|
(Prime Time Crime exclusive June 28, 2006)
Extracts from Brief to the Senate Committee
By Scott Newark
4.1. The C-7 Transfer Process
The federal government has chosen to retain a transfer process to deal with serious violent and repeat crime. It is appropriate then to examine whether Bill C-7 will likely be any more effective than its predecessor in doing so. At first blush, one improvement seems significant. By virtue of section 71, the determination of whether to seek such a transfer will be made after the finding of guilt. Thus, the long delays occasioned in youth court at the beginning of the prosecution where the Crown sought to “raise” the young offender, including appeals of such orders, will be eliminated. Instead, the Act contemplates a “transfer hearing” (as will be discussed below) as a preliminary or included part of the sentencing hearing. If that were all the Act said, this would fairly be viewed as an improvement. Like so much else of C-7, however, hidden in complex cross referenced sections and sub sections, are additional measures which will clearly negate the potential benefit such an amendment will bring.
Under the YOA, the Crown could give notice of transfer any time between the laying of the information and the adjudication on the charge (s.16). Accordingly, trials were held in youth court with the exception of young persons charged with murder. In those cases, the young person was given an election and if they chose a trial with a superior court judge and jury a preliminary inquiry before the youth court judge was required (s.19).
The YCJA has taken this right of election and extended it beyond those young persons charged with murder to all young persons in relation to whom the Crown wishes to seek an adult sentence. Thus, the inherent delay of preliminary inquiry plus trial has been extended from persons charged with murder to:
-
*persons charged with manslaughter
-
*persons charged with attempted murder
-
*persons charged with aggravated sexual assault
-
*persons charged with presumptive offences (themselves determined in bizarre fashion)
-
*persons charged with non presumptive offences where an adult sentence is sought (64(1))
Members of the Committee have no doubt heard the repeated urgent concern that C-7 is a dangerously and needlessly complex Bill. We suggest Senators may wish to examine this themselves by reviewing the Act to try and determine who is entitled to an election and how that would work where the Crown has brought an application pursuant to section 42(9) after conviction, yet still must comply with the notice requirements under section 64(2) or what constitutes a presumptive offence or, who, when and how a convicted young offender in custody can seek a review of the custodial disposition. History has taught us that needless complexity benefits only the offender and those that make a living defending them.
In our view, the net effect of these provisions are precisely what several witnesses and MPs warned about; an explosion of jury trials if the Crown seeks to take advantage of the supposedly improved transfer provisions. Instead, we suspect that for many of the same reasons prosecutors declined to seek transfer under the YOA, the YCJA will result in the same dismal, public confidence sapping failure to seek transfers. We encourage the Committee to review the Act themselves and to question the Minister on this interpretation.
It is not merely the process of transfer that is flawed. Indeed, the most serious and incomprehensible flaw is what the Act directs someone must actually do to even qualify as a presumptive offence. For this it is necessary to closely examine the definition of ‘presumptive offence’ and ‘serious violent offence’ both of which are predicate determinations for transfer eligibility.
The YCJA has a convoluted view of the entire issue of recognizing and dealing with violent crime notwithstanding the Minister’s protestations to the contrary. In fact, s.2 of the original Bill (C-3) actually defined a "violent offence" so as to exclude assault. Only assaults (rapes robberies etc) that "…caused or created a substantial risk of bodily harm" constituted 'violent offences'. While this absurdity has been corrected (after we pointed it out in the House Committee), the definition of ‘serious violent offence’ has been changed from ‘causing or creating substantial risk of bodily harm’ to ‘causing or attempting to cause serious bodily harm, itself undefined. This is no small change.
A sexual assault involving a weapon or force or armed robbery certainly carry with them the potential risk of such harm and thus would have qualified. The new definition would mean that a rapist would have had to tried to strangle or stab their victim or an armed robber would have had to shot and missed to qualify. Worse, even if that had happened, the definition of presumptive offence requires that two other additional crimes of equal severity had been committed. Even that’s not enough. The two previous “judicial determinations” have to have been made at different proceedings so a past gun shooting armed robber or slasher rapist that had five convictions entered at the same date, wouldn’t qualify. Different determination dates are required.
Obviously, these provisions raise the eligibility to ridiculously high standards and, in our view, will result in even more derision and contempt for a youth justice and indeed criminal justice system that continues to say one thing but do another when you read the fine print. We urge Senators to seek independent legal analysis of these sections to assess the analysis we provide. We further urge Senators to recall the Justice Minister and ask her directly if our interpretation is correct. Should, after all of that, our interpretation be shown to be accurate, then we urge the Senate to refuse to be a party to this kind of legislative chicanery and to return this Bill as being not worthy of enactment.
4.2 Subjective nature of ‘serious violent offence’
Rather than specify individual offences as qualifying, the YCJA unwisely uses subjective characterizations like serious violent offence, and presumptive offence. Thus, determination of that fact will be a litigatable issue, including being subject to appeal. This is not speculation or assumption; it is confirmed by sections 41(8) and 41(9).
(Usually, the objective fact of conviction for a specified offence results in eligibility for the specialized sentence (firearms prohibition orders, delayed parole eligibility, detention under the Corrections and Conditional Release Act etc) .By making it a subjective, litigatable issue, C-3 guarantees exactly the kind of defence counsel generated delay and uncertainty which has resulted in the non use of the current transfer process under the YOA. Worse, it exposes crime victims to the all too frequent abuse by defence counsel and revictimization trauma inherent in the justice system. As regrettable as it is, such traumatization is largely unavoidable in the trial process where culpability is determined.
