ARCHIVED - Archiving Content ARCHIVÉE - Contenu archivé
Archived Content Contenu archivé
Information identified as archived is provided for L’information dont il est indiqué qu’elle est archivée reference, research or recordkeeping purposes. It est fournie à des fins de référence, de recherche is not subject to the Government of Canada Web ou de tenue de documents. Elle n’est pas Standards and has not been altered or updated assujettie aux normes Web du gouvernement du since it was archived. Please contact us to request Canada et elle n’a pas été modifiée ou mise à jour a format other than those available. depuis son archivage. Pour obtenir cette information dans un autre format, veuillez communiquer avec nous.
This document is archival in nature and is intended Le présent document a une valeur archivistique et for those who wish to consult archival documents fait partie des documents d’archives rendus made available from the collection of Public Safety disponibles par Sécurité publique Canada à ceux Canada. qui souhaitent consulter ces documents issus de sa collection. Some of these documents are available in only one official language. Translation, to be provided Certains de ces documents ne sont disponibles by Public Safety Canada, is available upon que dans une langue officielle. Sécurité publique request. Canada fournira une traduction sur demande.
PROCEEDINGS of the FEDERAL - PROVINCIAL' CNFERENCE ON JUVENILE DELINQUENCY
held at Room 209, West Block, Parliament Hill OTTAWA on January 10-11, 1968 1
1 DEPARTMENT OF THE SOLICITOR GENERAL Fi4 OTTAWA 1 9 Co C‘
-, 4, .1- r try,- t O'He4. ji..(À..)-C--v ci•- ; ' • LIBRARY MINISTRY OF THE SOLICITOR 1 GENERAL /PROCEEDINGS 3.9flg
of the , BIBLio »r H ÈQUE MINISTÈRE DU SOLLICHEuR GÉNÉRAL I
FEDERAL - PROVINCIAL CONFERENCE ON JUVENILE DELINQUENCY
held at
Room 209, West Block, Parliament Hill OTTAWA
on January 10-11, 1968
The Conference opened on Wednesday, January 10, 1968 at 10:00 hours, in the presence of; The HONOURABLE LAWRENCE T. PENNELL, P.C., Q.C., M.P. SOLICITOR GENERAL OF CANADA
with Mr. D.H. CHRISTIE, Q.C., ASSISTANT DEPUTY ATTORNEY GENERAL OF CANADA in the Chair. 1
/111 1 - 2 -
The following delegates were in attendance: ALBERTA J.E. HART, Q.C., Deputy Attorney General J. CLEWES, Deputy Supt., Juvenile Offenders and Probation Branch S.G. HOOPER, Edmonton City Police J.D. LEE, Director, Correctional Services G.L. McPHERSON, Supt., Juvenile Offenders and Probation Branch BRITISH COLUMBIA Dr. Gilbert D. KENNEDY, Q.C., Deputy Attorney General T.D. BINGHAM, Supt., Child Welfare, Department of Social Welfare N.A. McDIARMID, Director, Criminal Law F. St-Jean MADELEY, Personnel Officer, Corrections Branch MANITOBA Gordon E. PILKEY, Q.C., Deputy Attorney General L. DEWALT, Chief Probation Officer A.J. KITCHEN, Special Assistant to Deputy Minister of Welfare A.D. ROSS, Supervisor of Child Welfare NEW BRUNSWICK Frank FORESTELL, Chief Probation Officer Gerard LEBLANC, Director of Welfare Ian MACKIN, Judge, Juvenile Court NEWFOUNDLAND Vincent P. McCARTHY, Q.C., Assistant Deputy Minister of Justice Dr. Raymond GUSHUE, Chairman, Family Law Commission Charles H. ROBERTS, Judge, Family Court Frank SIMS, Assistant Director of Corrections NORTHWEST TERRITORIES Frank SMITH, Legal Advisor Clare WILKINS, Director of Corrections NOVA SCOTIA J.A.Y. MacDONALD, O.C., Deputy Attorney General Daniel H. JOHNSON, Director of Child Welfare Welsford G. PHILLIPS, Judge, Juvenile Court ONTARIO A. Randell DICK, Q.C., Deputy Attorney General W.C. BOWMAN, Q.C., Director of Public Prosecution Harry GARRAWAY, Administrator, Training School R.G. GROOM, Q.C., Judge, Juvenile & Family Court Leo R. HACKL, Deputy Minister, Reform Institutions G.F. WALLACE, Q.C., Judge, Juvenile & Family Court
2
1 3824 - 3 - QUEBEC Maître Julien CHOUINARD, c.r., Sous-ministre de la Justice Maître Gilles BEAUSOLEIL, Directeur de Planification, Famille et Bien-être social Maitre Gérald BOISVERT, Conseiller juridique, Justice Maitre Jacques GIRARD, Economiste, Affaires Inter- gouvernementales Dr. Claude MAILHOT Psychologue, Famille et Bien-être social SASKATCHEWAN Roy MELDRUM, Q.C., Deputy Attorney General O.H. DRIEDGER, Director of Child Welfare B.J. KROEKER, Chief Probation Officer YUKON W.J. TRAINOR, Judge CANADA Jean BEETZ, Assistant Secretary to the Cabinet E.G. BLAKE, Programme Officer, Treasury Board -John W. BRAITHWAITE, Dir. of Correctional Planning (Solicitor General) Michael E. BUTLER, Secretariat, Privy Council Ian CAMPBELL, Director of Rehabilitation (Manpower) Miss Gladys DUNN, Officer, Privy Council Jacques FORTIN, Professor of Law, U. of Montreal J.N. HEFLER, Family Services, (Northern Administration) Ken A. HOLT, Judicial Section, D.B.S. G.F. JOY, Rehabilitation Consultant (Manpower) Michel LEBEL, Legal Officer ( Solicitor General) Miss Mary L. LYNCH, Q.C., Member, National Parole Board Allan J. MacLEOD, Q.C., Commissioner of Penitentiaries W.A. MAGILL, Chief, Judicial Section, D.B.S. J.D. McCARTHY, Legal Advisor, (N.H.&W.) R.W. NABLO, Planning, Indian Affairs Branch F.J. NEVILLE, Welfare, Northern Administration Branch Inspector G.W. REED, Legal Division, R.C.M.r. T. SAIDLA, Federal-Provincial Relations (Finance) E.B. SEXSMITH, Director, Youth Services (Sec.-of-State) E.I. SMIT, Consultant, Family & Child Welfare, (N.H.&W.) Isser SMITH, Corrections Planning, (Northern Admin.) Dr. R.B. SPLANE, Director, Welfare Assistance, (N.H.Mg.) Miss Pauline SPRAGUE, Legal Officer (Solicitor Generi,l) George T. STREET, Q.C., Chairman, National Parole Boarn SECRETARIAT George C. KOZ, Special Assistant to Solicitor General Walford D. REEVES, Information Officer, National Parole Board - 4 -
THE HONOURABLE LARRY PENNELL, THE SOLICITOR GENERAL:
Ladies and gentlemen, it is my privilege to bid the members of the conference welcome, but before I formally do so, there are one or two things I wish to say. The purpose of this conference is to direct attention to the great social challenge of juvenile delinquency. It is basically a responsibility for local authority, but one in which the federal government has certain constitutional responsibilitics and must be co- operative and helpful. As you know, under the constitution, Parliament has the responsibility for the enactment of the Juvenile Delinquents Act. Nearly forty years have elapsed since the last substantial amendment to this Act. The rising rate of crime is only one of the many compelling reasons to re-examine and make certain changes in the law. Allow me to add that I am personally committed to such a course of action. I wish to emphasize that the federal officials do not come to this conference with closed minds or fixed positions. The working papers distributed to the delegates reflect an attempt to arrange some of the recommendations set out in the report of the Committee - 5 - on Juvenile Delinquency in the form of a discussion paper supplemented by explanatory notes derived from further studies conducted by officials of the Department of the Solicitor General. In other words, these working papers take the form of orderly arrangement rather than firm proposals on our part. I welcome full and frank expressions of opinion on your part. I believe that your views will be most helpful to the federal government as it moves to dis- charge its responsibility to present a new act for parlia- mentary approval. In that sense, therefore, the officials of the federal government are here to listen and learn, not to instruct. I know that the new act will not resolve all the problems in the field of juvenile delinquency. It will, I hope, improve the method of dealing with young people already in trouble with the law. There is, of course, the much larger question of young people and their opportunities, and this is really what juvenile delinquency is all about. This is a many-sided problem; there are social, economic and educational aspects to it. There is the matter of juvenile court philos- ophy, organization and procedure. The answer to the problem of juvenile delinquency will require the co- IMM■
operation and efforts of the home, the community, and all levels of government, federal, provincial and muni- cipal. The whole spectrum must be viewed in the context of constitutional authority. Within the Department of the Solicitor General, we hope to be able to provide leadership, guidance and assistance in meeting this challenge. You will understand, of course, that our discussions unfortunately are circum- scribed by the time set aside for the conference. I wish to conclude by giving you a warm welcome and expressing the hope that our efforts to prevent and control juvenile delinquency will be advanced by this conference. Thank you.
THE CHAIRMAN:
Before we get under way, there are one or two points that I would like to mention. The first relates to the nature of the discussion draft which you have before you. This draft is a faithful reproduction in legislative form of the Report on Juvenile Delinquency in Canada which was prepared by a committee of the Depart- ment of Justice under the chairmanship of Commissioner MacLeod. The draft itself was prepared by Professor 7
Fortin and Miss Sprague. The second document to which I would like you to refer is the one described as Guide for Discussion of Some of the Issues Raised in the Dis- cussion Draft. The matters that are included in that guide paper are those that appear to us to be of the greatest concern to provincial authority. The choice is based in part on the reactions that have already been received from persons who have considered the draft. If any of the delegates have additional matters they think should be included, would they let me know what they are during the course of today and we will consider them and see if they can be worked in as a supplementary agenda. The next point is that Mr. Braithwaite of
I the Solicitor General Department is in charge of organiza- tion of the conference. If any of the delegation need secretarial help or any other assistance pertaining to the conference he or, alternatively, Mr. George Koz, will do all he can to help. So far as the press is concerned, they will not be here during the deliberations, but at the end of the meeting a press release will be issued. For that 1 purpose we would like to strike a committee composed of one delegate each from British Columbia, from the three Prairie Provinces, from Ontario, from Quebec and from the Maritime Provinces. Will the heads of the delegations that have been named give me the names of their represen- 1 8 tative for this committee? We will now get right into the business of considering the draft, and the procedure that we propose to follow is this: Miss Sprague and Professor Fortin will read the legislative proposal contained in the draft, give a brief explanation, and attempt to define the issue raised. If you will turn your guide paper to page 2 we can commence with the very important matter of age; that is item 1, page 2 of the guide paper. - 9 -
TIM SPRAGUE: The reference sections are set out in this Guide. Everyone should have a Guide and a copy of the blue book. There are extra copies if anyone doci not have a copy. On page 2, the definition of a child under section 2 subsection 4 is indicated as any boy or girl who is 10 (or 12) years of age or more and is under the age of 14 0 The other reference is to section 2 subsection (16) which is the definition of young persons. "Young pbrson" moans any boy or uirl who is 14 years of age or more and is under the age of 17. The two issues are the maximum and the minimum age. CHAIRMAN:
The issue on the first item is: Should the minimum age bel0 or 12 or some other age? Should the maximum age be 17? Could we hear from the delegates? MR. DIZ_I Ontario) : Mr Chairman, perhaps I might start, only because I happen to be sitting closest to this end, and comment as far as Ontario is concerned. On the question of the age being raised may I express what has been our very great concern in my own province, which is that in raising the age to include the 16-year-old we are thereby bringing into this area of our responsibility one of perhaps the most difficult age groups with which we have to deal, and that we are - 1 0 -
increasing our responsibility to an extent that again in my own province raises serious questions about facilities and the financial responsibility for those facilities.
In our own review of this question it would appear, looking at the number of 16-year-olds who are presently in institutions in Ontario, that we would immediately be faced with the problem of providing training school facilities, with all that involves, for something ranging between 400 and 5oo persons in this age branket. At the same time we all realize that wibh our existing programs within the training schools the additional imposition of a group of this size on an existing facility in its existing state is either going to materially prejudice the existing programs, or, in the alternative, the province is faced with providing what in our preliminary estimation would be at least 3 additional traininc, school institutions with a capital cost of approximately lO million, together with an annual staffing cost of something like $2?- million ° This is a problem that we cannot ignore. One hates introducing fiscal problems into the area of tnis section of our responsibility but at the same time we cannot ignore the fact because it has such a material effect upon our present principles and policies in training schools and in the treatment of the existing juveniles. Therefore e on that basis e sir, we bring forward the raising of the age as something that has caused Ontario concern. - 11 -
Associated with that I would suggest we must recognize that circumstances obviously differ greatly from province to province. It then raises the quesbion of whether or not the idea, or the princip1P 5 of a uniform age across Canada is completely practical and whether the existing principle of leaving some discretion in the provinces on how they will approach this problem might not be continued. For our own part, as I say, the principle is perhaps laudable to achieve uniformity, but the effect it will have upon what we feel in our own province has been a very worthwhile program in training schools is something that we feel we should not prejudice by approaching uniformity for the sake of uniformity. Perhaps that is all I can usefully add on that one point. CHAIRMAN: Would you care to say anything concerning the second point about whether the minimum age should be 10 or 12? MR. DICK (Ontario): Progressing to that point e if I might, sir, I
think we recognize the principle ih this. It does not create the same problem as the maximum, although it does again affect our facilities and how we would provide those facilities and where we get the wherewithal to provide them. This overlaps another area which no - 12 -
doubt we will discuss later e but since it is germane bo this perhaps I should mention it, because I think ib is of great significance to us; and I know it is bo some of the other provinces. It is our feeling that the area of not onl:; the person under 10 but also the so-called violator, and also the training programs of people in our institutions, should be left with the provinces; that the approach to the person who will be under this new minimum age which we approve should be provincial responsibility under child welfare legislation which we anticipated, but that it should go further and include the violators, the less serious offences and, at the same time, the aspects of training programs for individuals committed -- the child offenders and the youth offenders e so to speak. This would also be somethinc left with the provinces to work in under their existing training school progrars. CHAIRFIAN:
• Thank you very much. Perhaps delegates would indicate, by raisin , ; their hands, their desire to speak.
Ci:OUINARD (Qpebec): We af,:ree with the idea of maintaining the age at 18 as it is right now for practical considerations and also because we want to maintain the present trend of distinguishing between the minor and the adult at the age of 10 as it is presently seen with regard to the voting - 13 -
age and as it is also met in certain other fields such as eventually the right of drinking alcoholic beverages. Therefore, we feel that we should maintain the age at 18 and if it is not possible to get a standard or uniform age we should resort to the present measure which enables the province to fix the s mentioned by the Ontario delegate. With re:prd to the minimum age we feel it
should be fixed at 12 years of ace rather than 10. I think it should be understood and this seems to come from the documents we have before us that under this. minimum ace it would be up to the provinces through their social legislation to deal with young people committing offences or violations. The Ontario respresentative touched also on a much greater question which I will refer to later, i.e. to determlne what offences should be covered by this Act. I know he has dealt with this question, but I notice that this question is to come up again under Section 2, that is offences under provincial statutes and municipal by-laws. N.H. MacDONALD (Nova Scotia): Er. Chairnan, dealing first of all with the lower age limit, the views of Eova Scotia are, first of all negatively, that we do not think the element of permanent stigma or community condemnation associated with the appearance of a younr; child in the Juvenile Court is as great as no report seems to ascribe to it nor is it - 14 - very much greater than that which would be associated with a similar appearance under provincial welfare legislation, We feel that appropriate provincial legislation can be very well integrated with the operation of the Juvenile Court and indeed might be more properly inbegrated with the operation of the Juvenile Court. We rather doubt that adequate provincial legislation on any sort of a uniform basis could be assured with respect to children in the age group of 7 to 10 or 12 and we have some incidental doubt about our capacity to enact legislation in what is essentially the criminal law field in so far as that would be affected by legislation relating to the lower age group e On the other side it is our feeling that the problem of services and institutions, and their utilization under provincial legislation presents some very real problems. Ue feel that the number of children concerned Is perhaps larger than the departmental committee report indicates. At least oui' experience in Nova Scotia over the last several years has saown that some 20 per cent of the appearances before the Juvenile Court were persons under the age of 12. We feel, generally speaking, that the present provisions as related to the minimum age have worked reasonably well in practice and, in our experience, have not given rise to the difficulties which the report envisages. i3y the saue token, we feel that - 15 -
section 13 of the Crminal Code should be retained. Of course, that section in effect preserves the common law rebuttable presumption of incompetency of a person between the ages of 7 and 14 as contrasted
with the opposite presumption in the case of a person over 14. We feel this of'ords an adequate protection to the child of more tender years while ab the sanie time permitting the courts to deal with such children
under circumstances and in cases where that course
seems to be best in the interests of all concerned. . Uibh respect to the maximum age -- at the present
time in Nova jcotia it is 16 -- we agree that a
uniform a.::e is desirable. Perhaps a uniform age is
almost essential if the provision for trial in other
jurisdictions, the equivalent of section )121 of the Criminal Code, is to be instituted. If it is not necessary, it is at least highly desirable. On the question, in our case, of raising the age
from 16 to 17 we have very grave reservations. First, we think that this would :place a verj great burden on the existing courts and the existing institutions e re only in numbers but in characteristics of the persons who would then be required bo be treated in accordance with the provisions of the Juvenile Delinquents Act,
I do not have specific figures of the numbers involved but it is sufficient to :3a: that in relation to the number of persons now in our juvoile institutions they would be substantial and the impact would be very - 16 -
considerable. Jo feel that the ago of 16 as a maximum has a great deal to conrend it. In our province it is the general a.r, ai; which compulsory school attendance is no loner necessary. Tt is the age at which young people are permitted to obtain hunting licences, licences to carry firearms in the hunting of big game. lore particularly it is, in our province and I think almost universallj a the age at which persons are first permitted to operate motor vehicles. It is our feeling that these permissive or regulatory provincial statutes are not adaptable to enforcement in the way contemplated by the Juvenile -Delinquent,: Act. Je feel that in consequence, from our standpoint, the age of 16 should be retained. .Je recognize that at this borderline age roup there are vor -j different qualities and characteristics
among individuals and while we sugipst that from our standpoint the 16 year ago limitation should be retained a do feel that perhaps there should be greater means of we fleu.ibility in the method of treatuent of persons in this borderline age roup, or winin a year or two of it. In other words, there should be either greater facility of transfer either way -- from the Juvenile Court to the Adult Court, or in reverse from the Adult Court to the Juvenile Court -- or as en alternative, perhaps, the adult courts should be given powers, within a limited ai:e range, to al ply bo persons in a period -i7-
before the Adult Court the disposition provisions of the Juvenile Delinquents Act, either in lieu of or as ancillary to the ordinary provisions for penalty and distribution. That is our view, Mr. Chairman. CHAIRMAN: Thank you very much, Mr. MacDonald. MR. JOHNSON (Nova Scotia): I would just like to add to what Mr. MacDonald has said that in Nova Scotia the Juvenile Corrections Program is carried out under the Child Welfare Division of the Department of Public Welfare. Our Minister of Public Welfare is most concerned about the two points we are now discussing, the minimum and the maximum age. I think Mr. MacDonald has covered all the points about which our Minister is concerned. The Minister wrote a letter to the Solicitor General, Mr. Pennell, which I will give you for your information. MR. PENNELL: Thank you. MR. PILKEY (Manitoba): We feel there is a very strong need for uniformity as far as the maximum age for dealing with young offenders is concerned and while we are happy with the 18-year old provision in Manitoba, we feel that uniformity is so essential and desirable that the age of 17 would be acceptable. We have the same administrative problems - 18 -
as anybodu else in the change of age, .) , It I would like to emphasize the real need for uniformity in dealing with youthful offenders under the law. The mobilitj of our society, the provisions regardinn transferring of charges and matters such as continuinn probation are all matters that have to be dealt with in lookinif: after the juvenile in trouble with
the law , and uniformity is essential.
On the minimum age , there are no fixed views on this. Ue could live with age 10 or ane 12.
LR. licITII:(11 (Alberta): We have recently concluded a Royal Commission in :,lberta and the rccomnendation in our Royal Commission
would indicate that the people in Alberta would favour aue 17.
Ue are a province in a different position from the. rest here, in that Alberta has an aue limit of 18 for girls and 16 for boys. We would be quite prepared to compromise and set an ap:e limit of 17 for both, so that our problems would be decreased in respect of girls and increasod in respect of boys. We would have the same
institutional problems for our i,oys about which the rest are spealdnu,.. 7lowever, we are hopeful of building a new institution for juvenile boys which could acconnodate this. - 19 -
We would very much favour a uniform age limit. We presently sit between British Columbia that has age 10 for both boys and Girls and Saskatchewan that has ace 16 for boys and Girls. We have experienced some of the problems that have been mentioned, so we would favour a uniform aGe limit of 17. As far as thb aGe of responsibility -- the lower ace limit -- is concerned, I think we would favour the age of 12. This would go alonp; with our feeling that the maturity of a child most likely is better met at the age of 12. Where they have more responsibility for action below this age, we would feel it is more a neglect situation. We would favour uniformity at age 17 and a minimum age of 12.
CHAIRMAN: Does anyone else wish to comment? Dr. Kennedy? DR. KENNPDY (B.C.) 'Je can see no difficulty in the proposal on the minimum age of 10 or 12. We discussed age 10 thoroughly and there was no problem on it. We then went on to see whether or not aze 12 was feasible and in discussions with the Superintendent of Child Welfare, in particular, facilities where it might be used, we were quite prepared' to take age 12. We would like to try age 12 because it is part of our thinkinic that so far as possible the younger children should not be rut in court at all. - 20 -
We should keep thel out of court and we should use provincial welfare facilities for them. It is a policy that we are br -,- ing to expand even for children over that age. With respect to the maximum limit, we have, as you know, aGe 18 at the moment. We have what might be called sonie of the problems to which some delegates have referred. In a sense we have drivers cummencing driving at 16, but while most of the driving offences will be dealt with, I think, in the next section, we feel for those that are criminal offences under the Code, we would like to continue the greater opportunity that we presently have to deal with these youngsters under the juvenile legislation. ho would prefer, therefore, to maintain the age of 18. I am assuming that all my remarks are taken subject to the next section where obviously I would recommend that provincial and municipal offences be left to the provinces.
MR. MELDRUM (Saskatchewan): In so far as the minimum age is concerned, Saskatchewan would-go along with e'ither age 10 or 12, but does favour age 12, assuming that it would be left to provincial legislation under that aGe. With respect to the maximum age, I am instructed to advise that Saskatchewan is unalterably opposed to any raising of the age beyond 16. - 21 -
CHAIffif:Ar:
Thank you, Ueldrum.
i -cOARTUY (ewfoundland):
iewfoundland a:rees with 'c,he maximum auo of 17
because that is our maximum a_f; now, the age at which
a youngs ter can ';et a driver 's licence. Iowover, so •
far nobody has objected at all to the lower ai.o and this
sort of worries us because we have a different setup
than the other provinces. 'Jo have our own provincial
act -- a pre- Confederation act -- and under that act
a child is any untuarriod boy or irl under the age of
17 years. go far we have lulde no distinction in age at
ail. 1;very child up to the age of 17 is dealt with
under the juvenile delinuency provisions of our Welfare
of Children Plot and in our province we have only one
family court judge.
Outside St. John's all children and adults are
tried by magistrates. Of course, when a magistrate is
trying children he will act as a juvenile court judge,
but in reality he b_s to appear before this same person
so fixing a lower.ai:o sort of worries us. At the present
time we have no facilities to distinguish at all. All
children under 17 are dealt with in the same manner.
I do not L-now what the feelings of the province are
but I should imaine that we would go along with the
majority, but still we have a problem in accepting the
lower a,iTe that the othor provinces do not have. - 22 -
ER. FOR7,STELL I aj,ree with Dr. Kennedy from :ribish Columbia
as far as the philosofhy o keeping the chillren out of court and e;:pandin- 1,11Ls polio: is concerned so personally I would be for b(, e ar_,e 12. A::ain, as far as the maximum
a,:p is concerned, I nink tliere are two points of view.
ione provinces are lookin': at their facilities and others are looking ab tho child, and I be.-Id to look at the
persons who are appearing in court, osrocia11,7 those who
are not sent to institutions. It seems the big argument against increasinn the aze is that so r'any people then
will be sent to our institutions and we do not have the facilities. Ly view is that a :-reab nunber are not sent to institutions who are over 16 -- at least in our province -- and who now have a criminal record and they are still onlj biL-;11 school boys, but bhey are on probation
and this record does harm them later on. I think these bwo points of view should come out and as far as facilities are concerned, certainly new facilities will have bo bo built an7waj. Ye night get lot of Ilelp from the federal government, so perhaps we can count on sometLing bhere. I would no to 1C,,
personIlly.
CUA1=: I believe that covers all th provinces. jhat about the Yukon (2erritory? - 23 -
JUDGE TRAINOR (Yukon): I am very strong in my own feelings about the necessity for uniformity in the legislation across Canada. Sitting as a judge one does find that many of these problems arise that have been mentioned such as when children move from one jurisdiction to another and, of course, there is more movement these days between provinces. ;This is something that is mentioned in the report itself as being one of the basic necessities for uniformity across Canada. As far as facilities are concerned, in the Yukon Territory we do not have any facilities for juveniles at the present time so we do not run into specific problems of the kind that have been mentioned, although these, I hope, will be met in the very near future by the erection of facilities for the treatment of juveniles there.
I would think, personally', that the age of 17 ought to be acceptable across the country. I know there are money problems that ariàe but these are things which, in the long run, will not make any differnece,in so far as the treatment of offenders is concetrned because they do have to be dealt with one way or the other. In so far as the minimum age is concerned, I think we should keep in mind that the court is a resource which is available to or for the purpose of treament of, . young people and in this sense I think it would be wrong - 24 -
to raise the minim, m ae to 12 rather than 1C. It should be kept as low as pos;_ble so that the court could be
available to deal with „foun people who are in a situation whore titis resource could be used in their treatb , ents. Thnnk .ou.
The Uorthwest r:or:qtories?
(i .f.T.): are in fav(ur of uniform leidslabion across
Canada. Aside frc.1.! thaL we have no opinion to express. UnIRUAN: Is there anyone else who wishes to speak? I think
we will now recess f or a coffee break and resume in ten minutes. - 25 -
CHAIRMAN:
Before we resume, the composition of this committee for the press release will be as follows: Mr. Jacques Girard for Quebec; Mr. William Bowman for Ontario; Mr. Gordon Pilkey for the prairie provinces; Mr. Neil McDiarmid for British Columbia; Judge Mackin for the Atlantic Provinces; and Mr. John Braithwaite for Canada. We now move on to Item number 2:
MISS SPRAGUE:
Item 2 is at the bottom of page 3 of this outline. The
sections relevant to discussion of this point are Section 2(12)
which is on page 8 of the blue book, and Section 2(19) on page 11.
The definition of "offence" as set out here is that it is any act of commission or omission contrary to the Criminal Code; and, in addition, it is contemplated that a schedule would be attached to the end of the Act, setting out offences in other statutes that
would also be considered offences under this definition: for examPle, there may be an offence under the narcotics and drug control acts. That sort of thing has not been worked out. Of particular interest to the provinces, I think, is how provincial offences could be worked into this definition, and which ones should be. On page 11 is the definition of 'violation". The Department of Justice Committee waS of the opinion that lesser offences would
be known as violations. The only important point in distinguishing between these two kinds of offences that we could see from the
• • • - 26 -
report was in the matter of disposition. For instance, a person
who had committed a violation Could not be sent to a training
school. Another matter was in the procedure with regard to waiver.
A person who had committed a violation could not be sent to adult
court.
Further on in the paper we have set aside as a subject for
discussion whether or not it is eyen necessary to have this distinction.
For our purposes now, and for the purpose of discussing
provincial offences, I think these are the relevant sections in
the blue book.
The other relevant Sections deal with the special way of
dealing with traffic violations, which are sections 91 to 95.
Everyone has studied these sections. I do not think there is
any point in reading them aloud.
CHAIRMAN:
The issue really comes down to this: Should the Juvenile Delinquents Act purport to deal with what one might call provincial
offences, or municipal offences; and, if so, to what extent. That
is the basic issue in Item 2, and I am sure it is of great importance
to the provinces. Before we start the discussion I would just like to read this
note which has been handed to me: - 27 -
"When delegates do not speak directly into mikes, transcription is made very difficult. Would you kindly advise delegates to keep mikes within two or three feet and speak into same."
Mr. Dick, would you care to open on this? MR. DICK (Ontario):
Mr. Chairman, if I may comment on this proposition, we support the distinction which is drawn between the offender and the violator. We do suggest, however, that the matter of the violator should remain with the provincial jurisdictions to deal
with. Following the form of the Act, we would suggest the
distinction which, in our own parochial way, we have drawn in
our Training Schools Act, that the federal statute might apply to children and young offenders who have committed an act which,
if committed by an adult, would be punishable by imprisonment;
and that the other offences so-called -- speaking perhaps of your
violations and your violators -- would be left to be dealt with
by the province in the same way as would be children under 10 or 12, as the case may be. Very briefly, on that particular point, Mr. Chairman, that would be the position of Ontario. Just before I close, Mr. Chairman and Mr. Minister, may I-
express the apologies of Mr. Hackl and myself, but unfortunately . we have been having some labour disputes in Ontario and we have just
been instructed to be at the airport forthwith to return to Toronto
to engage in laboUr negotiations. If we may be excused, sir, we will
return to these problems, with apologies. - 28 -
MR. PENNELL:
We regret, Mr. Dick, the circumstances that require your
return to Toronto. We are grateful for the fact that you were
able to make an appearance and enhance the delegation. If you need any assistance in transportation to the airport we will only be too glad to do so. M4. DICK (Ontario):
Thank you, sir; we will find our own way. In my absence ,
Mr. Bowman will look after whatever we may be able to do from our point Of view in Ontario. MR..CHOUINARD (Quebed):
At this point, Mr. Chairman, I will not deal immediately with the distinction between offences and violations, although I understand there is a reference to that on the question put under this heading.. This will come up later on and we will deal with it under heading No. 4, although I may say immediately that we will oppose that distinction. - I would rather deal only with the main question, that of dealing with provincial and municipal offences and on this point must say that we have very strong feelings and we feel strongly
against the decision in the Smith case. Quite aside from any other
considerations we feel that this raises a constitutional question on which I would like to elaborate, although briefly. - 29 -
There is no doubt that jurisdiction over criminal law is
federal but on the other hand, jurisdiction over all other
aspects of dealing with juveniles is provincial and that is where the difficulties may begin.
And, as I said, there is.no doubt that the criminal aspect
comes under federal jurisdiction but everything else respecting , juvenile delinquency, whether it is the administration of justice
or social treatment, comes under provincial jurisdiction. Therefore,. it is these other aspects which come mainly under secial welfare who, according to modern theories become priority questions. The commissioners themselves -- the commissioners of the committee on juvenile delinquency constituted bY the Department of Justice --
state in their summary of recommendations that "quasi-criminal . legislation should not be used to achieve welfare purposes irthose
purposes can be achieved by non-criminal legislation" (1). It is
these saine commissioners who, in the same Report, so as to save the
central jurisdiction in the field of juvenile delinquency state:
"In the American constitutional system - unlike the Canadian - the individual states have power to enact both welfare and criminal legislation. Thus the original Illinois statute was
able to treat (and present American delinquency legislation
generally continues to treat) acts of delinquency as non-criminal matters. The state purports to act as "parens patriae(6). In
(1) Report of the Department of Justice Committee on Juvenile Delinquency, para. 435, subpara. 11. - 30 -
accordance with the cancery characterization of the matter the
proceedings are instituted by petition instead of by information
or indictment as in criminal actions. Because the state was
viewed as acting as a wise and kindly parent, delinquency was
defined to encompass not only traditional criminal conduct on
the part of the child but also behaviour which indicated the
need for societyts intervention in order to prevent later
criminal acts when he became an adult.
The nature of the Canadian constitutional system proved
to be too great an obstacle for the draftsman of the Canadian
Act to make the Act a complete copy of the Illinois statute.
Clearly the "parens patriae" of children in any province is
the Crown in right of that province and not the Crown in right
of the federal government. Moreover, Parliament lacks the
power to enact legislation in relation to welfare matters, and
ip thereby precluded from taking a non-criminal approach to
delinquency." (1)
The policy of the Quebec government in the field of social
security is clear and specific, that is, to recuperate the whole
field of social security and, therefore, to refuse all forms of
intrusion, whether direct or indirect on the part of the federal
government in this sector. In as much as the discussion. draft tends
(1) Report of the Department of Justice Committee on Juvenile Delinquency, paras. 68, 69. - 31 -
to extend the field of application of this legislation to provincial offences or even to municipal by-laws, it constitutes, in our opinion, an abuse of constitutional jurisdiction, if not an encroachment into provincial jurisdiction. Therefore, we oppose the proposed definition of the new actes range of application as we will oppose' the federal government's authority - either directly or indirectly - to determine standards with regard to social welfare services, which come exclusively under the provinces. That is why we also wish to have it clearly understood that Quebec in no way can accept grants in this field.
• Therefore, we ask that the discussion draft be amended in the following way:
The field of application of the new federal legislation should
be limited to the offences committed under the Criminal Code
or other federal legislation. Only provincial laws should
apply in the cases of offences committed against provincial
legislation or municipal by -laws. It is, in fact, possible-to
distinguish between acts committed against the federal legislation
on the analogy of what is done in the case of adults. If, by
extending the content of federal jurisdiction in criminal matters,
we try to make an offence a provincial statute or municipal
by-law, an offence which is criminal, why should we not do the
saine in the case of adults? And we see at once what absurd - 32 -
consequences this would lead to. It would be denying all
jurisdiction to the provinces in statutory matter, in flagrant
contradiction of section 92, paragraph 15, of the Constitution.
