Assemblée législative de l'Ontario

YOUNG OFFENDERS IMPLEMENTATION ACT (CONTINUED)

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The House resumed at 8 p.m.

YOUNG OFFENDERS IMPLEMENTATION ACT (CONTINUED)

Resuming the adjourned debate on the motion for second reading of Bill 28, An Act to provide for the Implementation of the Young Offenders Act (Canada).

Mr. Renwick: Mr. Speaker, I am certainly pleased that the Minister of Citizenship and Culture (Ms. Fish) is here this evening. It probably means I will get a ride home.

When I adjourned the debate on Tuesday evening, April 17, it was because the minister had suggested there was some urgency about getting on with the bill. I cannot yet understand what the six weeks' delay is about, but I am sure he will speak to that issue when he responds on second reading of the bill.

I want to touch on the Bluewater question, which was my matter for discussion when we concluded the debate that evening. The Bluewater Centre was the subject of an application by me on behalf of our caucus that there should be an environmental assessment of the need to convert it into some kind of detention centre for young offenders.

Members will recall the anomaly of having the Ministry of Consumer and Commercial Relations (Mr. Elgie) making the proposal, which was then pursued by the Ministry of Government Services, to use the Bluewater premises for the purposes of the Ministry of Correctional Services and establish a place in which young offenders would be held for a considerable period of time.

Before I move on to other matters related to the Young Offenders Act, I want to state the categorical opposition of this party, and I hope of everyone who is concerned about the changes to be brought about as a result of the passage of the Young Offenders Act in Ottawa, to the treatment of young offenders by the establishment of that centre at the former Bluewater home for retarded people.

I want to state very clearly to the minister, in the atmosphere of a debate far removed from partisanship, some of my concerns about the establishment of that centre. The first one underlies fundamentally the concern we have had for some time about the failure of the government to resolve the dual ministry conflict about who is going to deal with young offenders in so far as the problem of dealing with young offenders is related to provincial jurisdiction.

I expect it will take a little bit of time this evening for me to express clearly to the minister the concerns I have about the number of areas that have not been dealt with to any extent at all in this assembly, where implementing the federal Young Offenders Act in Ontario impinges on provincial matters for which we have had no response of any significance from the government.

If there are matters the minister believes I have not had the opportunity to consider or I have overlooked in my consideration of the issues I want to raise this evening, then I will be the first to be anxious to review those considerations.

It is essential to us that this bill go out to a committee for proper hearings because of the number of people concerned about it. I want to come back to that, because I know we are on second reading of the bill.

I just want to deal with the fact that my Liberal colleague the member for Huron-Middlesex (Mr. Riddell), who has a direct interest because of the Bluewater conversion in his riding, expressed some concerns and some considerations in relation to it. I want to speak more generally about my concerns about the conversion of that Bluewater facility.

The first one has to do with the dual ministry problems, which make it absolutely impossible for any group of people who are interested in young offenders to decide what the criteria are on which they can deal with the government about those questions.

It is not just a problem of whether the government is determined to have a dual ministry responsibility; that is, after April 1, 1985, a responsibility under the Ministry of Correctional Services for young offenders who are 16 and 17 years of age and under the Ministry of Community and Social Services with respect to those offenders between the ages of 12 and 16.

That is what I mean by the dual ministry responsibility. It is a fundamental, arbitrary division of responsibility that bears no reality in relation to the differences between a person when he is 14, 15, 16, or 17 and the problems that creates.

If it were simply a question of the inability of the government to resolve a jurisdictional dispute between the two ministries, regardless of what communication is taking place between them, I would not be particularly concerned that in due course it might ultimately be resolved.

However, that fundamental problem of the government, coupled with the provision in the Young Offenders Implementation Act that persons 14 years of age and over can be transferred to adult court in relation to criminal matters and be subject to the jurisdiction of the criminal process, leads me to believe this House, in a nonpartisan sense, requires a very clear statement from the ministry.

We need to know the ministry's position so we do not find that all his ministry deals with is persons with no criminal liability up to the age of 12 years under other legislation and then find out he deals with young offenders 12 to 14 years of age, and that because we are going to pursue a traditional model of correctional services for people who come from the criminal courts, it will become a tradition in Ontario that persons over the age of 14 are subject to the bias of the courts to transfer them to the criminal jurisdiction of the adult system. This is a matter on which we need a fundamental and clear statement from the ministry.

8:10 p.m.

I know the Minister of Correctional Services (Mr. Leluk) and the Minister of Community and Social Services (Mr. Drea) will say the court deals with those matters. That is not the case, as they know it to be the case, because the basic, fundamental problem is dollars and facilities and availability in the courts of the Ministry of Community and Social Services with respect to young offenders.

I do not have a conception of the Young Offenders Implementation Act which suggests we will solve all the problems in the future, but what is good about that philosophy will be lost because of the government's incapacity to deal with the fundamental questions involved in it.

One does not have to be a knowledgeable person in the field of corrections or in the field of treatment and services available to young offenders to understand that their care and treatment require a commitment of philosophy and policy by this government which is so far lacking.

The government may very well say to me, "Yes, we do have a philosophy, and yes, we do have a commitment to young offenders." If that is so, regardless of the discussion paper available in 1980 about the options related to it, nothing has come through by way of policy. I reiterate that in some substantial way this government is immobilized in relation to clarity of policy on this issue.

I say this with considerable humility and a great deal of additional ignorance on my part. Can the minister conceive of anything that reflects a policy of concern or a philosophy of change with respect to the young offenders when they were to isolate 174 -- I think that is the figure; I am not certain about what the capacity will be up at Bluewater Centre -- in that part of the province, when any of the papers going back to the 1960s and 1970s indicates quite clearly that one of the essential and fundamental conditions is that young offenders be related to the society in which they are going to have to spend the rest of their adult years?

We do not serve any purpose by complete isolation in a maximum security setting. It does not matter what the parameters of that centre will be. It is in an area of the province where there are very few services. I am talking about the kind of supportive services that could be available to a place such as the Bluewater Centre if it were broken down into any number of centres close to other areas of the major parts of southern Ontario.

There is the question of access with respect to the families of the persons confined in such centres. There is the question of the relationship with the educational institutions that would be a nucleus within which those persons who were detained as young offenders could have some relationship with respect to their counselling, with respect to their future lives, with respect to their educational capacities and with respect to the day care that is an integral part of the process of temporary absence for young offenders under the Young Offenders Act.

I think it is the obligation of the minister to answer those questions and, if he will not do it, the obligation of the Minister of Correctional Services; and I always notice that when the one is present to discuss this matter the other is absent. However, I have the feeling that there is no way one can reflect in the Bluewater conversion the philosophy of the Young Offenders Act with respect to what can be done for the persons at that centre in relation to their re-entry to normal life and normal society.

If the minister thinks for one moment that the Bluewater Centre, in the Goderich area, is capable of meeting those requirements, then he has to think a great deal about the question. Indeed, if he persists, along with his colleagues, in that misguided policy, I will just assume it is confirmation of the very fundamental and basic concerns I have about his inability, because of the restriction of dollars, to comprehend the philosophical change that one is endeavouring to bring about under the Young Offenders Act of Canada.

This raises very fundamental problems, and I do not suggest for one moment that I can answer all of them; but I can certainly say that the purposes for which this centre is being converted have nothing to do with the implementation, so far as provincial responsibilities are concerned, of the philosophy inherent in the Young Offenders Act.

I am concerned unalterably with the fact that the member for Sarnia (Mr. Brandt), the Minister of the Environment, had so little conception or understanding of this kind of problem that he would have accepted, without adequate terms of reference, the referral to the advisory committee and the result that he confirmed the decision of this advisory committee that there would be no environmental assessment.

