My speech in the Senate on Bill C-10, Safe Streets and Communities Act

Honourable senators, the Conservative government is proving once again, by introducing Bill C-10, which it calls the Safe Streets and Communities Act, that in matters of justice, it is only motivated by ideology and fear-mongering. There is no rational basis worthy of the name to explain the Conservative initiative to increase the number of automatic sentences, as our leader mentioned, and make the Youth Criminal Justice Act more repressive.

Instead of relying on studies by experts on issues related to Bill C-10, the Conservative government prefers, in a spirit more partisan than ever, to move forward with its omnibus bill. In keeping its electoral promise to introduce this rather voluminous bill in the first 100 days following its election, the Conservative regime knew full well that legal, social and medical stakeholders would have very little time to submit written opinions and less than five minutes to present them.

Since crime in Canada is at its lowest rate since 1973, it is completely absurd and irresponsible for the government to introduce such a bill. Lower crime rates are due in large part to the existing sentencing system, which has found a fair balance between punishment, deterrence and the rehabilitation of offenders. The Conservative government’s obsession with law and order only shows the flagrant disparity between the real needs regarding the sentencing of offenders, and prevention of crime and recidivism, and the government’s proposed solutions. Not only is the Conservative government not considering statistics that are recognized across Canada, but it is also disregarding the advice of experts in the field.

In his testimony on November 1, 2011, Quebec’s justice minister, Jean-Marc Fournier, said that the Conservative government’s excessive use of imprisonment as punishment was not good. I quote:

One thing is certain, to combat crime effectively and in the long term, we cannot limit ourselves to imprisoning offenders. By definition, the time will come when the criminal is released from prison and returns to society. Combating crime in the long term means specifically focusing on reintegration into the community.

But what Bill C-10 proposes is the complete opposite of this. A Public Safety Canada study on the effect of recidivism confirmed that imprisonment was ineffective because it did not lower recidivism rates among criminals.

Two of the three conclusions were as follows — and I am talking about a federal department. First, for most offenders, prisons do not reduce recidivism. To argue for expanding the use of imprisonment in order to deter criminal behaviour is without empirical support. The use of imprisonment may be reserved for purposes of retribution and the selective incapacitation of society’s highest risk offenders. And the third recommendation states: evidence from other sources suggests more effective alternatives to reducing recidivism than imprisonment. Offender treatment programs have been more effective in reducing criminal behaviour than increasing the punishment for criminal acts.

The proposals in Bill C-10 fly in the face of those two conclusions, because the bill focuses on imprisonment instead of on protecting the public in the long term. The omnibus bill lumps together nine bills proposing reforms that were debated in the previous Parliament, including the one on the youth criminal justice system, which is a departure from the vision of protecting the public through reintegration that Canada has supported since 1908. The part of the bill dealing with young offenders imposes a number of legal principles that will force courts to render their decisions in a spirit of punishment, rather than rehabilitation.

The strengthening of the Young Offenders Act proposed by Bill C-10 is essentially the same as the former Bill C-4, introduced by the same government on March 16, 2010. When he introduced Bill C-4, An Act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other Acts, the federal Minister of Justice at the time, Rob Nicholson, said he drew inspiration primarily from two things: the report prepared by former Justice Merlin Nunn and the Sébastien Lacasse case. I would like to briefly revisit those two things.

First, in his report entitled Spiralling Out of Control: Lessons Learned From a Boy in Trouble, Justice Nunn presented 34 recommendations regarding court administration, delays, Crown attorneys, police and a number of other aspects of the youth justice system in Nova Scotia.

In its brief on Bill C-10, the Canadian Bar Association focused on three recommendations in the Nunn report on the Youth Criminal Justice Act: first, a recommendation that protection of the public be made one of the primary goals of the Youth Criminal Justice Act (not the only primary goal); second, a recommendation that proposed a new definition of “violent offence” as conduct that endangers or is likely to endanger life or safety; and third, a recommendation that dealt with a pattern of findings of offences in considering pre-charge detention.

I share the Canadian Bar Association’s view that the provisions of Bill C-10 go far beyond Justice Nunn’s recommendations. In fact, Justice Nunn virulently attacked the Conservative government and Bill C-4.

In an article that appeared in the September 30, 2021 issue of The Record, Justice Nunn wrote:

[T]here’s no evidence anywhere in North America that I know of that keeping people in custody longer, punishing them longer, has any fruitful effects for society. . . . Custody should be the last ditch thing for a child.

He further stated with regard to the Conservatives:

They have gone beyond what I did, and beyond the philosophy I accepted . . . I don’t think it’s wise.

The fact that the Conservative minister did not follow Justice Nunn’s advice with regard to the Youth Criminal Justice Act is not surprising. Since when has the Conservative government ever relied on the advice of experts or facts when creating legislation?

Despite the Conservatives’ well-known reluctance to do so, when the Quebec Minister of Justice, Jean-Marc Fournier, recently appeared before a parliamentary committee, he invited the federal government to take inspiration from experts in youth criminal justice. He said:

Please listen to those stakeholders, who over the past 40 years, have developed the studies, science and statistics to enable them to rehabilitate young offenders. Should you choose to reject their expertise and science, the onus is on you to support your proposals with serious studies and analysis.

The second motivating factor behind the introduction of Bill C-4 was to pay tribute to a young man named Sébastien Lacasse, who was beaten to death in 2004 by a group of youths. The government named the bill in his honour: Sébastien’s Law (Protecting the Public from Violent Young Offenders). As the Canadian Bar Association indicated in its brief, this case never should have been exploited by the government since it appeals to emotions and a bill, honourable senators, should always have an objective title and reflect the realism of the situation. What is more, the outcome of this case is inconsistent with the need to make radical changes to the Youth Criminal Justice Act since the youth who killed the victim was tried as an adult under the current version of the act. There are existing measures in the Youth Criminal Justice Act that provide that for certain types of very serious crimes, youth could be tried as adults.