Therefore, a simple traffic violation against a municipal
by-law could enter under the term "criminal law". This stand
seems all the more reasonable since these days it is more and
more recognized, not to say universally, that the problem of
juvenile delinquency is more a social problem rather than a
legal one, and in this context, it would be more normal for this
matter to be left to the exclusive jurisdiction of the provinces.
Therefore, it is essential at least that the scope of the
discussion draft be restricted to the Criminal Code and other •
federal statutes.
If you will permit me, I will add on this main issue the following which is the second conclusion to this statement, even if it is a little outside the definition of the jurisdiction over provincial and municipal offences.
Every time the court or the judge must have recourse to social welfare services it must be clearly understood that this can only be a question of provincial services coming completely under provincial jurisdiction and that the legislation must not go beyond this situation. The federal legislation must only state that it is possible for judges and courts to return the offender under another - 33 -
legislation to the social welfare services who will deal with . him according to the dispositions of provincial legislation.
In short, we therefore ask that this act be restricted to offences under the Criminal Code or under other federal statutes.
PIAIRMAN:
Following the order established the first time around, does Nova Scotia have anything to add?
MR.jiiAC DONALD (Nova Scotia):
I would prefer, Mr. Chairman, to hear first what Dr. Kennedy has to say on thé subject, as he intimated earlier he held very firm views. DR. KENNEDY (British Columbia): -
I am somewhat close to this subject in the sense that I feel.
I am responsible for the case which ultimately resulted-in the Smith decision in the Supreme Court of Canada.
We were troubled by the fact that juveniles were receiving • records as juvenile delinquents for such things as not having
bicycle licences, riding bicycles on sidewalks and other minor offences. We looked around for some solution, and by coincidence
in the course of my readings I hit upon a recommendation of the Canadian Welfare Council here in Ottawa that provincial offences be taken out of the Juvenile Delinquents Act. Rather than watt
the constitu- for this to be done we examined what we thought was
tionality of it. We thought that while the Juvenile Delinquents Act - 34 -
was valid criminal law in relation to criminal offences in other federal legislation, it would not be operative in respect of provincial offences. We tested this policy in the Magistrates
Courts in Vancouver for a year where .provincial offences were dealt with in the regular courts in the usual way. The experiment appeared to be successful and we then extended the policy to the rest of the province.
One of our Magistrates and Family Court Judges up in the interior, the Magistrate at Prince George, decided -- I think he is in favour of the policy -- that he would like the higher courtIs decision on it. So he f4.ned the youngster $400 for a speeding offence. It is obvious he would not fine even an adult that much, but it resulted in the test which he won. Three or four years later there was the Smith decision but it took a long time. I might add that we paid young Smithts counsel as well as our own. I am not here to re-argue the Smith case, but I think this meeting can solve the policy problem in respect of juveniles, and in doing that, solve what is the important constitutional problem raised by my friend Julian a moment ago. I might supplement the constitutional point. The validity of the present act in relation to provincial offences is upheld on the basis that there is a new criminal offence created, namely that of juvenile delinquency. If that theory is correct, the
Supreme Court will allow the national Parliament to take over the - 35 -
whole of the provincial punishment power under Section 92(12), think it is, by passing a young offenders act to deal with young offenders -- and by young offenders I meanIpeople above
the juvenile age, whether it be 16, 17 or 18, up to 25, -- and making it an offence to violate a provincial or municipal statute. That would then be a new criminal offence. They would
then pass an adult offenders act for those. from 25 to 50 and an old folks act for those of us who are over 50. Section 92(12)
would then go out the window.
However, as Isaid,.I am not here to argue that point, but
do put it before you as an unfortunate result of the Supreme
LI Oourtts deeision: I do not think they thought it through. think'they were thinking of something else, but I will not go into that. What can we do about this Obviously we can take provincial offences -- I think we can simplify our discussions by including municipal offences in provincial offences, because they are included out of the federal legislation. We in B.C. are particularly interested in this policy of
preventing our youngsters from being convicted of criminal offences.
You will appreciate I think, Mr. Chairman, that if someone 16 or
17 years of age is convicted in our province of failing to exercise,
due care and attention in the operation of a motor vehicle, he has I
- 36 -
conunitted a criminal offence, in the light of the Smith decision. . Whereas, for the same offence, someone 18 years old is not -
convicted of a criminal offence, merely a provincial offence. Therefore, our 16 and 17-year-olds and all other juveniles who commit any offence -- riding a bicycle on the sidewalk, no light or reflector on their bicycle or whatever it may be -- have
committed a criminal offence, according to the criminal law of Canada as a result of the. decision of the Supreme Court. I do
not think we can afford to allow this meeting to forget that fact
during the next two days.
But I am here to be positive: I am here to be constructive
and helpful. What can we do I.suggest, first, we take them out and in keeping with our policy of trying not to have these youngsters convicted of criminal offences, we began in November
an experiment of not charging youngsters with provincial or municipal offences. I was to have reports from all police divisions for the November-December period by the 15th. January. Unfortunately, in fixing that date, I did not fix-it in relation to this conference and I have only one report so far which came in early. Perhaps, before I give you the detail of that report, I might
with your permission read the directive me sent out. It is a memorandum from the department to all police and prosecutors
regarding juvenile prosecution: - 37 -
"It would appear that any prosecution against a juvenile, whether under municipal by-law or a provincial statute is, under the terms of the recent Supreme Court of Canada Judgment in Regina vs. David Lorne Smith, a criminal offence. The judgment holds that the crime of delinquency in the Juvenile Delinquents Act is a new crime created by the Parliament of Canada. In result, any child brought into court for failing to have a bicycle license, failing to have a reflector, or for inumerable minor traffic offences, is committing a crime in the same way that dangerous driving, impaired driving or murder are crimes. But offences committed by adults, such as failing to drive with due care and attention, are not crimes but merely provincial offences. If committed by a child they are crimes. In view of this judgment the Attorney General has requested that as many prosecutions against juveniles under the provincial statutes and regulations, or under municipal by-laws be eliminated and that alternative action be taken. This action could take the form of an increased use of warnings. In the case of motor vehicle offences, details of more serious violations should be given to the SUperintendent of Motor Vehicles for such action as he deems appropriate. In the case of liquor in the possession of persons under 18, disposition of the liquor in the usual way accompanied by advice where appropriate to parents, should be extended. am, of course, dealing only with persons under the age of 18 and only with provincial and municipal offences. There is no problem in respect of Federal offences including the Criminal Code.
More extensive use of the alternative procedures recommended has been under discussion in any event prior to the recent decision, with a view to removing the stigma of delinquency, or of juvenile delinquents, where applied to minor provincial and municipal offences. The case merely emphasizes the need for alternative procedures.
In short, we should eliminate prosecutions of juveniles for violations of provincial statutes and municipal by-laws as far as possible, hearing in mind the alternatives available. Discussions with the parents can be very useful, not simply as a warning but as a guide to the parents about what is actually going on. Social welfare agencies should be involved as far as possible. - 38 -
In view of the experimental nature of the proposals in this directive, I should appreciate a report to the end of December by January 15, 1968."
In sitting down with the chiefs of police, or their representLtives, in session, and in answer to their questions, this directive has been treated as mandatory with no exceptions, for the experimental period. When we get the results in from the experiment then we will examine where we go from here. I have had one report in so far, as I say, from one of the smaller municipalities. Perhaps I should not say that -- I live in it -- it is the district of
Oak Bay. Of the 16 motor vehicle offences, 15 were referred to parents and the Superintendent of Motor Vehicles for disposition. One was referred to the prosecutor of the Juvenile Court for direction; not for prosecution, but for direction. The government liquor act was one offence that was referred to the parents.
The Chief Constable goes on to say: "This directive was in no way an inconvenience to this department nor was it a cause of any increase in juvenile activities. I am of the opinion that this procedure is sound, and has more readily extended areas of control to the benefit of all concerned."
Now, obviously, Mr. Chairman, I concur with my colleagues so far that it is suggested that provincial and municipal offences be deleted from this legislation. I think that this national legislation has a place in respect of national offences whether they be under the Criminal Code, the Narcotic Control Act, or - 39 -
some of the other federal acts. However, we should deal with our
own offences in our own way. Some provinces will want to deal
with them differently. I hope that our experiment works, although
I am going to be realistic. There are one or two areas where we recognize that there may be problems and we may have to authorize prosecutions. Mr. McDiarmid and I have had some discussions on this subject, but rather than break the nature of the full experiment, we have not looked at the bad, for the moment, until we have had an opportunity to examine ail results. One of the areas where we have a problem -- it is solvable in other ways and that may be the best solution -- is where a
youngster drives without a licence. It is no good reporting him to the Superintendent of Motor Vehicles, at least under present
legislation. It may be, under amended legislation, if we decide to amend. We are pioneering; we admit it. I want to hear what others are doing.
Personally, I am too close in the sense of the Smith case because it was my own decision, approved by the Attorney General,
of course, and my colleagues in the Department. It did not work and we are hoping to find something else. The directive is a second one; there may be others. Thank you.
CHAIRMAN: Thank you, Dr. Kennedy. Perhaps we could now revert to the
order. Nova Scotia? - 40 -
MR. MAC DONALD (Nova Scotia):
Mr. Chairman, I would have to agree basically with everything that both Dr. Kennedy and Mr. Chouinard have said. There is a
minor point in the suggested definitions in that I think they would lead to a great lack of uniformity in the definition of
offence or violations in several provinces, particularly if each of the provinces was given the right to determine which provincial offences should be included in the schedule.
As 4o the basic difference between offence and violation we
have no particular qUarrel. Coming back to the general subject matter Dr. Kennedy discussed, we feel that the definitions
associate violations of criminal and municipal statutes with the
commission of criminal offences properly so called, - while the two are essentially completely different in character. The provincial legislation for the most part is permissive and regulatory. That is to say, it grants privileges and contains
provisions to prevent the abuse of those privileges. .That is a very different thing from the commission of a'criminal offence. To class it as a criminal offence is essentially wrong. In addition to that, the application of the disposition provisions of the Juvenile Delinquents Act to provincial offences results in very great difficulty. As I have said, they are primarily regulatory, and they contain provisions not so much of penalty as
of enforcement of the privileges and the proper exercise of the
privileges which they grant. - 41 -
For instance, under our motor vehicle legislation we have
the assessment of points on violations of various provisions of the statute. We have, under our game acts, legislation for
cancellation of hunting privileges. »These things are designed to avoid abuse of the privileges which the permissive legislation grants. They are in no way criminal in their impact, or in their intent, or in their provisions for enforcement.
I would therefore certainly say that, so far as nova Scotia is concerned, they should not be grouped with violations of the Criminal Code. One obvious step would be to remove them from
the definition of offence or violation. Possibly there are others, and again I have in mind greater facility of transfer or a wider discretion in the imposition of penalties, That is to say, in respect of provincial,offences, to prevent the imposition of the
remedial provisions of the provincial statute. But, certainly, on the very fundamental point of grouping the two as criminal offences, we would take very strong objection.
MR. PILKEY (Manitoba): We feel there is, perhaps, some merit in treating such areas
as traffic violations under the exclusively provincial field outside of any young offenders act but we are not completely
satisfied that this should be so in all cases. I am thinking more of a classification based on regulatory statutes, rather than those that involve mainly a social problem, such as - 42 -
provincial liquor legislation, for,example, which might require very careful assessment and consideration of the young offender
and the proper treatment for him. The problem in this whole
matter of classification -- I am suggesting that it might have
some merit -- is that it might lead . away from the basic object and purpose of young offenders , legislation, the treatment of the offender. Sometimes we are inclined to get top legalistic and
consider the offence in its classification and lose sight of the breadth of available treatment, disposition and so on for the
offender himself. I think it is very important, in the field of the very young people, the approach be that the offender is much or perhaps more important than the offence itself.
On the purely regulatory matters, as I said, I think some consideration might be given to excluding these from the provisions
of federal legislation.
CHAIRMAN: Alberta?
MR. HART (Alberta): Mr. Chairman, our group agrees with Mr. Dick and the others
in supporting the distinction made in the draft bill between an "offence" and a "violation", but we do suggest that provincial and municipal offences should be excluded from the legislation. We feel that we could provide provincial procedures to deal with
juvenile offenders who violate provincial and municipal action
regulations. We do say that this excellent draft, which is being - 43 -
provided to us today, would certainly serve as a guide for setting up those procedures and we are especially interested in
those new sections dealing with traffic violators. We think we could adopt or adapt those provisions to our own provincial and
municipal traffic laws. Vie might, however, agree to some form of joint action by the
federal government and the province to bring certain offences
under provincial legislation, under the provisions of the proposed new draft bill. That is our view at the present time, Mr. Chairman. CNAIRMAN: Thank you. We have heard from British Columbia. Saskatchewan? MR. MELDRUM (Saskatchewan): Saskatchewan agrees with what has been said by Mr. Dick and
Dr. Kennedy on this matter. We feel that provincial offences should be taken out of the act and left to thé: provincial courts or to ) I the provincial legislature which, it it deems neéessary, can provide for alternative methods.of dealing with offences under provincial
acts. think that is all I have to say.
CHAIRNAN: Thank you very much. Newfoundland? - 44 -
124._ McCARTHY (Newfoundland):
We agree with the majority of the. provinces that provincial offences should be taken out of the act, but I might say that up
to now, in our province, a child under 17 does not have a criminal record. Under our act it is still a provincial statute and we do not consider the offence of juvenile deliquency .a criminal offence, so it is not inclUded in his criminal record.
Now, if I understand correctly, if we adopt this act, a child
under 17 -- if the age of 17 is adopted -- who commits a breach of a federal statute will'have a criminal record. That is not the situation at the present time.
At the present time in our province if a child is convicted of the offence of delinquency, it does not show on his criminal
record. So, for all practical purposes a child under 17 does not have a criminal record in our province. If I have understood the discussions correctly, once this act is adopted in our
province he could have a criminal record. DR,_KENNEDY (British Columbia): As I understand Mr. McCarthy, in Newfoundland where the Juvenile Delinquents Act is not in force, they have their own
Juvenile Act, but their Juvenile Act which deals with people up 1 to 17, does not include provincial offences. Is that correct? MR....McCARTUY (Newfoundland):
That is correct. 1 - 45 -
DR. KENNEDY (British Columbia) You said that is correct.
MR„McCARTRY (Newfoundland): But 1 think that was one of the advantages or disadvantages
of Confederation. The definition was not changed until after Confederation when criminal law became, for all practical
purposes a breach of the Criminal Code. Before Confederation
the criminal law was a breach of the provincial statute. The definition was not amended so at the present time the breach of
a provincial statute is not a juvenile deliquency offence in our
province.
CHAIRMAN: Now New Brunswick?
JUDGE MAKIN (New Brunswick):
I have always understood the problem as stated by Dr. Kennedy and Mr. Chouinard from Quebec and, effectively, those types of offences could be just as conveniently and adequately dealt with
under provincial legislation. As a matter of fact, the provincial legislature could adopt all the procedures of the federal act,
if they wish to, just by simple enactment. I would prefer to see
the federal authorities become involved like they are.
With regard to the adults, there is a division -- two years
less a day. Your facilities are provincial; if it is over two
years, the federal authorities assume a greater responsibility. - 46 -
I do not think any province in the Atlantic Area can ever have, on our own, an adequate training school policy or enough training
schools for the various problems and if the federal government
stepped in and established a system within their jurisdiction it could be of great assistance in our area.
CHAIRMAN: Thank you. Yukon Territory? JUDGE TRAINOR (Yukon) I agree with the view put forward by the Province of . Manitoba that we should,not lose. sight of the intent and purpose
of legislation of thiS kind which is to treat young people in a certain way . and which way ought to be uniform across the whole of Canada. I think that possibly one way.of achieving this would be to see to the enactment of some federal legislation in
this act which could by agreement be adopted by the provinces
and used in this. way. I recognize that the means by which this is accomplished
may not be the best, in the sense that it is the use of the criminal law provision of the British North America Act through
which this is done, but nevertheless the purpose to be.achieved
is good and I think that the means are justified to reach this end. Thank you.
CHAIRMAN: The Northwest Territories? 47 -
II . MR. SMITH (N.W.T.): II I think we should adopt a positive approach and do what we 11 can in the circumstances to resolve the constitutional Question by some sort of scheme whereby the basic problems we are trying 11 to deal with on a unifôrm basis while respecting provincial 'prerogatives. 11 ' - 48 -
fV e
will now turn to Item 3 on page 4.
lir. Chairman, this is a question purely for my own clarification; Would Uewfoundland explain what happens when a juvenile commits an offence against its provincial Highway Traffic Act? How do you deal
with him and what steps do you take?
Wt. McCARTHY (Newfoundland); Un. Pennell, he is just charged with an offence
under the Highway Traffic Act and is dealt with in the usual wa:. .If it is an offence that can be paid by ticket -- and most of them are -- he pays the ticket and that is the end of it
I do not know tbat we have any problems. In our province one cannot get a licence under 17 years of age and I do not think that on the hirtwa ,;$. juvenile delinquency is any problem at all. It is very seldom
that a child under 17 years of age would he involved*
DR. •=DY (Iritish Columbia); Do you have other provincial legislation dealing with forest fires and things like that? MR..McCARTHY (Newfoundland); Under the Forest Fires Act; and we have charged . them. DR. K7=DY (British Columbia); 1,ey would be charged in regular magistratets court', - 49 -
McCARTNY (Newfoundland): That is rii:ht. DU. Kr=DY (i;ritish Columbia):
rot undr, u your Juvenile Delinquents Act? McCAriTNY (NewfounAlland): No.
J. . .i_ Dr. Kennedy, have you taken any steps or made plans other than what you have implemented to date by just
being sort of negative towards these offenders? Do you have other plans in mind for dealing with them if the legislation is changed? I would like to know how you would feel? I raise this just as a matter of personal interest really.
DR. KENNEDY (British Columbia): Vie have been discussing, but we have no formulated plans for possible changes in legislation. There is no major problem in this area so far as provincial offences are concerned at this moment. We may have to supplement our Motor Vehicle Act to give superintendents additional power. This is part of our policy of making the community accept a greater responsibility in this area -- and by n community" I mean probation officers, social welfare workers, the educational authorities, the medical profession, the prosecutors, the police and the parents. I may have left somebody out, but there are seven groups that we include in the larger umbrella of the welfare - 50 -
group, who, we feel, should take the responsibility for looking after this type of problem rather than having the person come into court and be convicted of a delinquency or, now, of a criminal offence. MR. PENNELL: Thank ;ou. bR. KWKDY (British Columbia): As I say, we were working on this before the decision came down from the Supreme Court of Canada. In fact, it is an area in which we have been working on the adult side, in slightly different.respects, stopping prosecutions; that is, not having prosecutions under certain legislation, on trial bases. To give you an illustration, some of you will know the area between Prince George and Prince Rupert -- and by the way the Smith case came from Prince George; which is irrelevant -- but in that area we ran a test period from April to November of not charging the offence of being drunk in a public place under the government • liquor act. To some extent this is what fills our lock- ups. Instructions were given that in the first instance the man or woman was to be taken home if possible. If this was not feasible, if there was no home, then the welfare authorities -- a ; .ain in the broad sense -- were to be brought in. Thirdly, if it were an Indian and he did not live in town but lived out on the reserve we brought the band councils in. With the co-operation of the
Indian commissioner for British Columbia the band councils - 51 -
were brought into this in the hope that they would accept some responsibility for seeing that their members who were turfed out of the beer parlours and were found drunk on the street or on the highway would be taken home. We have had unfortunate deaths of people found lying on the highway or on back roads. Drivers of cars going along the highway do not see them; and this happens on some of the back roads into the reserves and places like that. Finally, as a last resort, if no other remedy was available, they were instructed to take the man in and put him in the lock-up for the night and release him in the morning with no charge. The police had serious qualms about this in the beginning but at the end of the test period, when we got our reports in, every detachment recommended continuance of the program and
approved of it htartily, and we have now extended it to the whole province. It was to have started in Vancouver on January 1, but the prosecutor and the chief of police got hold of the instructions ahead of time -- as we anticipated they would because they were sent to them -- and they decided
• to bring it into force two weeks earlier. It is catching fire. We are doing this with other offences of this sort, particularly those that may have an undue weight on Indians. As regards the interdict legislation, we just stopped putting people on the list unless, as happened -- and we did not anticipate this -- - 52 -
a husband and wife came along and asked to be put on. Three couples did. That is just illustrative of our policy of exploring the whole idea. We are dumping too many people in jail. The percentage of the people in our jails, as compared with a country like Great Britain, is far too great. We have more people in jail than has Great Britain, considering bur small population. MR. PENNELL: Thank you. CHAIRMAN: Are there any further comments on this section? If not, we will now move on to Item 3 at page 4 of the guide paper, "Abolition of the Catch-all offence of Delinquency". MISS SPRAGUE: This issue is pretty well explained at pages 4 and 5 of the guide paper. Unfortunately you did not have it ahead of time and you probably have not read it. According to the recommendations of the Department of Justice Committee, the catch-all'offence of delinquency would be abolished and the child ou young person would be charged with the specific offence which he allegedly had committed. I think the problem here -- and this, of course, the provinces know better than we do -- is what to do with children who would otherwise have been included in the definition: - 53 -
IT who is guilby of sexual iimi_orality or any similar form of vice, or who is liable by reason of any other act to be cœmitted to an industrial school or juvenile reformatory...... "
and so on. U ' or instance, some of the provinces have
referral legislation. I think B.C. is one of them.
What are their comments on this?
DR. KENN , W (British Columbia):
Er. Chairman, I did not say anything on the
distinction between offence and violation under'the
second heading. With that in mind I assume that I
can comment on it.
MISS SPRAGUE:
This is Item 4. It may be the wrong order but ...
DR. KEHUDY (British Columbia):
That is fine. Cn bhis one, I think we are planning
to burn all bhose who are guilty of sexual immorality
and other similar forms of vice over to our Superintendent
of Child Llelfare, O.K., doctor?
ER. T.D. BINGIIAM (British Columbia):
I may have something to say about that.
MISS SPRAGUE:
In other words, no one -- in B.C. at least -- is
very much concerned about the abolition of this reference?
DR. KENNUDY (British Columbia):
We do not.think this should be a matter dealt with
in court, as a court offence.
CHAIRMAN:
Do I understand Dr. Kennedy, that you are suggesting - 54 -
the crime of delinquency as it now exists should be abolished? if you will refer to section 3 of the Juvenile
Delinquents Act, I think you all have a pamphlet copy,
the issue raised is whether subsection J. of Section 3 in effect should be abolished. If you were to Charge an infant with an offence you would not charge him with the offence of delinquency but jou would charge him with the specific offence he had comitted, either
under the Criminal Code or any other federal statute and, if provincial statutes were continued, under the
provincial statutes. That is the issue on this item.
• KEELJOY ( 3ritish Columbia):
If jou are asking me to answer that, I will 11.AIRNAN: Well we want to cet a consensus.
DR. KEUYEDY (British Columbia):
If il ou abolish the offence of delinquency you are out of t;.,c jurisdiction over provincial offences.
i3P,UGTIE:
The wo: this workinL paper is drafted now the effences should be set up. CUIrUTAII:
-Lou could still include the provincial offences
and the municipal by-laws in your schedule of violations.
Is that correct? - 55 - igSS SPUAGUE: This plan is just for working purposes. We have
put it down this way to sort out what the report has •
,said. CHAIRMAN: But to get away from the idea of charging the
offence of delinquency at large -- if a boy has committed theft or if a girl has committed theft,
they will be charged with theft -- is the issue raised in this item.
Maybe we con start with Mr. Bowman againo MR. BOWMAN (Ontario) We feel that a person should be charged with the, commission of the offence alleged and the charge should not be preceded with what is substantially an attack on the status. We are not entirely in agreement
that the terminologies "the •violator" or "offender" should not be avoided if possible. We are dealing
really with a group of children who need help and they should be considered as a single class. I cannot help
but use the terni "a violation", perhaps, •to an offender but in any event it is the misdeed of the young person that is aimed at and there really should be no degree of criminality in issue. MR. CHOUINARD (Quebec):
Je are unalterably all for the abolition of that specific offence as it was defined; as it is proposed to do. - 56 -
MR. MACDONALD (Nova Scotia):
We are not opposed e as I said before, to the distinction between "offence" and 'violation CHAIRVAN: I think you are into Item 4 .
MR. MacDONALD (Nova Scotia): I may be. I agreed with Gilbert that the only purpose of the constitution of an offence known as a delinquency seems to be to give jurisdiction e to create jurisdiction. Otherwise I am entirely in favour of chargin, the actual violation or offence tbut was committed. CHAIRMAN: Mr. MacDonald, I am informed by Miss Sprague that in the present legislation, in section 3(1) the original intention was to get away from charging yourig people with things like theft, indecent assault . or whatever it might be. Apparently it was felt that this terminology "delinquency" would be less onerous. This is understanding of the reason for the present provision. But now the question is whether in effect to reverse that policy and call a snade a spade.
MR. MacDONALD (Nova Scotia): Mr. Chairman, that may have been the reason but in fact the nature of the 6harge e in our province at least, always set •out the specific offence. It is necessary to do that in order to inform the person what he is charged with. - 57 -
but he is not convicted th on.
• i•-:acHCITALD: ( h lava rcotia) :le then po on to say "and did thereby commit a
delinqu.ency". row, to me, that is purely a matter of
semantics.
GUTMAN:
It is not purely a matter of semantics because by
roaking a delinquency a criminal offence you have
brou2;ht a.11 within the definition of de:linquency into
the field of criminal law, accordinr to the 3:Pith. case.
Th.ereby you have iaot jurisdiction. Otheri.,fise you '..fould
have rio jurisdiction to deal with provincial offences.
(Pritish Columbia) :
Mr. Chairman, I may not have o.nswered your questions
on I'art 3 because I have been a little confu.sed with
this and Part 1i that is coming. As I understand it, this th.ird point deal S vibh tidlo que s t i on s First,
whether we delete from the new act the portion of the
old definition of delinquency wh.ich did not include
either a federal_ or provincial offence other than the
fact that it WO. S included in delinquency, naming sexual
immorality or a similar form of vice and with that we
concur. It should be deleted. i'.;econd, as I understand
it, on this third headinG we are considering whether
or not we should call a spade a spade as I think John A. Y. - 58 -
said and charge the actual offence rather than a delinquency violation offence or whatever you want to call it. We would concur in that. If it is theft, let us charge him with theft. MR. PILKEY (Manitoba): There are some doubts among those of us here from Manitoba about the value of changing these terms of delinquency. This goes into the next question but it is hard to stay away from the next subject. I do not think we are goint to get rid of any stigma that attaches to this by legal definition but it is going to come about rather by education. On a particular point raised under 3 of the general catch-all; sexual immorality and other forms of vice, to the best of my knowledge there are many of these areas where a juvenile case must be brought to the attention of the courts or somebody who can deal with the problem for treatment or otherwise and there are no specific offences, I know of, for some of these activities that certainly should be dealt with among juveniles. There is a suggestion that sexual immorality among the very young could be dealt with in some general welfare way, as far as the Province of Manitoba is concerned, with the juvenile facility
associated with the Abtorney-Generalfs Department. It seems to me •that we should be very careful that there is a wide range of activities; that children could be - 59 -
brought before the concentrated facilities that are ,afforded by Juvenile Court services. CUAIRMAN: If I may say so I think Mr. Pilkey has rained a very important point. If we do away with the offence of delinquency, are we going to leave a serious gap in the law in dealing with juveniles? I think that is really important. JUDGE GROOM (Ontario): In Ontario we have a Training School Act and I am reading from Section 8(1)(a) which would deal with the child whose social requirements, emotional or educational requirements can be brought before a Family Court judge and dealt with. This is a very broad clause and, in practise, situations nuch as are envisaged here would be handled under that section. MR. DRIEDGER (Saskatchewan): • With regard to leaving a serious gap I think, at least in our province, these types of situations would come to our attention through the Child Welfare Branch. Referrals would be made and this type of thing would always be dealt with and followed up 1,inder those services. I thinft actually, the present system we have in Saskatchewan deals with this more effectively than bringing it under a criminal or a juvenile delinquent program. - 60
CHAIRMAN: Did you wish to add anything? DU. KiUTWY (")ribish Columbia): What is the concept included in this Mr. Chairman? Do you want to char;re a child, the fifteen year old girl who cobs pregnant and lands on the Superintendentts doorstep, with an offence? Perhaps I answered this too quickly without giving my reasons behind it. Our reasons were that we did not feel bhis should be charged as an offence; it should be dealt with as a welfare problem. MISS SPRAGUE: That is the whole theory behind the Department,of Justice report and behind this working paper and our only concern really was the gap question. MR. DRIMGER (Saskatchewan): Yes, we appreciate that. You are bringing it to our attention. MISS SPRAGUE: There have been some indications to us that some people have been worried about that. CHAIRMAN: Did Saskatchewan wish to add anything further? Meldrum, have you anything to add for Saskatchewan? MR. MELDRUM (Saskatchewan): On this third point Saskatchewan agrees with what Dr. Kennedy said in just his next to last statement. We feel it is better to charge the actual offence and - 61 -
our reason in that we feel the important matter is the method of disposition and it should not be an offence. It should not be dealt with under the general provisions of the Code but rather the disposition under special legislation such as is contemplated. CHAIRMAN: Do you have anything further to add, Dr. Kennedy? DR. KENNEDY (British Columbia): Thanks for the opportunity. The only thing I think I can add at this moment is that we do not lay any charges under the Sexual Immorality section. MR. MELDRUM (Saskatchewan): I might just add that we do not charge under this section at all and never have as far as sexual immorality is concerned. A DELEGATE: That speaks well for Saskatchewan. MR. McCARTHY (Newfoundland): Like Nova Scotia we set out the particulars of the offence and end up by saying you did thereby commit the offence of delinquency. So as far as we are concerned we feel they should be charged with the actual offence because we set out the particulars anyway. As far as the first problem is concerned, as far as I know we have never laid a charge under that particular aspect of delinquency. It is dealt with under our welfare legislation. I have nothing further to add. - 62 -
JUDG;;; TIÎAINOR (Yukon): I am in agreement with the recommended changes to the Act in that the offence should be charged directly and specifically, and I miuht say in connection with this that the Canadian Council of Judges of the Juverile Family Courts met in convention last September and were unanimously of the opinion that this change should be brought about; that the offence should be charged specifically. CHAIRYAN: Thank you. PorthweSt Territories? MR. SMITH (11.W.T.): Aside from the constitutional question we agree with Manitoba that in deleting delinquency we would not get away from the stigm attached bo being convicted of a delinquency as opposed to a conviction for named offences. This being so, I think it would be an advance if the offences were in fact named, because I do not think the object of the previous Act is being attained by camouflaging the offence with the term "delinquency". Also I do not think we can deal too much with how this Act is going to be administered, because I believe it will depend upon the action taken and the philosophical approach adopted by the individual provinces on whether or not to emphasize prosecutions or refrain from prosecuting under ne Act. - 63 -
CHAIRMAN: Mr. Hart, we overlooked you. MR. HART (Alberta): Mr. Chairman, to state our position briefly we agree with the intent of the draft bill to do away with the offence of delinquency, and dealing with the discussion which has taken place here on the so-called gap that may result and the abolition of this offence, we feel in these areas we have adequate provision in our Child Welfare Act to deal with these cases. I am informed by our Superintendent that in the past too much use has been made of this offence of "delinquency" in connection with sexual immorality, especially as it occurs among younger girls or young women in our province. CHAIRMAN: Anything further on Item 3? We now move to Item 4 and ask Professor Fortin if he would explain the item and the issues. PROFESSOR FORTIN: Item L. is related, of course, to the abolition of the offence of delinquency and instead of having one offence of delinquency there would be two; one named an 11 offence It and the other a "violation" and this distinction would follow the idea of gravity of the misdeeds involved. Its procedural value would imply differences as to waiver, for example, and as to the nature of the disposition that might eventually be,taken - 64 -
against an offender or a violator. For example e a violator could not be sent to training school and the fines would be much less severe, They would be limited e in fact, to an amount of :25 . The issue here I think e is that we should interrogate ourselves whether this distinction between two offences is too complicated or should we instead have only one offence. CHAIRMAN: Professor e you might just mention perhaps by way of clarification what is involved in waiver of jurisdictions. The phrase is used here. MR. BOWMAN (Ontario): We feel that there should be only one offence of a criminal nature charged and dealt with, I suggest any terminology such as "juvaaile delinquent" should be avoided because we are trying to avoid the term and it would seem wrong to me to subs titute. what may ultimately turn out to be simply another epithet. We are dealing with children and young people; they should be dealt with as one group and those who commit what might be considered more serious acts than other children should not be separated. They are all children whom we are trying to help.
CHAIREAN: Thank you very much.Mr. Chouinard?
