Lack of science and consultation on Bill C-10

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A few years ago I attended an event where science reporter Bob MacDonald, of CBC Quirks and Quarks fame, spoke passionately about the importance of science. He gave examples about how we thought the world was flat but science proved otherwise, and how ideas about how the body worked were proven wrong as we discovered more about biology. The value of science is to show us that what we believe is true is actually not true. It expands our understanding of our world.

To a large extent Canadians generally accept the idea that scientific discovery is a good and useful thing. It provides valuable information to create new tools that can solve or ameliorate human problems and suffering. These new tools also feed into the marketplace where they are made and sold and jobs are created. I suspect, however, that we often lose sight of this notion that scientific discovery proves that what we imagine something to be is not the whole story. The "reality" of anything is broader, more complex, and more interconnected than we can see.

Scientific discovery also takes place in the area of social sciences where human behaviour and environments can be tracked to determine what factors are helpful and harmful to human beings and societies. Social science research shows us under what conditions we flourish, what makes us flounder, and how can we improve an environment to create the best possible conditions for the population under study. While we may not always agree on the topic of study, the research methodology, data collection, and analysis used by social scientists is accepted to be sound and is taught to college and university students around the world.

It is this science that Quebec's Minister of Justice Jean-Marc Fournier asked the federal government to reveal, to support the omnibus crime bill's new mandatory minimum sentences and changes to the youth justice system, when he appeared before the House of Commons standing committee on justice and human rights on Nov. 2.

"An efficient and sustainable fight against criminality cannot limit itself to imprisoning offenders," he stated. "The focusing of all intervention on incarceration is only a temporary and superficial solution. It is a solution that is soft on crime."

Unlike the provinces of Ontario, Newfoundland, and Prince Edward Island that are objecting to the bill on monetary grounds, and British Columbia, Manitoba, and Nova Scotia that want open discussion with Ottawa about reimbursement for the increase in costs at the provincial level, Quebec's objection is rooted in a different social and cultural value about how young offenders should be treated. Quebeckers have rejected the soft-on-crime versus tough-on-crime dichotomy and instead focus on a "sustainable" view about youth and approach to youth justice policy rooted in rehabilitation and reintegration.

Fournier's testimony has broad public appeal and was formally supported by the Quebec Bar Association, the Quebec Human Rights and Youth Rights Commission, the Association of Quebec Youth Centres, the Quebec Association for Victims' Rights, the Canadian Paediatric Society and the Association of Alternative Justice Organizations of Quebec.

In an Oct. 20 press release, the Association of Quebec Youth Centres applauded the unanimous vote of the National Assembly of Québec to sever the amendments to the youth justice system from bill C-10. "... the ACJQ and its provincial directors believe that the rehabilitation and the social reintegration of offending youth constitutes the approach that should be favoured and the best guarantee to ensure a sustainable protection of the public. The ACJQ and its provincial directors are opposed to the principle of applying adult punishments to youth as presented in the bill." (translation)

This is not to say that other Canadians don't hold the same values as Quebeckers, but simply that these values are not expressed through their elected representatives. Rather we see the pro-youth voice expressed through civil society and professional organizations.

The Canadian Coalition for the Rights of Children believes that youth justice issues should be treated separately from adult justice issues. In its recent statement concerning Bill C-10, the coalition notes that youth under 18 are just developing into adults and therefore should not be treated as adults. Measures for youth justice should be age appropriate. In addition, the statement notes that the bill is contrary to Canada's obligations under the United Nations Convention on the Rights of the Child. Like the National Assembly, the coalition calls for the severing of Part IV concerning youth justice from the bill, and consideration of this section through a full public debate on youth justice.

In the position statement that the Canadian Paediatric Society published as a response to then-Bill C-4, which was incorporated into the omnibus bill C-10, the society lays out a logical, well-reasoned argument for the humane treatment of children who offend and who are between 14 and 18 years old.

Children's brains work differently from adult brains. They do not have the same powers of reason and prediction. Incarceration in adult facilities does not rehabilitate offending youth, but rather creates more psychological and social damage. Detention is not deterrence since the child will eventually be back in society in a more damaged state. Denunciation creates an unhelpful social label that is more likely to ostracize a child rather than protect society.

The society estimates that approximately 70 per cent of incarcerated adolescents may suffer from mental disorders. The position statement includes a series of recommendations including the need for the federal government to respect the UN Convention on the Rights of the Child, which requires states to take actions in the best interest of the child, as well as the need to work with provincial/territorial governments to establish a national youth crime prevention strategy, including early detection and treatment of mental and behavioural health issues that might otherwise lead to criminal activity.

In its enthusiasm to push through as much legislation as it can while it has a majority and thus fulfil the various promises it has made to its various constituents, perhaps in this case the federal government over-reached. Whether because of a lack of science or a lack of consultation, a part of Bill C-10 may not make it through the legislative process. And this will be a good thing for kids and for a more democratic approach to building public policy.

This article was first posted on published in Canadian Lawyer Magazine.

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