No matter how you look at the terms of the Environmental Assessment Act -- and I know the Minister of Community and Social Services is not familiar with the terms of that act -- when that act came through the assembly, it was very clear that the impact of any environmental assessment had a relationship to the impact the assessment would have on the people who were to be in the environment on which the decision was going to be made.

Of course, as usual, the government misses the fundamental point. It is not a question with respect to the other part of the environment about that centre being in that physical location for those people who are out and around and surrounding that centre. The fundamental question about that environmental conversion, which the Minister of the Environment does not understand, which the Minister of Community and Social Services does not understand, which the Minister of Government Services (Mr. Ashe) did not understand and which the Minister of Correctional Services will never understand, is the impact of that centre on the persons who will be incarcerated there under the Young Offenders Act, which was supposed to mirror a different philosophy.

8:20 p.m.

I can assure the minister, knowing as I do of his interest in these matters, that if we have 174 persons -- if that is the correct figure -- under a security system in one place in this province because they are there with respect to the Young Offenders Act, there is not a single count of correctional philosophy that can support the impact of that environment on those persons in any positive sense.

I wish I could express that in some one-liner. I do not have that capacity. I am going to try again to say that environment has its maximum impact on those persons who will be the inmates of that converted institution. They are the ones who will suffer from the recalcitrant attitude of the government in not understanding. That was the reason, in my name and on behalf of our party, put in a request for an environmental assessment.

I may not have expressed it well. I made an application to the Ministry of the Environment on a proposal developed by the Ministry of Community and Social Services that was put forward by the Ministry of Government Services for a facility to be available to the Ministry of Correctional Services so 174 young offenders may, at some time, find themselves in that area. I tried to express in the best way I could what a lousy environment that would be within the philosophy of the Young Offenders Act. I find it extremely difficult to understand why I then find that in no way do I get anything but a couple of cursory letters in response to my concern about it.

The minister may not understand me when I say I am not being partisan about it. I do not think it is a partisan matter. I think it is far beyond anything that could be called partisan. I am fundamentally concerned about the environment in that physical structure in that particular world with respect to the people on whom it will have the massive impact.

It is not a question of the surrounding environment and what impact it will have. It is a question of what impact it will have on 174 young people over a period of time in that particular area of the province. I find it passing strange that there is no way I can get that point across. One cannot find a single, correctional person, anybody knowledgeable in the field of corrections, who will support that proposition in any way, shape or form.

I defy the government, I challenge it and I put the issue clearly before it that there is nobody it can call in support, and there is no document it can call in support.

If one wants to go back in the questions on it, I would refer to a document prepared as long ago as March 1963. It is a document signed by the executive secretary of the Canadian Corrections Association. The document is on the letterhead of the Canadian Welfare Council in Ottawa. It was prepared by the Canadian Corrections Association, now called the Canadian Association for the Prevention of Crime, and it is headed "Criteria for Prison Location and Structure."

I am asking the minister to go back to it. The principles set out in that document are as valid and fundamental today as they were on that occasion.

I want to leave the Bluewater conversion question, not because it is a matter of some isolation, but because I believe I have, if it is possible for me to communicate them to the government, tried to fasten upon the concerns we have about the conversion of that centre. What the government may do in northern Ontario or eastern Ontario to establish an equivalent facility is of no satisfaction to me. The principle is wrong, the concerns involved in it are misguided and the understanding of what is required is unbelievable to me.

I am pleased the Minister of Government Services, the Minister of the Environment and the Minister of Community and Social Services are in the House tonight. I do not know where the Ministry of Correctional Services stands on this area, but that ministry will operate it.

Hon. Mr. Snow: What about De Grassi Street?

Mr. Renwick: I know my friend has been busy studying the De Grassi Street GO train operation. I do not mind. I will continue. I happen to have a great respect for the Minister of Community and Social Services, as I do for the Minister of Transportation and Communications (Mr. Snow). I know if they do not hear what I say tonight they will read it later in the Instant Hansard.

Hon. Mr. Drea: I have been listening very attentively.

Mr. Renwick: The important and fundamental point I want to make before I leave the Bluewater conversion is to say to three of the four ministers concerned who are present that the environmental assessment of the impact of that facility on the persons who will occupy it is perverse if the government goes ahead with it. I want them to try to understand that because it is fundamental to the concern many people have about the government's incapacity to deal, except on this chop and change, piecemeal basis, with the fundamental changes with which the Young Offenders Act is attempting to deal.

I have gone on at some length on that subject, but I feel it illustrates for me in a very pivotal sense the kind of concerns we have about it. As I move on and reflect a little on the bill before us, I want to say to the minister, and this is implicit in what I have said about the Bluewater conversion, we have passed the formal statutes in this province to make the courts that will deal with young offenders under the Young Offenders Act, the provincial court, family division and the unified family court as it exists in the Hamilton-Wentworth part of the province.

I realize we have filled in the other part of the patchwork involved in the problem of the Young Offenders Act only dealing with the Criminal Code and acts of the Parliament of Canada and not dealing with provincial offences and other matters. We have filled that in by saying, for the purposes of the Provincial Offences Act, that is offences against provincial law, the same courts will deal with them as far as young offenders are concerned, that is the provincial court, family division, and the unified family court to the extent it has jurisdiction on a project basis in one area of the province.

8:30 p.m.

I want to mention on that point what this government is really saying is: "We will accept the Young Offenders Act on the basis of minimal change. We will deal with it only on a procedural basis. We will fill in the gap of the abdication," if one wants to call it that, "of the federal government to deal with young offenders in a provincial law situation. We will deal with it simply by saying, 'Oh, well, the same courts will deal with the matter.'"

These are the same courts, mind you, that have dealt with juveniles in the province for some time, and we do not have any understanding that it is anything other than a checkerboard change to fill the gaps that have been provided in relation to the provincial government.

There is nothing in those two bills -- and they are bills we passed in the last session: Bill 149, An Act to amend the Provincial Courts Act, and the Unified Family Court Amendment Act, which simply designated the provincial court, family division, and the unified family court, on an interim basis, as the youth courts for the purposes of the federal Young Offenders Act.

I do not know what "on an interim basis" may mean; I do not know, and I do not think the government knows. I think it is obviously a stopgap kind of legislation in order to reserve some ultimate decision, which probably will not be any different from what exists now.

The other bill we passed in the last session of this parliament was Bill 140, the Provincial Offences Statute Law Amendment Act, 1983, which simply provided that at present -- that is, at that time -- a person under the age of 16 who was alleged to have violated a provincial statute or municipal bylaw was prosecuted under the Juvenile Delinquents Act of Canada. However, the new Young Offenders Act will apply only to young persons alleged to have violated the Criminal Code and other federal statutes.

It is proposed that the Provincial Offences Act, with certain modifications contained in the new part V-A, apply to young persons alleged to have committed provincial offences. However, young persons will be tried by judges of the provincial court, family division, and of the unified family court.

I simply want to draw to the attention of the assembly that, so far as the assembly has been activated to legislate on matters related to the Young Offenders Act, these matters have not changed in any sense whatsoever the procedures that are involved with respect to young offenders; all the provincial government has done is to adopt the necessary adaptation to provide that, as the federal government withdrew and required the provincial government to designate youth courts, it designated the existing courts.

In so far as the federal government withdrew in the field of jurisdiction to only federal statutes, including the Criminal Code, which is by far the most significant one, the provincial government simply moved in to fill the gap and said that the provincial court, family division, would have jurisdiction with respect to provincial offences committed by young offenders.

So this did not mirror any change. I need not refer the assembly to questions that were raised by a number of members of this caucus in various estimates to try to get the ministries to respond to what their fundamental response was. It was very much akin to what the Minister of Consumer and Commercial Relations said today.