MR. CHOUINARD (Quebec): We feel the same but I would also at the same time
like to 'consider the other distinction between children - 65 -
and young persons. 'le do not think these distinctions are useful. 1.Te think they can only lead to confusion. We think they should all be young offenders and that there should be no distinction between violations and offences, although we would not oppose the idea, perhaps, of distinguishing between the punishments, although they are not punishments, they are dispositions. de would not 'mind a distinction at that level, if you like, but we oppose a distinction as to their designations, we would not oppose certain distinctions, bearing in mind age and the seriousness of the offence or violation, although we du not think it is necessary. We think that the judgets discretion is quite sufficient to deal with that aspect of it and we feel that since they are brought before a judge this should be left with the judge. • Therefore, you can immediately see that you could very easily combine sections 58, 59, and 60, instead of having to go through a whole series or a whole set of sections to find out what will apply in this case. If the judge has the discretion to impose a fine, for instance, up to 200 or '1a00 -- the amount does not matter -- he will use that discretion'. Therefore, to sum it up, we would not agree with the distinction between offence and violation. We would not agree with the distinction between children - 66 -
and young persons. We would prefer that the dispositions be combined into one section but we would not oppose the idea of distinguishing between the acts and between the pers one when the time comes to decide on the dispositions. CHAIRMAN: Thanks very much. Nova Scotia? Till. MacDUALD (Nova Scotia): I think my friend Julien Chouinard has stated our position better than I could say it myself. MR. CHOUINARD (Quebec): And in better English? UR. MacDONALD (Nova ricotia): Certainly in better English than I could state it in French! UR. PUMP/ (Manitoba): it is our view that this distinction between violation and offence may be unnecessarily complex. I am not sure or convinced that I understand the grave need for separating these. It does lead to the age-old problem of the extort to which the law should provide guidelines to the learned members of the Bench as to what they should do about particular cases and this involves, perhaps, a matter of broad principle but we are not convinced that this distinction is so essential. - 67 -
Je again take the view that we should be dealing with the youngster who is in trouble with the law; that it be legislation readily understood by beinï( simple and straightforward; that it is very important from the public point of view and, indeed, from the point of view of parents who have initial responsibility, that they too understand the law. HR. McPHERSON (Alberta): I think formerly, we in Alberta favoured the use of violation for provincial and municipal acts and maybe some lesser offenc,es under the Çode. Why we favoured this, I am not sure, but with the discussion that has been going on, I think we feel also that just the one terminology -- the offence would be enough, and not violation as well. I cannot see that "offender" sounds any harder on my ears than "violator", and discretion would be with the judge in hearing the paricular case and the particulars coming there, and I do not believe that Alberta feels we need to differentiate between violation and offence.
CHAIRMAN: Thank you. British Columbia? DR. KENNEDY (British Columbia): We agree with quebec which I think, in summary on each of the three points, is one offence, one Group of offenders, and while we do not oppose difference in disposition we would prefer to leave it to the judges. CHAIRMAN: Saskatchewan? - 68 -
MR. MTMDRUM (Saskatchewan) We agree with the position just stated by Dr. Kennedy and previously stated by Nova Scotia and Quebec; that is, one offence and one Group of offenders.
Thank you. Newfoundland? VII. McCARTHY (Newfoundland): We agree with the position stated by Quebec, Nova Scotia, Saskatchewan and British Columbia -- one offence, one group of offenders, and we would prefer to have the disposition left to the discretion of the judge. CHAIRMAN: Thank you. New Brunswick?
• Ll!.q,AUC (New Brunswick): On behalf of New Brunswick, we agree with quebec. We believe there are many judges in Canada and there are many people uho have the wisdom to make themselves the distinction between the two offences. rJUATRLAN: Yukon Territory? JUDGE TRAINOR (Yukon Territory) I agree with and adopt the views put forward by the Province of Quebec. - 69 -
CHAIRMAN: Northwest Territories? NH. SMITH (Northwest Territories): We join in the consensus that seems to be quite apparent around the table. CHAIRMAN: It being 12,50 p.m., I think we will adjourn now for lunch* I would like to remind heads of delegations that if they have any items they wish to add by way of supplementary agenda to please let me have them in writing as soon as possible* Secretarial assistance is available to them for this purpose, through either Mr * Braithwaite or Mr* Koz.* - 70 -
WEDNESDAY AFTERNOON SITTING
CUAIRh•IAN •
Order, please. We will now deal with Number 5 on Page 6
of the Guide Paper. Professor Fortin would you please explain
that? •
PROFESSOR FORTIN:
We are dealing here mostly with the question of waiver of
jurisdiction. We admit, from the start that these sections are
not easy to understand. The report proposes two main groups of
waiver of jurisdiction. The first, from an ordinary court to a.
Juvenile Court and the second, in the opposite way, from the
Juvenile Court to the Adult Court.
We will take them separately. The first, which is a waiver
, that can be made by an ordinary court to the Juvenile Court. The
report reiterates two fundamental recommendations which have been
made on the same question, that of the Archambault Report and
that of the Ontario Magistrates Association. This waiver concerns •
17 year olds who appear before a summary conviction court. By
definition, these persons must face a charge for a summary
conviction offence . If the judge believes, at any time during the
trial that it would be in the better interest of the child and of
society, he can order a transfer of jurisdiction to the Juvenile *
Court. The motives which inspire the report on this question are
to provide a means of allowing some flexibility with regard to -- 71 -
those who are slightly over the age of criminal majority and
are under a charge of so-called less importance. I think the.
ouestion here is to find out whether this proposal, despite the highly rated authorities in favor of it, can be regarded as practical before the Courts. The second category deals with the referring or transfer . from the Welfare or Juvenile Court to .an ordinary Court.
This second category involves two categories, that is the waiver at the request of the Attorney General or, secondly, the waiver granted by the judge at his discretion when he
considers the interest of the child and the community require it. Let us deal, first of all, with the one which may come about at the request of the Attorney deneral or the young person himself.
The report set forward to justify such a recommendation that it
is the right of the child to require a trial before the ordinary Courts and the Report on this question especially, refers to the
English practice which allows the child to require a trial before
jury when. the charge, if it had been brought in another way, would
have allowed him . to do so. Similarly, the Attorney General could notify the Court that, for some reason, it is necessary to have the trial of the accused before an ordinary Court even though, according to his age, the
child comes under the definition of a child as set out by the - 72 -
discussion draft.
This waiver would deprive the Court of all jurisdiction on
the case as regards the trial, but if the child was convicted
before an ordinary court, he would be referred to the juvenile
court to receive his sentence.
The second category of waiver here deals with the waiver
coming from.the exercise of discretionary power on the part of
the judge. The dispositions of Section 53 of the draft seem to
set out for the Judge in as precise a way as possible, in which
way or on what criteria he must base himself to give such a ruling.
Basically, the principle of the second waiver is the same as the
one we know under present Section 9 of the Act which allows the
judge to decide for the good of the child and of the community,
whether the child should be judged before an ordinary court.
Except, however, the draft proposes that the waiver may be
carried out for the trial only or for the trial and sentence
according to the judge's appraisement of the case. I think that
the basic question involved here is, prior to raising questions
procedure, to decide whether these dispositions can be carried out
to advantage before the courts.
CHAIRMAN .
Perhaps we should deal with the three proposals separately.
The first, as I understand it, is that a 17-year-old before a
summary conviction court could be ordered by the court at any time
before sentencing to be sent to Juvenile Court to be dealt with there. - 73 -
MR. BOWMAN (Ontario):
We strongly doubt the usefulness of section 9 which provides
for waiver by an adult court in favour of a Juvenile Court. The
benefit of anonymity has already been lost by reason of the
proceedings before the justice or magistrate and also the section
itself is limited to summary conviction offences which do not
create, in our view, the saine stigma on the accused that flows
from a conviction for an indictable offence.
Particularly, again, we are further of the view and are
gravely concerned about any. provision that would permit a person
over the age of 16 years to be sent to a training school,
possibly for three years. Our training schools are certainly not
presently geared to train people 20 or 21 years of age. We are
not in favour of this provision at all.
CHAIRMAN:
One moment please, Mr. Bowman. I do not think that a '
person of 20 years of age would be swept within the ambit of
this proposal. It is a person 17 years of age that is being
discussed or, as Mr. MacLeod has suggested, a person one year
older than whatever age is chosen as the juvenile age in the
province concerned. So, you would only be dealing with a. person
either 17 years of age or one year older than the age adopted. - 74 -
I‘ift,ji,AC4p)OD:
Yr. Bowmanis problem is a practical one, though Mr. Chairman,
in that he says that under existing provisions of the law people . who are dealt with by the Juvenile Delinquents Act can be kept for a period of three years in provincial training schools. They are not geared to look after people who are more than 17
years of age and they are more than 16 years of age by the time they get there. CHAIRMAN:
Perhaps, then, we could. get Ontario's views on the second
recommendation in this group which is that at the request of the Attorney General or the yoùng person, the juvenile might be sent to adult court for trial only. MR. BOWMAN:(Ontario)
We feel that section 9 of the present act should be retained. This provision leaves discretion solely in the Juvenile Court . judge where it should rest and relates only to indictable offences. We cannot see that it is necessary to make the changes proposed in the new draft act. A proposal that waiver may be . for trial only implies that a Juvenile Court may not be a proper tribunal to determine guilt and we do not subscribe• to this.
CHAIRMAN:
We are now dealing with the third proposal under that heading.
The sugfeestion that the juvenile be sent from juvenile court to
an adult court by the Juvenile Court judge for trial only, or trial and sentence. - 75 -
MU BOIWIIN (Ontario):
I thought I covered that ...
ÇUAIRMAN:
No, I think the second item we were dealing with, Mr. Bowman,
was juvenile court to adult court on order of the Attorney General or the juvenile. I take it you are against that. MR. BOWMAN (Ontario):
Yes.
CHAIRMAN:
Are you in favour of the juvenile court judge having
authority to send the juvenile to adult court for trial only,
or for trial and sentence, as the juvenile court judge sees fit? MR. BOWMAN (Ontario):
For trial and sentence.
CHAIRMAN:
But not for trial only.
NE,_powmAq (Ontario):
Not for trial only; and under our present section 9. MISS SPRAGUE:
Mr. Bowman, as presently exists in the draft under 53, you
will notice that the major difference between draft section 53 and
present section 9 is that 53 refers to any offence and not just
indictable offences. Do you care to make a remark about that? - 76 -
MR. BOWYAN_(Ontario):
Yes; we think it should be limited to indictable offences; we do not think that the general concept of the act should be breached just simply to get a summary conviction offence before an adult court. CHAIRMAN:
We are back on the first item 17-year-olds being sent to
juvenile court from adult court in summary conviction matters.
MR. CHOUINARD (Quebec):
I will deal with this question at one stretch. In this regard, we share the opinion of Ontario to the effect that Section 9 of the draft should be done away with, together with
Section 52. With regard to Section 53, 54 and 55, we would prefer the present Section 9 of the Act.
CHAIRMAN: The second proposal is that at the request of the Attorney General or the young person he might be sent from juvenile court to adult court for trial only. MR. CHOUINARD (Quebec): No; I think I have covered all points in one sentence. We would favour that Section 9 of the draft be repealed; and the saine
with Section 52; and that instead of sections 53, 54 and 55 we
should retain the rule of section 9 of the present act.
• • • - 77 -
You are of the same opinion with regard to indictable
offences? You agree with Section 9 as it is?
MR. CHOUINARD (Quebec):
Yes. We also bear in mind what we said this morning, that this would be pretty well limited, in our view, to offences under the criminal law or other federal statutes.
CHAIRMAN: Nova Scotia?
MR. MAC DONALD INova Scotia): With respect to transfer from the ordinary courts to the
Juvenile Court, we agree with Ontario and Quebec, basically. We would not, however, object to, and indeed would prefer, a provision which would enable the ordinary courts, within this limited age group of one year above the juvenile limit, to apply in appropriate cases the disposition procedures of the
Juvenile Court in lieu of, or in addition to, ordinary disposition procedures. With respect to transfer from the Juvenile Court to the ordinary courts, we favour generally the retention of the
provisions of the present Section 9, but we believe that they • should perhaps be clarified to some extent. Our suggestion would
be that the conditions of transfer should be set out in two forms. - 73 -
First of all there should be certain objective considerations,
which would be conditions precedent to transfers. Those might
include the age -- and we would agree with the present 14 as the
age -- and the character of the offence; and again we would agree
with this transfer being limited to indictable offences; and
perhaps also the requirement for notice whenever,notice is
possible.
Other subjective considerations such as the good of the
child, the good of the community and the general phrases that
are now used in Section 9, we think, should - be expressed as
guide•lines for consideration of the judge rather than as
matters to be specifically established before a transfer can •
be made. .
CHAIRMN: • Thank you very much. Manitoba?
MR. PILKEY (Manitoba):
• We are in substantial agreement with what has been expressed.
We do not recommend any procedure for returning to the juvenile
court for trial or disposition. Presumably screening has been
done before a person is taken before the ordinary courts and we
think it would be impractical for one court to hear a case and
another to make fully informed disposition. We feel that a
child or a young offender, or what have you, should not himself
have an election to proceed in the ordinary courts. - 79 -
We feel, generally, that Section 9 of the present statute is satisfactory, except that perhaps it might be extended to
any offence rather than indictable.
If I might be permitted an example here, if a youngster
is transferred to the ordinary c'ourts on what is normally an
indictable offence and then gets into difficulty with the law on a matter that is summary conviction and comes before the
juvenile court there are some practical problems that might arise. We think basically that Section 9 as it is presently constituted is good, and it is apparently workable. If there
is to be any change in the AttorneY General's authority to. - direct what court proceedings should be in, perhaps some thought might be given to a provision whereby the Attorney General could require a trial in the ordinary courts for offences specifically
under 413 .of the Code.
MISSSPRAGU: That means, then, that to a certain extent you agree with
draft section 52, does it?
CHAIRMAN:
That is at page 110. -
MR._PILgY (Manitoba):
Yes; except that we omit the young person. I have indicated
that the young person should not have an election. Consideration
might be given to the Attorney General's having authority to require trial in the ordinary court where the offence is one
that normally would be under 413 of the Code; that is in cases - 80 -
of manslaughter, rape and so on, which would normally be jury
trials for adults.
CHAIRMAN. Alberta?
MR,A.E„.. HART,(Alberta): -
Mr-Chairman, we agree with the opinions expressed by Ontario, Quebec and Manitoba. In essence, we would favour the retention
of the preSent section 9, but would be interested in any • reasonable modifications in the wording of that section or in the
. effect of that section. •
MR. PENNELL: .
Going back td what Manitoba said, I want to clear My own mind again. Consider the Case of the young offender who :commits a continuing series of acts. He commits an indictable offence
and he may also have committed a summary offence. If it is . moved into the adult court to deal with the indictable you would have the Attorney General certify that they ought to try the
sumrna.ry since it arises out of the same sort of circumstances?
MR„... PILKEY (Manitoba):
No; but I thought that expanding what is the present .
section 9 to include all offences rather than just those which are indictable would overcome the problem which I take it you
are mentioning. The problem that I see is that there Might be some difficulty if the youngster has already been before the
• • • - Cl -
ordinary courts and cannot go before the ordinary courts on a
later occasion because it is a summary conviction offence. It
might be impractical.
CHAI MAN
Thank you. British Columbia?
DR.KENNEPY_(British Columbia):
On the last point, of'whether or not summary conviction
offences be included, I suggest that'there be some enlargement
of the provisions either along the lines suggested, to include
all offences, or to cover the situation that has been suggested
by Manitoba and, I think, Nova Scotla, where the youngster has
been before an adult court before. That may not be as sèrious.
The more serious one is where the youngster has been in an adult
institution and then comes back on a summary conviction offence
and can only be sentenced as a graduate of an adult institution
to a training school. This is unfortunate but true. We have
illustrations of that in narcotic offences. The next time the
girl is picked she is picked up on the vagrancy section, which
is summary conviction only, and if she has to go to an institution --
and it has happened on more than one occasion -- she goes to the
training school. It is hot good.
Whether you need to go all the way and open it up for all
offences, or cover that type of situation, we do not care at the
moment -- I mean, our thinking is flexible. But that is a - 82 -
problem which we appreciate you tried to pick up, or, at least,
the people who drafted it tried to pick up, because I believe
there is a recommendation in the Department of Justice on this section.
JUDGE_ _ _ _GROOM _ _ _ (Ontario): I thought in B.C. you woUld not charge them.
KENNEDUBritish Columbia):
A federal summary conviction offence? If the amendments
to the Criminal Code go through it may even be that the Attorney
General of Canada will be doing the charging, not us. We are interpreting the Attorney General's functions to administer the law.
On the whole question of waiver, I think we would be
inclined to retain section 9 as modified, but I would like to • come back on that question.
It was suggested, I think, at one stage that the first type
of waiver -- that is, from the adult court down to the juvenile court -- of a 17 year old, which I understand has to be read
as a person who is one year older than the juvenile age in the
particular province -- is that the answer you gave, Mr. Chairman? CHAIRMAN:
The age that was given was 17; but Mr. MacLeod suggested that
that perhaps would be more accurate -- in casé 16 is not adopted as uniform. - 83 -
DR,KENNEDY (British Columbia):
In Ontario you have your 16-year-olds who are not caught.
You can send a 17-year-old back, but not a 16-year-old.
MISS SPRAGUE:
No; in the context of this blue paper, though, it is the one year older. pR,,KENNEDy_(British Columbia): That is what I am saying, yes.
MISS SpRAqUE. Yes.
DR. KENNEDY (British Columbia):
I am assuming that it is being interpreted as one year older. There was some suggestion, I think, that that provision might
be a means by which a province, which wanted an age higher than 17, might retain that age -- an indirect means by which it might do it -- namely, have them come up in regular court and then sent back to juvenile court. I have reservations on that, in part for the reasons given by Mr. Bowman that he is taken into
regular court with all the attendant publicity and all the rest of it; he is not being dealt with as a juvenile. And if
the purposes of the juvenile act and of having a separate act at all to deal with juveniles under the Criminal Code are to be maintained then I cannot see the purpose of taking him into adul b
court and then moving him down. I would be inclined to leave the - 84 -
discretion on waiver generally with the judges but I am throwing
out this suggestion that waiver might be used to overcome the
differences of the provinces on the maximum age.
Quite frankly, I do not think it can be used to overcome
those differences. We did not discuss the differences this
morning, other than really to take a count of heads, but I
suggest that that not be used as a solution to bring about a
uniform age for uniformity's sake. For my purposes I cannot see.
have uniformity solely for uniformity's sake. If why we should
there are some purposes in a uniform maximum age then let us
discuss the purposes.
CHAIRMAN:
Thank you. Saskatchewan?
MR. MELDRUM (Saskatchewan):
We agree with the position taken by Ontario and Ouebec. If
there were to be provision for waiver with respect to 17-year-olds
we feel it would have to bé limited to cases where it was - requested
by -the Attorney General: otherwise you might have the courts deciding
that in a particular area the age would be 17. As indicated by
Dr. Kennedy this does mean that on a transfer to the adult court
the matter of publicity comes in and we do not feel that that is
a good thing. We also do not think that under any circumstances
should the young person be able to make the election to go to
adult court.
Basically we feel that the provisions of section 9 of the -
Juvenile Delinquents Act should be retained.
- 85 -
MU. DRIEDGER (Jaskatchewan):
May I make one further comment on the point that Nova Scotia
raised? We feel that section 9 where it refers to "the good of
the child and the interest of the community demand it" should be
kept as strong as possible; that it should be proven that both of
these points are under consideration rather than being takeh into consideration.' "Taking into consideration" opens it up very wide.
We have had some specific appeals on that exact point and they
• have been retained or returned to juvenile court on this very
point. We feel it should remain the way it is -- demanded.
CHAIRMAN: Newfoundland?
ER. McCARTHY (Newfoundland): We agree with the proposition that a child could be transferred from a juvenile court to an adult court for trial
and sentence, but we do not go along with the other two
propositions. I think we would favour the old section 9 with some modification. Thank you.
CHAIRMAN:
New Brunswick?
MR. FORESTELL (New Brunswick):
To me the whole question seems to be what is practical,
first in moving juveniles or adults to the juvenile court, or
cour sociale, if we want to call it a social court. Certainly
I have seen cases where a boy of 18 or even 19, might be in - 86 -
high school, yet he is before the adult court. The charge may not
be too serious and the judge may not want him to get a record.
If there was a procedure by which the case could be handled.in
a social court the judge would be glad to use it only to avoid
giving the boy a record. I think this waiver from a:higher
court to a lower court in this type of case is good. It would not
be the type of case where a person would be going to a training
school, but it might be the type of case where a person needs
help and aid on probation. If it is handled in the criminal
court the aftermath of a record can do great harm to his career.>
As far as the waiver of the jurisdiction of the juvenile to
a higher court Is concerned, I think section 9, as we have it,
leaves discretion to the judge and I think this is right. But,
I think the judge in the case of the older person to the juvenile
court or social >court, also should have discretion and when we
limit it to only age 17, we are only basing it on age and not on
the offender or even on the offence. I think this should be
considered- •
JUDGE MAKIN (New Brunswick):
I feel the words "good of the child" as amended are quite
difficult to interpret. I feel that if one were considering a
person to be sent up, then one must consider whether all the
facilities that are available have been used, whether they all
have failed, if there is no hope and no longer any alternative - -
in dealing with the child as a juvenile; the purposes of this
legislation cannot be fulfilled in that setting. I think that
causes a lot of trouble as it would be very difficult to corne to - the conclusion that it is going to be for the good.of the child to face another court, perhaps 'GO be punished much more severely --
although that may be for his good. There is certainly a
discretionary power there, but it is not one that could be
exercised on the court's own motion. Perhaps it has been
exercised on its own motion, but I think Somebody has to make
a motion generally in the court before a matter can be considered
and the facts presented. I do think, even though it may have been
interpreted that way, it would be much clearer if the words "on
its own motion!' were added, if that is the intention. JUDGE TRAINOR (Yukon)
I am in favour of the first point, that is a 17-year-old
being moved down from the ordinary court to a juvenile court. It
seems to me that there are a few instances where this may be •
very useful. There may be not too many, but as long as there is
some use which could be made of it -- I am thinking particularly
of the provision for an absolute discharge so there is no record
of any kind -- this should be retained.
With respect to the second point, I do not think the young
person should have any right to move the rratter from Juvenile
Court to adult court. I think the right of the Attorney General - 88 -
to move the matter should be restricted possibly to cases under section 413 and, perhaps a few others, but it should be limited in this particular way.
With respect to the next point I think any matter that was . moved -- the Judge of the Juvenile Court should have some
discretion to exercise about moving them -- should be restricted to trial and sentence because of the extreme difficulty which
would exist at the Juvenile Court level in determining what the
disposition should be if the trial was not heard in that court. I think, in considering sentence, the adult court should have the disposition which are available to it under this legislation. CHAIRMAN.
Thank you. Northwest Territories?
MR. SMITH (N.W.T.)
We agree with the remarks of Magistrate Trainor in this regard.
CFAIRMAp:
Are there any further comments in relation to Item No. 5? MR. MAC DONALD (Nova Scotia):
With respect, to that aspect of transfer which is contained
in subsection 4 of section 53 of the Draft on page 118 the requirement that no order
"... shall be valid unless it is in writing, and written reasbns in support thereof are stated in the record." it seems to us that the Juvenile Court Judge in making his
transfer may have reasons which, if stated in the record that
il - 89 -
goes to the higher court or to the ordinary court, might
include matters which should not properly be before that court
or, if before it, should be brought before it only in accordance
with the evidentiary rules of the ordinary courts. We would,
therefore, suggest that it should not be made a part of the record
as transferred to the ordinary courts. If the order of waiver is
to be made the subject matter of appeal then, of course, the
reason for making the order should be stated.
MISS SUACUp:
Mr. MacDonald, I.think that must be bad drafting, because
the explanatory notes show that the intention was as you have stated. MR L MAC_DONALD_(Nova Scotia):
That is right; the explanatory notes do so indicate. That
is one of the reasons I raised the point. CHAIRMAN:
Any further comments? Dr. Kennedy? DF. KENNEDY. _(British Columbia):
On the waiver down problem, I am not sure how far the draft
of the new Criminal Code bill has been circulated, but there
are some very good and useful provisions in it on a probation order.
It was suggested, I think by New Brunswick, that one of the useful
things for the waiver down provision would be the ability to waive
down in a. probation case. Under the Criminal Code you will have - 90 -
a very useful probation order provision if these amendments go
through. They are in the present bill.
On the record ouestion, of course, it is neither here nor
there. It is a criminal conviction whether it is in Juvenile . Court or in adult court. FORES.TELL_(New Brunàwick):
I think the big thing here as far as the elimination of the record is concerned is a person who has been convicted in a Juvenile Court has a record there, but he does not carry it with him through life. People cannot write to the ROMP and get this record for purposes of being bonded, getting into the United
States or taking a government job. But, when he is over 16 and
comes into that adult court, the record is there, possibly for a very small theft, and five or six years later when that record cornes back or when he wants to do anything, it just says "theft"
or it might say two years probation. It might have been a very
small offence and everybody thought it was, but still when you get the record two or three years later it looks very bad. I
think this is a horrible thing for people to carry around with
them for the rest of their lives, especially when they are trying to get bonds and things like this. I think this is a very great penalty. I think if a judge is given the discretion of sending it down -- I do not like the word Juvenile Court -- to a social
court and if it looks as if it might be a probation case, ho will use his discretion. I do not think we should tie their hands.
Everything should not be spelled out because if it is the judge
then cannot use his own discretion, knowledge and experience. - 91 -
THE CHAIRMAN Are there any further questions on Item No. 5? If not we will move to Item No. 6 'on page 7.
PROFESSOR FORTIN Section 20 of the discussion draft gives to the juvenile court judge the exclusive rights to receive informations and to issue summonses and warrants. This means, practically speaking, that the policeman will have to address himself to a juvenile court judge to start proceedings before the juvenile court. Obviously, if we go along with this proposition, the justice of the peace or magistrate will not be able to issue a summons or a warrant. To understand the basis of this section, you have to establish a relationship between this section and the informal adjustment provision. Actually the report mentions a function which should be exercised by the juvenile court, when a case is before that court. This function would consist of determining what children would be charged with a formal offence before the court, and what others should be referred for example, to an officer acting under the authority of the court, who would, try in some way, to make an adjustment with the parties concerned. This is why this necessary relationship was established between section 20 and the "informal adjustment" of section 28, since, if one is of the opinion that there is some value in the proposal relating to informal adjustment, consequently it follows, it seems to me, that the juvenile court judges must have emiusive power to receive informations, ..... - 92 - since the justice of the peace would not be equipped to exercise this function of selection.
MR. BOWMAN (ONTARIO)
We are particularly concerned in this matter that the court, functioning under the proposed act, will not evolve as a true court, that it might become an agency type organization for investigation and court procedure.
Investigation shouid be made by a comittee or a council or other persons designated by the judge and the judge should not participate in it. Any matter relating to whether or not a summons or a warrant should be issued, or any type of pre- trial screening process is foreign to the judicial rule of the court and such pre-knowledge of an offender would immediately raise the question of the qualification of the judge to proceed with the trial. We feel that a clerk or a Justice of the Peace might deal with these matters in the first instance and, as a subsequent stage, it can go before a Juvenile Court judge.
THE CHAIRMAN In other words, you would not be in favour of the recommendations.
MR. BOWMAN (ONTARIO) That is correct.
..... 3... - 93 -
JUDGE PHILLIPS (NOVA SCOTIA) We are opposed to it, basically for the same reasons as Ontario. I do not believe any judge wants to be involved -- receiving information -- if he can avoid it. Possibly, there is too much of this in existence today in Canada. Certainly it would be preferable to have it taken by someone other than the Juvenile Court judge if the information is laid.
MR. CHOUINARD We have no specific comment to make on the section as proposed, which does not automatically mean that we accept the principle of the informal adjustment. We shall discuss the informal adjustment further, later on when we discuss the section which refers more specifically to it. The last sentence in the discussion guide is true in one sense but is not necessarily true in the opposite sense. In other words, we say it is true that if the principle of informal adjustment is accepted and is to work there would appear to be no alternative. But, the reverse is not necessarily true. We cannot have section 20 as proposed and yet not have informal adjustment which is proposed. We have no objection to section 20, but it does not mean that we accept the principle of informal adjustment.
MR. PILKEY(MANITOBA) If you rad sections 19 and 20 to mean that only a Family Court or Juvenile Court judge may take an information - 94 -
or issue process, then we are opposed to it. I do not know if I take that meaning from the two draft sections. We feel it would be impractical. We do not feel that this is necessary for the purpose of informal adjustment. We are inclined to agree with the comments made by Mr. Bowman of Ontario that the judiciary should remain out of the informal adjustment and they should precede a decision on whether an information would be laid. As a matter of fact, by our provincial Corrections Act, we have assigned duties to probation officers which include efforts that informal adjustment be made prior to the laying of information. We feel this is a better approach than the one indicated here.
MR. HART ( ALBERTA) . Mr. Chairman, we believe this provision is too . restrictive. It has been suggested to us that provision might be included in the bill to allow a Justice of the Peace attached to the Juvenile Court, upon written authorization by the judge, to receive an information. We also have the Iroblem, of course, of remote areas where there might not be a judge available.
DR. KENNEDY ( BRITISH COLUMBIA) Mr. Chairman, I will be brief. From what I have said earlier, it is obvious we encourage informal adjustment, and,
• • • • • • • - 95 -
like Manitoba, we have provisions in our Family and Children's Court Act which puts the responsibility on the probation officer to endeavour to effect the informal adjustment before the matter is taken to a judge at all. I have a feeling that section 20 is an effort in the direction of informal adjustment but it ties us down too much. I think this is a comment that most of us will have in respect of some of the subsequent sections of the Draft. It is too detailed, too spelled out. We would like to see the same flexibility that exists in some respects under the other act applied to informal adjustments. Here is a chance, really -- one of the major chances -- to break new grounds with this informal adjustment.
We do it •now under our provincial legislation, to some extent.
In so far as the federal legislation is concerned,it may be useful to spell it out there, also.
JUDGE MAC= (NEW BRUNSWICK) We have a form of informal adjustment in some of our courts in New Brunswick under the present legislation. We are authorized under the present legislation to adjourn a case sine die at any place in the proceedings. An information is taken; of course, all informations in New Brunswick are always taken by the judges of the Juvenile Court, or judges of the Magistrates' Court if it happens to be an adult matter. There are no Justices of the Peace to take informations in New Brunswick, but an information is taken under the Juvenile Delinquents Act, and the date of summons is set perhaps for two weeks away. The probation officers are instructed to approach - 96 -
the parents to get their permission to proceed with the report and to explain that if there is any objection nothing will be begun until after the adjudication. They always get permission, and reports are prepared. It would involve the parents usually losing extra days of work, mothers bring children or arrange baby sitters and these people very often can least afbrd it. If, in the opinion of the probation officer the parents are responsible, and just the fact that they would have to be summonsed to court is sufficient, that would be adequate in that case to proceed without formal adjudication of delinquency. He simply gets up in court and recommends that the case be adjourned sine die. No reports are given to the judge but they are available in case there is an adjudication. The prosecution has never disagreed, and the juvenile never has a record of a delinquency unless he comes back again, or he is otherwise a problem in the community; he can be brought in for another disposition. So in a sense we have worked out under the existing legislation, a policy of informal adjustment that I think could meet the situation. I do not think we are doing anything wrong; the judge does not come in contact with it, he does not have the reports and he does not read them until such time as there is a formal adjudication. It is done by agreement and there has never been a complaint. But if there is an informal adjustment as provided by Section 28, then I think there should be an information laid, - 97 - because police forces and other people get all incensed about laying charges. If it were to go for two months and the probation officer went out and attempted an informal adjustment and it did not work, then you might never see them again and he may have talked quite sternly to these people and told them that if this did not work out, then charges would be laid and they would be summonsed to court and have to face the judge. If he does not do that then the whole system will fall'on its face. So I think if the type of informal adjustment in section 28(1) is adopted, the information should be laid and then the informal procedures carried out. •
MR. MELDRUM(SASKATCHEWAN) We do agree with the principle of informal adjustment, but we agree, as has already been suggested, that it be more flexible and not spelled out in such specific detail. In other words, we think that the informal adjustment as proposed is too formal.
MR. McCARTHY (NEWFOUNDLAND) We agree with the principle of informal adjustments, but I do not see the necessity for laying an information. I know in our province the RCMP police most of the province and a lot of informal adjustments are done before the cases get to court at all. Very often a case comes to court and the magistrate feels that the person should be charged; so you get the parents in and it is adjusted without the information being laid. But once we proceed to the stage of laying any - 98 - information, well, the chances are then that the case will be heard. But the policy and the practice so far has been to make those informal adjustments without laying any information.
JUDGE TRAINOR (YUKON TERRITORY) Just before proceeding with the other part of it, I have now had an opportunity of looking at section 19 of the draft which seems to be somewhat related. I can see no reason why this should be in, and every reason why it should be out. It would if carried out in the way in which it is written literally here amount to a deluge upon the judge of all the young people, or at least police officers, attempting to tell him something about all young people who have been in some kind of difficulty. I do not think that this can possibly be the intention of this legislation. I do not disagree with the principles set out in section 20(1) except that possibly there should be some permission granted to the judge to delegate this responsibility, such as was suggested by the Province of Alberta. In so fai'' as informal adjustment is concerned, I am completely in accord with this. I think the better way in which to work this out would be to require the police officers, or anyone who wanted to lay an information, to get in touch with the chief probation officer, or someone
9... - 99 - who is delegated by the chief probation officer, and lay the problem before him and let him act in a screening capacity before the matter ever got near the court at all. I think this is the proper office to use for screening purposes.
MR. SMITH (NWT)
One of the points is that there has to be a decision made on whether or not everybody handling juvenile offenders must first, as a matter of principle, consider whether or not an informal adjustment should take place. If it is handled by a Justice of the Peace, perhaps this opportunity would not be afforded and it would then necessa;ily have to be treated in a formal way. So, if we are to accept section 28, it seems that this inflexible provision necessarily follows. In substance then I agree with the remarks of Quebec in the first instance.
THE CHAIRMAN Is there any further discussion in relation to Item 6?