The Conservative government’s obsession with wanting to impose adult sentences on youths is unhealthy since it goes against the consensus among Canadian legal experts who say that when criminal charges involve young offenders, it is crucial to take their specific conditions into account. We can refer to what the Canadian Bar Association said in its brief:

Young people should not be locked up for long periods, except in the most serious cases. A young person will subsequently spend many years back in our communities, so it is in the best interests of both society and that young person to focus on how rehabilitation can best be achieved. The most effective way to protect society in the long term is to reform that youth before it is time for return to society.

Honourable senators, it is imperative to maintain the specificity of criminal law as it applies to youth by focusing on rehabilitation as the way to protect the public in the long term.

No one is in favour of criminals. No one is minimizing the importance of defending the victims. Claiming the contrary is, as Gilles Ouimet, outgoing president of the bar, says:

The demagogical way of downplaying the arguments of the opponents to Bill C-10. . . .

What is more, Danièle Roy, head of communications at the Association québécoise des avocats et avocates de la défense, says:

Defence lawyers are not there to have criminals released, but to ensure that the rights of everyone, both victims and defendants, are respected.

With respect to victims’ rights, the legislator has a duty to not create an act that will jeopardize society more than the act it will replace. Alain Roy, a full professor in the faculty of law at Université de Montréal, said:

By playing on the sympathy that is naturally evoked for crime victims, the Harper government is showing unparalleled Machiavellianism. Bill C-10 does not move anyone forward — not victims, not children and not Canada. This is a step backwards that will once again tarnish the reputation of a country once known for its leadership on human rights.

As the Canadian Bar Association said in its brief, legislation should focus on the notion of public interest instead of public opinion. The government must promote the long-term protection of the public, which is achieved through rehabilitation and reintegration instead of harsher penalties. This is in the interests of victims, which this 114-page bill completely ignores. This is in the interests of Canadian society as a whole.

Pierre Hamel, the senior legal advisor for the Association des centres jeunesse du Québec, believes that removing the notion of long-term protection of the public would be very detrimental to the Canadian public because section 3 of the act:

. . . erases the notion of long-term protection of the public by introducing the simple concept of protection. One potential concern would be sentences that focus on the immediate protection of the public, without any chance of reintegration.

The lack of any reference to “long-term” in section 3 of the Youth Criminal Justice Act has the effect of precluding rehabilitation and social reintegration. The most effective way to protect the public is not to give youth long-term sentences, but instead to reform youth before they return to society.

Mr. Ouimet says:

. . . Senator Boisvenu [and] the Conservatives claim that they are protecting the public, but in fact, their position is not based on any data, any serious analysis of the needs of the justice system or society, and for that reason we must oppose this bill.

I find that this law reeks of primal vengeance.

Taking a different approach to juvenile delinquency is espoused not only by the Supreme Court of Canada, but also by the medical profession.

As stated by psychiatrist Ruben C. Gur in a scientific article entitled Brain Maturation and the Execution of Juveniles:

. . . brain maturation continues well beyond childhood and adolescence. . . .

Mr. Gur added that a number of recent scientific studies:

. . . have revealed that one of the last areas of the brain to mature is the prefrontal cortex, an area which we have seen is implicated in judgment, decision making and controlling emotions . . .

Science has recognized many times that, before the age of 22, the brain has not established all the neurological connections found in an adult human. Judging an adolescent as an adult would not allow for consideration of the significant biological differences in the adolescent’s brain, which affect judgment and decision making.

The Canadian Paediatric Society has also taken a very clear position on the provisions concerning young offenders because they place too much emphasis on incarceration to the detriment of rehabilitation and reintegration. The reason for the objection is very simple. Bill C-10 will have very perverse effects because adolescents will be judged as though they were adults. The Canadian Paediatric Society has joined the Canadian Bar Association and the Canadian Council of Child and Youth Advocates in criticizing the fact that the introduction in Bill C-10 of stiffer sentences starting at 14 years of age for children convicted of serious crimes will have a very negative impact on our society.

Furthermore, given that Bill C-10 threatens the special treatment that children and adolescents need, I must remind honourable senators that, by passing this bill, the Canadian government would be in violation of the Convention on the Rights of the Child, which it has signed. The first paragraph of article 40 of that convention states that every child accused of infringing the penal law of states parties must be treated differently than an adult would be treated. It is written as follows:

States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

Bill C-10 does not comply with this international obligation, which is one reason why it must be amended, as the Government of Quebec has proposed.

The Government of Quebec is proposing three amendments to the part of the bill dealing with the Youth Criminal Justice Act. First, it is proposing adding the notion of “long-term” protection — the expression “long-term” is crucial here — of the public to section 3 of the Youth Criminal Justice Act.

Second, the Government of Quebec is proposing changing paragraph 3(1)(a) in the French version of the act by replacing the word “encourager” with “favoriser.” This would ensure that the notion of rehabilitation and reintegration is not undermined.

Finally, the Government of Quebec would like to be able to opt out of new provisions set out in Bill C-10 that would lift the ban on publishing any information that would reveal the identity of a young offender. The fact that no information can be published about the identity of young offenders helps them to reintegrate into society after completing the rehabilitation process. I must add, honourable senators, that this measure is absolutely essential in helping young offenders integrate into society as adults, once they have served their sentence and completed a rehabilitation program.

As a result, I ask you to support the amendments proposed by Quebec regarding young offenders. I think that, as parents, we would agree with those who have children with problems that we must treat them as the international convention prescribes — in a humane and Canadian manner.