He introduced a bill to amend the Theatres Act, and it was entirely on the basis that there was no principle involved but only that the guidelines that had been followed for many years had been struck down by the court because they were not in regulations and therefore, in a technical sense, were not law. All the government was doing was to introduce to the assembly a technical amendment that would provide for the same guidelines and then, of course, extend them to the question of videotapes.

I did not hear any member of the government talk about a principle of freedom of expression of any kind. That is what this government always does. They always want to mute and play down any change as though it has no significance of any kind to anybody, as if everything will continue exactly as it was before and that no changes are required.

The Minister of Consumer and Commercial Relations twitted the Leader of the Opposition (Mr. Peterson) on the proposition that maybe he had not read the decisions of the court. The decision of the Divisional Court, which came to the same conclusion, was quite different from the reading of the decision of the Ontario Court of Appeal. It simply said that was not necessarily the case.

The minister admitted that he did not say he was going to wait for this bill to come into force after the decision on the appeal. I understand there is an appeal to the Supreme Court of Canada on that issue. He wanted to pretend that nothing had ever happened.

I do not intend to engage in a second reading debate on that bill, but I wanted to illustrate to the members that this is exactly what is happening on the question of the response of the government of Ontario to the Young Offenders Act. They do not want anybody to think anything has changed, but that life will always go on as it has, that there is nothing important with respect to the change in relation to the treatment of young offenders, and all that the federal government is doing is bringing their law into line with the kind of philosophy and treatment that young offenders have had in Ontario, on the theory again, whether you attribute it to the federal government or to Anatole France, that is the "best of all possible worlds."

I do not believe that is so. We have had no positive response from the government on this question of their response to the effort to change the attitude of people about the young offender world. The best statement of it is young people in conflict with the law. Nobody knows the answer to it. That is why I say it is not a question of partisan discussion. It is not as if anybody knew the proper response to the Young Offenders Act, let alone Ontario's response to it.

I want to reiterate that I speak both with humility and from ignorance because it is not a field in which I am knowledgeable, other than the fact I am concerned about the fundamental problem that is put before us. So far as I am aware, there is no cohesive social, legal theory of young people in conflict with the law. There just is not an adequate theory that supports what the Parliament of Canada has done or the attitude of the provincial government in adapting to the change which is required.

One person has subtitled a book which he wrote about it, The Great Stumble into the Future, in recognition that the past has not been good enough but that we must carry on until we find some better solution to the questions of young people in conflict with the law.

8:40 p.m.

As usual, I speak only because of things other people have had to say and matters I have read about and that are of concern to me.

Some members may not have recognized that on many occasions in this assembly in the late 1960s and 1970s we raised questions with respect to young people in the courts and the philosophy of those matters. We dealt at that time with some matters that were raised in the United States, because at that time we did not have a Charter of Rights and the Canadian Bill of Rights was of little if any assistance, not because of the substance of it but because of the way the courts had dealt with it.

I want to put to the House and to the minister the conundrum of the problem of young people in conflict with the law as legislators have attempted to deal with it. At the Supreme Court of the United States at that time was the case re Gault, which was the case related to young persons before the courts in the United States on the basis of their Bill of Rights. Abe Fortas, who was then a justice of that court, had this to say. He was talking about the philosophy of juvenile treatment in the court system, and this is applicable to the Juvenile Delinquents Act and to the Young Offenders Act as we will know it from now on.

He said: "These results were to be achieved without coming to conceptual and constitutional grief by insisting that the proceedings were not adversary, but that the state was proceeding as parens patriae. The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme. But its meaning is murky and its historical credentials are of dubious relevance. The phrase was taken from chancery practice where, however, it was used to describe the power of the state to act in loco parentis for the purpose of protecting the property interests and the person of the child, but there is no trace of the doctrine in the history of criminal jurisprudence."

Mr. Justice Fortas then concluded: "The incorporation of parens patriae into the criminal law has produced a system of tyranny." Let me just interpose there that this is what our Juvenile Delinquents Act attempted to do and the problem is as yet unresolved -- the position of the state to intervene in the place of the parents on behalf of young offenders who are in conflict with the law, because the parents cannot deal with it, on the one hand, and because of the question of the criminal law and its application, on the other hand, to young people within a framework of constitutional rights.

Mr. Justice Fortas went on to say: "The right of the state as parens patriae to deny the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right not to liberty, but to custody. He can be made to return to his parents, to go to school, etc. If his parents default in effectively performing their custodial functions, that is if the child is delinquent, the state may intervene. In doing so. it does not deprive the child of any rights because he has none. It merely provides the custody to which the child is entitled. On this basis, proceedings involving juveniles were described as civil, not criminal, and therefore not subject to the requirements which restrict the state when it seeks to deprive a person of his liberty.

"Accordingly, the highest motives and the most enlightened impulses led to a peculiar system for juveniles unknown to our law in any comparable context. The constitutional and theoretical basis for this peculiar system is, to say the least, debatable. The results have not been entirely satisfactory. Juvenile court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure."

I believe that basically reflects the problem which led the Parliament of Canada seriously to reconsider the question of young offenders in relation to the federal statute of the Juvenile Delinquents Act. In Canada a national scheme could be created only within the confines of the federal criminal law power and not as social or welfare legislation. Even under the new act there exists to this day a continuing clash, with some alleviation, between philosophy and implementation.

We are all aware that the Juvenile Delinquents Act was passed by the Parliament of Canada in 1908. The records indicate the debate on second reading, in committee and on third reading took exactly 10 minutes. An effort was made to talk about a revision of that act and a new bill, Bill C-192, was introduced into Parliament in 1970. It was called by the same name, the Young Offenders Act. I have the privilege of quoting to the assembly what my colleague for many years, the member for Broadview in the federal House, had to say about that bill when it was introduced in 1970.

I am referring to Bill C-192 which is perhaps illustrative of the length of time it takes us to think about the kinds of problems involved in relation to young people in conflict with the law. Part of my purpose tonight is to slow down the process so we do not believe that we in this assembly can do what was done in 10 minutes in 1908. The assembly has a fundamental and important role to deal with this bill before us, Bill 28, An Act to provide for the Implementation of the Young Offenders Act (Canada).

My colleague John Gilbert, who now sits on the bench in Toronto, had this to say about the government's bill in 1970: "Every time I read Bill C-192 I wonder who is responsible for this criminal law monstrosity, this caveman's approach to young people, this bill of rights for social wrongs, this simplistic Spiro Agnew approach to young people's problems.

"Here are some of the criticisms set forth by responsible bodies. It is called 'a half-pint Criminal Code for children,' 'inhuman and intolerable,' 'a frightening piece of legislation,' 'the title is misleading, inappropriate and a step backward,' 'its legalistic terminology, offender, offences, inmates, fingerprinting, pardoned, criminal records, make it a junior Criminal Code,' 'the approach is punitive,' and 'classifying a 10-year-old as an offender is ludicrous.'"

8:50 p.m.

My colleague, then the member for Broadview, was one of many both in the Conservative Party and in other parties who spoke against that bill. It died and was withdrawn by the government. It went back to the drawing board for reconsideration and came forward again to public light in 1975 when the "young offenders in conflict with the law" proposal was put forward with a draft bill called the Young Offenders Act, which called for a return to the procedural safeguards of the adult criminal justice system.

I think this is the proper point at which we should try to think a little bit about what we are doing in this assembly. This is not one of the areas in which we can say it is a federal matter and we are a provincial Legislature. The major areas of alleviation of the provisions of the Young Offenders Act, and the appropriate steps that have been taken to provide for the procedural protections of young offenders under the Charter of Rights, fall upon this government. This House has had no response as far as I am aware.