MR. FORESTELL (NEW BRUNSWICK)
Referring to section 28(3) on page 59 it would seem to me that out of the clear blue sky we now have the probation officer being denied the right to stop anybody from laying an information. I think the procedure, what will happen in the juvenile court and who is to do what, is of primary importance. This section 28(3) would seem to give the probation officer some authority as far as informations go and I think 10... - 100 -
it should be made clear where the probation officer will stand in the court and what his role will be. Will he be on the legal end of it screening the informations, or is this going to be up to the Crown Prosecutor assigned to the courts, or is this going to be the probation officer's job? It looks as if the probation officer has gone into this section. In New Brunswick, at least in 99 per cent of our courts, the probation officer does not get involved until the person has been charged and is before the court. This section just seems to come out of nowhere. Even in the Explandvory Note it comes from New York, and it is not bridged in with everything else.
MR. McDIARMID (BRITISH COLUMBIA) I think there is a need to look at Section 319 and 20 together, and Section 28. Our view is that the combined effect of Sections 19 and 20 may well be to kill the present informal adjustment, using that term in the sense of the practical informal adjustment which the provinces now operate, by requiring every peace officer, as a requirement, as a demand, to bring to the attention of the court every offence. Now, these are done on what I call the provincial informal adjustments practice as it now exists. So, by this legislation you are killing that practice and leaving us then with one alternative, the informal adjustments as - 101 - set out in this act? I am not saying that this informal adjustment might not be another step; that is a subject which I think needs to be more fully gone into. But if by virtue of Sections 19 and 20 you are seeking to bring to the attention of the court every juvenile vidator through the aegis of the police, then I think in effect you have killed the provincial practice of involving all the people that Dr. Kennedy mentioned earlier; all the people under the larger welfare umbrella who deal with juveniles at the very earliest stage.
DR. KENNEDY (BRITISH COLUMBIA) And it is a procedure which we do not even •use in adult courts. We do not require the police to bring to the courts every violation of which they have notice. They exercise considerable discretion and not only are they expected to but they are instructed to. Now, I realize that some of these sections are in because they were in the report. They were put into legislative form because they were in the report. But we have an obligation, in a sense, to comment on them; they are there. That is why Mr. McDiarmid spoke.
MR. CHOUINARD (QUEBEC) Mr. Chairman, I have tried in my comment not to exceed the exact proposition that was mentioned here. Now I see that some people -- I should not say strayed -- have gone into other fields. Therefore I think that I must make
12 - 102 - a further comment to the effect that we oppose section 28; the informal adjustment that is provided for these. I did not want to say it earlier because it did not come unde r. the proposition here but we would, of course, agree with what has just been said on the whole subject.
THE CHAIRMAN I am informed by Professor Fortin and Miss Sprague that practically nobody has had a good word to say for section 19. That seems to be the unanimous view here, and unless somebody wants to speak in favour of it let us take it as read that section 19 is not acceptable. Perhaps we can move on from there.
In the light of that is there any further discussion on item No. 6?
MR. McDIARMID ( BRITISH COLUMBIA) Although it is not officially on the agenda the informal adjustment will come up later on.
A DELEGATE Oh, yes.
Mr. McDIARMID (BRITISH COLUMBIA) The only place it is mentioned is in item No. 6.
THE CHAIRMAN
Item No. 7
1 3. - 103 -
MISS SPRAGUE The informal adjustment has not been mentioned anywhere else in this outline. It was perhaps not sufficiently brought out in item 6, but delegates have not finished talking about it, have they? Do you not think we should go ahead1
MR. HART (ALBERTA) All right. I was going to ask you, Mr. Chairman, whether any thought had been given in this area to incorporating a provision similar to section 490 of the Code which permits,the Crown or the Attorney General to stay proceedings under this Act? Where there is a stay of proceedings it might solve some of the difficulties.
THE CHAIRMAN I am informed that there is nothing in the report about a section analogous to Section 490 of the Criminal Code, and it has not been considered. If you wish to make that suggestion it will be recorded, of course. The long informal adjustment, Mr. McDiarmid, I am informed, could be discussed as well now as at any other time.
MR. McDIARMID (BRITISH COLUMBIA) Thank you, Mr. Chairman.
1 4... - 104 -
DR. KENNEDY (BRITISH COLUMBIA)
This meeting opens up to all of us -- and probably most of us are already aware of it -- a practice of informal adjustment, more so in family and children's court than in adult court -- a practice which does not involve the laying of informations, and which does not involve the matter coming before the judge; starting with that as the initial level of informal adjustment. Some provinces have it merely by practice; others have it by direction of the judge to the probation officer; others have it simply with the various forces in the community assuming the responsibility. And here is an area where I want to commend the various police forces for the work they do. They do a great deal of work, without bringing the youngsters to court. Beyond that, and at the other extreme, you have the information which is taken before the judge eventually with the youngster and, sufficient evidence having been given, the judge makes one or other order. I am throwing these ideas out for discussion. The question is whether or not there should be some intermediate level of informal adjustment spelled out in the statute in order to glve the probation officer, or other officer as designated by the court, a status to go out and make certain inquiries and to get answers to questions to which he might not otherwise be able to get answers, -- to give him authority. The information is laid and either the statute directs that he do this in the first instance, or the judge, in the individual
1 5... - case, directs that in a particular case it be done.
It may be that this intermediate stage can all be encompassed in a suitable wording of any hearing that gets before the court once an information has been laid. One of my difficulties -- and I think we all run into this problem -- is that once an information has been laid we like to see a proper disposition of it in one form or another, particularly in adult court. You do not, for example, want to have the thing settled out of court once an information has been laid. The rrosecutor should properly withdraw it in court if he is not proceeding with it, and there should be no suggestion of deals and things like that. On the other hand, in the juvenile area particularly, the information may have been laid before the probation officer became involved.
The information may have been laid for the other reasons that I mentioned -- to give the probation officer power. The act, I think, should spell out what should be done so that the youngster does not have hanging over his head the uncertain or indefinite proposition that he might at some time in the future be brought before the Juvenile Court Judge for this offence some time before he is 21. It should have a term on it.
As I say, I am throwing out ideas arising from our discussions. We have no firm or fixed views except that we want as flexible an informal procedure as possible.
16... - 106 -
I am just checking with my members to make sure that I have reflected everything. Thank you.
THE CHAIRMAN Are there any other comments?
DR. KENNEDY (BRITISH COLUMBIA) I think I mentioned at the beginning, but in case I did not I wish to say that we want to make sure that there is some power for the probation officer. By way of illustration, our Family and Children's Court Act, section 5(2)(a) provides that:
"The court has all the powers vested in a Juvenile Court by the Juvenile Delinquents Act of Canada;" and then under Section 7(2) provides
"In addition to his powers and duties under the Probation Act, a Probation Officer shall endeavour to solve family problems without the inter- vention of a Judge It may be that we need more powers than that. This was an experiment in our Act, passed in 1963. JUDGE PHILLIPS (NOVA SCOTIA) Mr. Chairman, the probation officer istasically a social worker-welfare officer. This is as we understand him in Nova Scotia. I think we should be very careful not to place him in the role of a quasi police officer or an enforcement person of some sort. I know the trend is to think of him as some sort of a court officer and although
1 7... - 107 - he certainly is, to some degree, nevertheless he is a rehabilitation officer, more in the social work sense, I think, than in any other. This is as we see him. There- fore, any informal adjustment -- and I do not like that word "adjustment" -- should be in the nature of a welfare service, so that it does not infringe on any action that might take place in the future. There should be no threat of action involved, because we all know that probation officers do have private contact with police officers. They are certainly given to understand that they are not to try to be police officers, because the moment they take on the role of authority they cease to be welfare office. They cannot be both. I realize it is a difficult line they walk, but essentially they are welfare officers.
THE CHAIRMAN Thank you.
JUDGE GROOM (ONTARIO) With respect to the feeling of the Family Court Judges Association of Ontario, we felt that the probation officer should not be the person designated to do this job but that it might be anyone, depending upon the volume of work in individual courts. In some areas it has to be the probation officer because he is the only one the court has to assist him. However, more and more in Ontario probation officers are doing
1 8... - 108 - pure probation, dealing with the rehabilitation of offenders; and the volume of work is such and the case load is so high that more and more they are getting into that area exclusively. Originally they did domestic relations, and gradually that was lopped off. If we are also going to have them doing investigating, before trial they will not have time to do the job that they are really supposed to do, which is to assist in the guidance and supervision of young peoidb who need their help. Therefore, I think it would be very important not to saddle them with this. I agree that there should be a person, somebody who should do this job, but not necessarily that it be the probation officer. That I think would be arguable.
THE CHAIRMAN Thank You. Are there any other comments?
MR. CHOUINARD(QUEBEC) I do not want to add very much to what has already been said. We do not feel that it has to be mentioned specifically in the Act, and we would rather favour simply striking out section 28 as it is drafted.
THE CHAIRMAN Thank you. Mr. Driedger?
MR. DRIEDGER (SASKATCHEWAN) Mr. Chairman, I am not sure whether you want to get 19... - 109 -
into a discussion on probation officers at this point. This is one of the suggestions that we from Saskatchewan made as an addition to the agenda. If you wish to get into it now we do have some comments on it.
THE CHAIRMAN
We do have an item on the supplementary agenda dealing with Probatipn officers alone. I think perhaps we can leave it until that time.
MR. DEWALT (MANITOBA)
On the question of informal adjustments, it seems to me that we are failing to see the more important side of informal adjustments, and that is the counselling process whereby the child and his parents are better able to cope with the problem that brin"gs the child into conflict with the law. It is assumed that the problem is not of sufficient seriousness that it cannot be dealt with in a brief period without court action. If we are just looking at informal adjustments from the point of view of whether there are sufficient grounds then I think it is a pretty narrow approach to the whole question.
20... - 110 -
There are a number of authoritative statements on this subject, one of which is found in "Standards for Juvenile and Family Courts" by the U.S. Children's Bureau which points this out, that the important part of the informal adjustment is the counselling that goes to help the child and his parents to deal better with whatever it is that brings the child before, or to the attention of the court. I suggest that instead of "informal" we use the term
" non-judicial" because "informal" implies a non- serious, or sort of casual approach to it, whereas
" non-judicial", I think, is more appropriate. It says what we really want to say.
DR. KENNEDY (BRITISH COLUMBIA)
Try to get that through Parliament.
THE CHAIRMAN
Is there anything further on Item No. 6?
21... - 111 -
JUDGE ROBERTS (NEWFOUNDLAND) We support the principle of informal adjustment. I think it is a,very necessary and vital alternative to a Juvenile Court, to formal court hearings, because many cases are suitable for these informal adjustments. .
On the matter of who would be given this duty in the court, I share the view of Ontario. I think the trend is away from involving probation officers who are full time and have a particular and probably a special philosophy in these cases and from their getting into a sort of semi-judicial position. In our court in St. John's we use this procedure of informal adjustment. We have available to us some welfare officers and sometimes the Clerk of the Court, who is an experienced person, too -- if it is possible in the midst of his other duties -- can help in this; but we do agree with the principle of shielding the probation officer, if he has enough probation work to do, from becoming involved too much in this kind of activity.
22... - 112 -
THE CHAIRMAN
Thank you. Are there any further comments?
MR HART (ALBERTA) Mr. Chairman, our Juvenile Court judges have suggested that after the words "probation officer", if the section is to remain, there should be added the words "or some delegated officer of the court", having in mind that we have attached to some of our family courts such persons as lady solicitors who could very well do this type of counselling.
THE CHAIRMAN Are there any further comments? We now move to Item 7 on page 7. Miss Sprague.
MISS SPRAGUE The sections in the blue discussion draft dealing with procedure are No. 32 to 50. In discussing them I think we could make a division and discuss 32 to 44 separately. In doing this draft on the question of procedure the report calls more for guidelines than procedure, and quite frankly, Jacques and I were not sure how to go about
2 3... - 113 - it. For instance, section 5 of the present Act already makes reference to the Criminal Code. What we suggest is that sections 32 to 44 are adaptations from the Criminal Code, and that the following sections we probably could deal with section by section. I will just briefly outline the matters dealt with in sections 32 to 44. Section 32 comes from section 695 of the Criminal Code and refers to
11 no hearing without an information". Section 32 subsection (2) is from 697(1) of the Criminal Code and states that the judge before whom an adjudicatory hearing is held does not have to be the one who received the information, or before whom a detention hearing is held. Sections 33 to 38, inclusive, are the sections from the Criminai Code dealing with the sufficiency of an information and defects and objections. Section 39 in the discussion draft, dealing with the'' powers of the juvenile court judge, is an adaptation from 451 of the Code. Section 40 of the discussion draft deals with the taking of the evidence of a witness; 41 deals with a witness refusing to answer. By the way, this is a problem because you may have a child witness and to start throwing them into prison is in itself a bit of a problem. Section 42 deals with an absconding witness and section 43 with the non-appearance of the prosecutor; section 44(1) refers to proceeding to hold the adjudicatory hearing; section 44(2) deals with defendants and say that the defendant must appear personally.
24... - 114 -
These have been set out in this way as an alternative to section 5 subsection (1), of the present Juvenile Delinquents Act. As you know, the cases that are, or have been, reported on this point merely say what section 35 is meant to say, that the provisions of the Criminal Code do apply and that you have to have an arraignment and plea, and that your information has to be sufficient. I think the question on these sections is: Do you think the present provision is preferable to setting it all out in this way? In other words, should the provisions of section 5 be applied, with the mutatis mutandis applications, or do you think it is a good idea to set the procedure out?
JUDGE WALLACE (ONTARIO) ' This delegation leans towards using the mutatis mutandis approach. There is always the possibility that the particular sections that are affected and as they appear in the Code are complemented by dher sections there and that the interpretation is coloured by those other sections. If you place these sections by themselves as a sort of a code of procedure within the Juvenile Delinquents Act you have to be very very careful that it covers precisely what you want. We feel that it would be safer to use the mutatis mutandis approach.
25.... - 115 -
THE CHAIRMAN Thank you very much.
MR. CHOUINARD (QUEBEC) If I may put the question to you first, are we dealing now only with 32 to 44, or are we dealing also with up to 50?
MISS SPRAGUE No, 32 to 44.
MR. CHOUINARD (QUEBEC) Only.
MISS SPRAGUE And then 45 to 50 later.
MR. CHOUINARD Yes. Right. We are in favour of spelling it out in the Act rather than just a reference to the Canada Evidence Act or the Criminal Code. However, as we are dealing with a number of sections at one time, I would like to make particular comments with regard to certain sections included in these. In fact, I have only two comments.
I think section 39 should be the same as section 50. It should be, provided save with the consent of the parties at the end of paragraph 8. I am sorry; I am reading from my French text -- I am doing my own simultaneous translation. This refers to the delay of eight days. Unless
26... - 116 -
the narties consent it cannot be for more than eight days. Now this is already provided for in section 50 so we feel it should be stated right here in section 39(a) as well; if the parties consent. Otherwise it is quite cumbersome. With regard to section 41 this is more a question than a comment, but would this section apply to a young offender who would commit this offence? In other words does this apply to a young witness?
PROFESSOR FORTIN Well they would commit an offence under the Juvenile Delinquents Act.
MR. CHOUINARD (QUEBEC) No, but it says "when a person". It says, "where a person"; it does not say "who being present refuses to be sworn" and sO on and so forth "the judge may commit that person to prison". Does this apply to a juvenile?
MISS SPRAGUE I think your objection is well taken, Mr. Chouinard.
MR. CHOUINARD (QUEBEC) It is a question of drafting I am quite sure.
MISS SPRAGUE Yes, it was not meant to be...
MR. CHOUINARD (QUEBEC) No, I am quite sure it was not but this should be
clarified. 27... - 117-
MISS SPRAGUE In other words it might be interpreted that you can throw a juvenile into jail for eight days.
MR. CHOUINARD (QUEBEC) Yes. Now I take it that we do nOt want it to apply to a juvenile. But what do we do with the juvenile who refuses? That is another problem. This goes for the whole of section 41 and we see the same problem again later on under another section.
MISS SPRAGUE That is the problem we Were worried about and would it happen under the mutatis mutandis provision? I think you would get the same thing with the present provisions.
MR. CHOUINARD (QUEBEC) Yes.
THE CHAIRMAN Mr. Chouinard is in favour of spelling out the procedure in the Juenile Delinquents Act.
MISS SPRAGUE Yes.
THE CHAIRMAN But he is bringing these defects to our attention.
1 28... - 118 -
MR. CHOUINARD (QUEBEC) Yes, I am in favour of keeping these. My only comments with regard to sections 32 to 44 are these two small points; one under section 39 and one under section 41. Otherwise we agree. MISS SPRAGUE My own opinion is that you brought out a defect in this provision and it would have to be spelled out clearly that it was not ...
MR. CHOUINARD (QUEBEC) Yes, that this does not apply to a juvenile and that what we will do with a juvenile who refuses to be morn or to testify would have to be spelled out.
MISS SPRAGUE Yes.
MR. McDIARMID (BRITISH COLUMBIA) On that can we ask for a point of clarification because there are four categories and refusing to answer the questions that are put to him, that is refusing to testify, is only one. Should there be a difference in refusing to testify; refusing to be sworn; failing to produce writings and refusing to sign depositions.
MISS PRAGUE In other words, should they all be treated the same or should they be separate ?
29 - 119 -
MR. McDIARMID (BRITISH COLUMBIA) I just did not know whether that was the point raised.
MR. CHOUINARD (QUEBEC) It is just a question of drafting.
MISS SPRAGUE Yes.
MR. CHOUINARD (QUEBEC) Should we have a long sentence or break it down into four parts?
THE CHAIRMAN Is there anything further? Is that all?
MR. CHOUINARD (QUEBEC) Right.
MR. BOWMAN (ONTARIO) May I ask a question? What happens to a child who commits a contempt in the face of the Supreme Court? We just have not run into it that I know of.
THE CHAIRMAN
I do not know. I suppose if he was over 14 it would raise an interesting question.
MR. BOWMAN (ONTARIO) He could not be tried in Juvenile Court.
30 - 120 -
THE CHAIRMAN That is fine. Just a word of caution I hope we are not going to get into too much fine detail about drafting in this discussion. This document that is before you is really for thespurpose of discussion and I think if we can keep to the broader aspects it will be the wiser course. We appreciate that from a purely technical drafting point of view this document will need a lot of work before it can possibly be produced in final form for introduction into Parliament. This is recognized by the authors of the document.
MR. MacDONALD (NOVA SCOTIA) We have not any very firm views Mr. Chairman on spelling out the provisions or using the mutatis mutandis formula. On the whole we rather lean to the mutatis mutandis formula. We think that the difficulties which have been pointed out with respect to the draft sections are difficulties which are inherent in the present provisions of the Code, and which would not be corrected by the substitution of a parallel provision in this Act. This is indicated by Mr. Bowman's question. If we enacted a specific provision with respect to a juvenile witness in a Juvenile Court we would not be answering the whole problem of the juvenile witness. I think we should attack that problem at its roots which is in the provisions of the Criminal Code rather than in the provisions of this particular Act. 31... - 121 -
THE CHAIRMAN Thank you. MR. PILKEY (MANITOBA) We are inclined to the view that the present section 5 of the Juvenile Delinquents Act has worked and is workable and there is no compelling reason of which we are aware why it is necessary to codify all of this, section by section, into a new Act. The only two references I wish to make are in relation to refusing to answer and absconding. witnesses. I do not know whether the present section 5 covers this but subject to my comment that would be our decision.
MR. HART (ALBERTA) We favour the present draft and we favour setting out in detail the procedure to be followed in these cases. We did have a suggestion perhaps Mr. Chairman that might be considered in section 41(d) after the word "prison". This involves something more than just procedure. Some of our Juvenile Court judges have suggested adding there, "commit the persons to prison or detention when the person concerned is a young person or a child". Perhaps we might have some discussion on this question of whether a child should be detained if he is in contempt of court, as he would be in a case such as this.
THE CHAIRMAN Would you care to express Alberta's view on that?
32... - 122 -
MR. HART (ALBERTA)
It is the view of several of our Juvenile Court judges that something more than just admonitions is required here. We have detention facilities and some judges seem to think this might be a proper punishment for refusing to answer the questions which are contemplated, or for refusing to be sworn, as the section provides.
MR. McDIARMID (BRITISH COLUMBIA) As far as we can see our present section 5 might be kept. I spoke about it on section 41, following Quebec. It was only to open up the question not the technical problem, but the words used by the Quebec delegate were in reference solely to the question of having been sworn, and whether or not that was the only area where he felt that imprisonment should follow.
MR. CHOUINARD (QUEBEC) May I answer this? No, I was referring to everything but this was just one example, I took subparagraph (a).
THE CHAIRMAN Have you any further remarks?
Mr. McDIARMID (BRITISH COLUMBIA) No, that is all, thank you, Mr. Chairman.
MR. MELDRUM (SASKATCHEWAN) We are in favour of the present draft, that is, setting out the procedure in detail with possibly some of the 33... - 123 - suggested changes. This is perhaps a minor point but in section 40(5) it says that the defendant can request a copy of the transcript at any time. This could become quite expensive if every defendant asked for it whether he really needed it or not. It does not say on payment of the cost. Then in section 40(6) if it is taken on tape it says it has to be transcribed, whereas that is not the case in the ordinary summary conviction court. It does not have to be transcribed unless there is an appeal. There again if in every case you are required to transcribe it is doing away with some of the savings which result from using tapes. This is what section 40(6) seems to provide.
THE CHAIRMAN Have you anything further','Mr. Meldrum?
MR. MELDRUM (SASKATCHEWAN) No, thank you.
MR. McCARTHY (NEWFOUNDLAND) We have no strong views on the subject but we prefer it set out, as it is in the present draft. JUDGE MACKIN (NEW BRUNSWICK) There is no great advantage or disadvantage one way or the other.
JUDGE TRAINOR (YUKON) I am in favour of the Sections being set out in the legislation. I would like to say with respect to section
41(1) I think the court ought to have the discretion to 34... - 124 - actually commit the juvenile witness who does not comply with the requests which anamade, to be sworn or to testify. I think this is a matter which certainly could be left within the discretion of the court.
MR. SMITH (N.W.T.) I think the writing out of provisions right in the Act provides an opportunity to improve upon the provisions of the Criminal Code, having in mind the type of legislation we are dealing with. I recognize at the same time that a great deal of caution would have to be exercised in doing this ana might be a challenge.. But let us say, that caution perhaps is the better part of valoul', here. I think I am in favour of setting out these provisions in the Act.
THE CHAIRMAN Thank you. Now, Miss Sprague, perhaps we can discuss - sections 44 to 50.
MISS SPRAGUE Actually it is 45 to 50
THE CHAIRMAN Sections 45 to 50
MISS SPRAGUE The purpose in dealing with these separately is that they do not parrot the Criminal Code. They were more specifically dealt with in the report and we tried to deal 35... - 125 - with them more specifically. I think we might go through section by section: " 115.(l) Where the defendant appears, the court shall (a) explain to him the substance of the information in simple language suitable to his age and understanding, and, (b) inform him that, if he so desires, he may admit the facts of the information."
You can see from the explanatory notes that this is taken from the English rules and the report was quite strong on this point. Also, in the reported cases. on arraignment and plea, -- there were two of them and I forget which ones they are -- it seems to me they have adapted the strictness of the Criminal Code to the more flexible provisions we have here.
THE CHAIRMAN Are there any comments on section 45(l)? Mr. Chouinard?
MR. CHOUINARD (QUEBEC) Do you wish to deal with them one by one?
THE CHAIRMAN Do pu have any objection to that, Dr. Kennedy?
DR. KENNEDY (BRITISH COLUMBIA) T just want a clarification. We have done a group of œctions on procedure and now we are starting certain sections, one by one. 36... - 126 -
THE CHAIRMAN Yes.
MISS SPRAGUE We treated them as a group because they are really parroting the Criminal Code but the words were changed where suitable. These have all been thought out separately with very strong recommendations in the report.
THE CHAIRMAN In effect these are new. The others were just an adaptation really from the Criminal Code and it was considered for that reason perhaps we should take a harder look at them.
MISS SPRAGUE If it were decided to leave these specific sections, or someiding like them, in the Act, then we could have a section similar to the present section 5 saying that the provisions of the Criminal Code shall apply except where in conflict with this Act.
DR. KENNEDY (BRITISH COLUMBIA) Well, I only want to raise this point. I assume if the earlier sections or something comparable to them were to be set out that we will have an opportunity of going over them. We do not entirely like them in their present form. As à matter of fact, as Mr. McDiarmid says, we would
37... - 127 - prefer not to have them in the Act, and now we are starting to deal with these detailed things. I would not want it to be assumed, in a sense merely because of our silence, that we approved of the form of the previous ones
THE CHAIRMAN I wonder, Dr. Kennedy, if we should not go ahead with sections 45 to 50?
DR. KENNEDY (BRITISH COLUMBIA) Oh, I have no objection to going on with these. I just wanted to make sure that point was recorded.
THE CHAIRMAN I will just repeat the question. I hope you are not going to get into fine drafting detail. Let us keep policy in mind.
DR. KENNEDY (BRITISH COLUMBIA) Yes.
THE CHAIRMAN
Any , comments on section 45(1)? I believe Mr. Chouinard had something he wished to say.
MR. CHOUINARD (QUEBEC) Under section 45(1) (a), we would propose that the judge be asked, first to read the information as it is and then, explain it. So that he should read it first just as it is drafted and then explain it according to the needs of the moment. 38 - 128 -
Subparagraph (b) says the court must inform the defendant that if he so desires he may admit the facts of the information. We feel the court should also be required to advise the defendant that he need not admit the facts of the information but what would happen then? So, the court should explain what the proceedings will be. The defendant may admit the facts of the information, or he may deny them but if he denies them then an effort will be made to prove them.
THE CHAIRMAN That is right.
MR. CHOUINARD (QUEBEC) It only says that the court tells the defendant "he may admit". The court does not tell the defendant that he may also deny the information. Those are my comments on section I. - 129 -
CHAIRMAN: Are there any other comments on subsection 1 of section 45? MISS SPRAGUE: Section 45(2) reads: It No defendant shall be adjudged to be an offender or o violator upon an admission made pursuant to this section, unless such admission is corroborated to the satisfaction of the court by independent and admissible evidence." CHAIRMAN:_ Are there any comments on that subsection? MR. CHOUIUARD (QUEBEC) It seems to us that to ask for corroboration in all cases is too much to ask and it seems to us that if the minor is assisted by his father or lais or his tutor or his lawyer, then bis admission mother would be admissible without corroboration being required by some other evidence. If he is alone, we agree, but if he is assisted, it appears to me that we should be satisfied by lais admission because he is then sufficiently protected. DR. KENNEDY (British Columbia): I concur with Quebec. CHAIRMAN: Dr. Kerinedy concurs with Mr. Chouinard. Are there . Are there any dissenters? any other comments? JUDGE GROOM (Ontario): . We agree with that entirely. MR. KROEKER (Saskatchewan): Yes. Generally we would look upon this with seme - 130 -
degree of concern; there is a tendency that this might plug up the proceedings and create considerable difficulty if, in these cases, it is necessary to adduce formal evidence, admissible evidence, notwith- standing the admission and the aclnowledgment of the facts. ;le feel that properly trained and equipped juvenile court judges can ascertain with soie real deg,rec of certainty whether the child understands and can answer. CHAIRJ:AY: Well, you are not really dissenting; you are agreeing. MR. MacLLOD: You are agreeing with Quebec.
CHAI M. IAN : Are there any dissenters?
:MR:STEW, (New T3runswick);
Je have a situation here under sectio 45(2) where
the boy might well bo guilty , and ten the judge might find him not guilty because of insufficient evidence. UR. CMUINARD (quebec); Well, the judge can always call for evidence if he needs it. It would be quite normal. CUAIRUAN: There seems to be general agreement. Judge Trainor? JUDGE TRAIN OR (Yukon): Actually, there is . an obligation on every court to ascertain that a plea of guilty or an admission ouGht to truly be accepted. This would depend upon what was - 131 -
heard bj Lho court subsequently. I do not know
whoLhor I missed I L or nob, but in connection with
section )!5(1)(a), or (b), I uould like to say that
do not like its wording, in that it seoms to sugyest
that al] the court need do is ask the young person
or child whether or not lie admiLs to p,uilt. I think
he should be given the rif-ht to deny at bhab stage, as well.
MAIRUAU:
'loll, that point was made by VP. Chouinard, Unless
there are dissenters, I think we should try to move on.
Jr. McDiarmid?
LeDIAU;;ID (British Columbia):
Yhere is just one very narrow point, and that is
Lhat Lhis section is in conflict ulth the provisions
in bho new draft relating te the Lransfer of charges
from one province to another, where a simile pieu of
"guilty" can be accepted.
CFAIUMM:
You mean the ne , ' draft bill? fell, actually these
two documents ocre prepared completely independently.
Nc)1ARI 11) Pritish Columbia):
Po, no, I mean, of course, the juvenile one iJ_SS SrUACU:
I think ruebec made a supplemenbar, proposal and
they woulc: like to comment on that. lt will be dealt
with later. 7ou are talkin L about section 10 of this
draft, are you not? - 132 -
McDIARKID (Rritish Columbia): I am talking about section 10 of this draft, which is now 421(3). MISS SPRAGUE: Section 421 (3) is on the supplementary agenda. CHAIRMAN: Can we move on to subsection 3 of section 115? MISS SPRAGUE! (reads) "where the defendant does not make an admission pursuant to this section, the court shall proceed with the adjudicatory hearing and shall take the evidence of witnesses for the prosecution and the defendant in accordance with the provisions of Part XV of the Criminal Code" If you accept 32 to 44, that was all set out and this would be an alternative to those sections. I think we can skip over this one. CHAIRMAN: We have section 46. MISS SPRAGUE: I think the point in this one is quite clear. It forbids any evidence unrelated to the proof of the allegation. In other words, it forbids any evidence relating to sentencing. CHAIRMAN: Can we pass on? Section 47, subsection 14 MISS SPRAGUE: I think this is clear enough without explanation: - 133 -
If The prosecution shall be conducted by a counsel appointed by the Attorney General e where the Attorney General has appointed such counsel. 47 (2) The defendant is entitled to make his full answer and defonce. 47 (3) Subject to Section 78, every witness at a hearing in proceedings to which this Act applies shall be examined under oath."
We have section 48. Are there any comments? LISS SPRAGUE: This is the one that ensures the parent the right to assist his child in conducting the case, if there is no counsel.
I; j?. CMOUInRD ((;,uebec): Well, on this section, I must say that the parent may, as I see it, assist the child or young person but L,hould not be allowed to conduct his defence, including the cross-examination of witnesses, because this goes directly against the provisions of the bar, at least in Quebec, and I assume in the other provinces as well. HISS SPIUGUE:
Do you think to the extent that there is a conflict between the parent and child? Was that the point?
CHOUINARD (quebec):
No, no. I mean that a non - lawyer cannot do a lawyerts job, just as a plumber cannot do the job of an accountant. CHAIRMAP: Any other comment on Section 48, subsection.(1)?
MR. CROUINARD (Quebec) • I think tais is a very serious point. - 134 -
II DR. KENNEDY (British Columbia): 1 am afraid I differ. A DELEGATE: If it helps the child, fine, but it might be more useful to use "may" rather than "shall" in the first line. MR. FORESTELL (New Brunswick): think here we should go back to the old act to see what was allowed under it. Certainly, when a boy appears in court and the family does not have a lawyer, 1 do not think we would say that his parents cannot help him. Under the old act, even the probation officer was empowere d to help him and even now sometimes the probation officer is the only one in court who can. We might have the prosecutor in court and the juvenile court judge, but there is no way to give the family a few pointers. CHAIRMAN: really wonder whether in most provinces this would constitute'a violation of the Legal . Professions Act; there is no higher reward accruing to the parents, MR. FORESTELL (New* Brunswick): They are not being paid for it. CHAIRMAN: I think I will ask Dr. Kennedy. MR. CHOUINARD (Quebec): have made a distinction between assisting or counselling and actually conducting hi'à defence, Which is quite different. The child may receive assistance - 135 -
• or counsel from his parents which is quite ovicus, but
there is quite a diCference from plepding the cross-examining the witnesses and so on R. 'OMMI (Ontario): May I sug est to 7,ou that under the present act, Part 'Ci;.IV of the Code applies which enables a person to be represented by any agent and maybe the same should be made applicable here, if it is not already applicable.
All right. We will move ou to subsection 2. Is there any comment on subsection 2 of section 48? We will move to section 49. Are there any comments on section 49? MR. CHOUINARD (quebec): I think it should be mentioned that anythinG the child or young person might say under those circumstances cannot be used against him. CUA1RMAN: Are there any other comments?
