of Canada.

In addition, there is confusion in applying the terms violence (that is, a specific type of behaviour) and risk (that is, a measure of potential behavior). A violent act can be defined, while the prediction of a violent act is much more tenuous and fraught with the potential for abuse. For example, based on youth with current extrajudicial sanctions, under what criteria would incarceration be sanctioned if no crime was actually committed; only the potential for the crime to be committed. In the Hollywood movie, Minority Report (2002), the premise is similar: catch the criminal before he or she commits the crime: “The Future Can Be Seen. Murder Can be Prevented. The Guilty Punished Before the Crime is Committed. The System is Perfect. It's Never Wrong. Until It Comes After You.” (http://www.imdb.com/title/tt0181689/taglines). The draft legislation suggests a sequel:

The proposed amendment would give the courts necessary tools to establish a pattern of criminal activity, either through “findings of guilt” or through showing that the young person has a history of extrajudicial sanctions, or through a combination of both.

Further, if this amendment were to be adopted it has serious cause for alarm. Where the line should be drawn for incarcerating others whose criminogenic profile suggests the ‘likelihood’ of future criminal behaviour raises concerns for ethnic profiling. Entire communities, those most marginalized, could be incarcerated by a simple extension of the proposed amendment. Criminal behaviour doesn’t in and of itself cause criminal behaviour. A host of psychological, sociological and environmental factors play together that only statistically contribute to understanding the likelihood of a crime occurring or recurring. There is no scientific evidence, that we are aware of, to suggest any one individual youth will commit a crime based on having a committed a previous crime. We know that certain criminogenic factors such as past history of crime, family functioning, school attendance, peer pressure, etc… must be seen collectively to predict with any degree of accuracy and certainty the potential for future criminal behaviours

Recommendations to Prevent Repeat Offenses

It is recommended that the courts, and the criminal justice and correctional systems in general, be given the discretion to evaluate each case on its own merits, enhance services to victims, and provide the courts with the mandate to use programs that work as part of general sentencing principles rather than prescribe lengthier sentences.

Ensure adult sentences are considered for youth 14 and older who commit serious violent offences (murder, attempted murder, manslaughter and aggravated sexual assault)

&

Require the courts to consider lifting the publication ban on the names of young offenders convicted of “violent offences,” when youth sentences are given

The two items above are spoken to here.

The problem “….to help ensure that violent and repeat young offenders are held accountable through sentences…” (Department of Justice Canada, March 2010) according Allan Patenaude (2006), is Janis-Like. The what works pendulum swings to extremes:

When it comes to punishment, however, we have treated them [children and youth] as miniature adults [historically] who are whipped, incarcerated, and executed in the same manner as their larger comrades. We have also treated them as persons who, because of their level of moral development, are dependent and need strict guidance. (p.26)

Policy, laws and other structural responses like the tough-on-crime approach are seen as the ultimate calculus to traumatic events caused by the violence of some youth. Bill C-4, Sébastien’s Law, by removing the discretionary powers of the justice system, ignores the notion that for a youth to be held accountable he or she must first understand what it means to be accountable.  If accountability is understood to be punishment, and if punishment creates a  “life-long threat to public safety” (Dudding, 2010), then punishment without compassion or discretion will concentrate violent behaviour rather than diffuse it.

There needs to be a commitment by our political leaders to the understanding that children and youth are not ‘smaller’ versions of adults. The proposed amendments attempt to place youth (12-17 years old), depending on their behaviour, in the same category and to be held to the same standards as an adult would be, given similar criminal code offenses. Yet, the Supreme Court of Canada appears to have already expressed their opinion on the matter. Irving Kulik, Executive Director of the CCJA offered (2008, p. 13):

Furthermore, on May 16, 2008, the Supreme Court of Canada ruled in a 5-4 decision that the Crown must bear the burden showing that a youth convicted of a serious violent offense ought to be sentenced as an adult. "It is widely acknowledged that age plays a role in the development of judgment and moral sophistication,” Madam Justice Rosalie Abella said. “Courts, too, have acknowledged the reality of reduced moral culpability on the part of young people.” The court ruled that it is unconstitutional for young offenders to be sentenced automatically as adults unless the Crown is able to show why a youth sentence would be inadequate to hold them “accountable” for their actions.

Recommendations with respect to the proposal to consider adult sentences served in a youth facility and the proposal to lift the name ban for youth

The amendment to ensure adult sentences are considered and that the name ban be dropped for youth convicted of serious offenses should be withdrawn it its entirety. The amendment seemingly asks that adult sentences be considered. One could ascertain from the Supreme Court of Canada’s decision above that such provisions are already in place. If the provisions already exist, how the proposed amendments improve or change the status quo is unknown. The Backgrounder imposes:

The proposed amendment would require the Crown to consider seeking an adult sentence for youth convicted of a “serious violent offence” – that is, murder, attempted murder, manslaughter or aggravated sexual assault. The Crown would also be required to inform the court if they chose not to apply for an adult sentence.

This imposes additional burden on Crowns to explain their rationale for not applying for an adult sentence.  This will also place such decisions in the court of public opinion. The Crown is not immune to public discourse and is in fact required to consider the interests of the public. But, to mandate such burden, moves the discourse from the objectivity of the court process to the emotions of the public forum. That is, will all murder, attempted murder, manslaughter or aggravated sexual assault cases be placed in question for public scrutiny? What will the Crown present when not applying for an adult sentence?

If, as a civil society, we respect that youth are less morally culpable, how can naming a youth in serious violent offense cases gain agency for preventing further crime?