I happen to believe there should be a return to procedural safeguards within the framework of any well-established method of dealing with young offenders in conflict with the law. I want to draw attention to that distinction in comparing the phraseology of the Juvenile Delinquents Act and that of the Young Offenders Act. The Juvenile Delinquents Act was clearly a nonpunitive statute. Under that act, a juvenile was not convicted or sentenced, but "adjudged" and "dealt with." At all times he was to be treated "not as a criminal, but as a misdirected and misguided child and one needing aid, encouragement and assistance."

It will be quite evident there is in this very statement a curious mixture of criminal law and social philosophy. It is that continuing inherent contradiction that we are endeavouring in this assembly in our old way to make some progress in resolving. I happen to believe the Juvenile Delinquents Act left us a legacy of unfulfilled promise. I want to quote Mr. Justice Fortas again in the case of Kent v. the United States, which in my view and in the view of other people is equally applicable to Canada.

"While there can be no doubt of the original, laudable purposes of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guarantees applicable to adults. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds, that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children."

I believe that tells us the conundrum we are faced with in this assembly when the government asks us to accept Bill 28 tonight. We are prepared to make an act of faith in accepting the Young Offenders Act that was passed by the Parliament of Canada. I have attempted very briefly to give some indication that it is not a matter of instantaneous solution, but a matter that has concerned persons who are interested in this field over a long period of time.

The gestation period of the Young Offenders Act has indeed been long, but the process has been obviously thought to be worth while.

I want to move to the actual Young Offenders Act and to speak a little bit about what it was intended to accomplish when it was passed. I am asking the House, as always, to be patient with me when I go on at some length on matters that are of this kind of concern. I know the members will; if they will not, I will proceed anyway.

When the Honourable Robert Kaplan introduced this bill in the assembly in 1981, he had this to say about what was intended by the proposed legislation of the Young Offenders Act:

"The proposed legislation blends three principles. The first is that young people should be held more responsible for their behaviour, but not wholly accountable, since they are not yet fully mature and are dependent on others.

"The second point is that society has a right to protection from illegal behaviour, even though committed by a minor.

"The third point is that young persons have the same rights to due process of law, natural justice and fair and equal treatment as adults, and that these rights must be guaranteed by special safeguards.

"Thus, the bill is intended to strike a reasonable and acceptable balance between the needs of young offenders and the interests of society."

Let me try to indicate how those three principles are reflected in the Young Offenders Act, which we are asked to implement in Ontario by Bill 28, which is before us for consideration. The principles of that bill translated into the language of the actual statute are set out in section 3 of Bill C-61, which is now the law of Canada and in force in Ontario. Section 3 is headed "Declaration of Principle."

Members will know it is not customary to have in statutes in Ontario declarations of principle, but when principles are declared, then it is important to understand that they govern the whole of the application of that statute. In this case, it has this to say:

"It is hereby recognized and declared that:

"(a) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should none the less bear responsibility for their contraventions;

"(b) society must, although it has the responsibility to take reasonable measures to prevent criminal conduct by young persons, be afforded the necessary protection from illegal behaviour;

"(c) young persons who commit offences require supervision, discipline and control, but because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance;

"(d) where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this act should be considered for dealing with young persons who have committed offences;

9 p.m.

"(e) young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to decisions that affect them, and young persons should have special guarantees of their rights and freedoms;

"(f) in the application of this act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interests of their families;

"(g) young persons have the right, in every instance where they have rights or freedoms that may be affected by this act, to be informed as to what those rights and freedoms are; and

"(h) parents have responsibility for the care and supervision of their children, and, for that reason, young persons should be removed from parental supervision either partly or entirely only when measures that provide for continuing parental supervision are inappropriate."

Subsection 3(2) states: "This act shall be liberally construed to the end that young persons will be dealt with in accordance with the principles set out in subsection (1)."

As members can see, to express in a statute the principles of balance that a minister may make in a statement is not an easy process; and for this assembly to treat as an innocuous procedural bill, a bill that is to provide for the implementation of that act in Ontario in regard to the elements set forth in the declaration of principle in the statute that governs us, would be a complete abdication when we recognize that the implementation of every one of those principles under our federal Constitution lies with the courts and with the ministries of the government to the extent that the matters are not treated solely as court matters.

That is why the involvement of the Ministry of Community and Social Services, the Ministry of Correctional Services and the government as a whole in response to that fundamental and basic philosophy is, to me in any event, of basic importance.

When that statute talks about young offenders and the Charter of Rights and says that young people are entitled to those rights, as I have reiterated, then whether one understands it or not, this is a fundamental change in the law of this province in relation to young offenders.

Those rights are set out in the charter. I need not necessarily read all of them, but they are contained in sections 7 to 14 of the Charter of Rights and Freedoms. They refer to such matters as the right to be secure against unreasonable search or seizure; the right not to be arbitrarily detained or imprisoned; the right to be informed promptly of the reasons for arrest and detention; the right to retain and instruct counsel without delay and to be informed of that right; the right to have the validity of detention determined by way of habeas corpus and to be released if the detention is not lawful; and the other provisions set out in sections 7 to 14 of the Charter of Rights, including the right not to be subjected to any cruel and unusual punishment, the right to be protected against self-incrimination and the right of interpretation in the courts.

Those are available. Perhaps I should have put them on the record in full simply because sometimes we take them too much for granted. I am not going to tarry; they are available to anybody who wants to be interested in this topic. However, it is of fundamental importance to this province in its obligations of implementation that we understand the part of section 3 which I quoted:

"Young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to the decisions that affect them, and young people should have special guarantees of their rights and freedoms."

That is fundamental to what we are concerned about with respect to the government's policies about implementation.

I believe the government could have dispelled our concerns and fears -- I speak not just for myself; I am sure I speak for any other member of the assembly who is interested in these problems -- had it made a statement up front, clearly and positively, with respect to its commitment to those declarations of principle which are inherent in that act.

You know, sir, that my particular responsibilities are with respect to the Attorney General (Mr. McMurtry), the Solicitor General (Mr. G. W. Taylor), the Provincial Secretary for Justice (Mr. Walker) and the Minister of Correctional Services, but I have not heard from any ministry of the government a commitment with respect to the Young Offenders Act.

The only positive statement that has ever come forward from this government is the statement that was made at the 23rd annual Premiers' conference in Halifax, Nova Scotia, from August 24 to August 26, 1982. That statement was not concerned about an acceptance of the philosophy, or an indication that they understood or embraced the philosophy. It was basically a question of what number of dollars were they going to get from the federal government because the federal government quite properly had passed a statute that on the one hand transferred certain very substantial obligations on to the provincial government and, secondly, left the implementation of that new philosophy to the provincial government.

I am not one who thinks monetary matters and costs are unimportant. Those are legitimate concerns; but they are not legitimate concerns if the government does not say that we in this province propose to accept wholeheartedly the kinds of matters that are of immense concern about the treatment of young persons in conflict with the law.

I could go on to other areas, and I intend to cover some of them in the hope that they will illustrate the places where the obligation to carry out and implement, in the language of the bill before us, is on the province and to indicate that so far as I am concerned, the government has never expressed a sense, either collectively or individually by responsible ministers, for that particular implementation.

9:10 p.m.

For example, with respect to the police, quite obviously the role of the police will be substantially altered by the Young Offenders Act and its implementation in Ontario. First of all, it is limited to acts of the Parliament of Canada, including the Criminal Code. It is quite obvious that it also limits that area of discretion which was available to police officers under the Juvenile Delinquents Act.