ER. KEIT1TDY (r:Iritish Columbia): Do we need to spell this out, Mr. Chairman? Surely the judges take the responsibility for assisting an accused person who is not represented by examining or cross-exaMinIng a witness. I am wondering if we are spelling out too much. I am not opposed to the principle
of the thing. I think the judges should assist, but as soon as you start spelling things out, as we indicated - 136 -
earlier, you are going to run into difficulty about the things that are not spelled out. CHAIRMAN: Are there any other comments? MR. JOHNSON (Nova Scotia): There are occasions when judges feel they should not do this questioning. I would prefer to see this remain in. JUDGE MAKIN (New Brunswick):
I suggest the Court pe given authorization to appoint counsel -- legal aid -- in these cases. Al]. provinces do not have legal aid. CHAIRMAN:
Are there any further comments? We will move to section 50. Are there any comments
on section 50? MR. BOWMAN (Ontario): There might be a little addition to that section to apply to a child who is in custody and may or may not be remanded for more than eight days without consent. CHAIRMAN:
Are there any further commente on section 49? We will now nove to Item No , O. Perhaps Miss
• Sprague would be good enough to outline the issues
involved in this item . MISS SPRAGUE:
The reference in the blue paper is section 960 This is so tied up with Item No. 9, the abolition of - 137 -
the offence of contriubing to juvenile delinquency, that there may be some overlapping of the two items. We tried to follow the recommendations in the report as closely as possible, but we were not always successful. Basically, it provides for the trial of adults in the Juvenile Courts when adults have committed certain offences, namely Section 157 of the Code, corruption of children; Section 157A in the appendix, aiding and abetting, Section 186, non-support and Section 231 9 assault, when the offence occurs in the conditions set out in (a) (b) and (c). The intention being that there would be the family relationship. As we understand it, there are already certain provinces -- Ontario is the one about which I have heard the most -- which, in effect, accomplish this purpose by making a Juvenile Court judge a magistrate when hearing these offences. I noticed -- I think it was in the legislation of Nova Scotia, but I am not sure -- you have set out two sections under which they can be tried, Sections 186 and 231. Connected with this is the aboiition of the offence of contributing towards juvenile delinquency which will take a lot of cases out of the court. Maybe we should not deal with that now 9 though. Perhaps we should just stick to the other. A DELEGATE:
Maybe they can both be dealt with together'. - 138 -
the offence of contrjbuting to juvenile delinquency, that there may be some overlapping of the two items. We tried to follow the recommendations in the report as closely as possible, but we were not always successful. Basically, it provides for the trial of adults in the Juvenile Courts when adults have committed certain offences, namely Section 157 of the Code, corruption of childrnj Section 157A in the appendix, aiding and abetting, Section 186, non-support and Section 231, assault, when the offence occurs in the conditions set out in (a) (b) and (c). The intention being that there would be the family relationship. As we understand it, there are already certain provinces -- Ontario is the one about which I have heard the most -- which, in effect, accomplish this purpose by making a Juvenile Court judge a magistrate when hearing these offences. I noticed -- I think it was in the legislation of Nova Scotia, but I am not sure -- you have set out two sections under which they can be tried, Sections 186 and 231.
Connected with this is the abblition of the offence of contributing towards juvenile delinquency which will take a lot of cases out of the court. Maybe we should not deal with that now, though. Perhaps we should just stick to the other. A DELEGATE: Maybe they can both be dealt with together. - 139 -
MISS SPRAGUE: Yes. I do not think there is anything more that we have to explain. It is all in the explanatory notes. CHAIRMAN: Are there any more comments on Item 8. Ontario.
130WPAN (Ontario):
It has already been said. We have this t ype of case tried by a magistrate who is also a judge of the Juvenile Court. We pretty well bring into practice what the act suggests. MISS SPRAGUE: Mr. Bowman, in Ontario as it presently exists, does the trial take place in the Juvenile Court with a Juvenile Court judge acting as a magistrate? Is the trial held in camera and what about disposition? WI' . BOWMAN (Ontario): The disposition is the same as it would be under the Code. MISS SPRAGUE: He sentences as under the Code. MR. BOWMAN (Ontario): If an adult is involved. MISS SPRAGUE: Yes. In that respect Section 96(3) would provide
• a change because it provides, of course, for the sentencing as in the Criminal Code but there are alternatives really dealing with probation. - 140 -
• UDGE GROOM (Ontario): This brings in Fart XXIV.• YR. BOWMAN (Ontario): That is the only comment I have to make. CHAI MAN : Mr. Bowman, • on the question of in camera hearings, if they are being dealt with under the Criminal Code, how is this managed? MR. ?,OWMAN (Ontario): I will let Judge Groom answer that question. jUDGE GROOM (Ontario): Well, it just is managed, that is all. It is heard in Family Court in the judge's capacity as a magistrate. The Juvenile and Family Court judges are empowered and are declared to be magistrates for the purpose of dealing within this section, but it is within the Juvenile and Family Court. OnAIRMAN: But the public is excluded from the trial of an adult for an offence under the Criminal Code? JUDGE GROOM (Ontario):, Yes. You have a right to raie your eyebrows because I think some of the lawyers from time to time say this is not a public court, but this is the way it is being done. - 141 -
R. CUOUINAUD (_quebec): I would like to corne back on the principle itself, Mr. Chairman, because I am not sure that we understand very well the real meaning of the views expressed. First, I must say that there seems to be a certain
inconsistency, on one hand presenting the new . section 96 and on the other hand retaining the old section 33, because section 96 in its major part appeared to have been drafted to replace, in at least its essential substance, what was covered by the old section 33. Secondly, I would like to mention that it seems to me equally illogical to retain section 33 if we accept the conclusion expressed, I think, by the majority, this morning, and not to retain what was formerly a particular concept: the definition of a young delinquent. If this particular offence or this concept of young delinquent does not exist any more, what is going to constitute a conduct contributing to making someone a young delinquent, a concept which has been put aside. The4 old section 33 will necessarily have to be modified if we do not keep the concept of the young delinquent and in modifying it, this means that we will have to say this: such conduct, such act is prohibited and an adult in these cases can be prosecuted under this Act. It is neither more nor less than to give a greater extension to section 96 who, precisely, gives - 142 -
us a definition of the offences committed by an adult that can be the object of prosecution before a juvenile court. We are in agreement with section 96, and also with item 9; that is, abolition of section 33 of the present act. MR, MacDONALD (Nova Scotia): We have no very strong views on this. At the present time we do give our family court exclusive jurisdicbion under sections 186 and 231 Where the parties involved are members of a 'family union. That does not mean that we have complete coverage. At the present time we have family courts only in major centres. We have really no objection to the provision as framed. I take it that it will be reconciled with subsection (2) of section 70. CHAIRMAN: Thank you. Manitoba? MR. PILKEY (Manitoba): We do not have any strong objection to the course recommended here. Our Juvenile Court judges are magistrates, and vice versa in mosp cases. I see here the note: "Should section 717 alsd be included" ) am unable to follow the reason for section 717 being considered along with such things as corrupting your children or not supporting them or assaulting them. Section 717 as I read it has implications far broader than that. - 143 -
L IS S SFRAGUE: Does Ontario include offenca3under 717? JUDGE WALLACE (Ontario): ...between husband and wife.
MISS SPRAGUE: Yes. If this is acceptable, do you think that section 717 should be included?
JUDGE WALLACE (Ontario): Wo are getting quite a few of them.
JUDGE GROOM (Ontario): The point there is that if the youngsters live in a community and in their family their father and mother have a row and this comes out in public, this is hard on the young people. This is the purpose behind that. CHAIRMAN: You might have a recognizance against the husband for beating up his wife. JUDGE GROOM (Ontario): Yes. Somebody may ask why it is here. The purpose is to ensure that it not be bruited about in the community, to the detriment of the phild who is going to school. That is the reason. MR. HART (Alberta): We have no objection to the proposed sections especially as they are not mandatory. I may say that our family court judges are, of course, all magistrates. We would also favour the inclusion of section 717 in the sections mentioned in section 96 (1) of the proposed bill. - 144 -
CHAIRMAN: Thank you. British Columbia? DR. KENNEDY (British Columbia): In principle, yes, we approve, although not necessarily with the wording of the detail. We are talking only about policy or principle. Our family and children's court now has jurisdiction in common assault cases in 717 cases and in a number of other cases. The one referring to the corruption of children is the one that usually applies when there is a child protection case rather than as a criminal code case. I think there is a section where the Canadian Bar Association has recommended the repeal of section 157 of the code, leaving it to provincial law. Non-support is under provincial law. CHAIRMAN: Thank you. Saskatchewan? MR. MELDRUM (Saskatchewan): • We have no strong objection to this section. CHAIRMAN: Newfoundland? MR. McCARTHY (Newfoundland): We havé no strong objection except that we do not • see why'he has to be found guilty. Could you not proceed by suspending the passing of sentence without finding him guilty? I know the same provision is in • the Code. It seems to me that you lose the effect of suspending sentence, because once he is convicted he has a criminal record. Under our Summary Jurisdiction - 145 -
Act the magisbratc lias power to suspend sentence without convicting the person, so that lie does not get a criminal record. It seems to me that you could have some provision such as that here, so that ho could be placed on sus) ended sontehce without beini- found or without -)einr convicted.
;MAIRLAN: Thank you. Mnw Brunswick? e5
JlJ :DcrJ MACKIN (New Brunswick): In view of the fact that we have magistrates in New Brunswick it is actually immaterial. CHAIRMAN: Yukon Territory? JUDGE TRAINOR (Yukon): We agree with the inclusion of this section in the act and we think that section 717 should also be included. Cl [A Thank you. Northwest Territories? ha. SMITH (P.'.1.T.): We agree with this section and with the inclusion of section 717. CHAIRMAN: Is there any further discussion on Item No. .
Is will move to Ibem No. 9. M. BOWMAN (Ontario):
Wibh respect to Item No. 9, it occurs to us that the section dealing with the offence of contributing to juvenile delinquency should continue. (u_ite often there is a charge of indecent assault and if it is - 146 -
raised in adult court there is a certain amount of publicity. That simply does not arise when it is
dealt with in Juvenile Court. When • the trial is in Juvenile Court the juvenile is protected. JUDGE GROOM (Ontario): would say, to add to that, sir, that there are
a number of cases -- and Mr. Bowman has mentioned one
of them -- where the child is about to appear and has to give evidence and testify in a certain circumstance, It is hard on the child. I think it should be clone as much as possible in family court, rather than before people in a public magistrate's court. There are a number of offences which are not specifically mentioned here where a person might be charged, and in the interest of the child I think it should be held in family court. MR. CHOUINARD (Quebec): We have already stated our views. If I may say so, I am not sure that our colleagues from Ontario were quite to the point on this. I do not think there is a problem in having young people give evidence. One can have in camera hearings in ordinary courts. The point is that here we have created some sort of an offence, which can mean anything, and we are opposed to it. I think the point was well taken previously, when it was suggested that Items Nos. 8 and 9
• could properly be dealt with together. Because we are in
favour of section 96 we are in favour of leaving out former section 33. - 147 -
CHAIRMAN: Thank you. Nova Gcotia? MR. MacDONALD (Nova Scotia): do not have any stronG feelings on this Mr. Chairman. At this point I am not prepared to comment on the sufficiency of the Department of Justice's new draft. Apart from that I have no further comments. CHAIRMAN: Thank you. Manitoba? MR. PILK:Y (Manitoba): We feel that the offences contributing to juvenile delinquency should be retained. We would like to emphasize that the present practice of having the trial in the family court may often be much more in the interest of the youngster. Forcing them into the , ordinary courts, particularly in relation to very young victims, can destroy the child and can put him in petrified silence which would lead td an unjustified acquittal if it is dealt with in the ordinary courts. As I understand it at present there is in practice a choice available where you can charge an adult under the Criminal Code, or you can take/it into the Family Court by a contributing charge. And I think there is much merit in leaving the situation as it is in that regard. MR. HART (Alberta): Mr. Chairman, we are not offering any opinion on
item 9 at this time, but we are inclined, I believe, to agree with Manitoba that there are some good uses that - 148 -
could still bo made of this present section 33. DR. KENNEDY (British Columbia): We have no firm views either, Mr. Chairman, Part of the problem is that we do not like the section being used as police power. In so far as its being used as a proper offence section is concerned, that is all right. In so far as it may be used to deal with an offence in camera, where it should be dealt with in camera perhaps some pretty bad incest case or something like that you have got a problem. Should you charge under the Code, and have the judge, under the Code, close the courts? Are we in other words, retaining section 33 because we want to use it either as an additional weapon, where we cannot prove a full offence, or where we want to protect a family from the publicity that might result from a Criminal Code charge? This is the problem we are trying to resolve. MR. MELDRUM (Saskatchewan): We feel that it should be retained. MR. McCARTHY (Newfoundland): We feel that it should be retained. JUDGE MACKIN (New Brunswick): We agree with the new sections, and the contributing section drawn. CHAIRMAN: Yukon Territory? - 149 -
•UDG TnIIIOR (Yukon Territory): Particularlt; with the recommendations in the report
of the Just i ce Committee this section should be deleted.
ER. ;M:ITH (H.W.T.): je have no strong views on this, so I think we will pass on it.
interpretin the answers that are Given when it is said "retain", lt seers that we must then understand
that section 33 must romain in its actual drafting.
On this matter, the eport states that, in its actual drafting, section 33 goes against the sacrosanct principle of the specificity of the law. And the Report also states that section 33, because of its rather vague character -- the same criticism is made about section 157 of the Criminal Code -- allows too often the institution of proceedings before juvenile courts that could be brought before adult courts, while by the very nature of the evidence brought forward, these proceedings could perhaps be simply dismissed by an ordinary court. The question I would like to ask in order that we understand better the meaning of tile answer given concerning section 33 is the following: when you . say that section 33 must be retained, must we understand by that, that it must be retained in its present form, or that only the principle of section 33 must be retained, although- it may be amended precise with regard to make - 150 -
it more certain as to the offences covered by that S ection?
. CHAIRMAN: Ontario, would jou care Uo comment on that? Perhaps I miht just restate it verà- briefly. The issue is whether that section should be rewritten so as to specif,: what specific conduct comes within the ambit of contributing to juvenile delinquency.
TIR. BOWMAN (Ontario): My answcr Ir, Christie, is that the Theaning and Gcope of the section has prett;; well been settled by case law. In our view it has worked well in the past and will continue to work. CHAIRMAN:
Nova Scotia? MR. MacDONALD (Nova Scotia): We concur with what Ontario has said.
CHAIRMAN: Thank you. Manitoba?
Nil. PILKEY (Manitoba): We are in agreement with Ontario on this.
CHAIRMAN: Alberta?
MR. HART (Alberta): We are in agreement with Ontario. - 151 -
CHAIRMAN: Thank youé British Columbia?
DR. KENNEDY (British Columbia)! . No comment. CHAIRMAN: Thank you. Saskatchewan?
MR. MELDRUM (Saskatchewan): No comment.
CHAIRMAN: Thank you.. Newfoundland? MR. McCARTHY (Newfoundland): We are \in agreement with Ontario. CHAIRMAN:
Thank you. New Brunswick?
JUDGE MACKIN (New Brunswick): The question is should we be more specific and I think Quebec has actually stated the problem. It would be specific in the new sections and covered. The other is sort of an omnibus thing. I would have to read the more specific wordinc before I could form an opinion. CHAIRMAN: . Thank you. Yukon Territory?
JUDGE TRAINOR (Yukon): I agree with the view . expressed by the Province of Quebec.
CHAIRMAN:' Thank you. Northwest Territories? - 152 -
flIT11 (11.1.T.) would like to ask that this be considered in the
lijit of the remarl;s made by the Quebec delegate. • CHAIRMAN: It being 5.0 p.m., we will now adjourn and the reception will be held in Room 213 down the hall. Our host unfortunately was called away to a meeting of the Privy Council but be Ilopes to be at the reception before too long. We will moot again tomorrow at 10 a.m. - 153 -
THURSDAY MORNING SITTING
CHAIRMAN: I suggest we move now to Item 10 of the guide paper on page 8. The target is to go through the remaining items in the guide paper, that is, to Item No. 15. We will then go into supplementary agenda which have been received from four provinces, after which we will then deal with Items E, F and G on the agenda which is a
statement on the recomMendations of the report now being
implemented, a discussion of those recommendations and a paper on
delinquency and related statistics by Mr. Magill of the Dominion Bureau of Statistice. Now, that is quite a heavy agenda. In addition, we are going to have to clear the press release so I
would ask you to assist me in moving the program along as quickly as possible. But the target is to wind up tonight.
MISS SPRAGUE: The reference to the Discussion Draft is Appendix "A" and to the present Juvenile Delinquents Act, I think it is section 34. We can find no indication of reported cases that this section is invoked to any great extent. JUDGE MACKIN (New Brunswick): What section was that? CHAIRMAN: Section 34.
• • • - 154 -
?ISS SPIiCUI
Section 34 of the present act, and Appendix "A" in the big
blue book.
CHAIRMAN:
What has been the provincial experience on this section? We
are talking now about section 34 in the pamphlet which has been
distributed to you Section 34 of the present Juvenile Delinquents
Act.
JUDGE MACKIN (New Brunswick):
I have never had a charge before me under that section, but
there have been instances when adults have hidden children within
the county. There have been instances, also, when the training
school, perhaps, released people who had been just sent up because
it was the Christmas holidays. They had been sent up for one
month but they could be brought in for shop lifting a week after
sentencing because they happened to be home on Christmas holidays.
I think it has an effect to have a possible offence if you do not
follow legal procedures, although there has never been a charge
or a prosecution.
CHAIRMAN:
Perhaps I should get the opinion of the delegates. Ontario?
MR. BOWMAN: (Ontario)
We have a similar provision in the Training Schools Act under
which there has been one or two prosecutions. Our view is, perhaps,
it would be just as well to leave this provision in the Juvenile
Delinquents Act. - 155 -
CHAIRMAN:
Cuebec? MR. CHOUINARD (ruebec):
We do not think that this provision is necessary. This question is sufficiently covered by our provincial legislation. CHAIRMAN. Nova Scotia?
MR. MAC DONALD (Nova .Scotia):
The same as Ontario; we recommend that it stays in. CHAIRMAN:
Thank you. Manitoba? MR. PILKEY (Manitoba):
We have no firm vieWs. We have a similar provision in our Child Welfare Act..
CHAIRMAN: Alberta? MR. HART (Alberta): We recommend that the section be retained. CHAIRMAN: Thank you. British Columbia? DR. KENNEDY (British Columbia):
We do not care if it is provincial or federal as long as there is legislation.
CHAIRMAN:
Thank you. Saskatchewan?
• • • - 156 -
DRUM JS skatchewan): We recommend that it be retained.
CHAIRMAN:
Thank you. Newfoundland? MR. McCARTHY (Newfoundland):
We recommend that it be retained.
CHAIRMAN:
Thank you. New Brunswick?
JUDGE MACKIN (New Brunswick):
We have already spoken.
CHAIRMAN:
Oh, yes, I am sorry. The Yukon Territory?
JUDGE TRAINOR (Yukon): We would like this section retained. CHAIRMAN: The Northwest Territories?
MR. WILKINS (N.W.T.): We agree with the Yukon.
CHAIRMAN:
Thank you. Is there any further discussion on Item 10? We will now move to Item 11. Mr. Fortin.
PROFESSOR FORTIN:
I think the question is the redrafting of Section 157 and
the report recommended that Section 157 of the .Criminal Code be
limited both in scope and in the penalty imposed. Furthermore, - 157 -
it recommended also that it be redrafted with the view of
achieving more certainty in the draftsmanship. We realize it
is a very hard subject to legislate and perhaps someone would
like to comment on this.
The section of the Criminal Code reads as follows:
"Every one who, in the home of a child, participates in adultery or sexual immorality or indulges in habitual drunkenness or any other form of vice, and thereby endangers the morals of the child or renders the home an unfit place for the child to be in, is guilty of an indictable offence and is liable to imprisonment for two years."
This is the main part of the section and you have the
proposed text in Appendix A, page ii. The question is if the
new drafting is any improvement at all to the wording of the
Criminal Code.
CHAIRMAN:_ I am informed that you do not have the text of 157 of the
Code before you in the material. Perhaps I should add that in
the Criminal Code, for the purposes of section 157, a child is a
person who is or appears to be under the age of 18 years, and no
proceedings shall be commenced without the consent of the
Attorney General of the province, unless they are instituted by,
or at the instance of a recognized society for the protection of
children, or by an officer of a Juvenile Court.
MISS SPRAGUE:
The explanatory notes point out any changes that have been
made. Yesteraay someone mentioned that the Canadian Bar Association
had recommended repeal of this section. Is that correct? - 158 -
TM..McDIARMID. (British Columbia):
I believe Dr. Kennedy mentioned it. NR, BOWMAN (Ontario)
We have no real comment on this question. It seems to be mainly a question of drafting and it can be worked out. MR. CHOUINARD (Quebec):
We believe that this is a good start at improving matters
In order to achieve a true change, it would be better to say: "anyone who in the presence and to the knowledge of a child
participates in adultery or commits an indecent act." In other
words, not one who, in the home of child, participates in adultery or in the presence of a child indulges in indecency,
but everyone who, in the presence and to the knowledge of a child, participates in adultery or indulges in indecency. CHAIRMAN:
That is to get around situation where the child might be a baby. • MR. CHOUINARD (Quebec):
Which we find ridiculous. If a baby is asleep upstairs? DR,IŒNWEDY. (British Columbia):
I agree,'Mr. Chairman. In fact, I have already marked my copy up with almost the identical changes. Knock out the
provision that a sleeping child can provide the basis for making
adultery a crime; that is what it does. It makes adultery a crime - 159 -
if there is a sleeping child in the house. And also Julien saisi "indecent act", which I think is a little more precise than "indecency", either by words, gestures, or conducts;
that is rather sweeping. You know, across Canada language varies. The good Maritime word "bugger" might not be treated •
the same way on the West Coast. It is a good swear word. MR. CHOUINARD (Quebed):
May I just add that we do not have such words. . MAC DONALD (Nova Scotia):
I have no comment exeept to agree with Julien's suggestions
and not to align myself with our smart Dr. Kennedy...
MR. PILKEY (Manitoba):
We have Seldom charged this section of the Criminal Code
and we have made use of 33(1)(b) of the present Juvenile
Delinouents Act. If that section is retained we have no firm views.
HART ..(Alberta):
We feel if the section is to be retained in the Code there
should be some redrafting of the wording of the section.
ER. MELDRUM (Saskatchewan):
We feel it should be retained with the suggested amendments
and we agree with the amendment made to 157(4) making it only with
the consent of the Attorney General.
MR. McCARTHY (Newfoundland):
We have no firm views on this matter.
• • • - 160 -
JU1GEJ4A_CKIN (New Brunswick):
We have nothing further to add. ell_pURAINOR (Yukon):
I agree that the section should be retained with the
changes suggested. MR._ SMITH (N.W.T.):
We agree that the section should be retained with some
changes, particularly as suggested by Quebec.
DR,_KIM4DY (British Columbia):
A lot of people have suggested that the section should be
retained with the changes suggested, but they have not said
which suggested changes.
CHAIRMAN:
Mr. Chouinard made some recommendations and I und.erstood
Mr. Smith to say, "with the changes suggested by QuebeC" so I
think it will come out in the transcript all right.
DR._igNi\reDY (British Columbia):
That one is all right.
MRFORESTELI1 (New Brunswick):
Leaving out the Maritime swear word.
CHAIRMAN:
Any further discussion on Item 11.
MISS SPRAGIJP,.
Item 12. The reference is to Append lx B in the blue book.
The Juvenile Delinquency report recommended that there be
provisions in any revision of the Act relating to after-care. - 161 -
I We did not make any provisions and this is all Appendix B says. Related to this issue is section 21 of the Juvenile Delinquents Act, which I think was overlooked to a certain extent in preparing the discussion draft. In other words, the issue is: 1 Should after-care, which I understand means when a child is 1 released from an institution or when it is released from probation, be a concern of the Court, or should it be a concern of reform institutions or welfare, or whatever it is in the province? 1 CHAIRMAN:
Yes, I think delegates do fully appreciate the significance of Item 12. You might take a look at section 21(1) of the present Juvenile Delinquents Act. As I understand it the
proposal would in effect override those provisions and leave 1 after-care in the hands of the Juvenile Court Judges and
Probation Officers. You will notice that now the Provincial Secretary has a certain statutory function under section 21.
DR. KENNEDY (British Columbia): May I make one little comment of clarification, Mr. Chairman? II I believe we should think of after-care when the child leaves the Court, not when he leaves the training school.
MISS SPRAGUE: In the context here it is when the child is released from
the disposition made, for instance, release from the training
1 school. That is the context here. You think it should be in a broader context, after he has been disposed of by the Court? - 162 -
DR..KENNEDY (British Columbia): •
We are getting into semantics, I do not want to argue on this too long. After the Court has made its disposition, we do
not think that the child should be brought back to the Court for
release and things of that Sort. Section 21(1) works well. CHAIRMAN:
Doctor, I understand from Miss Sprague that this phrase "after-care" as it is used in this contexte would include a
situation where a young person was not sent to a school but
simply put on probation. • •
MISS SUAOUE: •
It is not a precise term but its only meaning really is
when a person cornes out of an institution, is it not?
DR. KENNEDY (British Columbia): • I realize it is not only institutional but we wanted to
make sure that in the case of a person who was sent to an institution, that it did not start after release from the
• institution. JUDGE WALLACE (Ontario):
Mr. Chairman, section 20 deals with a child who has not been in an institution and requires him or at least makes it
possible to bring him back until he is 21 and then section 21
deals with the child who has been in an institution. So we are,
in effect, dealing with both. - 16:3 -
CHAI REAN•
Yes, we are dealing with both but I think the principal
section is 21. Mft,_BQWMAN .. (Ontario):
We are of the view that after-care should be left to the
provincial authorities. OUINAD_(Quebec):
Vie are also of the same opinion and this time I will use
the expressed views of British Columbia to say that we would be
satisfied to see section 21(1) maintained as it is. Jogusol■r (Nova Scotia)...
We would be for retaining the provisions of section 21
with one possible change in that section. Instead of committing
a child to the charge of a Childrents Aid Society, we prefer
to have the commitment to the Director of Child Welfare or the
Superintendent of Child Welfare as the case may be. In Nova
Scotia, by policy, we do not have children committed to the
charge of a society under this section. We do use section 21
in respect of after-care.
MR. PI4KBy (Manitoba):
We have had no particular problem with section 21. We have
provincial legislation that gives some control to the Director
of Corrections and that might be limited by'this specific
reference in section 2i to "superintendent". It is limited. - 164 -
The one problem, depending on what we are talking about . .
in after-care, is the provision of section 20(3). We, of course,
have had problems from time to time with youngsters in training schools and the mechanics whereby you remove them to places of greater security. I would not want te see section 21 completely done away with.
MISS SPRAQUE:
think to that extent sections 63 to 65 in the discussion
draft are relevant. It is really section 65 at page 148.
In a sense, this is intended to replace what was thought to be good in section 20(3).
MR,.pILKEY (Manitoba):
Well, that might be satisfactory, Mr. Chairman, I do not want to go into detail; I trust that supervision of the court has its broadest possible meaning. JUDGE WALLACE (Ontario): Mr. Chairman, would that not be limited by the three year- two year limit that was put in earlier?
MISS SPRAGUE:
Yes, I think this section 65 really only has meaning when a.
child is on probation and the probation does not work out; he can be brought back before the court and committed to training school.
JUDGE WALLACE (Ontario): So this would be much shorter and much less effective than
the section that Manitoba was talking about. - 163 -
MISS SPRAGUE:
Yes, section 20(3). That was the section that the Justice
Committee felt very strongly about and I think that section 65 is the good part of what section 22 has taken out, or, at least what the Committee thought it wus. CHAIRMAN:
Anything further, Mr. Johnson?
MR,....JOUNSON (Nova Scotia): No, sir.
CHAIRMAN. : Alberta?
Iy2„.._McPHERSON (Alberta):
We are in favour of retaining the present section. We have some reservations about having after-care directed by the court and having to bring the child back and forth. We would wish it
left to the local authority or to the provincial set up to deal with after-care. CHAIRMAN: Thank you. British Columbia?
DR. gNMEDY (British Columbia): I have already spoken.
CHAIRMAN: Nothing further. Saskatchewan?
MR. MELDRUM_ _ _ _ (Saskatchewan): We feel that section 21 should be retained with the change
sufrgested by Nova Scotia. We do not use the Children's Aid Society. - 166 -
BR,_KENNEpy (British Columbia):
I am not sure that that could be a change, Mr. Chairman,
in the sense that some provinces will. If you do not use it,.
we just do not pick it up. There are other things we do not
use in the act; we just do not pick them up. All right?
CHAIRMAN.. Fine. Saskatchewan? MR. MFJARUM (Saskatchewan):
There should be a wider definition of "superintendent" so as
to cover the various officials in the provinces.
DR,._KENgDY (British Columbia):
There is a fairly wide definitien now, but I would concur
in as wide a definition as suitable.
MR. McCARTHY (Newfoundland):
We agree with the retention of the 'sections contained in the
suggestion by Nova Scotia.
CHAIREAN: Thank you. New Brunswick?
JUUUE . MACKIN (New Brunswick): Yes. New Brunswick operates under that section at the
present time and the provincial authorities provide all the
after-care from an industrial school. I can see one problem:
the court has then no jurisdiction whatever to deal with the
child; if the child is one who could perhaps be a safety - 167 -
problem in the con-mm11y,- there is no way then to send them to
another institution. There is under some of the federal legislation
but the juvenile officials refuse to ever use it. TheY release
them to the community and they have to commit a serious offence,
as an adult. I think there is a problem there.
CHAIRMAN.
Thank you. Yukon Territory?
JUDGE TRAINOR:
I agree with the retention of section 21.
CHAIR1JAN:
Thank you. Northwest Territories?
MR. SMITH (N.W.T.):
Ne agree with the retention of the principle as embodied in
section 21. - 168 -
CUAIRPAU: Item 13, Juvenile Court Committees. Professor Fortin? PROFESSOR FORTIN: The reference for the section is Appendix "C" of the proposed draft. Appendix "C" and present section 27 of the Juvenile Delinquents Act provides for the appointment of a,Juvenile Court Committee and present section 26(1) and (2) set out the duties of that Committee. The report recommends the removal of that provision from federal legislation, except as it relates to matters of procedure. In the report the question of procedure is illustrated by the mention, for example, of the right-of the members of such a committee to be present in court. The question is the advisability of having a provision in the act, or having no provision in the act, concerning Juvenile Courts. CHAIRMAN: Ontario. MR. BOWMAN (Ontario): At present there are no committees set up under the statute in Ontario. We feel there is no need for them, particularly, as we have taken over the cost of the administration of justice. We really prefer not to have federal legislation in this area. DR. KENNEDY (British Columbia): Would or would not? - 169 -
• 130WMA1T (Ontario): We do not want it. CHAIRMAN! • Quebec? CHOUINARD (quebec): We think that such a provision should be left to • the provinces. CHAIRMAN: .Nova Scotia? MR. JOHNSON (Nova Scotia): We feel also that the requirement, or the legislation, should not be in the federal Juvenile Delinquents Act but should be left to the provinces. CHAIRMAN: Thank you. Manitoba? MR. PILKEY (Manitoba): We agree that this matter should be left to the provinces. We have provincial legislation that deals with review boards. CHAIRMAN: Thank you. Alberta? Nil. HART (Alberta): We agree that this matter should be left to the provinces. CHAIRMAN: Thsmli you. L3ritish Columbia? - 170 -
DR. K=DY (7?ritish Columbia): We would want it left to the provinces, Pr. Chairman. There is a provision in the federal act now, which -:ives certain comr.ittee :.,embers a riuht to attend court and it has been abused. We think the whole thing should be left to the provincial legislation. Also, if some provinces want a watchdog committee rather than a committee to help provide facilities for children, . that is up to tLe province; we do not want a watchdog committee, tLough. Our cenmittees, sir, are for other purposes. MAIRUP: Thank ypu. Saskatchewan? MR. 1,11JDRUM (Saskatchewan): lie agree that the matter should be left to the provinces. CHAIRMAN: Thank you. Newfoundland? McCARTHY (Newfoundland): We feel that the matter should be left to the provinces.
MAIRMAr: Thank jou. How -- runswick? 11R. .;ORESTELL (New -Brunswick): We did have juvenile court committees before the province took over, and they did serve a good function in liaison with the community. It did get people - 171 -
interested and the -,- were able to help out the court a lot. The trond now is for provincial governments to take over and whether citizen participation is going out the window is another question. I do think we need
this citizen participation, but I do not know if we need it by legislation. Section 27 says "there shall be" and if we just change this around to say "there may be", then, the provinces dan do what they like. It is immaterial to me as long as we can either make our own provincial
legislation, or if it is in the act that there may be a juvenile court committee. Let the provinces sét it up in their own way. If it is going to be in the federal legislation it Should not be too explicit; it should be very informal so the provinces can do as they please. CHAIRMAN: Thank you. Yukon Territory? JUDGE TRAINOR (Yukon): I agree that this matter should be left to the provinces. CHAIRMAN: Thank you. Northwest TerritOries? MR. SMITH (N.1.T.): We agree that this should be left to the provinces, but with one word of caution. If any permissive legislation is thought to be required, perhaps there should be some mention of these committees made in the federal legislation. - 172 -
CHAIRMAN: Thank you. Is there any further discussion on Item 13? (No.) We move to item ICI, Financial Liability of Municipalities and Parents. Miss Sprague? flISS SPRAGUE: The reference here is to section 89 of the Discussion Draft. The recommendation in the Justice Report was to the effect that the provisions in the existing federal act were not as uo0 as the provisions in the provincial legislation as far as costs were concerned, and that some way should be worked out so bhat when the question of costs is Involved the court would be free to use the provisions set up under the provincial . legislation. The question is, first of all, is this the situation, and secondly, if it is, is section 89 a reasonably adequate way of handling it? CUAIRNAY: Ontario?
• WTMAU (Ontario): We have no objection to this 1-)rovision in princiffle. We did consider that some problem might be raised by failure to define "residence" in this section as it might present a problen in determining the proper place of residence to fix with the cost. MSS SPRAGUE:' acpin we threw the problem back on the provinces by saying: - 173 -
H ...the relevant provisions and definitions of the provincial legislation shall be applied." MU. SUJMAN (Ontario): If that is the effect of it, then e we are content. CHAIRMAN: Quebec? MR. CPOUINARD (Quebec): In our opinion this section is of provincial jurisdiction and should accordingly be done away with. CHAIRMAN: Thank you. Nova Scotia? MR. JOHNSON (Nova Scotia): I would agree with'the comments by Quebec. We do not have Juvenile Court Judges committing children now to foster homes. This is done through the commitment to the charge of the director of non-placement in foster homes by the director. We do-agree that there might be some mention of responsibility of parents. CHAIRMAN: Thank you. Manitoba? MR. PILKEY (MANITOBA):
We have no objection.to the proposed,Section 8c).. CHAIRMAN: Thank you. Alberta? MR. McPHERSOU (Alberta): We have no objection to Section 89. At the present time e in provincial legislation, we restrict maintenance payments against the municipality and it works fairly - 174 -
satisfactorily. This Section seems to allow us to still do that. CHAIRMAN: Thank you. British Columbia? DR. KENNEDY (British Columbia): We approve of the principle of the Section, Mr. Chairman. We do not care whether it is left in the act or whether it is done in a simpler form by simply making sure that the province can do it. I have nôt examined the constitutionality point that Quebec raised, that is all. But I do want some provision there.