These amendments appear to serve no positive purpose other than denunciation. Evidence has been offered previously in this brief that strongly suggests denunciation and punishment cannot and have not any agency to further the protection of the public. It is recommended therefore that these amendments be withdrawn unless it can be demonstrated that these provisions will actually prevent further serious violent offenses.

Ensure that all youth under-18 who are given a custodial sentence will serve it in a youth facility

The CCJA would endorse this amendment. It recognizes that youth decisions, especially in the context of criminal offences, do appreciate the consequences of their actions, are less able to anticipate  future implications of present behaviour and have a less morally developed sense of right and wrong.

Conclusion

This brief is written acknowledging the profound harm and loss of the Lacasse and other families to serious violent crimes. That relief, however, by Tough-on-Crime practices in effect reduces the likelihood of preventing new violent or recurring violent behaviours.  It is the conclusion of the CCJA that denunciation, harsher sentencing, naming violent youth after sentencing and other proposed measures are no more than apologetic and inadequate.

This brief is a considered response to Bill C-4, Sébastien’s Law but isnot a legal response. Rather, the CCJA wishes the Parliament of Canada to review the proposed amendments and rationale through the principle intent of Bill C-4: public safety and protection. We ask of the Honorable Members to think about crime as a non-partisan social problem. And, that the problem of crime concerns us all: victims and their families; offenders and their families; local and national communities; and public sector organizations. The remedy lies in a rebalancing of prevention, intervention and suppression strategies.

If ensuring punishment is the principle provision to hold a youth accountable, we again fail those young people who have already been failed by circumstance not of their making (e.g. poverty, family violence). We believe discretion to be a distinguishing fundamental aspect of justice and we concur with the CBA that it is "the cornerstone of a just system." (CBA Press Release, June  03,2010) Among the Government’s proposed amendments is the addition of “specific deterrence and denunciation” thus removing discretionary responses, removing those effective responses that could prevent future harm.

The argument from parliamentarians on the government side is that the proposed amendments in Bill C-4 will somehow make Canadians more “confident” in the criminal justice system and “safer” from repeat serious youth offenses. “The difficulty is that what the politicians are saying about the ‘safety' impact of these bills is almost always wrong,” Professor Anthony Doob said (Kirk Makin, Saturday's Globe and Mail, Friday, Nov. 27, 2009). The rationale for these amendments rests solely on the belief that Canadians expect a Tough on Crime agenda from the Government. “Canadians have been telling us that this is what they want to see,” Mr. Nicholson said recently (Ibid.). It is acknowledged that Mr. Nicholson's comments were with respect to the Truth in Sentencing (Eliminating the 2:1 credit) bill to prevent inmates from getting shortened sentences when they have been incarcerated before their trials. Nevertheless, his comments reflect the Government’s belief that Canadians want tough crime legislation. Canadians, given the option to either reduce violent crime or increase punishment would, in our learned opinion, would choose the former.

References and Supporting Documents

Agnew, Robert (2005). Why do criminals offend: a general theory of crime and delinquency. Roxbury Publishing Company. pp. 1-246.

Ahmed, Eliza, Harris, Nathan, Braithwaite, John, and Braithwaite, Valarie (2001). Shame management through integration.  Cambridge University Press, Cambridge, UK.  pp. 1- 375. 

Bergman, Scott (June 2010).  National Criminal Justice Section, Canadian Bar Association, presenting to the Standing Committee on Justice and Human Rights, Number 021, 3rd Session, 40th parliament, June 3, 2010, part 1105.

Capuzzi, David and Gross, Douglas R. (2004). Prevention: an overview, in David Capuzzi and Douglas R. Gross, Youth at Risk. Pearson Education, Inc., Upper Saddle River, New Jersey. pp. 1-459.

Dudding, Peter, Child Welfare League of Canada (May 2010).  Testimony before the Standing Committee on Justice and Human Rights.

Justice Canada, Department of (2010). Backgrounder: Sébastien’s Law. Retrieved August 2010: http://www.justice.gc.ca/eng/news-nouv/nr-cp/2010/doc_32490.html

Kelly, Katherine D. and Totten, Mark (2002). When children kill. Broadview Press, Peterborough, Ontario. pp. 1-282.

Kirk Makin, Saturday's Globe and Mail, Friday, Nov. 27, 2009.

Kulik, Irving (2008). Looking back on times: young offenders in legislation. Justice Report. Canadian Criminal Justice Association, Ottawa, Ontario.  pp.4-13.

Llewellyn, Jennifer J. and Howse, Robert (1998). Restorative Justice – a conceptual framework. Prepared for the Law Commission of Canada. pp.1-110.

McCaslin, Wanda D. (2005) Justice as healing. Living Justice Press, St. Paul Minnesota. pp. 1-459.

Patenaude, A.L. (2006). History of the treatment of and attitudes toward children, in Barbara A. Sims and Pamela Preston (eds.), Handbook of Juvenile Justice: Theory and Practice. New York, N.Y.: Taylor and Francis Publishing. pp. 3-30.

Patenaude, A.L., Jones Nicholas, A., Hulbert, Margot (2010). The Janis-like face of youth justice in Canada: a public policy analysis in three acts. Unpublished.

Waller, Irving (undated). Less law: more order. Manor House Publishing Inc.Ancaster, Ontario. pp. 1-152.

Youngblood Henderson, James Sa’ke’j and McCaslin, Wanda D. (2005).  Warriors of Justice and Healing, in Wanda D. McCaslin, Justice as Healing, (2005). Living Justice Press, St Paul Minnesota. pp. 20-22.