However, as far as the police are concerned, the problem remains of what they are to do with referrals of young children whose activities are noncriminal yet not socially acceptable. It must be understood that the way in which the Young Offenders Act has been prepared and drafted -- and quite rightly so, in my view -- leaves a whole area of behaviour which will become a provincial responsibility because it relates to the noncriminal activity of children.

The minister has before us a new bill with respect to child care and child welfare in the province, which is the result of a long period of work. I have never heard an expression by the government that in some way deals with this problem the police will have in dealing with the noncriminal activity of children which is nevertheless socially unacceptable.

The whole question of confessions in relation to the police is significantly changed; the whole question of fingerprinting and photographing is significantly changed; the whole question of records is significantly changed. I am not going to read into the record the provisions of the Young Offenders Act, but I have never understood or heard what process will be set in place by this province so that fingerprints and photographs of young offenders who have been charged but not convicted, or acquitted or where the proceedings have not proceeded against them, will be destroyed.

The statute mandates that provision, but I know of nothing that indicates what the process will be to ensure the destruction of those records in cases where charges do not proceed through to conviction or, if they proceed, end up with an acquittal. I do not know of anybody who has put his mind at all to making certain those records are destroyed.

I raised with the Ministry of the Solicitor General a while ago the matter about the contact file the police have. There is an information bank with the Solicitor General which would indicate it has a contact file with upwards of 50,000 names in it. If young persons are acquitted, if they are discharged or the case never comes to trial, I do not know what care will be taken to make certain their names will be removed from that information bank.

I want to go onto the pre-trial provisions of the Young Offenders Act and how they impinge on us in Ontario. Certainly, the right to counsel is pre-eminent. The implications of that requirement with respect to legal aid and duty counsel in the province and with respect to all the processes of pre-trial proceedings for a young offender are matters that can be dealt with only within the province. Either the legal aid plan or a legal aid program has to be dealt with.

It is true there was some speculative research work done in Ottawa on the question of that impact in a study entitled Legal Aid Services for Juvenile Delinquents, Canadian Statistics, July 1981, which was prepared for the national legal aid centre in Ottawa. There were many intangibles in that study, but at least it pointed out the problems: the right of young offenders to counsel; the role of duty counsel; what the estimated impact in the way of costs on the legal aid program in Ontario would be; and how those services would be delivered in a way that would satisfy the rights of young persons under the Young Offenders Act. That is a provincial responsibility. They may get assistance under the financial arrangements with the federal government, but the responsibility to provide it lies with the provincial government.

I have asked the Attorney General for a copy of the agreement entered into as of April 1 with respect to the financing of legal aid by participation of the federal government with Ontario for the current fiscal year. I have not yet received it. I look forward to some analysis of it to see whether these concerns about the capacity and readiness of the province to provide the facilities that will permit the implementation of the federal Young Offenders Act in Ontario with respect to duty counsel and counsel in pre-trial matters are justified.

One of the fundamental pre-trial matters is the alternative measures provision, which is a pre-trial matter because the alternative measures provision is not a post-conviction sentence option. It is a pre-trial alternative. The pre-trial alternative gives to the person certain alternatives to which that person must consent.

Again, the question is involved of whether the young alleged offender will have the benefit of counsel when he is selecting and choosing amongst whatever alternative provisions are put before him. Those provisions that the statutes specifically require are matters which the province must provide. They are contained in section 4 of the Young Offenders Act:

"Alternative methods maybe used to deal with the young person alleged to have committed an offence instead of judicial proceedings under this act only if: (a) the measures are part of a program of alternative methods authorized by the Attorney General or his delegate, or authorized by a person or a person within the class of persons designated by the Lieutenant Governor in Council of the province."

Again, a significant part of Bill 28 relates to the provision of those alternative measures. The provision of alternative measures relates very clearly to what the alternative measures are and to what the facilities of those alternative measures are; whether they are real alternatives; and whether what is intended to be accomplished by the provision of alternative measures is adequately funded and sufficiently diverse in opportunity to meet the full complexity of the fundamental philosophy contained in the proposed Young Offenders Act.

9:20 p.m.

One need only read the perplexity expressed by the court under the Juvenile Delinquents Act in a couple of cases to indicate the extreme difficulty the court had in dealing with this whole question. There is the case of Queen v. Richard B, April 14, 1982, which has extremely lengthy reasons for judgement, going on for some 45 pages, by His Honour L. A. Beaulieu, senior judge in the provincial court, family division, of the judicial district of York.

The issue is not the important issue. He was speaking about the alternatives available to him, whether he should transfer a particular person to adult court or deal with him in juvenile court. He was trying to lay out in his reasons for judgement the options from the point of view of the person before him who had not yet been tried and convicted. In a pre-trial sentence, a decision was going to be made on where he would be tried, which would ultimately result in what sentence would be imposed upon him, that is, whether he would be transferred to an adult court, in which case the whole panoply of the Criminal Code would apply, or whether he would remain in the juvenile system.

It was a serious case. The occasion for consideration was a serious one. Judge Beaulieu wanted to state very clearly that what he decided was, in good measure, determined by the availability to him of options from the province. He stated in the course of his reasons for judgement that he had little, if any, choice, and he made what could be called a devil's choice as to which of the possible places the person should go.

That brings me to the question of what will be made available by way of alternative measures in this province, in respect to the whole question, so the full range envisaged by the Young Offenders Act will be available. Again, that is a provincial matter, as were the matters related to legal aid, to the question of the destruction of police records, to the question of police training, to the question of the problems the police will be faced with on the issue of referral of the noncriminal activity of young offenders, as well as the group of people who are entirely away from the criminal law system now, those between the ages of seven and 12 who cannot be convicted of a criminal offence.

There are serious problems in relation to those questions and there is nothing I know of that indicates that police training, police attention, police guidelines or any other regulations are available so the police can recognize the significant change in their role that will occur.

I could deal at some length with questions of jurisdictional matters or trial matters, but I do not intend to deal with any of them until I come to the matter of trials. There is no doubt there are many questions the courts will face at the actual trials of young offenders, in situations where alternatives have not been used and the trial is proceeding.

The one I want to deal with, which seems to me to be up front and centre with respect to young offenders at trial, is the question of the privacy of predisposition reports. Should they be convicted and a predisposition report be available? There must be clear rules with respect to the privacy of those matters, and I believe they can be devised. My problem is simply that nobody, on behalf of the government, appears to have devoted any attention to the privacy question.

The fundamental question I, as a lawyer, see in these matters is related to the test for insanity and the test as to what will happen to a person who is declared insane in a youth court and is therefore unfit to stand trial. What will be the disposition of that person and what care and treatment will that person obtain? That will be a serious matter within the area of the kinds of assessments courts must make at the time of trial.

When one steps back from the question of insanity simply to the question of mental retardation and to the question of incapacity to make certain discriminations that young people may have, we have a whole range of young person treatment, care and attention, I have had no specific indication that the government has directed its attention to them. Those are matters that are of concern to me.

When we come to the question of sentencing, we find there are for practical purposes a whole range of concerns related to the role of the probation officer or, as he is known under the Young Offenders Act in an attempt to redefine his role, the youth officer -- I think he is called that under the statute. The minister looks a little quizzical so I will look it up in the statute to find it. He may be in our terms a --

Hon. Mr. Drea: Youth worker.

Mr. Renwick: Yes, it is a youth worker. I am not suggesting for a moment that it makes a great deal of change, but the attempt is to redefine the role of the youth worker who we call a probation officer. If one examines the statute, the whole question comes up front and centre about case load, and the responsibilities of youth workers and the role they will play when it comes to the actual sentences which will take place.

The range of conditions of probation are spelled out in such a way that they cannot help but impact in a definite way upon the role of the youth worker, or the probation officer as we know him in this province.