CHAIRMAN: Thank.you. Saskatchewan? MR. DRIEDGER (Saskatchewan): We feel that it should be up to the province and not up:to the judge to decide whether the municipality will pay. At present.the municipalities do not pay at • all in the child's welfare -- wardship and so forth -- therefore e .the judge should not be able .to decide. The province should make the decision.
CHAIRMAN: Thank you. Newfoundland?
MR. McCARTHY (Newfoundland): We agree with Nova Scotia and Quebec that the section should not be retained. But I might add, Mr. Chairman, if the section is retained it will be necessary to change the definition of "municipality" for Newfoundland because that definition would apply - 175 -
only to the City of St. Johnîs. In our province it is the town colmcil which is the corporation, not the inhabitants of the municipality. CHAIRMAN: Thank you. New Brunswick? jUD ,JE MACKIN (New Brunswick): I think it is a very good section as far as the disposition uoet. After you have tried probation and it is apparently failinu„ there is this other step. You can commit them informal3y to the children 9 s aid or to the superintendent and attempt to keep the person out of training school and let them work with the children. I would ask that the draftsmanship carefully consider the current provincial legislation as muncipalities in New Brunswick have been abolished and the complete responsibility is statutory in the director under our Child Welfare Act 1966, Chapter 3. I think it is a very Good section and if it went a little bit further and allowed us to make any disposition that could be made under our child welfare legislation, it would be much more ,convenient. CHAIRMAN: Thank you. Yukon Territory? JUDGE TRAINOR (Yukon): I agree with the principles set out in this section,. CHAIRMAN: Thank you. Northwest Territories? - 176 -
EFL. ( . ) We are in favour of retaining this section as it provides the necessary autbority in charging the disposition of tLese crises. CUAJAWAU: Is there any further discussion on Item 14? We will now move to Item 15 which reads: position: Dismiss the information and proceed under the provincial statute intended for the benefit of children." PdOLPSSSOR WMTIH: Tho reference for this item is section 57 paragraph ( Section 57, as a whole, provides for a certain number of alternative courses that the judge may take once he has adjudged the information to have been proved. Thereupon, the judge may enter an order of absolute discharge, order a provisory disposition or enter a final adjudication. The alternative we are concerned with hero is related to the application of provincial law. Under certain conditions the judge may switch to the applicable prov i ncial law when he thinks the case is one that should bo dealt with under provincial law, the child being in need of supervision. What is the opinion of the provinces concerning this provision? CHAIRVAN: Perhaps I should mention that this proposal is intended to do what some provinces thought Section 39 did before the Smith case. - 177 -
GFUGUE: Actually, what the Supreme Court thinks Section 39 did too.
Ontario? ER. J-3C1UAIT (Ontario): The principle under Section 57(c) is being [Tilled in practise in Ontario and we are content with it. JUDGOE, GROCII (Ontario): Pr. Bowman sugrpsted that I speak on this item. In case there is no opportunity to commend the principle of absolute discharge, we think this is a fine thing to have in here. The next section dealing with what you might call a conditional discharge, as a disposition, is excellent. This thing should be carried, as a matter of fact, from a magistratets or 2amily Court Judge's point of view into the Criminal Code. This is an excellent disjosition and this may be the only opportunity that wo have to corm end this addition.
CKAIRIAfl: Thank you. Q,uebec? CHOUINARD (quebec): . Je agree with Ontario. CHAIRkAN: Thank you. Nova Scotia? MR. JOHNSOK (Nova Scotia): We agree with Ontario. - 178 -
CHAIRMAN: Thank youà Manitoba? MR, PILKEY (Manitoba): We agree. CHAIRMAN: . Thank you, Alberta?
MR HART (Alberta): We agree with the principle of the proposed new section 57(0)4 CHAIRMAN: Thank you. British Columbia? KUNEDY (British Columbia): Defer *until after Saskatchewan. CHAIRMAN: Saskatchewan , MR. DRIEDGER (Saskatchewan):
We agree, basically, but there 18 one point that we would like to raise. If the judge dismisses, under the Juvenile Delinquents Act, it should be clear that he could not proceed directly into Child Welfare Court without, possibly, having a representative of the Child Welfare Court present. This could 'happen under this section where he could just sort of slide into a child welfare proceeding and make a child a ward of the government or a ward of the minister without us even being aware of it. If this could be clarified then we • would be all for it. - 179 -
CHAIRMAN: Thank you British Columbia? DR. KENNEDY (British Columbia): I am in favour of the principle s Mr. Chairman. I am not sure that Saskatchewants objection is more than a local administrative prOblem in managing the courts. I know, for example, we have one on now where the 'judge spoke to me and said he would like to do just this, and my answer was, 'go ahead". I think you can do it now without this. It is good; I like it. CHAIRMAN: Thank you. Newfoundland? MR. McCARTHY (Newfoundland): We agree. CHAIRMAN: Thank you. New Brunswick? JUDGE MACKIN (New Brunswick): We agree. CHAIRMAN: Thank you. Yukon Territory? JUDGE TRAINOR (Yukon): I believe this to be an excelient provision and am all in favour of it. • CHAIRMAN: Thank you. Northwest Territories? - 180 -
Prn . (N .W .T : We agree. r:ITAIRMAU: That briny:s us to the end of the Discussion Draft. JUDGE WALLACE (Ontario): Mr. Chairman, since everybody appears to be so much in accord with what amounts to an absolute discharge, am wondering if we could not get rid of this adjudicatory hearing and disposition hearing, have a normal trial that is more in keepng with the role of the court and find that the accused, or child, is guilty of the offence and give an absolute discharge. All this would appear to be designed to save a. record, and yet the procedures
cause us a groat deal of concern. As judges of the court, where we find the element of an information the essential truth and then go on to hear what may be 'inadmissible evidence, and with the measure of our own conscience decide whether there has been an offence or not. We would rather see a straight trial, a finding of the offence, but the power to give an absolute discharge. 1JIS3 SPRAGUE: "Sefore any background information? JUDGE WALLACE (Ontario): No, even after the background information br at any stage. CHAIRMAH: In other words, there would be a trial, the court - 181 -
might be satisfied of the person's guilt but would not convict.' Is that right? JUDGE • ALLACE (Ontario): That is correct, but the court would have a finding of guilty to enable it to go on to the social history or the inadmissible evidence that bhey would normally hear disposition, and at that time simply have the power to nevertheless give an absolute discharge, or refuse to enter, conviction if you care to put it that way. But rather than have a procedure that ends in finding an information proved -- I do not know how you prove an information -- or finding the essentials established and then going on to hear evrdence that may not be admissible in an ordinary trial and using some personal judgment and saying, "Now, we have an offence." I suggest there .be an ordinary trial, there be a finding of "guilty" and that then, after hearing all the background, the court have the privilege of nevertheless entering an absol:ute discharge. Then there would be no argument. CHAIRflAN: Would anyone else care to commet on that? DR. KENNEDY (British Columbia): Yes. I am not sure if I understood the point correctly but if it is dealing generally with the question of disposition I thought this would be a useful point to raise to put the other side forward for our - 182 -
own discussion. You Imow of The White Paper on the English s,;sten whlch starts off as follows: "(1) Children should be spared the I stigma of criminality. (2) In the great najority of cases of offenders brought before the juvenile courts the facts are not in dispute. The problem 1 is to decide the appropriate treatment and the court procedures designed essentially for testing evidence, not to provide the best means for directing social inquiries and discussing possibilities with the childts parents and the social services that might II) be concerned with treatment. (3) Although when children appear in juvenile courts their parents attend whenever possible, proscrit arrangements do not provide the best means of getting parents to assume more personal responsibility for their childronts behaviour. (11) Decisions as to treatmert are made in the form of a court order. This does not allow sufficient flexibility in developing the child's treatment according to his response and his changin needs." Then they go on to point out that if there is a dispute • there should be a proper court trial and a court decision. Now, I put that forward as an example of the other side, something we really have not touched on at all in our discussions so far. JUDGE WALLACE (Ontario): 1 Mr. Chairman, I would like to/speak of that. This puts forth the two sides of the conflict of the philosophy of the court -- the proper role of the court and the development of the court. The White Paper in - 183 -
Luc:land and in :»;cotland turns toward an investigation bod7 not a court. The American trend is the opposite.
The American Supreme Court cases emphasize the need of a proper court procedure and full and fair hearim; so that there is a conflict, there are two trends. What was sain c; was that the judf;es of Ontario are of the belief that this court should evolve as a court and the procedure should be proper court procedure. The court will need all the assistance of all the agencies bub in the centre of the complex series of resources there must be a court that will continue to operate as a court. - 184 -
Before we move on to the supplementary agenda is there
anything further to be said about the items in the main agenda? JUDGE TRilINOR (Yukon):
Before proceeding with other matters I would like to comment
upon the remarks Judge Wallace made before we had coffee. I
wish to indicate that I am in cômplete accord with the views he expressed.
I feel very strongly that one of the things necessary to
assist the court in dealing with young people under thé provisions
of any legislation of this kind ds to permit the court to be in
a position to know definitely what are the guidelines to carry out the hearing.
I would like to emphasize that I think there should be only
one hearing. There is bound to be confusion when there is
reference in the legislation to so many different kinds of hearings.
There should be provision, and it should be clearly stated, that
there should be a trial, to be conducted according to the usual
rules for courts, and that trial should result in a definite
conclusion or finding about the child and whether or not the
child has committed the offence. That would leave the court in
the position, as was suggested, that it could at that time, taking
into conàideration all of the matters brought before it, give an - 185 -
absolute discharge to the young person.
CHAIRMAN:
Thank you. Are there any further comments MR,DRIEDGEh (Jaskatchewan):
On the point brought up by Ontario and by Dr. Kennedy,
we feel ouite strongly that the point made by Dr. Kennedy is the
one that should be followed, and that rather than having an -
official hearing on every juvenile it follow more the English
tradition as outlined by Dr. Kennedy.
CHAIRMAN:
Thank you. Are there any further comments?
DR. KENNEp (British Columbia):
'Mr. Chairman, perhaps I should say that I did not make
concrete proposals. I did want opened up for discussion the
other approach to dealing with the child.
This is the first opportunity we have had in roughly
forty years for such a wonderful chance to sit around a table
and discuss these matters. We have said that before, but it may
be some time before we get another. Are we foing to proceed
on a technical-legal basis? This is something that we as lawyers
have to remember. We are only a service profession, to serve
others. YJust we continue dealing with juvenile delinquents on a
technical court basis with all the technical machinery? We have
had lots of opportunity to discuss the procedure. About the only - 186 -
bhing we have not discussed is how many times during a morning the judge may adjourn court to go to the washroom.
I have no firm commitment, but I feel that this is the opportunity to discuss basic disposition. I raised the
English White Paper. It is only one of three that are circulating. There is the Scottish and the Swedish. I did not . perhaps give as much of it as I should. The four points that
I read were prefaced by the committee's one sentence:
"Vie believe that these arrangements should be radically changed because..." and then the four points that I read follow. The first is:
"Children should be spared the stigma of criminality" and the fourth is:
"Decisions as to treatment are made in the form of a court order. This does not allow sufficient flexibility in developing the child's treatment according to his response and changing need."
There was also reference to bringing in the parents and the community to a greater extent than is now done.
Then they go on with a positive recommendation that children be kept out of court unless there is a. dispute on the facts, and that the matter be dealt with by what they recommend be a Family Council. I am not buying the proposal completely but I think there is merit in it.
• • • - 187 -
I think we should give serious consideration to whether
or not we should widen our whole concept of how the case is to be
disposed of. There have been editorial criticisms, as there are
of any government production -- no matter what government. The
criticism that I have from the Sunday Telegraph on the English
White Paper says this:
"In effect the White Paper would remove all but the most serious crimes when committed by under-sixteens, altogether from the jurisdiction of the courts. When little Johnny tried to derail the express train he would not be summonsed before the magistrate; instead, his destructive propensities would be discussed by a committee consisting largely of professional social workers who would proceed to consult his parents and to interview him."
am taking a couple of sentences out of the context to give the
gist of the editorial. In other words, I am putting forward both
views. I do not think there is anything wrong in dealing with
little Johnny in the way the English White Paper would propose in
certain cases. It may be that you will have to take him back to
court if the informal adjustment procedures do not work, but let
us tie ourselves in any legislation to detailed legalisms. Leave
as much freedom as possible and not have the child in court every
time, assuming it is a case that goes to court and not one, as we
do every day, that we keep out of court. You and I do it'in all
the provinces. In other words, is there some intermediate step,
such as the English Family Council proposal or others, that should
be followed or examined?
CHURMAN.
Thank you. hr . Driedger? - 188 -
MR. DRIEDGER (Saskatchewan):
One of the very basic concerns we had about the whole proposal
is the legal approach to the total problem of delinquency. As you may know, in Saskatchewan we have been dealing with
delinouents almost exclusively on the basis of child welfare services. We have some very positive experience in dealing with juveniles on this basis, to the extent that we do not have an official training school in Saskatchewan, but rather have the Boys' School as a resource of the child welfare branch for
delinquent children, or for children needing treatment of a
certain kind. Therefore, the Boys' School is really a treatment centre; it is not a training school. This whole type of approach
is one that we do not want to lose.
MISS SPRAGUE: This is what the informal adjustment was intended to be.
You have both. It is probably not very well done, but that was the whole purpose. JUDGE WALLACE (Ontario): Mr. Chairman, I think there is some confusion here. I take no issue at all with those who want to treat people by an approach other than the one we have. Surely there can be no argument here. Treatment is treatment. All I am saying is that the court itself cannot be both, and when we talk about taking things out of the
court, this is done. The council such as suggested in the English - 189 -
White Paper should do the screening. All I say is that the
court cannot do the screening. The court cannot treat and at
the same time be a court. There is an area in which there must
be a court and we are submitting that this court should evolve as
a true court but it should have all around it and working with it,
all the assistance of the treatment facilities, screening
facilities, informal adjustment or anything else. However do not,
by default, or without realizing the decisions being made, make
the court something else than a court because we feel it Cannot be
both. • . CHAIRMAN:_ _ , Thank you. We will now move on to the supplementary agenda.
I have received supplementary agenda from Quebec, Saskatchewan,
Nova Scotia and British Columbia. I received them in that order.
Now, there is some overlap between what Quebec wishes to discuss,
what Saskatchewan wishes to discuss and what Nova Scotia wishes
to discuss. My proposal is to call upon Quebec to discuss those
matters which have been referred to me; then to call upon the
delegates at large for comment and then to move to Saskatchewan
but I would ask Saskatchewan to avoid going over the ground twice.
If it is covered by Çuebects discussions, that will be the end
of it and that, of course, applies equally to Nova Scotia. I will
now call upon Mr. Chouinard. • - 190 -
çppuIpAg (Quebec):
Je have, as you have noticed by the list we handed to you,
many additional comments to submit. Some of them seem very
important to us, others are less so. However, I would like to
submit them as such to help bring about discussion or at any
rate so that you might know the comments we have to make on
certain points.
The first comment we wish to make concerns the title of the
Act. The title, An Act Respecting Children and Young Persons seems
totally unacceptable to us in its French version because, thus
conceived and without any qualification, it ééems to embrace the
whole jurisdiction with regard to children and young persons,
leaving no place for provincial jurisdiction in this matter.
I can understand that when we discuss the title, we can
think of many alternatives. We have done so but we finally
retained a proposal which I would like to suggest to you. Becawe
of this title which seems to cover all jurisdiction and in view 1 of our position expressed yesterday with regard to the matters this act can cover, we would suggest the following title in French: "Lot concernant les mineurs contrevenants au Côde criminel et autres
lois fédérales" or a short title "Loi des mineurs contrevenants"
which in English could be "An Act respecting young Offenders". At
section 2, under dêfinitions, I would like to point out paragraph (2)
that the expression defined therein "adjudicatory hearing" could
lead to confusion. On the one hand, there is also question in the
discussion draft of "hearings for detention", for "disposition", for
• • 11 - 191 -
"sealing" of records. On the other hand, in many places, the word
"hearing" ris used alone and yet nowhere is it defined thus, for
example, sections 32, 39 and 53.
It seems, that it might be preferable to revert to the use
made in other fields of the recognized terms of "inquiry" .
(or "evidence") and "hearing". The definition of the word
"disposition" under paragraph (8) of section 2 being only
related to paragraph (d) of section 57 seems superfluous and
therefore could be done away with. Under paragraph 11 we think the definition of "municipality" could be deleted With regard to the proposal of restricting the field of application of the Act to the Criminal Code and other federal legislation. Under paragraph 16, the definition of "training school". To take into account what exists in Quebec we think we should use -- "training
school", or in Quebec "reeducation centre". This means a lot to us.
Section 4 seems superfluous and should be deleted. Under Section 7, paragraph 2, which states that the juvenile court has no jurisdiction over persons of 21 years of age or more, it would seem to us
advisable to say "subject to section 96" which actually gives .
juvenile courts jurisdiction over adults. Under Section 10, and this seems to me rather important, it appears unwise to us to accept
consent under only the signature of a minor who may be only twelve (12) years old. We think to this end the minor must be assisted by his
counsel, his parent or his tutor. The same comments apply to 45(2).
Under 16, lines 7 and 8 in the French text, instead of saying,
"another judge for the saine territorial division", we should say
"judge having the same territorial jurisdiction". In Quebec, all - 192 -
judges of the social welfare court have jurisdiction over the
whole province, and. in one territorial division there is but one
judge and if this judge is not available he can be replaced by
any other judge of the social welfare court, who has effectively,
the same territorial jurisdiction. Under paragraph 2, sub-paragraph (b),
it seems advisable to allow the evidence to be put on record rather
than to make it mandatory to retake everything. Under section 18, -
paragraph (2), it wOuld seem proper to oblige the peace officer to
also notify the parents, so that a minor would not disappear without
the parents knowing what has happened to him. Under 29(3) we would
suggest that it should be specified that the notice should be
given at once, without any delay.
Under 31(1) we should take into account the possibilities and arrangements made in practice, and it seems therefore that the
requirement that a young person should not be imprisoned in a
county jail or other jail, nor in any other place where adults are
or ixly be imprisoned is too severe and rigid. Indeed we could ,
conceive that in an institution there could be a whole section which is completely isolated and separated from another. Therefore we would propose that the text should read, and I quote:
"No one should be detained in any place where adults are or may be imprisoned, but he shall be detained in a place exclusively used for young persons." - 193 -
Under 51(1), we would prefer the expresion "in camera" to . that of "without publicity".
Under paragraph (2), tex' of the explanatory notes seems preferable to us to that of the section itself and this paragraph should read as follows and I quote:
"The general public shall be excluded from hearings held under this Act, but the Judge can allow a person to attend after making sure that this person has serious reasons for being present."
The ruling under paragraph 3 seems to have been inserted at the wrong place. One could conceive such an exclusion at the
disposition but not at the hearing for adjudication. hearing for
In our opinion paragraphs 4 and 5 shbuld be deleted completely. •
As concerns sections 58, 59 and 60, taking into account our proposal to abolish the distinction between a "child" and a
"young person" as well as between "offences" and "violations", and although we feel it could be judged preferable to make such distinctions at the level of the measures to be taken, we feel that sections 58, 59 and 60 should be merged into a single one.
Paragraph (a) should provide for a maximum fine of $200.00 and should provide that in case the child does not conform or if it is impossible for the child to conform, the court can substitute one of the other measures provided for. •
.• • • - 194 -
The same thing should be provided for in case of an order for restitution as provided for in paragraph (b). Moreover, there should be inserted a paragraph (c) enab/ing the court to impose to a minor a period of continuous detention or a part time detention for a maximum of three months.
Paragraphs (c), (d), (f) and (g) of the discussion draft as presently drafted, and I say as presently drafted", seem to infringe on the provincial field brdefining the type of institutions the provinces should maintain. Consequently, we propose that they should be merged in a paragraph (d) which would read as follows, and I quote: •
"Under provincial statutes, place the young person under probation, place him in a foster home, commit him to a training school or a childrents aid society, or submit him to any other form of reeducational treatment, after the judge has made an inquiry or has considered a pre-disposition report with respect to that young person."
Paragraph (e) would remain as it is now. As concerns
;ection 65, it is important to specify for which motives and in which cases the judge can have the child brought back before the court.
At section 66, paragraph (1) at the fifth line of the French text, one should read " ho shall investigate or direct a probation officer to make an investigation." In other words, he should be able to investigate himself or entrust somebody with the investigation. - 195 -
As concerns paragraph (4), unless there is a mistake, and
I do not think I have made a mistake, the National Parole Board has no jurisdiction over minors and consequently the reference to this Board should be deleted.
With regard to section 67, paragraph (3), the ten-day period'
seems too short. Wb would suggest thirty days and we would
further suggest that this period be made renewable. Dealing with paragraph (4), I will make the same observation I made yesterday ,* namely, that exnept within given limits, to allow the minor to be represented by a person other than a lawyer would be against the law of the Bar.
Section 73 -- We are not of the opinion that this section : should be inserted here, but we rather think it is up to the provinces to see to the appointment of probation officers.
Section 83, paragraph (1) -- we would suggest to have the words "unless the judge so orders" deleted.
Section 84 -- the administrative matters provided for here seem to us more of the provincial jurisdiction than of the federal jurisdiction.
Section 85 -- At the beginning of the section we suggest that the following words should be deleted: "shall be kept separate
from the records of adults" taking into account the administrative problems this measure might involve. It is important that these
records be withheld from public inspection. - 196 -
Section 86, paragraph (1) --We object to the mention of a. delay
of five years. We would not mention any delay. At paragraphs
7 and 8, we think that this jurisdiction should be given to the
juvenile court rather than to the superior court of criminal
jurisdiction. At section 87, paragraph (1), for the same
reasons as with regard to section 31, we think that the use of the words "penal institution!' should be replaced by the word
" place". Section 88. ■ It encroaches on the Civil Code with
regard to the custody of the children and should be deleted.
Section 90. This section should be deleted considering provincial legislation covers this matter and considering paragraph (c)
of section 60. Sections 91, 92, 93,• 94, and 95. Considering the proposition to limit the application of this act to the
Criminal Code and other federal acts, these sections should be deleted.
Thank you.
I would like to remind the delegates of what I said a few minutes ago about the desirability of there not being an overlap.
Mr. Chouinard has covered a great deal of ground. For example,
mention to Saskatchewan that he has touched upon Items 1, 2 and 7
of their supplementary agenda, and he has touched upon sections .
10, 28, 51, 66 and 90, which Nova Scotia was going to deal with. I would ask Saskatchewan and Nova Scotia to deal with those items
in relation to the discussion on the Quebec supplementary agenda. - 197 -
Could I hear from the floor please?
MR„DRIEDgiSaskatchewan):
Under section 72, dealing with probation officers, we
believe ...
CHAIRMAN: Does Saskatchewan not wish to say anything further in
relation to Items 1, 2 and 7 on their agenda, because I am now calling for comments on what Quebec said?
MR,_DRIEDGER (Saskatchewan): On the comments that were made on section 5(c), cf). and (g), we feel that a judge should not be able to place children directly into foster homes, et cetera, but that really this
should mean that the judge should be able to refer him te, or place him under the jurisdiction of, the director of child
welfare; that is, refer it to child welfare court rather than placing him directly into foster homes and so forth. MR. JOHNSON (Nova Scotia):
I agree with the remarks by Saskatchewan on section 58.
I also question the advisability in 58(c), and perhaps in some of the other subsections if this were to remain, of requiring the
consent of the parent or parents before a child could be placed
in a foster home. • CHAIRMAN:
Are there any further comments? - 198 - pR,,gNNEDY (British Columbia):
On the foster home item, it may be necessary on occasions for
the child to be placed before the superintendent can get into the matter, particularly where you have no social worker in the area, or within perhaps 1000 miles. Perhaps I - have made it too long 100 miles. With long indented coasts and islands and things of this sort, until you can get the social worker there with instruction from the superintendent the judge needs to have - authority to take some action.
MR. DRIEDGER (Saskatchewan):
That is not a problem in our province. We can do that under child welfare without the authority ... p,.DEWALT (Manitoba):
It has to remein flexible, because in some provinces a child
may be placed in a foster home by other than the child welfare authority. For example, in Manitoba it is done through the
corrections branch. I think there should also be provision for
the court in other instances to place directly in a foster home. CNAIREe: Are there any further comments on Quebec's supplementary Agenda?
MR. FORESTELL (New Brunswick): - I am just not sure about section 66 of Quebec's recommendation.
Was it the intention of euebec that section 66(1) be changed to the
• • • - 199 -
effect that the judge must direct the probation officer or must
cause an investigation to be made? Is Quebec's recommendation that the report be mandatory, that it is not left to the discretion of the judge?
MR. CHOUINARD (Quebec): It is mandatory that he himself investigate, or charge
someone to investigate. The purpose of our suggestion was to enable him to make an investigation himself.
MR. FORESTELL (New Brunswick): I would take issue with having the judge doing an investigation himself. He should have the facilities to have
a report made.
MR. CHOUINARD (Quebec): What we had in mind was where he does not have the facilities.
MR. FORESÏELL (New Brunswick): I think this might even raise a legal question about his . getting his on information; I am not sure.
MR. CHOUINARD (Quebec): What we want him to do is to do something. If he does not
have the facilities then he should do the investigating himself. That is the purpose of the suggestion.
MR. FORESTELL (New Brunswick):
The main point is that you want to make sure that there is a report?
• • • • - 200 -
PR. CHOUNARD (Quebec):
Yes. If you force him to charge someone else to do it and
there is no one else ...
R. FORESTELL (New Brunswick): You want to leave it flexible.
ÇHOUINARD (Quebec):
We want him to be enabled to do it.
CHAIRIvIAN:
Are there any further comments? Quebec Supplementary again, then. Anything that Quebec raised, you can comment on.
MR. BOWMAN (Ontario):
Our suggestion with respect to section 67, subsection (3), was
not thirty days, but ten days and a series of renewals of the
matter being before the judge, a 10-day period, rather than an initial period of thirty days. This is our practice at the moment.
MR. SMITH (N.W.T.): We are rather concerned with the insertion of the provision
in paragraph C of clause 58, which requires the consent of the
parents that is on page 131. We have the feeling that the
insertion of parental consent would take away somewhat from the
judgets discretion to dispose of the child. Is that right? - 201 -
DR. KENNEDY (British Columbia): This is part of the same problem, Mr. Chairman, I emphasized
before; leave the judge as much flexibility as possible; do not tie him down. MR,_PILKEy (Manitoba):
I wonder if I might, Mr. Chairman, deal with sections 66 and 67, particularly 66(3) and 67(4). Is this unnecessarily restrictive? What about counsel representing the Attorney General?
CHAIRMAN .
am sorry, Mr. Pilkey. Whom would you suggest, in addition
to the persons mentioned in subsection (3) of section 66, should have access? MR,_PILIgY (Manitoba):
Well, in many of these cases, depending on local practice,' presumably the Attorney General would be. represented by counsel, and unless there is an inherent right somewhere .to appear on
those things which may indeed exist, then all I am saying is that sections 66(3) and 0(4) might be construed restrictively as
far as who is entitled to cross-examine on reports submitted to the court is concerned.
CHAIRMAN:. _ . _ Any further comments? - 202--
I■IR.0 DONALD (Nova. Scotia):
Mr. Chairma.n, in reference to section 67(4), Nova Scotia
questions the desirability of making it necessary to divulge the
contents of the report to a. parent in as much as the report may well contain matters in relation to the parent, and the necessity for such disclosure might restrict the preparation and the
content of the report.
DR. KENNEDY (British Columbia): Again, Mr. Chairman, this is a matter of flexibility which
should be left to the discretion of he court. For example, counsel on both sides have on a number of occasions, agreed they
would like a report for the information of the judge and they agreed that it was not to be passed around.
MR.FORESTELL . ( new Brunswick) For the purpose of the record, New Brunswick would agree with British Columbia.
CHAIRMAN: Any further comments?
MR. MAC DONALD (Nova Scotia): I wish to speak not in respect of this particular section, but
I have some supplementary comments on two of the other items which were mentioned by Quebec in reference to section 10. We question whether the signification in writing should necessarily
be before the judEe; whether it might not be made before a person
having custody of the child or another officer of the court. In
• • • - 203 -
this respect we have in mind that in our province the juvenile court
judges travel on circuit, and determination to make an election might be made in an interim period which would result in undue
delay if it were necessary to await the return on circuit of the judge himself.
With respect to section 10 generally, it obviously contemplates a uniform maximum age, and our earlier discussions
would indicate that among the provinces there is not unanimity . on what a maximum age should be, and consequently, we may have
to have in mind the situation where the present provision of the
Act, or something similar, is continued. We wonder if in such a
contingency the effect of section 10 might not be preserved at •
least for those persons coming within the minimum-maximum age.
We wondered also if section 10 might not be expanded in its terms
to provide for a transfer of probation after adjudication has been
made; where there is a transfer of probation.
MISSSPRAGUE: I think that is covered here. It is covered. I just cannot
find the place. It is near sections 63 or 64.
Nil. MAC DONALD (Nova Scotia): am not sure if that covers a transfer subsequent to the adjudication.
MISS SPRAGUE: Yes. - 204 -
MR. MAC DONALD (Nova Scotia):
Well, if it does that is fine. All we are interested in is that it should be covered.
With respect to section 90, Nova Scotia concurs with Quebec
and this section may well be deleted. If, however, it is to be retained we suggest that it should be made more flexible, perhaps along the lines indicated in the explanatory notes. Those are all our comments on this section.
CHAIRMAN:
Mr. MacDonald, you have publicity on your agenda. Quebec
touched upon that. Have you anything further to add in that regard?
MR. MAC DONALD (Nova Scotia):
I was out of the room at the time but Mr. Johnson tells me that can now be removed from our supplementary agenda.
CHAIRMAN:
You have nothing further to say about section 66(1) and (3). Quebec also touched on those. MR. MAC DONALD (Nova Scotia):
I defer to Mr. Johnson in that respect. MR. JOHNSON (Nova Scotia):
In connection with this section we are concerned about the
requirement of two separate hearings in every case brought before
the court, if a disposition or an investigative report is to be
provided. The act apparently makes it impossible to have a - 205 -
pre-sentence report prepared prior to an adjudication by the
judge as to the guilt or innocence of the person before the court.
This means that every case, where such a report was required,
would have to be adjourned and, in effect, would for the most
part, double the number of cases being heard by our judges. The
present practice is that the pre-disposition or pre-sentence
report is prepared but is not made available to the judge until
he has adjudicated the guilt or innocence of the person before
him. We would like to see this practice continued.
CHAIRMAN.
Thank you. Saskatchewan you have publicity on your supple-
mentary agenda. Quebec touched upon that. Have you anything
further to say?
MR. DRIEDGER (Saskatchewan):
No. We agree that should be deleted.
PHAIRMAN:
What about the sealing process. You mentioned it would be
difficult to implement. Would you like to comment on that because
Quebec did deal with the expunging of records?
ER. DRIEDGER (Saskatchewan):
Yes, we feel that the approach possibly should be more on
the basis of confidentiality rather than on the technical aspect
of sealing because we feel with the proliferation of some of the
reports and so forth, possibly it would be very difficult to do - 206 -
this. Who is going to control the sealing process? Who is
going to make sure that sealing of all the various documents does take place? We feel that really it is impractical. CHAIRMAN:
Quebec touched upon religion. Have you anything further to say about that?
MR. DRIEDGER (Saskatchewan):
I beg your pardon, which one? CHAIRMAN:
Religion.
MR. DRIEDGER (Saskatchewan):
We feel very strongly that this should follow provincial legislation or be deleted entirely. CHAIRMAN:
Thank you. Finally, Quebec touched upon the Identification of Criminals Act and that is on your agenda. Have you anything further to say about that? MR. DRUDGER (Saskatchewan):
On that point we feel there should be some guidelines or controls for the judge wdth regard to how fingerprinting could be
used for juveniles, if at all. CHAIRMAN:
Yes. That is fine.
Before moving to the Saskatchewan agenda, are there any further comments on any of this? - 207 -
JUDGE MACKIN (New Brunswick):
I would like to make a comment on publicity, section 51
particularly. I feel that the report of the Royal Commission
realistically states the position that it is absolutely necessary . the court proceedings to the public. I certainly to interpret
support them 100 per cent. I do not think there is any harm . whatever in having reporters. I have always allowed them in my
court whenever they wanted to come and it has been to the general benefit of the court and the community. I just want to state I subscribe 100 per cent to the reasons given in the Royal Commission report. The only thing is that sometimes publicity in juvenile cases is given perhaps by the Crown Attorney or the Crown Prosecutor
or the police. There could never be a prosecution under . those
circumstances were this information to be-published in the paper, and sometimes it is, and I raise the question: should not, the
court have the right to deal with unlawful publicity on its own motion? If the sealing of records remains in the Act and offences
can be ,sealed, is it realistic to state that they should always
remain sealed after further convictions, when a person has established that he is no longer leading a law abiding life or has
been rehabilitated? After all, an adult court would have to take
into conSideration his full character, his antecedents, all his background and this is part of it. Now you are going to prevent
the court from dealing with a substantial part of it.