This is vastly different as a clear, obvious and fair alternative exists with scheduled offence convictions as the prerequisite for transfer/presumptive eligibility. Imposing such a burden on victims of violent and sexually violent crime is a cruel and unecessary treatment of victims that will definitely be a consideration of the Crown in whether to seek the adult sentence. Anyone that thinks that this fact will not be exploited by defence counsel is unfamiliar with the current standards of the defence bar and the scope of conduct permitted by courts in Canada today.
In another retrogressive step, the YCJA recognizes only ‘serious bodily harm’ and not psychological harm or emotional trauma. This amendment is a repudiation of gains made in just the last decade, for example, in a previous federal Bill ( C-45) which amended the definition of ‘serious harm’ to include psychological harm in determining detention eligibility under the Corrections and Conditional Release Act. Such a definition, with its attendant ramifications are a disgrace in a supposedly humane society as Canada and themselves justify deletion and return of the Bill as unworthy of passage. Again we urge the Committee to recall the Justice Minister and test our analysis
Finally, should, for some reason, the Crown have slogged it out all the way to the actual sentencing hearing, the decision whether to impose an adult sentence ( including probation) is dependant on the subjective principles enunciated in section 72, which are again, cast in terms of sufficiency of a youth sentence to be determined in accordance with the principles of section 37. Not surprisingly, these bear a distinct similarity to the old YOA and, are mandatorily conjunctive with "…promoting his or her rehabilitation and re-integration into society."
The “onus” created by a presumptive offence is, at this point in the proceedings in our experience, essentially meaningless as the Court is obliged to make substantive determinations on a decidedly less than level playing field basis where the difference between 49 and 51% are never relevant. Here is the flaw of the old YOA and the new YCJA revealed. Promoting the re-integration into society or hope of rehabilitation is usually far less likely and far less relevant when a justice system deals with the most serious offenders. Removing someone from society, deterring that person or others by such forced removal and denouncing the original conduct are generally far more important in such cases. Given the way this process has been "rigged", this is not likely to happen and the loss of public confidence in youth justice will continue unless new measures are enacted. As will serious repeat and violent youth crime.
4.4 - Diversion
Faced with increasing crime, as we are with youth crime over the past decade, society has a number of choices. It can strengthen the penalties in a hope to deter conduct, add enforcement in a hope to catch and thus deter more offenders or it can simply decide that that which was previously a crime will no longer be treated as a crime.
This somewhat jaundiced view of the recent evolution of diversion is actually an appropriate prism through which the various and sundry youth diversion schemes contemplated by C-7 can be examined. Before doing so, it is worth noting however that the focus of dissatisfaction with the YOA has been on its inability to deal with the most serious and repeat crime rather than on what it does, or doesn’t do with what is vaguely now described as ‘minor crime’. It is therefore curious that, as noted above, C-7 creates a youth justice system that clings tenaciously to serious and repeat crime yet expels from it large and undetermined volumes of precisely the kind of anti social behaviour that its admittedly rehabilitative focus would benefit. In short, far from improving things, the drafters of C-3 have literally made a bad situation worse although such an approach will, however, keep the crime stats down.
The following would appear to be the contemplated procedures now arising out of a police officer catching a young person stealing a car (although this could theoretically also apply to beating someone up, dealing drugs, sexual assaulting someone etc.. as there are no crimes, or criminals exempted by the Act from ‘diversion’ eligibility).
Ignore it and drive away (take no action-s.6)
-
Tell the young car thief not to do that and drive away (warn-s.6)
-
Get out of the car and use a pre-printed form to tell the young car thief not to do that and drive away (administer a caution-s.6)
-
Get out of the car and if, and only if, the young person agrees, take them home or to the ‘Don’t Steal Cars Club’ and then drive away. (refer-s.6)
The YCJA COMPELS police officers to “consider” all of these options before taking any action which raises the disturbing notion of proving that or the impact should that not be proved. While s. 6(2) says that such failure does not invalidate a charge, it certainly doesn’t rule out it having an impact on what happens to a charge.Given the fact that no evidence of this interaction (s.9) can be used to show prior offending behaviour before a youth court (like at a bail hearing or for a pre disposition report) the odds of police keeping records of this are slim at best. Concealing the truth in this fashion will be an obvious drawback to ensuring appropriate decisions are made especially with young people who continue to re-offend which was, and is, the primary problem with the YOA.
Should a police officer actually decide to lay a charge another layer of the diversion maze is engaged as the Act provides the Crown with its own layer of diversionary tactics.
-
The Crown can tell the police to tell the young car thief not to steal the car and then withdraw or refuse to lay the charge. (Crown cautions-s.8)
-
The Crown can tell the police to refer the young car thief to an extra judicial sanction if he wants to go which can mean writing a letter to someone that doesn’t have to read it saying it’s not nice to steal cars. (Extrajudicial sanctions-s.10)
-
If the young car thief agrees to participate in extrajudicial sanctions but then only writes one sentence and won’t write any more, the original charge can be prosecuted except that if the youth court judge thinks one sentence is good enough he must dismiss the charge or if he thinks one sentence is close enough he can dismiss the charge (10(5)).
If, after all of this somehow a charge actually gets to court and the young car thief gets convicted, the youth court judge can tell him not to steal cars anymore which counts as a sentence. (reprimand s. 42(a))
Bill C-7 does not prohibit application of this process to any specific offence or offender with a past record. We invite the Committee members to raise these issues and examples with the federal Justice Minister as they are further indications of a wholly impractical and needlessly complex process which this Bill will foist upon law enforcement and the public. It will, however, keep the crime stats down.
Scott Newark is a former Alberta Crown Prosecutor who has served as Executive Officer of The Canadian Police Association, Special Counsel to the Ontario Office for Victims of Crime and policy advisor to various governments in his 25 year+ criminal justice career.