The whole question of parole will come up with respect to young offenders. Is there to be special restructuring of the Ontario Board of Parole? For practical purposes, the great bulk of the sentences of those who are convicted under the Young Offenders Act are likely to be served within the province. If they are not served within the province, we have matters dealing with the National Parole Board.

In this complex world, I could perhaps go on and deal with a number of other matters, but I have tried the patience of the minister and I have taken up too much of the time of the House. I have tarried too long for my own good in this debate, but I want to try to say to the minister that in Ottawa they can pass whatever statute they want. I welcome the Young Offenders Act. I welcome a national scheme for young offenders. I am not certain what the ultimate result will be for that other part of a young offender's scheme that will fall as the responsibilities of the individual provinces.

9:30 p.m.

I believe Ontario has a major role to play in providing leadership. Because it is a wealthy province, and because of the nature of the province and the pride we have here, I hope we will embrace the philosophy in such a way in all the areas -- and I will miss out some -- the police, the role of the police, the question of legal aid, duty counsel and adequate and proper representation, the question of probation or youth workers, all the questions related to parole and alternative measures. All of those are matters in which this province can provide the example to the rest of Canada. No matter how one cuts it, one cannot have a national scheme which relies on provincial standards for so much of the implementation work unless this province provides the leadership and the guidance.

I would assume it is consistent with Tory party philosophy to be the best in Canada, the North American continent, the western hemisphere and the world in this field. It is fundamental to their philosophy to be proud of those things. For a few extra dollars, we in this province can, by our criticism of the government, provide the opportunity for the Tory party to say, "We are the best everywhere" in the field of young offenders and the care, treatment, detention, and response of our government to young people in conflict with the law.

It is one of the few fields in which we would applaud the government if it produced. In most cases when it makes that boast, it has not produced. Here is an opportunity for it to produce. There is no single aspect of young people's development in this province in relation to the social obligations within the society that cannot be accomplished on the least intrusive basis if the gut decision and commitment of the government is behind it. It takes courage, clearsightedness, a sense of commitment, leadership, sensitivity and some thrashing out of the silly interjurisdictional disputes in the government.

The government has the skilled people who can do it if it will respond and recognize that. It has put a bill before us with a few short sections, suggesting it is to implement the Young Offenders Act, but there is very little in it other than technical, legal jargon. It cannot submerge in that way the fundamental policy questions, the judgemental matters which must be decided by the government and the commitment to be made.

Basically, the Tory party wants to implement the Young Offenders Act with the least possible ripple on the calm waters of the province so everybody will go on as they have before. That is the way in which it maintains its position in the province because everybody believes that nobody has rocked the boat.

The Ontario Court of Appeal and the Divisional Court of Ontario rocked the boat a little about the Theatres Act and my friend has poured oil on it today and introduced the bill, just to make some technical rearrangements that will meet these requirements. The Minister of Consumer and Commercial Relations introduced Bill 28 to make some technical adjustments to something they have done in Ottawa.

I have not heard a minister of the crown, in a responsible ministry or elsewhere in the government, indicate by word or deed any understanding of the implications for young people and the potential for good with respect to the obligations of the province in implementing the Young Offenders Act.

I will finish where I started, on a question of humility and ignorance. I do not understand all of this. What I do know is if the subtitle of the book to which I referred at the beginning is correct, the great stumble forward, I am glad to be part of that great stumble forward.

I do not want anybody to think for one moment that there are magic solutions to the problem of young people in conflict with the law; it will remain a complex, ongoing problem of immense proportions. But I do not want the government of Ontario to do nothing, which is what its attitude is as far as I am concerned, sitting in the opposition and having watched the response of the government in these various areas.

I know little about chemistry, and if there is a litmus test on this question, it will be the minister's decision on two points. One is whether the government can get away from the dual ministry responsibility, which it seems to want to have, and come to a conclusion that a single ministry must of necessity deal with these fundamental and basic problems.

The second matter is a very clear, physical, visible one, that the government will stop the nonsense of proceeding with the Bluewater conversion for the purpose of isolating 174 young offenders at any one time from any possibility of having the benefit of the kind of philosophy that is embodied in the Young Offenders Act.

I have said all I want to say. I will reserve anything else until the bill is in committee.

Mr. Boudria: Mr. Speaker, it is always interesting to hear the comments of the member for Riverdale (Mr. Renwick). I must say he was very informative tonight. I do not intend to outdo him in time or substance, but I do have a few comments about the bill as well as a few questions that I would like to ask the minister, who is carrying this bill on behalf of the government.

I am a little critical as to the amount of time it took to arrive at Bill 28. That is not necessarily a criticism of the minister but rather of the government. I am not sure even today who the lead minister is as far as the provisions of the Young Offenders Act are concerned. When did that person become the lead minister, if indeed it is this minister? When was the minister made aware that he had to bring Bill 28 forward to provide for the Young Offenders Act? When did the minister know he would be providing secure facilities as opposed to the Minister of Correctional Services? When did the minister find out he was going to be providing facilities for offenders pursuant to the Young Offenders Act?

Finally, I think it would be nice if all members of the Legislature could find out from the minister, on behalf of the government, what steps led us to where we are today.

If we look back on this, we have known since 1971 that we were going to have some sort of new legislation coming forward. As the member for Riverdale said, the first draft came in 1971; it was subsequently withdrawn because it was seen as being offensive and inappropriate. A new act was brought forward in 1975 -- I believe the name of that one was the Young Persons In Conflict with the Law Act or something like that -- at the federal level. Then in early 1982 the present legislation was passed at the federal level.

As I understand it, the parts of the act we are dealing with tonight were to have been proclaimed on April 1, 1983. I believe that date was delayed, at the request of provincial ministers, to October 1983. Upon further requests for delay, we then had a delay until April 1984. I also believe some provinces -- I am not sure whether ours was one -- wanted a further delay beyond April 1, 1984. There were two delays before that; so that would have been the third delay as far as this act is concerned.

9:40 p.m.

It is interesting to note that this bill was introduced in the Legislature three days after the proclamation of the federal statute. I wonder if the minister could indicate to us why it took so long to bring forward this piece of legislation. I think we have to know the answer to this for some of the following reasons.

I would like to refresh members' memories about the debate in this Legislature on February 8, 1983. I remember on that day the member for Riverdale was in his seat and so was the member for Scarborough West (Mr. R. F. Johnston). It is not that I happen to recall it personally; I referred to both of them in the remarks I made, and that is why I have come to this conclusion.

On that day we were discussing the concurrences of the then Provincial Secretary for Justice, the member for Carleton-Grenville (Mr. Sterling), now the Provincial Secretary for Resources Development. At that time we were asking the minister if he was the lead minister in the provision of services pursuant to the Young Offenders Act. Perhaps the member for Scarborough West will recall the following sentence being spoken in this Legislature at that time. I am quoting from what I said that day:

"In trying to find out which ministry is the lead ministry, I was under the impression all along that it was this minister's. This booklet here," and I was referring to a booklet published by Central Toronto Youth Services, I believe, which was called Youth Opportunity Action, "says the Ministry of Community and Social Services is the lead ministry."

I remember specifically on that day the then Provincial Secretary for Justice shook his head and indicated no, his was the lead ministry. This is not recorded in Hansard, but I am sure other people who were here on that day saw that he indicated it like this, "It is me." It is interesting to note that it seemed to be the impression of the then Provincial Secretary for Justice that he was the lead minister in so far as this was concerned.

We did not hear much more about the Young Offenders Act after that in this Legislature. It is only now, some time after the federal legislation has been proclaimed, that we find out the bill is being introduced by the Minister of Community and Social Services (Mr. Drea).