• • • - 208 -
One other little point. I do not know the difference
between a notice of hearing, if it compels the parents to attend, and a summons. There is no difference between that and a subpoena,
except as to witness, it is a court order to attend. Could We not abolish some of these Various words and just summons the children and parents to attend and save separating these , forms. There will be no substantial difference between them. - CHAIRMAN: Thank you. Are there any other comments?. MR. MAC DONALD (Nova Scotia): Mr. Chairma,n, one minor comment that I overlooked with
respect to the record,. Section 84, particularly. We wonder if a
period of retention should be specified. The wording at the present time is "shall keep a record in which shall be contained various objects." "Keep" in this case may mean make a record but,
in any event, consideration should be given to specifying a period of retention. CHAIRMAN: Thank you. Are there any other comments? MR. BOWMAN (Ontario): There seems to be no provision for the disposition of the child who is found not guilty by reason of insanity. We had a
case in Ontario where a child was charged with murder. He appeared
in the Juvenile Court and the judge was forced to send him on for - 209 -
trial by indictment because he simply could not dispose of him.
It seems to me that a juvenile judge should have the same power
to remand into custody, pending the pleasure of the Lieutenant
Governor, as the ordinary courts have now.
MISS SPRAGUE:
Mr. Bowman brought that point to our attention before and we
considered it a very good point, Mr. Bowman.
• CHAIRMAN:
Well if there is any further discussion we would be glad to
hear it.
MR,_BOWEAN (Ontario):
Here is a suggestion made by the juvenile judges.
subsection (2) should be added the following: A_UELEGATE:
Which section?
MR. BOWMAN (Ontario): ro section 60:
"When a younc person has been adjudged to be not a young offender because he was mentally ill at the time the offence was committed, the judge shall make a finding to that effect and Shall order that the young person be detained until the pleasure of the Lieutenant Governor is known."
That is a suggested amendment.
MR. McDIAREID (British Columbia):
B.C. would concur in that. We had a specLfic case on that
very problem. It creates many problems in terms of treatment. - 210 -
DRgNN7py (British Columbia):
We do not normally move our murder cases up to the regular courts. - 211 -
MAIRMA1T: '1e now move to Sakatchewants supplementary agenda. The first two items have been disposed of relating to publicity and expunginc of records. The third item relates to inforP;a1 adjustment, but we discussed that desterday and can take that off. We now move into the fourth item, probation officers. KR. DRIEDGiM (Saskatchewan): In Saskatchewan, our probation officers are actually child welfare workers and.thed are responsible to the Department of Welfare, Child Welfare Branch° Therefore, under sections 70 to 73 and especially section 72, we feel that probation officers should not be defined as officers of the court. There should be more flexibility in the definition. It should be possible for a probation officer to be a resource to the court rather than an officer of the court. We have this in our Services now and we also have it in our Adult Probation Services and we feel that this ties in very directlj with the discussion we had earlier this morning on the treatment services to juveniles rather than the court services and judicial services, It is part of the treatment concept and philosophy ° If the probation officer has to be an officer of the court e it really means that the judge also is the chief administrator. of treatment services and this we feel - 212 -
should not have to be the case. hie should be able to r_ict treatment services awa7y from the judicial services.
It is very important for the probation officer to be ollewed and that he not be an officer of the court. Then, if that; is rranted, it would also be important that it)E,. stated in the Act, that the probation officers, if he is a resource to the court, have a right to attend court.
Thirdlythen, one of the objectives of the probation officer, one of his responsibilities, should be that he represent th. child. Presentlu he is representing the
court; he is not representing the child. Really, in effect if the child's parents are not interested in him, which is often the case, he has no representative.
In Saskatchewan the child welfare worker now very often represents the child when the parent is not interested or not available, or there is no jarent. Re, In effect, represent the in court, and then provide leLal counsel if this is necessnrj. To us thi_s is a very
cricial point.
JR. DEWAIT (ianitoba) I would just 11Le to comnent on that. Re feel
sbronily that the probation officer should retain the
duties civen to him under the present Act of being
present in court to represent the interests of the child. - 213 -
Secondly, we question the need for a written 'recognizance in every case of a juvenile placed on probation. Certainly it will increase the work of the court and seems to us to be quite unnecessary. MR. FORESTELL (New irunswick): would also like to cornent on the probation officers role under the old Act and under this Act. Under the new Act there has b..= a drastic change as far as philosophy goes, whether it is subtle or note This is explained in the blue book of the report of the Commission and the thange is that the probation officer now does not represent the interest of the child, but represents the interest -of the court. This is spelled out in the report and to me it puts the probation officer under the court too much and leaves the child without the representation which he had under the,old Act. A lot of things could be done informally under the old Act, but now the probation officer cannot do it and I feel, like Mr. Devalt and • Saskatchewan, that this section should be looked at carefully and that the role of the probation officer should be spelled out very clearly;. DR. KERN= (British. Columbia): I would agree, Ur. Chairman, that it should be looked at very carefully, I am not sure that we should spell out w'dom the probation officer should represent. He is
.a professionally trained person; he has far wider - 214 -
responsibilities than representing one person, either the court or the child or someone else. The status of the probation officer -- the status to which probation officers have come in modern court work -- is far beyond representing (A) or representing (1 or being a substitute for a solicitor. He provides the court with the effective information which may at the same time be helping the child. It may on occasions help the Crown, but primarily it is to help the court. Our one objective is what is best to do with the child. JUDGE LAuir (New Brunswick) : May I add a word on the question of written recognizance. It was brought up that a-written recognizance would Lake a lot of time with its particular wording and its specific direction, and I agree with the other speaker. A written recoanizance is necessary in an adult court, because if it is to be enforced you must be charged with a specific breach thereof. In the Juvenile Delinquents Act another disposition can always be made by the court, and if co-operation is not secured or if the probation officer cannot handle the situation then the case can be brought back to court and another Aisposition made; so it is not as necessary in juvenile proceedings. HR. JOIMSON (Nova Scotia): I would like to express concurrence with the comments of Mr. Driedger from Sskatchewan with respect to probation officers. - 215 -
.7WAfUMA17: Are there any further comments? The next itev on Saskatchewants agenda is the availability of report. J. DRIEDGER (Saskatchewan): This was also discussed in the Quebec discussion, and we feel that a child should not necessarily have access to a report, especially a report which gives an evaluation of his parents or a mental health report of himself. We are often trying to build up the relationship between the parents and the child and sonie of these things could really be detrimental to the situation if the child has the right of access to the reports after the hearing. We just want to clarify that point a little further. MR. MELDRU• (Saskatchewan): Er. Chairman, I would like to make one other point that has been-touched on. Section 84 and other sections refer to a clerk of the court which seems to bring into the Act the administration of the juvenile courts which should be left to the provinces. Actually in our province we do not have clerks of the vnrious courts and, with the distances in the province, it would add considerably to the expense of administration if we had to provide a clerk of the court in each instance. Our magistrates travel without a clerk and this would require that a clerk be there which we do not feel is necessary. - 216 -
DR. KIWEDY (British Columbia): I concur in that, fir. Chairman, and also in what quebec said on that, but I thi-k the setting up of the courts and details of that sort is a provincial matter. It is a little difficult where you have a floating ' detachment of the RCMP, for example, and there are quite a number of then, to make sure that there is a clerk available when tne magistrate goes abroad. Or for that matter ) dealing with another section that has been touched on, to make sure that the juvenile is not held in the floating detachment cell which has been occupied by an adult on the previous trip. We must not tie down where you are going to h-old the child, to bar these floating cells. MR. HART (Alberta): Kr. Chairman, the difficulty might be solved by adding the définition of "clerk" which is now found in the Criminal Code, Section 2, subsection (6) which says: "clerk of the court" includes a person, by whatever name or title he may be desimated, who from time to time performs the duties of the clerk of the court;" That would include, I would assume policeman, a probation officer or anyone else *ho is travelling with the court who performs these duties. CHADMAN: Thank you. - 217 -
YR. FUDRUM:(Saskatchewan) On that point, as no one travels with the magistrate in our case the reference to the clerk of the court just
7.8 not practical. MR. PILKEY (Manitoba): We have the same problem as Saskatchewan and often our magistrate will travel alone to demonstrate the ultimate indepehdence of the judiciary. UR. hcCARTHY (Newfoundland): We have the same problem as Saskatchewan and we agree with their comments. CRAIRAN: Are there further comments? We will move now to Nova Scotia's supplementary agenda. Mr. MacDonald, section 10 has been disfosed of and on section 28, informal adjustment, I take it that there is nothing to add. I do not think you want to add anything to
section 19. We have disposed of section 90, religion. Section 81, subsection (1). MR. MacDonald (Nova Scotia): Mr. Chairman, this is the sect/lon dealing with several effects of adjudication and our concern is with the last clause of subsection (1). It really is a matter of concern rather than a matter of having any real alternative to suggest. We appreciate very much the difficulties of the draftsmen in dealing With this matter and while we do concur with the ultimate aim, the question of methods is, I think, of some importance and - 218 -
should receive some consideration. 'le are very much impressed with the comments in the explanatory notes
with respect to this section and we sbare most of the views exprGssed in those explanatory notes. The only alternative -- and it would only be a partial alternative -- wotld be consideration of the statutory part after the lapse of a specified time thereby eradicating the conviction as a matter of law and not as a matter of stateent of the individual concerned. CHAIRMAN: Are there any comments? DR. ESUNWY (Zritish Columbia): Mr. Chairman, I have- difficulty in changing black into white. The child is being convicted of a criminal
offence and yet we are authorizing him to say to an • employer: "o, I have nover been convicted of a criminal offence". I See a little di ffi culty in this. Surely it is an educational job with respect to employers, the public and whoever may be doalinc with the thing to find out what the thing was. I think it is better from the child's point of view, also, •to be able to be honest, knowing that ho has, in a sense, been 1-jing to an employer, but to be able to say: "This is it and let the employer, then, deal with it. CIIAIRMAN: Thank you. - 219 -
MR. FILKEY (Manitoba): Speaking for myself only, I would like to concur completely with what Dr. Kennedy has just said. DR. KEUUEDY (British Columbia): As a matter of fact, Tir. Chairman, it may be a little more detrimental to him if the employer subsequently should find out tbat he had been convicted of a criminal offence when he already had said that he had not. CHAIRMAU: Are there any further comments? Mr. MacDonald, the next item on your agenda is section 26, subsection (5) MR, MacDONALD (Nova Scotia): This, perhaps, is a-drafting matter. We' wonder if, under any circumstances, personal service could be affected in the first instance. This section taken with subsection (5) of Section 26 seems to preclude that possibility. It is a drafting matter. MISS SPRAGUE: Actually the word "may" is used in section 26(5). MR. MacDOUALD (Nova Scotia): That is right, but then the only provision for personal service is after notice has been mailed. DR. KEITUEDY (British Columbia): Your point then, John, is that you would delete • the first nine words. MR. MacDONALD (Nova Scotia): • Yes, and perhaps modify subsection (6) accordingly. - 220 -
DR. K71N1)Y ( ritish Columbia):
MacDONALD (Nova Scotia): It is really just a drafting situation.
Are there any comments? The neut item is section 29 subsection (1).
• HacDCHALD (Nova Scotia): Section 29, subsection (1) is surely by way of illustration. Our suggestion is that there should be a definition of "court" in the draft and, again, it is appreciated that it is a preliminary draft. "Court" and "judge". are used sometimes interchangeably and sometbies there is a question as to which is intended. I would think, therefore, that it would be desirable to include a definition of "court". There is a definition of "juvenile court", but that is not an interpretive definition for the purposes of the act, generally.
Thank you. Are there any further comments? MR. FORESTED-, (New Brunswick): I agree with Nova Scotia that'a distinction should be made between the "judge" and the "court", because now we have even, where probation officers are doing their screening processes in some provinces, the situation where a boy has not been before the court but he has only been as far as the probation officer. In the draft act we have the words"court" and "judge" - 221 -
being used intercbanuably and I think the distinction should be made and a proper definition spelled out in the act. CHAIRMAN: Are there any further comments? The next item is section 58(c). This may have been touched upon by Quebec. MR. MacDONALD (Nova Scotia): I think that has been covered, Mr. Chairman.
CHAIR“AN: Is there anything to add to section 59(e) and (f)? MR. MacDONALD (Nova Scotia): Mr. Johnson will speak on that, Mr. Chairman. MR. JOHNSON (Nova Scotia): In connection with section 59(e), we are concerned about the last six lines of that subsection which requires that a child can only be committed to a training school: .•..after every effort has been made to treat such child in its own home, or in a foster home, group home, or other shelter facility;" We feel there are many cases, perhaPs, in which the training school is the desirable form of treatment, in the first instance, and that the training school is not, in fact, a last resort. Section 59(f) was partly covered before and we do not believe the judge should be able to commit a child to the care of charge of Childrents Aid Society, but if that remains in. - 222 -
then F,oing on further in section 59(f) it implies that only if there is no Children's Aid Society may the commitment be made to the charge of the director or superintendent. So if the Children's Aid Society remains in we would like to àee simply the words "or the superintendent" and not only if there is no Children's Aid Society,
MR. DEUALT(Manitoba): • I would suggest that it be broadened to include other authority as designated by the province because there are other authorities in some provinces Who are given this responsibility. MR. FORESTELL (New Brunswick)-: I think the section should be telescoped into one disposition section and a great flexibility be given , here for discretion of the judge. There are phrases such as, "he 'shall include one of them" or, "he may", I would like to see the judc given plenty of discretion. CHAIRMAN: Any further comments? Next item on Nova Scotiafs agenda is secflon 64, subsection 4, MR. MacDONALD (Nova Scotia):' • That has been covered adequately. CHAIRMAN: Is there anything to say about section 63? - 223 -
Hr. MacWNALD (Nova Scotia): must crave your indulgence, Ur. Chairman, in that was unavoidably absent from the room during which time, think, some comment was made with respect to this section. There are two or three points about it that have occurred to us, First of all, there is the
reference in section 68 to the expression "mentally ill". We are wonderint; if this is generally accepted as being wide enough to over the emotionally disturbed as well as the mentally'ill, particularly among the much younger group. The emotionally disturbed form a fairly large segment and, in some cases, a limited interpretation is given to the expression "mentally ill. The second point is to the power of the lieutenant
governor to make known his pleasure. Subsection )4. provides for detention of the child until the pleasure of the lieutenant governor is known. Now, under the Code, of course, there is a special power for the lieutenant governor to issue a warrant of commitment , I do not think that would be an inherent power and, consequently, I think that, perhaps, something along the lines of section 527 of the Code should be included in this statute or by reference, The third point here is that this section deals with the situation of the child being found to be mentally ill upon examination. But it does not seem to cover the case where the child may have been mentally ill at the time - 224 -
of the commission of the offence.' That point was raised by 'iowman.
Those are our coraments with respect to sections 68 and 69
Have you anj further comments? Ur. Driedger? M. DRIUDOU ( Gaskatchewan): The point concerning definition of "mentally ill" is quite a real one in Gaskatchewan, too. Actually the definition of "mental illness" in Saskatchewan is very restricted. It does not 'nclude behoviour disorders for adults, oven, let alone emotionally disturbance
for children. Go I am wondorinG whether we should not look more closely ab this. FOREGTELL (new T- runswick): With reference to section 69(h), you will notice here that where the child is unfit because of mental illness to stand the hearint; cf the charges aGainst Mm, the judre "shall order him to ho kept in detention until the pleasure of the lieutenant governor is known". I think, again, this is much much too broad. We might
have a case of a boy who is mentally retardod and unfit to hear the charge aGainst him, but he is being taken care of at home. This section does not leave the discretion to the judge of leaving him at home. The
section says he "shall ordor hin to be 1:epb in detention" and again I think this mi si-,ht be wordcd "nay". - 225 -
ULKi7J: (Manitoba): In the section denling with mental illness, I wonder if there should be sone provision for review of these cnses. I understood there was some suggestion that our crIminal lnw might be amended in this regard
and I think children should have the advantage of the same sort of legislation. CDAIRMAN: Are there any further comments?
• KEEPqn( (British Columbia): This whole area, Mr. Chairman, arises from trying to put into this act the detailed provisions of the Criminal. Code. If we made the Code applicable, we would not have the problem of the loss of Section 527 and all the other things. CUAIRUN: Are there anj further connents? KROAUM (Saskatchewan): This is a further point, but we are wondering
about the logic concerning disposition. For example, section 5 8 (b) sa;is that he may be placed under the
supervision of a probation officer'for, a period not exceeding two years. Whereas, under section 59(a), it says that he may commit a child to a training school for a period not exceeding three years. It seems to us it would be more lois,ical to have it possible to keep him under supervision for a longer period of time rather than have him kept in a training school. - 226 -
• 2fflUSTUL (Hew Brunswick): Uow Diuncwi oh would ag,ree with that remark. .
*!AIRVAH: How irmnswick and ',ritish Columbia agree. Any further 'comments? That ends the Uova Scotia's supplementarj arenda. now t Irn to British Columbia 's two items. The First, transference of training school to adult institutions. Dr. Kennedy.
DR. K•ir:PY (Oritish Columbia): Mr. Chairman, nine or ten years ar-,o there was a recommendation -- Mr, MacLeod will remember it -- by the 1 federal-provincial Lroup Uhat was considering implementation of the Faubeluz Committee- Jeporb. It was a recomme , .dation
from a subcommittee adopted bj the whole , roup that Lhere be provision somewhere in the legislation authorizing transfer of a child from a training school to an adult
institution for further trainin g . The transfer to take place bj the attorney f;eneral but only on the recomnendation of the superintendent of child welfareo I think that is r oughly the recommendation, Mr. MacLeod,
as I remember it. There are situations where that would be useful. 117here are not too manicases at the same time where you have a specialized institution, such as the Haney Correctional Institution, to which our adult young offenders go, including any who are moved up over the age of 14 -- an institution which has a specialized training program, particularly on a vocational training basis, comparable to that of the regular TI - 227 -
vocational schools in the province. A child has been through the training afforded by the training school and is ready for more sophisticated vocational training, but 1.8 not ready for complete release. It seems that there should be some provision to give him this vocational training. Particularly with our young murderers, in our juvenile setting -- that is where we do not move them up to regular Court -- we have had some casesbhere we have not wanted to release them too soom and they have been getting up into the 18, 19, 20 year age. It would be much more useful if we could give them further training, subject to the safeguards I mentioned on the recommendation of the Superintendent of Child Welfare. CHAIRMAN: Thank you. Are there any comments? MR. PILKEY (Manitoba): Mré Chairman, I am inclined to agree with this but I think it has to be broad enough and elastic enough to • recognize the departments or branches of government in each province that might be involved in tàis work. I would be inclined not to specify "Superintendent of Welfare" but rather leave it open so that it would apply as the provincial practice dictates. DR. KENNTMY (British Columbia): Yes; I would agree to that. CHAIRMAN: Are there any further comments? The next item on - 228 -
Lhe 3ribjoh Columbia anenda r(, latcs to oubsenion 2 of onctIon 7 or bhe draft bill.
Di. K1' ."';DY 13ritish Columbia) ( ho discussed ,estordn:, I r Ohairman, sone
illustrations uhich wo..11d 1 )C, Ln violation , f this subscction and I n. concerned wH:h 1hhat. I am as.4urinf; the I; the draftspion will brin, this together and indicate how far 7ou can deal with adults in this Court. However, t■ 'ore o the problem of hou far you car io in dealin' with a pers on w:lo was a juvenile at the time of His offence, but at ' ho timn :,-ou discover the ofrenc , or, . re rarLicularly, d:scover the offender, :Le ;s nu atillt.
I will Iv( :,ou a cçncrete illustration, because in most cases we woulC. not proceed if be had reached a full a:0 and had - ore n stra5,:ht", if you like. lie
a murder 25 years ayo , I Ubink it WRG, where this had or 16-,-ear-old :aye evidence for' the Crown that the accHsed was t-e vurderer. :lortunately, the jury acquitted. new Uolieve that the l6-je:,.r-old was the one who did
the murder. ‘ie are not brini;ing h.in up for murder for the moment, and as I said wo would have ueat reservations.
This woulC, be 2 -- atter of local administrative policy.
rer:urL; is a serLous of'Ance. Hero is a person who
. went into Cou.rt end suore that A killed f , u. en he knew it was false. :.ou, I an not su.estini-. that necessarily the juvenile court continue with jurisdiction over that - 229 -
person, but if we have a bar such as in section 7(2) thon
wo cannot brin hin into juvenile court -- we caunot brin Liu into aL I2 U-dor tic exist.' law we I 0 into juvenile court -Ind tiave him moved up to
ydult court. what ■ t-ts actuall ; halpened in this
; articulai case. It 1-Gay bo that our purpose in havinir, legislation
of this sort -- which is -what we are down here to discuss -- is to deal with ;Toungsters and not with a
It-year-old man who is noir up for rerjury. Therefore, the Criminal Code should be aeuded to take care of him, I an throwing that out as an idoa. The whole purpose of
our juvenile leL:islation - is disposition. That is the major feature -- what is the best disposition of a particular case. Obviously the famik court is not the place for it
"hanl; you. hro there any comments?
2c)2ULT, (how prunswick): ,;ection 7(2) tiftes awn.y jurisdiction over anybody
cwor 21 from the juvenile court; jet section 41 says they
can fine them, put them in prison and everj thing else. It contradicts other sections which Five the juvenile
court rii.;ht over man,;., cases -- contributing to delinquency and thin,s like that
Ud. ithiTiIDY (3ritish Columbia):
Or where that was a possibilit,7; or in dealing with
a juvenile offender who is not licked up intil he is an adult. - 230 -
. ( r - nsuick)
'?inh.t; but I ioar section 7 ( 2) . 0 .. 8
) ( Colubla)
11e avoid furthe r conflict in the draft .....
Y(fl Y.' 11 ( eu ,runsuick) : If there is conrlict in the drnft it negates itself, A DELEGATE: Yes. ,S STRACV:
qe worried about 7(2) when ue drofted it. Perhaps the t tue of the cOE.11 , ittin;_., of offen ces is not rclevant curL it is how old a person is when apprehended. What
would you suggest , Dr . Kennedy? FM. K7,ITTMY (riri t ish Colum. in) : I prefer that it be dealt with in adult court, in the t,pe of illustration I gave you, where the juvenile offender is not being proceeded against until lie is an adult.
I'ÏSS SPRAGUE:
So tLat tile relevant age is the av,e at which he is apprehended and not the age at which he committed the offence? DR . KEITH= (Dritish Columbia )
I say that because I think the Juvenile Court -- the Family Court -- is primarily interested in bringing a young person along, Obviously you are not ;oing to take many of these cases forward anyway, after the lapse of time, but there will be the odd case such as the one - 231 -
have illustrated where there is a:real problem 9 Je have had serious discussions in the office on how far we can go with a case like thato It does raise the matter of perjury, and perjury of a very vicious sort if this man ,iad been banuod. •R. PILKEY (Manitoba): May I direct a questlon here? I may have overlooked something. He could not be taken jnto the Family Court on this sort of problem, and DR . KEIII;EDY (British Columbia He can now. PILKEY (Manitoba): Hé can now, Gordon,- and that is what we did; but 7(2) sajs "notwithstanding any provision in this Act, the juvenile court has no jurisdiction over any person 21 years of age or more" This person is 45. MISS SPRAGUE: It also affects 7(1), and I think you have made your pointb It . is actually the second part of 7(2) that has any bearing on the Department of Justice report. DR* I.ŒP,UT.','DY (British Columbia): A problem,too, that would arise, with.people placed on probation for this two- or three-year period, Is whether we should have flexibility here -- whether they should back before a juvenile court or an adult court, or whether violating the probation should be an offence - 232 -
âre tbere any further comments? LacDCUALD (Uova Jcotia): I have a minor point on the phraseolo used in subsection 1 of section 7, where ib rofers to a jounc, person having "passed the aLe of 17". That sbould probabl -, be "has reached the a:c of 17", oblerwise it leaves the 17-7ear-olds in limbo,, does it not? (MATRUH: Are there any further comments? That ends our Celiberations on the discussion dreft. We will resume at 2.30, at which time we w121 deal with Items (e), (f) and (g), paragraph "), of the A2,onda, and with the press release. DR. Erli:JDY (British Columbia):
hr. Chairman, we did not comment on all • of the sections which, by way of illustration, 1:tebec raised, I agreed with some but not with others. :J:a. I correct in mu undersLandimr: thaL it is not assumed that we azreed with the comment modo or with the draft? I respect the cLAmnents made, and I assume they were made for usable discussion winin your Department.
iihat is ri':hb; that is quite clearly understood.
1\r") 1,11.0 ' 11 7'DY (British Columbia): 2or exarple, there was tbe suggestion that the
courts should have no power to appoint probation ()Moors, - 233 -
I a,ree that that should not ,o in this act. However,
I think there should be the rower in the court to do
it under the provincial ]e-:,islation settinu nr the court, where there is no 1,eber of the re ,-ular probation staff ,Ivallable; in other words, in that part of Pritish Colur:le which is north of Alaska and soun of the '1u, on, for exanple.
"Lour understandirc, is correct, Dr. .:ennedy. JUDU Pcc (Cnbario):
Mr. Chairman, to conclude the discussion, the Ontario brief, such as it is, in some detail, will be
filed for your U300 - CHAJIWAN: Thank you very much.
MR. BLUi.11f (Ontario):
This brief, Mr. Chairman, contains a larco number of suimested chanes in the draft, which rainl: relate to the draftin[: itself. - 234 -
CHAIRMAN:
We }I've decided that the first item we should deal with this
afternoon, subject to your approval, is a press release. Duo to technical
difficulties relmting to trary3letion and reproduction, wo will have to
deal with that now. T will call upon Mr. Braithwaite to road the draft
that the Committee has prepared.
MR. BRAIIIIWAPPE: T begin: :
"Representatives of Federal, Provincial and Territorial Governments met in Ottawa on January 10th and ilth nt the invitation of the Solicitor General. or Canada to censider possible changes in the law and specific programmes in n co-operative search. for successful measures to reduce juvenile delinquency. , Over 70 Deputy Attorneys General, Child Welfare Officials, Directors of Correction, Juvenile Court Judges and other interested officials considered certain recOmmendations of the Department of Justice Committee Report, Juvenile Delinouenc ,, in Canada. This Report wms made public in 1966 and represented several years of work by a Committee chaired by Mr. Allen J. MacLeod, Q.C., Commissioner of Penitentiaries, members of the Committee included Dr. L. Philippe Gendreau, Miss Mary Lou Lynch, Professor Ronald R. Price and Superintendent Edwin W. Wines of the Royal Canadian Mounted Police. The Committeels Report calied for changes in legislation, an increased role for the Federal Government in gathering and disseminating information on juvenile delinquency, the provision of consultation services and the carrying out of demonstration projects. The primary purpose of the Conference was to provide the Solicitor General, the Honourable L.T. Pennell, Q.C., with the candid opinions of the representatives from the Provincial and Territorial Governments on these proposals.
The major portion of the meeting was devoted to the discussion of a draft in legislative form prepared specifically to focus attention on the RecŒmmendations of the Report insofar as they concerned possible changes in the law.
During the frak and open discussion which ensued, careful considera- tion was given to many basic issues.
The Conference discuss d the desirability of a uniform age for a juvenile delinquent and whether, as the Report suggested, the maximum age should be 17 years and the minimum age 10 or 12 years. The delegates indicated that while there might be advantages to a unifrom age, very serious consideration would have to be given to the question of the provision and reorganization, by some of the Provinces, of services and facilities available to the juvenile courts, - 235 -
The Conference discussed at some length the suggestion that the catch-all offence of delinquency be removed from the Federal Act. The charging of a child or young person with the specific contravention that he allegedly committed, in the same way as an adult is charged, would be substituted for the broader offence of delinquency. Ever7 child or young person who commits an :ict contrary to the provisions of the Criminal Code or to the provisions of MY7 other Statutes that might be set out in the Schedule would have committed an offence.
The Conference also considered the possibility of deleting from any subseluent Federal legislation governing children and young persons any references to breaches of provincial legislation or municipal by--laws.
The Conference then proceeded to hear the opinions of Provincial and Territorial delegates on numerous other recommendations contained in the draft rrepared for the sole purpose of focusing discussion. These included waiver of jurisdiction from summary conviction court to juvenile court or from juvenile court to adàlt court; receiving information and issuing summons and warrant; the precedure to be followed at hearing; the jurisdiction of the juvenile court to hear and dispose of charges against adults; the possible abolition of the offence of contributing to . juvenile delinquency; the matter of after-care for juveniles upon leaving training schools; the role of juvenile court committees and other important issues.
A statement on those recommendations of the Report which the Government of Canada was now implementing was presented.to the Conference. The Conference itself represented one of the first implementation stages. Another step being taken is the creation of a Research Unit in the Department of the Solicitor General to co-ordinate and stimulate research into the prevention and control of crime and delinquency. This Unit will .organize and direct research into the many facets of prevention and correction of crime and on the basis of subsequent findings, suggest innovation delinquency and, s. and positive changes in all areas of practice.
The creation, of a Youth Services Centre in the Department of the Solicitor General was announced. The rois of this Centre was described and subsequently fully discussed.
The'Conference then heard a paper on delinquency and related statistics given by the Head of the Judicial Section of the Dominion Bureau of Statis- tics, Mr, W.A. Magill. The paper related the/programme that had currently been developed in co-operation with certain Provinces for more data on the number of juveniles in any or all stages of the judicial and administrative process.
Finally, it was agreed that the Conference had provided a means of helpful discussion on basic matters of common interest to Federal, Provin- cial and Territorial officials concerned with the problem of juvenile delinquency in Canada and to seek more effective measures of providing services to youth in conflict with the law." - 236 -
CHAIRMAN:
That is the proposed press release. It has the unanimous approval
of the members of the Committee. Is it acceptable to the delegates?
MR. MELDRUM (Saskatchewan)!
it seems to me that in the reference to the age the press release
gives an impression that this is just a matter of some of the provinces
bringing up the facilities rather than the fact that certainly a number
of us -- a number of the provinces -- do not agree with going above the
age of sixteen. I think it gives the wrong impression. MR. BRAITHWAITE:
Would you like me just to read that particular portion very quickly
again, Mr. Meldrum?!
"The Conference discussed the desirability of a uniform age for a juvenile delinquent and whether, as the Report suggested, the maximum age should be 17 years and the minimum age 10 or 12 years. The delegates indicated that while there might be advantages to a uniform age, very serious consideration would have to be given to the question of the provision and reorganization, by some of the Provinces, of services and facilities available to the juvenile courts."
MR. MELDRUM (Saskatchewan):
Well, to me it indicates that the matter of the uniform age--
whatever it is -- of 17 is something that is going to be gone ahead
with and the provinces will have to bring up their facilities. CHAIRMAN:
Well, whether they have the ftcilities Or not is a matter of policy,
They might not want to recommend a uniform age. Is that your point? - 237 -
DR. IŒNUEDY (British Columbia)
Mr. Chairman, I think it leaves the impression -- I hnve picked up
the same point -- that the sole objection to the uniform age was because
some of the provinces did not have facilities. That was not the sole
objection. There were some provinces that wanted an age different from
17 on policy and I think it was put that we should not have a uniform
age solely for the sake of uniformity.
CHAIRMAN:
Mr. Meldrum, would you please suggest a change in the draft?
MR. MELDRUM (Saskatchewan):
Well, just that some of the provinces were not Prepared to have
the age in their province increased beyond 16 6
CHAIRMAN:
Could that be taken care of by changing the last sentence to say:
wdhile some delegates indicated ..."
Would that meet your point?
MR. MELDRUM (Saskatchewan):
How does it read then?
CHAIRMAN: "While some delegates indicated there might be advantages to a uniform age, very serious consideration would have to be given to the question ..."
MR. MELDRUM (Saskatchewan)!
No, it does not say that some of the provinces were not prepared
to consent to the age being raised, which is the position.
A DELEGATE:
Or lowered.
MR. MELDRUM_Paskatchewan):
Or lowered in some cases. - 238 -
MR. FORESTELL (New Brunswick)!
Using the age 16.
MR. MELDRUM (Saskatchewan):_ Yes. Either some were not prepared to go above 16, and some were not
preparrcd to have it lowered below 18. MR. FORFSTELL (New Brunswick))
The trouble is there is no age mentioned.
MR. BRAITHWAITE:
There is no age mentioned in that sentence but --
ER. KELDRUM (Saskatchewan)! ••
But the whole implication -- at least what T got out of it, as
did Dr. Kennedy -- is that really the facilities were the problem,
which is only one phase of it. -
MR. BRAITHWAITE:
Would this help at ail, Mr. Meldrum?:
IrWhile the delegates indicated that there might be advantages to a uniform age, some of the provinces were not prepared to have that age set as 17 because very serious consideration would have to be given to the question of •..°
MR. MELDRUM (Saskatchewan):
No, that does not mean anything.
MR. MacDONALD (Nova Scotia):
I agree completely with Mr. Meldrum and with Gilbert Kennedy. The
objection is not entirely because of the limitations of the institutions.
' It is a matter of policy with respect to the treatment of this age group.
Some of us are not satisfied at this point that under our general set-up
it is desirable to have the 17 - 16 year age group included within the
juvenile program. • - 239 -
DR. KENNEDY (British Columbia):,
Mr. Chairman, I have edited a version which I stole from your
officer just now. May I read another version which I think connects all
of these points. If it does not let me know.
"some delegates indicated that there might be advantages to a uniform age. Others preferred, as a matter of policy in dealing with children, to use a different maximum. In one or two provinces very serious consideration would have to be giyen to the question of the provision and. reorganization ...fl CHAIRMAN:
Is that acceptable?
Nit. MELDRUM (Saskatchewan): •
I still do not think that it puts forward the position of some
provinces that they are not prepared to go above 16. It ends up
referring to facilities and that -is not right. DR. KENNEDY (British Columbia):
May I read it again?