I ask again the question I asked at the beginning. Is this because he is the lead minister in providing all services, or is it just because he is the minister who is going to be providing these particular types of facilities? He may have indicated that already in his previous comments; if not, perhaps he can clarify it for my own information.

If we look at some of the newspaper clippings over the last few years when we discussed the Young Offenders Act, it is interesting to note what has been written. I have here an article from the Ottawa Citizen of May 26, 1982, in which the reporter was interviewing a Mr. McConney, who was representing the Ministry of Community and Social Services; I believe his title is that of Ontario co-ordinator for the implementation of the Young Offenders Act. The article states, "Mr. McConney says Ontario will probably decide which route to take in the next two or three months and begin passing the new legislation in the fall."

I believe Bill 28 is the first bill we have heard of that had anything to do with the Young Offenders Act, and it is dated April 5, 1984. That is much more than the two or three months Mr. McConney was under the impression it would take for us to start passing some of the legislation necessary in order to implement the Young Offenders Act.

Several other comments were made in the press. I have an editorial here from the Toronto Star in May 1982 in which the editor of the Star was of the opinion that the Young Offenders Act was "solid juvenile law reform." That is the title here. In this person's opinion, we should not be unduly delaying implementation of this act and should proceed with what we intended to do.

Again, I read an editorial in the same newspaper, November 3, 1982, entitled "Why Delay New Youth Law?" I am wondering whether the editor, when faced with the proposition that this law was going to be delayed in November 1982, would have thought it would be delayed until April 2, 1984. I remind the members the only reason the law went ahead in April 1984 was that the federal minister said: "That is it. We have waited long enough. If we are ever going to implement this law, we have to do it immediately."

An editorial in the Globe and Mail in November 1982 entitled "Justice Delayed" talks about the fact that provincial premiers were postponing the implementation of the Young Offenders Act. For me as a member, it is very difficult to comprehend why even the first steps were delayed for so long. I understand this is the first piece of legislation we have had to implement the Young Offenders Act.

I want to refer members to the Sudbury Star, April 22, 1983. This is what the writer had to say in this particular article: "'It will be impossible for the Ontario government to honour its commitment to the proposed federal legislation on young offenders unless the federal government is willing to recognize the tremendous financial implications involved,' said MPP Norm Sterling, the Provincial Secretary for Justice, at the annual meeting of the John Howard Society."

As we read this article, the minister goes on to explain how he believes it is going to cost about $150 million a year to implement the second phase. But today we are not even talking about the second phase; we are talking about the first phase. The first phase is the only one that comes up for implementation as of April 2, 1984. The other one, as I understand it, will be implemented a year from now.

If the bulk of the financial implication will be caused by the second phase in a year from now, if it is the second one that is going to bring about problems between the two governments, why has there been such disagreement between the provincial and federal governments for the implementation of the first phase?

I am still at a loss to understand why we did not ask for proclamation of the first phase immediately and perhaps delay the second phase, if it will create a problem for the minister or the government. We seem to have gone at it the opposite way. We seem to have delayed the first phase as long as we could -- for almost a year and a half. It was delayed for only a year and a half because the federal government insisted it would not go for any further delays on this issue.

9:50 p.m.

Those are the very few questions I have on this. Again, referring members to the comments made by the former Provincial Secretary for Justice in this Legislature on February 8, 1983, he certainly was telling us things then that sounded different from what we have been hearing very recently. On page 7392 of Hansard, he told us that as far as he was concerned there was no objection to the Young Offenders Act.

He said: "We are glad to see this matter come to a final determination. We have been negotiating for some 10 years with the federal government to have this act come about. It took into account many of the suggestions put forward by all the ministries, including those in the Justice policy field and...the Ministry of Community and Social Services."

He went on to describe the input the province has had into the Young Offenders Act. If the minister has had such input into it, perhaps he could indicate to the House why the government decided to delay not only the implementation of the bill, but to delay even beyond the date of the proclamation in order to introduce his first bill, when officials of his ministry some two years ago told us he was going to start proceeding with legislation three months from that point.

A two-year delay has been caused. Some people have speculated there was a disagreement amongst the ministers as to who would be responsible for the act. If that is not the case, I hope the minister can clarify this for the members of the Legislature. Perhaps he can indicate to us why the delay even took place.

For instance, perhaps he can indicate why in 1982 we asked for a delay until 1983 and why we asked for a further delay until April 1984? Why was it felt we needed a period beyond that? Once that date of April 1984 came about, why were we not ready? Why did we have to come into this Legislature and pass legislation in an almost retroactive fashion to take care of something we have known for a long time was going to come about at the federal level?

Those explanations would be tremendously helpful to all members to help them understand the series of events that led to this bill being introduced on April 5, 1984, as opposed to some period prior to that time, so that we could have had a full and thorough discussion of the issue at some period in the past. We could have had much more debate and we could have had input from the public. This bill was introduced afterwards as a technical amendment. The government hoped for speedy passage and then it could proceed with everything.

In closing, I would like to find out the series of events that have created this. I hope the minister in his concluding remarks can offer some explanations to all of us.

Mr. Nixon: Mr. Speaker, I want briefly to refer to the bill and say I have some rather outlandish views associated with the treatment of young offenders. I know one of the major controversies in the House has been which ministry has the carriage of responsibility for the implementation. That has been cleared up to some extent, but my own feeling is we still have not lighted on the right ministry.

In our procedures, people who are sentenced to two years less a day come under provincial jurisdiction. I have often felt the education complement associated with the incarceration of these offenders has been less than adequate, particularly for young offenders. I think education is really the only thing we should be thinking of. Whether some area of the Ministry of Community and Social Services is the best ministry to assist and provide that is questionable in my view. I personally think the Ministry of Education ought to have the primary role in establishing what happens to these young people after they are sentenced.

When one goes back some years, it is interesting to note we did not have a Ministry of Correctional Services. The Ministry of Community and Social Services has had different names and different responsibilities over the years. The whole concept of leaving the two-years-less-a-day people with the provinces has, in my view, been mostly on the basis that those people ought to have a recidivism rate that is much lower.

Stop glowering at me that way. Maybe the minister does not agree or maybe the lights are too bright. I feel intimated every time he is in the House.

Hon. Mr. Ashe: I doubt that.

Mr. Nixon: I do not like the concept that these young offenders are primarily social problems. Certainly, the community deserves some protection against the ones who are incarcerated, but in general I feel the application of education would have the best possible effect for good as far as young offenders are concerned. I personally do not think the Correctional Services people have this as their principal aim and I do not believe the Ministry of Community and Social Services people have this as their principal aim.

Education has got to be properly established with recognizable goals and effectiveness. I have often thought that in this jurisdiction the Ministry of Education ought to have the primary and leading role in dealing with offenders, particularly young offenders. I want to put that to the members because I think one of our difficulties in the past was that the whole matter has been treated as a social or custodial problem rather than as one in which the primary ingredient for good ought to be education.

I too have been very concerned at the delay in the presentation of implementing legislation in this province, and at the horse trading that has gone on between the province and the federal government.

Mr. McClellan: That is not what John Gault called it?

Mr. Nixon: What did he call it?

Mr. McClellan: I cannot remember.

Mr. Nixon: If only I had his article I could make a far better speech, because it has been the basis for most of the speeches being made.

Anyway, I really do believe the horse trading between the federal and provincial agencies, if that is what one might call it, has been abominable. It is an indication of the lack of commitment to the problem and probably more than enough commitment to the politics of a matter that should have transcended that consideration.

I think people on all sides accept the legislation with a good deal of enthusiasm. The fact that the federal government is not paying enough money for its implementation in the minds of certain Conservative ministers in Ontario is no reason that we should not have been making practicable and, let us say, healthy preparations for the implementation of the statute. It is certainly overdue now.