"some delegates indicated that there might be advantages to a uniform age. Others preferred.as a matter of policy in dealing with children to use a different maximum ..."
Perhaps I should add:
"a maximum other than 17 -- in one or two provinces .0."
and then you carry on with the provision about "very serious consideration". CHAIRMAN:
Is that acceptable? MR. MELDRUM (Saskatchewan):
Well, when you say "one or two provinces" that does not meet the
situation because -- MR. MacDONALD_1Nova Scotia):
I do not quite understand what purpose is served by that sentence. - 240 -
CHAIRMAN:
My suggestion was to take the sentence out altogether and just
"no consensus was reached". It would then read:
The Conference discussed the desirability of a uniform age for g juvenile delinquent and whether, as the Report suggested, the maximum ag,e should be 17 years and the minimum age 10 or 12 years. No consensus was reached."
and thnt is it.
A DELISATE:
We do not even need that second sentence.
CO-Cl IA (Mr. MacLeod)l
Well, I think yoU might as well indicate --
A DEL GATT,:
But ,)-0 have not indicated in relation to the other matters. CHAIRMAN:
What about knocking the sentence out altogether?
MR. MELDRUM (Saskatchewan):
Adding what Mr. MacLeod. suggests, I think, does indicate that
there was no consensus.
CHAIRMAN:
We have not indicated what the consensus was in relation to
other matters that are mentioned in the press release. MIT . MELDRUM (Saskatchewan):
Well, this is a very basic issue. If it is going to indicate the
desirability of a uniforM age, then it seems to me if you are going to
say anything more you have to indicate that some provinces are not
prepared to accept a uniform ae above 16 and, in fact, perhaps even the
majority of the provinces. - 241 -
MR. 9UUTUWITi!
I will just give you what I think WS th: feeling of the committee.
We did not wish to r et involved in the rrocess of reporting the outcome
of particular discussions. I am unable to rnil the members of the com-
ndttee from here, but T rather sense, in keepinn; with that expressed
thought durinr the committee meeting, that wu would be prepared to
. omit this whole mention of how delegates felt about the question of
age and just say thatithe matter was discussed; thon it is left to
individuals to express their views as they may or may not be able
to do following our meeting.
MR. MELDRI.JM (Saskatchewan):
The increased facilities referred to are only if the age is raised
and, I think it leaves the impression that some provinces have not
sufficient facilities now for dealing with juvenile delinquents under
the present act, with which we do not agree so far as Saskatehewan is
concerned.
CHAIRMAN:
The time factor in going to require 'Glint, this be brought to a head.
I. am going to put it to von. Will those who are in favour of simply
deleting the sentence without any further addition, raise their hands.
MR. MELDRUM (Saskatchewan):
How far down does the sentence go?
CHAIRMAN:
This is the sentence:-
"The delegates indicated that whilo there might be advantages to a uniform age, very serious consideration would have to be given to the fluestion of the rrovision and reorganization by sonie of the provinces of services and facilities available to th3 juvenile courts."
So that the raragraph would now simply read: - 242 -
.The Conference discussnd the desirnbility of a uni form nfe for a juvenile delinouent and whether, ris th' Report suggested, the maximum age should be 17 years and the minimum age 10 or 12 years.
Will those who are in favour --
DR. KENNEDY (British Columbia):
May I comment, not on the maximum age but on the minimue I think
that is one of the achievements of the Conference. I think we practically
unanimously agreed on raising the minimum age to 12. If your notes so
indicate it might be very useful to say that. This,I feel, is one of
the major achievements. CHAIRMAN:
You are breaking away from the principle of not indicating in
the press release the consensus of the meeting.. There are other matters
referred to and there is no indication in the press release of what the
consensus was. JUDGE WALLACE (Ontario):
I do not think it would be proper, either, when this is a report
or information for the Minister for us to indicate even if it is,
unanimous. It may or ma' not end up in the legislation, and I think
it is presuming a bit to make public our position.
MR. BRAITHWAITE:
This was the feeling of the committee. •
MR MELDRUM (Saskatchewan ) i,
Mr. Chairman, I am prepared to accept it without that sentence. CHAIRMAN:
Will those in favour of simply deleting the sentence raise their
hands? /most hands up/
Those against? /few hands up/,
Agreed.
Are there any other suggested amendments to the press release? - 243 -
CHAIRMAN:
We will move on now to the next item on the agonda.
MR. CHOUINARD (Quebec):
I think one fairly important point was made with regard to after-
care. It might be just as well to say that the mtter of after-care for
juveniles was considered, rather than "after-care for juveniles upon
leaving training schools". Why not delete those words? CHAIRMAN:
Are there any objections to that? FM,. MAGILL:
Mr. Chairman, I think there is one word in there which should be
deleted, the word "juvenile". The work in one province is exclusively
on the adult side while in another province is the point of discussion
so I feel, as far as juvenile statistics are concerned, they had better
be left simply statistical, if you do not mind. Mind you, I have not
given the paper yet.
CHAIRMAN:
Yes, but this is included in your work, Mr. Magill, is it not?
MR. MAGILL:
Yes, it is just not juvenile statistics alone. CHAIRMAN:
We realize that. MR. mAgn:
it. is on both sides. - 244 -
CHAMMAH:
Vie are only concerned, Cor the purpose of this Conference, with
juveniles and what prou are doing in that area.
MR. BPAITI11AITK.
The term "juvenile st-tistics" is flot used,
MF?. MACIII:
T thought it was at the very end. CHAIRMAN:
Are there any objections to Mr, Chouinardls recommendations? (No) .
the next item on the agenda, We now move to
MR, MacDONALD (Nova Scotia):
Mr, Chairman, before we move to the next item on the agenda, could
we have some indication or discussion us to wh-re we go from here with
respect to the Discussion Draft, My own feeling is that the discussions
of the last day and a half have been very valuable and very informative
so far as we arc concerned. However, I would like to have some indication
as to what continned.consideration we should be giving to the subject of
a re-draft of Lhe Juvenile Delinquents Act and what steps are proposed or
can be suggested with respect to a continuation of the work being done at
this Confermce. For my own part, I would like to know, for instance, if
there will be available to us a trancript of the discussions of the last
few days and, also, if, as a group, we will have an opportun ity to dis cuss
-Y: a ro-drrift of the Di-..cuSsion Drf'ft following what I assume will 1
consideratior by the Solicitor Gelerml? Cenerally spea1cin7, where do we
go from here? - 245 -
CHAIRMAN:
Does this relate to the [Tess release?
MR. MacDONALD (Nova Scoti):
No. CHAIRMAN:
Could I get the rress release out of the way, first?
MR. MacDONALD (Nova Scotia):
• I had assitmed that the press release was out of the way, and we
were now proceeding to the other items on the agenda.
CHAIRMAN:
No. Dr. Kennedy just raised another point. What was your point,
doctor?
DR. KENNEDY (British Columbia):
I felt that in listing a summary of things we ddscussed we left
out what to me is, in some ways, really important -- the whole approach
to the disposition of juvenile o • fenders. We listed a lot of technical
details and. unless 1 missed it in the hearing I do not think we included
anything on the larger a: d. more important problem of the whole approach
to juvenile offenders.
MR. BRAITHWAITE:
The Committee, I think, Dr. Kennedy, suffered somewhat under the
handicap of having to prepare the press release in advance of ail the
Conference's deliberations. If there is sufficient concern on this
matter I do not think it will be difficult to include a statement on
philosophy. But I think, perhaps, in the last faTagraph, while we did
not get into the matter of specific disposition, we did attempt to - 246 -
indicate that the meeting was concerned with the problem of seeking more
effoctive measures of providdng services to youth in conflict with the
law. This, perhaps, does not expr ,:iss adequately the spirit of the meeting
but this was our intent.
MR. DRIEDGER (Saskatchewan)i
Mr. Chairman, I would endorse what Dr. Kennedy has said. I believe
it is important to give it a little more emphasis. Secondly, I was just
wondering if we will get curies of the press release?
CHAIRMAN:
You will get copies, but it Will be too late to amend it, then.
This is what we are trying to do now.
Dr.. Kennedy, perhaps you would be good enough to suggest the wording
of an addition to meet the point - that you have made. I think it is a good
point. What would you suggest?
DR. KENNTMY (British Columbia):
Here is my suggestion, Mr. Chairman.
CHAIRMAN:
T would like to road the proposed addition. The relevant paragraph
would now read as follows:
'rrhese included waiver of jurisdiction from summary conviction court to juvenile court to adult court; receiving information and issuing summons and warrant; the procedure to be'followed at hearing; and dispose of charges against adults; the possible abolition of the offence of contributing to juvenile delinquency; new approaches to the disposition of children in difficulty with the law; the matter of after-care for juveniles; the role of juvenile court committees and . other imr:b:-tant issues.'!
Is that acceptable?
DR. KENNEDY (British Columbia):
' Thank you, Mr. Chr:irman. - 247 -
CHAIRMAN:
We will move on now to the next item on the agenda, statement and recommendations of the report now being implemented. If you
refer to the document, Position Paper For The Federal-Provincial Conference, that subject matter is dealt with in that paper and I will call upon Mr. Braithwaite. MR. BRAITHWAITE:
Thank you, Mr. Chairman. I do not intend to read at this
time this whole paper to you, but I will touch on one or two
points within it. I think, as was mentioned in the press release, one of the
first steps towards the implementation of any of the recommendations contained in the Department of Justice Report on Juvenile
Delinouency is represented by this Conference which brings us all together today. The Committee indicated that there might be a role for the federal government in the field of Juvenile Delinquency that would go beyond the mere enactment of juvenile court legislation, important as that may be. The rationale for their recommendation in this regard stems from their thinking that the federal government is responsible for the criminal law, The Canadian
Penitentiary Service, the National Parole Board and the Royal Canadian Mounted Police, and as a result is vitally interested in
those situations which lead to the development of adult criminals - 248 -
and if youthful delinouency in Canada is a national problem it reouires national co-operative efforts towards a solution.
At the same time it was recognized that a subject matter that had as many facets that are within the provincial jurisdiction can certainly not be dealt with nationally and comprehensively exclusively by the Parliament of Canada.
Nevertheless, the Committee felt that the nature and extent of the problem pointed out the need for the federal authority to play some role towards more successful programs of prevention and treatment of juvenile delinquency.
One of the prerequisites for intelligent action to reduce juvenile delinquency is more accurate and more reliable information regarding the nature and extent of the problem. The
Committee commended the work of the Judicial Section of the
Dominion Bureau of Statistics and asked that their efforts be encouraged in every way possible. We will hear later today a paper by Mr. Magill who will go into this in more detail. The
Committee also made recommendations regarding changes in legislation and, in addition, endorsed the following view expressed by the Fauteux Committee:
"We placed the greatest possible emphasis on the urgent need for research on crime and on the "programs which seek to control crime. The federal government should take the lead since the problems involved have national as well as regional significance." - 249 -
Initial efforts towards improving the extent and quality of criminological research have already been undertaken by the
Solicitor General Department. Some of this activity has taken the form of research contracts and grants to universities. The expenditure for the current fiscal year is over $100,000 and we have no doubt that requests for contracts of this type will increase as the results of these and other studies extend the frontiers of our collective knowledge.
Another step being taken by the Department to co-ordinate and stimulate research into the prevention and control of crime and delinquency is the establishment of a research unit within:the
Department. This unit will, hopefully, organize and direct research into many facets of the problem of prevention and correction of crime and delinquency. On the basis of subsequent findings and through the sharing'of these findings with all concerned with delinquency, suggest and perhaps point the way to innovations and positive changes in all areas of practice. We hoped that there would be co-ordination of our research efforte with all agencies, governments and organizations throughout Canada who are engaged in similar endeavours and we would hope to establish a research advisory council to assist in this co-ordinating function and also in its advisory capacity. - 250 -
The need for increased research activity can be measured, perhaps, in many,ways, but one of them is to consider the many recommendations contained in the report for research activity.
Because we are facing a time factor I will not repeat all of those at this time.
We feel rather strongly that the information obtained, as a result of research endeavours, must be shared widely with all practitioners if it is to be of optimum value. Indeed, the distribution of information is as necessary as the original inquiry and innovation. Recognizing this fact, the Comnittee recommended the establishment of a Youth and Delinquency Research and Advisory Centre. We subsequently reduced the proposed title from Youth and Delinquency Research and Advisory Centre to Youth
Services Centre. Its proposed activities will be to serve as a clearing house for information devoted to the prevention end control of delinquency within Canada and other countries; possibly to publish a quarterly journal of professional standards with contributions from leading Canadian as well as international experts and to provide to those desirous of these materials, information on topics such as delinquency prevention, community treatment programs, innovations in institutional programs, staff training, research and other related topics. - 251 -
Je hope to maintain a close and co-operative liaison with programs operating under provincial departments as well as developments on'the international scene. It is hoped that certain consultative and advisory services will be provided to provincial, municipal and private organizations involved with the problem of delinouency and where they are interested in obtaining such services.
It is anticipated that a small staff located in this centre would provide some of this consultative service, but we realize that it might be necessary to obtain the assistance of " others on a temporary basis. Due to its close contact with practitioners and an awareness of the problems facing practitioners, the youth services centre hopes to be able to recommend speéific areas of social inquiry to be considered by the research unit. In this regard, if funds can be secured, the conducting of a number of demonstration projects relating to various aspects of delinquency prevention and control might be undertaken. These projects could only be initiated with the full co-operation and planning of the province concerned. The basic considerations for such projects would be to initiate and to evaluate a new concept of program in some aspect of the total field of juvenile corrections and, if successful, to encourage its adoption in other regions. All such projects would require careful preparation and planning, not only as to the possible merit of the project itself, but also, in the - 252 -
determination of the criteria for ew,luation. I might add, and
do not know whether I should say this almost as a word of
warn• ng, but we are in the process of recruiting a Director for
the Centre and we have had a number of very excellent applications
from across the Dominion of Canada. Interviews will be taking
place later this month.
As a result of the Youth Services Centre being knowledgeable
about research findings, innovative programs and the many problems
confronting the practitioner, it is hoped that the Centre could also be of assistance towards staff training programs. This might be done initially throuFh a. rather modest beginning
involving assistance in the development of workshops, institutes, and seminars.
These then are the initial steps being taken toward the implementation of some of the recommendations contained in the •
Department of Justice report. It is hoped that with the creation
of the Youth Services Centre; a. Federal Research Unit devoting its
resources to the whole field of crime and deliquency; the provision of funds for demonstration projects and some of the other efforts that I have mentioned and that are spelled out in more detail in the paper which you have before you, the federal government through the Depart/lent of the Solicitor General may, in co-operation with the provinces, stimulate the development of successful measures to help curb deliouency.
• • • - 253 -
It is our desire, keeping in mind the admonition of my
Minister on the opening day of the conference ; to learn from
you people and to obtain the opinions of the provinces on what
would constitute a helpful role on the part of the Youth Services
Centre and the Research Centre in relation to your program.
I do not know whether Mr. Christie wishes to go into this at
the moment or whether you wish to put it over until after the
coffee break but we.would appreciate any opinions which the
officials here today might have on this paper.
CHAIRMAN:
Yes, I think we will have the coffee break now if that is
agreeable and then we can tart comments and questioning
immediately after the break.
MR. Pii;NbIELL (Solicitor General):
Mr. Chairman, while it is still fresh in your mind and not
to cut the ground from underneath John here, I should throw in
that we began the preparation of this paper before we became so
economy conscious on Parliament Hill. However I am still very
hopeful that all the things Mr. Braithwaite has spelled out in
the paper will be attained. This still is our objective. Perhaps
we may not be able to proceed quite as quickly as we had originally
planned. However I confirm what Mr. Braithwaite has stated. We
are in the market for a director for the Youth Services Centre and
probably you are well aware of the fact that we have advertised. - 254 -
The word "economy" is still fresh in my mind having just come
from a meeting with my cabinet colleagues.
CHAIREAN:
We heard Mr. Braithwaite on the recommendations of the
report; how they are being implemented and what is proposed.
We would now like to hear from the various delegations starting
with Ontario.
MR. BOWMAN (Ontario):
We feel that the proposal is a splendid one and should
serve a very useful purpose.
MR. CHOUINARD (Quebec):
Mr. Chairman, I have the following statement to make on this
paper. I think I élearly stated yesterday, the policy of the
Çuebec government in the social field which is to recuperate
where necessary its jurisdiction and generally exercise
exclusively its constitutional jurisdiction in this field and
to refuse any form of direct or indirect intervention on the
part of the federal government in this.field. Therefore, we
submit: first, that it would be more appropriate that all
discussion regarding any aspect other than the purely legal
ones be done through the means of interprovincial conferences.
Secondly, that any expansion of federal functions even with
regard to research on the non legal aspects of delinquency
problems, whether prevention or reeducation of Young offenders, - 255 -
must be regarded by Guebec as an unacceptable intrusion. And,
thirdly, for those reasons, Quebec objects itself to the
creation of a Youth Services Centre at the Department of the
Solicitor General, with all due respect, sir because, in our
opinion, it would be more appropriate that such a centre, if
there should be one, be an extension of interprovincial conferences. CHAIRMAN:
Thank you.
MR. MAC DONALD (Nova Scotia).
Nova Scotia is in general concurrence with the statement
and we expect that it should produce good results.
CHAIRMAN.
Thank you.
R. PILKEY. (Manitoba)
We agree with Nova Scotia. 1 CHAIRMAN: Thank you.
MR, HART (Alberta):
Mr. Chairman we are pleased with the proposals and on the
progress that has already been made to implement them. pHAIRMAN:
Thank You.
pR. KENNEDy (British Columbia):
Mr. Chairman the statement presents an excellent goal for all
of us in Canada in relation to child offenders. Some of the proposals - 256 -
are already being carried out in the provinces and the stimulus
which the research unit will provide will be of great assistance
to the province. I have some hesitation in seeing all of this
work moving into another field of government but I am more
interested in seeing the work done at the moment and I reserve
, any constitutional difficulty. We have lost a warden to this
federal service but I think for the moment it is sufficient to
say we will take these proposals and examine them. I have as I
say noted with pleasure the spirit in which they are drawn.
MELDRUM (Saskatchewan):
We are not in disagreement with the proposals and approve
them but we cannot comment in detail.
CHAIRMAN:
Thank you.
MR. McCARTHY (Newfoundland):
We agree with the comments of Nova Scotia. This has been
a most interesting conference for us but we take this opportunity
to remind the conference again that we are still operating on a
pre-Confederation act. We will be looking forward to the new
Act and we hope it will be better than the one we are operating
under now. If so, we will be glad to adopt it. CHAIRMAN:
Thank you.
JUTE MACKIN (New Brunswick):
It looks most worthwhile to us. - 257 -
MR,FORES7gL (New Brunswick):
But I think we would say also that No. 3 of Mr. Chouinard's
statement should be given a great deal of thought. The proposals
are not rejected utterly. He only wants an extension of this
conference and I think this idea might be good.
CHAIRMAN:
Thank you.
JUDGE TRAINOR (Yukon):
I am very pleased with the proposals and I think the
implementation of some of these recommendations would certainly
redound to the benefit not only of young people in Canada but all
Canadians in the future.
CHAIRMAN:_ Thank you.
MR. SMITH (N.U.,T.):
We agree with the proposal.
CHAIRMAN:
Thank you.
We now move to the last item on the agenda and I will call
upon Mr. Magill to deliver his paper on delinouency and related
statistics.
MR. MAGILL:
Mr. Chairman we have some material here which may or may
not have been distributed. In the conference folder you have a
copy of Juvenile Delinquents, 1966. In addition there are copies
of Training School Statistics, 1966. For 1966, we also prepared - 258 -
some workload statistics which the provinces might wish to use in assessing any changeover in terms of age. This will give some idea of the age distribution of these .children in some of the formal cases that are handled before the courts.
In addition, there are copies of my paper, and there is a . tidied-up draft of one possible form which has been discussed with the provinces in the visits'last May and June when we discussed our co-operative work with several provinces. •
The Dominion Bureau of Statistics, is the federal agency established for the collection, compilation and publication of statistical data. At all times, the Bureau must remain impartial and produce data which are as useful, accurate and timely as possible. •
The authority for collecting data is the Statistics Act.
This federal act does provide for penalties for non-reporting, but it has seldom been necessary to impose penalties.
In recent years changes have occurred within the Bureau in equipment and, equally important, in the role the Bureau can play in aiding provincial and federal administration. For instance, a central research and development staff works on problems of integrating related statistical series. Standard codes for classifying industries and for coding geographical areas have been developed. More recently, the administrative organization of the - 259 -
Bureau has been revised to bring together those sections and divisions which deal with related subject matter.
The Judicial Section comes under the socio-economic branch and is responsible for the collection, compilation and publication of statistics from the police, adult and juvenile courts, training schools > prisons, penitentiaries, national parole, and special studies such as murder, recidivism and sentencing practices.
In the last three years considerable progress has been made in "feeding back" data to the contributors. This is particularly true in the work we do for the police and especially for the ROMP.
Detailed breakdowns of data are not suitable for annual reports. Generally such tabulations are produced upon request to assist administrators and researchers. In the case of the ROMP, the CPP and the OFF some of these tabulations are prepared monthly. .
This trend towards meeting the needs of the contributors more
the flexibility provided by fully has been greatly aided by computers. No longer is it necessary to have standard forms throughout the country. Now by using standard codes and definitions the computer can produce a standard record from dissimilar reporting systems.
We were asked by the Province of Quebec to help plan a system for adult courts and corrections that would reduce the work load on the respondents, ensure complete and accurate data, which could be integrated into a useful administrative tool. - 260 -
The first step was to determine precisely what information was
required by each agency and the administration, and the purpose
this information was expected to serve. Our own statistical
requirements had already been determined at this point. Thesforms
and procedures being used by the police, courts and institutions
in the province were studied to determine which items of information were common, the usefulness of each, where the information could
most easily and accurately be obtained, avoiding duplication of effort wherever possible.
Link items were introduced to tie together the various forms
so that the sequence, of events could be controlled and measured.
This stage of the work involved numerous meetings between members •
of the Judicial Section, the administrators of the Quebec •
Department of Justice, police and court officials and the clerical
staff engaged in the preparation and control of documents and reports. •
At the same time' standard codes suitable for police, court, institutions, parole and probation were'being developed along with the necessary edit and control procedures required to process the documents. - 261 -
Other services within the Bureau were called in. The
Central Programming staff was asked to develop a standard master tape which would meet the needs of all provincial programs, as all possible steps in the court procedures were taken into account. Forms design people took the rough draft and produced a supply of forms for a "test run" in two Quebec courts.
The test itself was done by Bureau personnel because they were familiar with the forms and it was essential that the test did not disrupt the normal court routine. These completed forms were coded, punched and verified and finally processed through the computer.
As a result of the experiences of our field staff, our coding and key punch clerks and computer programmers, final revisions were made to the court forms, codes and edit procedures.
Institutional forms which can be related by link numbers to the police records and court dockets have been drawn up. These will provide day to day checks on the prison population and distinguish those who are under sentence to the institution and those detained for other reasons.
have outlined very briefly thé role DBS played in developing the system now in effect in Quebec. The developmental work was not simple because it took in the needs of several agencies as well as our own. kany times an apparent solution proved unsatisfactory or 262 -
someone would ask "But what if such and such happened"? Because of the variety of disciplines involved in this developmental work and the results obtained in the test run, we reached and passed the severest test of all, the cold, logical precision of a modern computer.
The question arises as to whether or not this type of planning is part of the role \of the Bureau. Perhaps not if you regard the Bureau as a "figure factory". Fortunately our work . is not so limited. 'Basically we are a. service unit and in the development of integrated statistical systems we are best able to meet the requirements of provincial and federal administrators..
The problems of integrated statistics have been explored for some years now. To illustrate this I would refer you to the first recommendation of the Report of the Department of Justice Committee on Juvenile Delinquency released in February, 1966 which says, in pare, the DBS should be encouraged to continue its efforts to integrate various statistical series on crime and delinoueney. The authority for the Bureau becoming involved in this developmental work is found in the Statistics Act which states:
"The Minister may enter into any arrangement with the government of any province providinr for any matter_ necessary or convenient for the purpose of carrying on or giving effect to the Act, ..." - 263 -
The need to integrate such series has been apparent for yeers. But until the computers became available to provide the means of processing and stûrng data and the request for such a system came from the Province of Guebec this project was a far distant objective.
Now integrated statistical series have been discussed with senior representatives of all provincial governments. The Province of Alberta has developed an entirely different system to meet its needs, which uses copies of official documents. Both the Quebec and Alberta systems meet the needs of the respective provinces and the DBS. Other provinces have expressed interest in these appreaches.
The reason for their interest is obvious. There is first of . all the possibility of reducing the workload on their staffs by eliminating much of the duplication in records keeping. More importantly it will permit studies which are not presently possible for it permits each case to be followed from the police through the various stages of court procedures into the institution and back into the comfflnity. Time studies will be possible, the conviction rates for specific offences will be possible as will the percentage of convictions and sentences set down by each mafistrate or judge; required changes in law will become apparent and the efficiency of the law can be measured. - 264 -
In applying this approach to the juvenile field there are
further difficulties beyond those encountered in the adult court
and corrections field. Each province and the territories have
developed programmes which eliminate clear cut distinctions
between the welfare and legalistic approach to dealing with
juvenile offenders; within the court there are formal and informal
procedures which make measurement difficult and evaluation
questionable; there is the lack of positive identification because .
are not fingerprinted and there is the problem of children
"content" or data to be collected, for - the items which may
measure stability or instability in an adult are not applicable
to children.
We prepared a statistical form to illustrate One means of
integrating court and probation statistics. It also sets out the
social characteristics of the child and his family which would
provide valuable national statistics and permit the sorting of
cases as an aid to research at the provincial level.
Whatever statistical programmes are developed to meet
provincial and federal requirements they should eliminate paper
work between the varions agencies within the province where ever
possible. This may mean looking at police recording methods,
those of the courts, the Child Guidance Clinics, the Welfare
• Departments, probation services and others. They should also
meet the national statistical requirements and permit the linking - 265 -
of what the police report to what the courts report into what the correctional agencies report.
Such integrated SyStems will provide a wealth of information for research purposes which is not presently available. Each case could be followed from the police .through the court procedUres and correctional services. Time studies will be possible, the effectiveness of procedures followed by various courts could be compared and by studying the process of justice and rehabilitation administrative problems will become apparent.
Because of the inter-relatedness of child protection, child guidance and the concept of the child as a member of a family, detailed research may require the establishment of provincial regstries such as have been established for tuberculosis in all provinces of Canada, for mental health and for handicapped children and adults in some provinces, and are being developed for cancer in all provinces.
The Bureau could sort cases to facilitate research; they might indicate in which areas research would be profitable, but the research whether social or administrative should be done at the local level where meaninEful interpretation can be made. We feel that this approach is necessary in order to determine if each agency involved in the process of justice and rehabilitation is efficient and if the process itself is effective.
• • • - 266 -
as the administration of justice within a province is
largely a provincial responsibility much of the data obtained
from any one province can only be made available to that
province's senior administrators.
The Bureau of course, will produce certain general
statistical studies from the data obtained froffi these surveys.
We discussed this particular form with all of the provinces
last May and June. We were in the West in May•and in the East in
June. There were a variety of reactions we got to it, but I
do feel that whatever approach can best be developed for a
particular province as long as there is standardization within that
province of the form would provide a very useful means of collecting
•date that can be integrated wtth the probation and with the
training school data-
CHAIRMAN:
Thank you, Mr. Magill. I believe I will just call upon the
meeting at large for comments. Is there anyone who would care to
comment on what Mr. Magill has said or does anyone have any
ouestions they would like to Esk him?
CHOUINARD (■;„uebec):
In this connection, Mr. Chairman, I would just like to
mention that the system which has been devised for Quebec in
co-operatian with and thanks to the good services of Mr. Magill
end his staff is, in our opinion, simply sensational. We expect
the greatest results from it. It has come into application on
• • • - 267 -
Janualw 1. It has taken a long time to set up but it is
advantageous. It is hard to tell to whose greater benefit
it will be, whether it will be D.B.S. or ourselves, but we -
are very, very pleased with it. I have no doubt that a similar
system applied to the field of, what we now call, young offenders
will no doubt serve just as useful purposes and we well certainly
be ready to co-operate in that connection.
CHAnMAN:
Thank you very much, Mr. Chouinard. Are there any other
cannents or ouestions?
This brings us to the end of the agenda. Is there anything
that any delegate would like to raise, bearing in mind that it is
now ten minutes past four o'clock? If there is any matter which.
anyone would like to raise, I will be glad to entertain it.
JUDGE WALLACE (Ontario):
Mr. Chairman, I was wondering what scoring rate or what
schedule or what kind of measure there is of the delinquent
tendencies': How is this scored on the form? What is the
measure of delincuent tendency and how is it scored?
MIL . MAGILL:
A measure of delinquent tendencies and how it is scored on the
form. I have an associate with me, Mr. Holt and I would like him
to take up any particular questions on these forms. - 268 -
HOLT:
We break dovm into those four particular categories matters of
specific offence, such as breaking and entering, or delinquent
tendencies or dependant neglect or the catch-all "other", were
put in to try to separate some of the difficulties we have in
dealing with statistics under the present Juvenile Delinquents
Act.
child with delinquent tendencies would be one we commonly
call incorrigible or unmanageable. The dependant neglect category
would take in the protection cases, and the specific offence, of
course, would be a violation of the Criminal Code or a provincial
or a federal statute. This was just a means to separate them. -
Presently, it is possible for a child in need of protection to be
declared a juvenile delinquent or a child who is, in fact, a
delinquent, that is, has committed specific offences, to be
declared a child in need of protection and this is rather
meaningless when you try to draw conclusions from it.
CHAIRMAN:
Are there any further questions?
F[R.,_FORFpTE41, (New Brunswick):
On the question which I think Mr. MacDonald of Nova Scotia .
raised of a continuation of some form of relationship with this
Cormittee, I do not think anyone wants to leave here today and say
this is the end of it, and not have some kind of a structure set - 269 - II
up whereby we can still be in contact with each other. Whether we
should declare ourselves a Canadian Youth Services Committee and
have Mr. Braithwaite act as a secretary so New Brunswick would
know that certain submissions are being made by the British
Columbia people and to keep people informed. I think it would be
e good idea to have some such arrangement.
NFL PE,NNELL_(Solicitor General);
Perhaps I might speak to the question raised. It is my
understanding first of all that a. verbatim copy of the transcript
will be reproduced by Monday and this will be forwarded to the 1 heads of the various delegations here. I anticipate now that we are going to have to take a hard look'at the suggestions put
before us. I must say to you sincerely and candidly that I have
been. very impressed with what I have heard here; I found a lot of
it very persuasive. However, I will have to consult with my officials and subsequently with my colleagues.. I anticipate that
I will have further representations possibly on parts of the
report which we did not have time to discuss and I would undertake,
subject to the approval of the province making submissions to me,
to move them along and let other provinces see what these submissions
contain. I hope that you will ask your respective ministers to
act promptly on any further suggestion S you have, because I hope 1 to get on with this and I know you in the provinces are just as anxious as we here in Ottawa are to bring improvement to the Juvenile
Delinouents Act. - 270 -
Perhaps this in an appropriate occasion for me flow, if I have
satisfied your questions and at the moment I do not think I will go any further other than to say, we will distribute the transcript and any other submissions that come; we welcome further submissions on other parts of the act; we will forward them to the several provinces and we hope to get your comments back. Then I will have to confer with my officials and my colleagues to see what course of action to take.
I know one question in your minds is that if we have a draft act, perhaps we should distribute it to the provinces before we present it to Parliament. I think you realize My problem here is one where I must be very diplomatic, because it would be deemed an affront to Parliament which has the ultimate say if I should now come to firm decisions and go out to the provinces without putting them to the Members of Parliament. This poses a real problem for me and I will have to consider how I can deal with this and still carry on possible consultations. Therefore, the. extent and nature of further consultations will be something I will have to take under advisement.
I want to thank you all for your presence here today. I want to thank not only the representatives of the several provinces, but the officials from the several departments here in Ottawa, as well as the members of my own staff and heads of my branches within the department for their assistance and co-operation. I am grateful , LI 13RARY MINISI.kY Or 1HF. :;OLICITOR P,U mi - 271 -
DIBLI 01HÈQUE MINISTÈRE DU SOLLICITEUR dNÉRAL . for your co:qinff. : I am grateful for your sharing your knowledge
and your experience with us; I am impressed with the credentials
of the delegates and I am even more impressed by your commitment,
to the problem of juvenile delinquency. We will give thoughtful
and careful study to your proposals. I am satisfied that many of
them will see the light of day in the new legislation we will be
presentinu to Parliament. As you go your different ways to
'warmer climates, I wish you all bon voyage..
CHAIRMAN:
Thank you.
DR. KENNEDY (British Columbia):
May I say for myself and on behalf of many of us here, if
not all of us, how much we have appreciated this opportunity to
sit down before decisions have been made and give our presentation
to you and havinE you receive them. AU of us appreciate the way
they have been received and it has been perhaps a departure from
some of our experiences in the past. We appreciate the opportunity
very, very much, sir. Thank you.
Before declaring the meeting closed, on behalf of Mr. T.D.
MacDonald, the Deputy Solicitor General, and speaking for myself,
I want to thank all of you again for coming here and I am sure
this has been a very useful exercise and that the government in
making up its policy on this matter will bear in mind much of
what has been said here. Thank you. 11\1 \ Îl40) 10\i\Jr0jD L.i \ lii \I I \ Date Due
92 det-,6"
9058 F4 1968 Federal-Provincial c.2 Conference on Juve- r nile delinquency (1968:Otta-i wa) ,D■
NAME - NOM
(Hv Federal-Provincial Con- 9058ference on Juvenile del- Fit inquency (1968:Ottawa) 1968 c.2