Even this debate is overdue in that the legislation should have been enacted with suitable amendments months ago, and I regret very much that this is not the case. I am very glad the bill will be going out to committee where we can hear views from people more professionally adept at seeing the problems in the bill as it currently stands, and I hope it can be improved.

We are voting against the bill -- the minister is aware of this -- not because we believe its implementation should not come about but really as the only protest we have to indicate to you, Mr. Speaker, and to anybody else who might be interested, that we feel this minister and his colleagues have shown substantial shortcomings in the acceptance of their provincial responsibilities in the light of this federal initiative.

I regret very much that there have been these delays and I hope the minister in his summation will be able to give us a statement that is going to indicate that some of the problems at least have been settled and set aside and that we can proceed with the implementation of the program with a good deal more confidence than we can at the present time.

Mr. R. F. Johnston: Mr. Speaker, on a point of order: In honour of this momentous occasion I would like to move, and I know I am going to be seconded by the member for Windsor-Riverside (Mr. Cooke), that the member for Frontenac-Addington (Mr. McEwen) now be heard.

10 p.m.

The Acting Speaker (Mr. Cousens): That is not a point of order. Does any other honourable member wish to participate in this debate?

Mr. Cooke: Why does the minister not defer to the member for Frontenac-Addington?

The Acting Speaker: Because of the outburst, does any other honourable member wish to participate in this debate? I take pleasure in calling upon the Minister of Community and Social Services.

Hon. Mr. Drea: Mr. Speaker, I want to deal in this order with certain matters.

Interjections.

Hon. Mr. Drea: If any members wish to go home, I do not think I will be winding up tonight.

Among many of the things I have found very significant are the remarks of the member for Riverdale. I have not discussed varying views of corrections with him in seven years. I think I may take a little bit of time.

In dealing with some of the matters raised tonight by the member for Riverdale and latterly by the member for Prescott-Russell (Mr. Boudria) and the member for Brant-Oxford-Norfolk (Mr. Nixon), I want to settle the education matter first.

Education is the major component in my area of jurisdiction, which is until the age of 16. The four training schools that remain and a number of other community endeavours are all linked to education in one way or another. In fact, education, sometimes under supervisory conditions, forms the very basis of the programs. Because of the very high education content, and I use that in quotes, recidivism in Ontario and the number of occurrences involving those under age 16 are dropping very substantially.

I also draw to the attention of honourable members that when I was the Minister of Correctional Services, there was a distinctive thrust that for those young offenders -- if we want to call them that, the 16-year-olds and 17-year-olds who were adults at the time and still are in terms of the courts -- the best possible solution was not to incarcerate them if at all possible, but to arrange for a series of alternatives, from community service orders to communal living under supervision and so forth.

Quite frankly, Ontario has been the leader in this, to the point where the particular institutions that once housed 16-year-olds and 17-year-olds are closed. We did not need them any more because the 16-year-olds and 17-year-olds who needed only minimal security could be handled under supervision in the community. Actually, the thrusts the member is asking us to make are part and parcel of corrections in Ontario, whether for adults or juveniles.

In reply to the member for Riverdale, the ministry does not view the Young Offenders Act as a major shift in direction. On the contrary, close examination of the federal act shows that it codifies programs that have been pioneered in Ontario, particularly the community service and personal service orders programs. As the member knows, there were distinctive and different community programs set up for juveniles and for adults.

The Young Offenders Act also mandates the use of alternatives to institutional care through the provision of dispositions by the courts to open custody. Bear in mind that we have been one of the pioneers of the concept of open custody. That can be, as I mentioned before, a group home or similar setting. Under the Young Offenders Act, the residential services which were previously only used for wards on an aftercare basis are now going to be available for open custody, provided that is the sanction and direction of the court.

I think it is very significant that we, as pioneers of many of these concepts, have the full array of programs in place for those under 16 years of age. We will be closely monitoring demands placed on these services because of the Young Offenders Act, since the major effect may be to change the necessary distribution and the quantity of services.

Second, the changes focus largely on our interactions with the court under the Young Offenders Act. This has led to the development of some new policies in the procedures which have been communicated to agencies and other organizations and field staff by means of training sessions held from January to March of this year.

Mr. Speaker, if you will indulge me for a moment, here is the manual which has been out across the province to those specific groups I have just spoken about. When we discussed this on the advent of second reading, the member for Bellwoods (Mr. McClellan) said he had literally hundreds of questions. He said he was going to ask for the answers in committee. He can go right ahead and ask, because here are the answers to almost any of the questions he can envisage.

Mr. McClellan: The minister might have had the courtesy to share it with us.

Hon. Mr. Drea: I will share it with the honourable member in committee. He raised it, now he gets it.

Mr. Cooke: The minister has real class.

Hon. Mr. Drea: I must have; I am not in the member's party.

Mr. R. F. Johnston: Keep going; the heavy repartee is overwhelming.

Hon. Mr. Drea: It must be to a person who will not even use his party name.

As to the concerns raised by the member for Riverdale about the Bluewater Centre, let us look at the question of the incarcerated person after trial. A 16-year-old or 17-year-old is now either in Burtch Correctional Centre -- we are talking about those in western Ontario -- in Guelph Correctional Centre, or may be doing a short sentence in a detention centre. The Bluewater Centre in Goderich is an isolation or maximum security or segregation type of institution.

Because of the change in the law that occurs next year, we can no longer mix those under 18 with those over 18. There are certain offences under the Criminal Code or under the Young Offenders Act that do require incarceration. The Bluewater Centre at Goderich does not add additional incarceration units in the province; it merely reflects the change that we can no longer mix the two types of inmates because of age. Therefore, it is not contrary to the philosophy of the Young Offenders Act. It is necessitated by the proclamation next April of the standardization across the country of 18 as the demarcation age between juveniles and adult offenders.

10:10 p.m.

One other matter raised was the question of there being no mention of parole. Under the Young Offenders Act there is no parole; there is early release. There is no parole as there is under the Penitentiary Act or under the various parole acts in the 10 provinces.

The purpose of Bill 28 is to implement the Young Offenders Act as it was proclaimed on April 1, 1984. In no way, shape or form does it anticipate the scheduled proclamation of phase 2 on April 1, 1985. The reason the bill was introduced on April 5 was that it only became apparent on February 28, 1984, at the meeting of the federal-provincial ministers responsible for justice, that the final proclamation date would be April 1.

I showed members the manual. We began training sessions in January. We were already training front-line workers. We were training our own people. Our probation and after-care officers were being trained even prior to that. It is impossible to write legislation, however, before knowing what is going to be proclaimed.

It is quite true that there were requests by the provinces to postpone the proclamation one further time until October. In view of the fact that on two previous occasions the very same federal Solicitor General had agreed to postponement because of problems, not necessarily in Ontario and not necessarily only at the request of Ontario, there were those who felt he would agree to one more postponement. He did not. The information was only made available officially on February 28, and subsequent written confirmation was received early in April.

Several issues were raised not only earlier in the debate but also throughout the debate. The member for Riverdale is quite correct. We are very proud of both our juvenile and our adult correctional systems in Ontario. We must be, because we are the only jurisdiction in Canada that has a Ministry of Correctional Services. The federal government refuses to have one. The other nine provinces, for varying reasons, do not have one.

Mr. Nixon: We do not need one either.

Hon. Mr. Drea: Really?

Mr. Nixon: That is my opinion.

Hon. Mr. Drea: Mr. Speaker, in view of the sensitivity of the member for Brant-Oxford-Norfolk to the way I look at him, would you ask him to restrain himself and not leap over his desk in the midst of all these things?

Mr. Nixon: I just want to set up a defensive screen against the minister.

Hon. Mr. Drea: Mr. Speaker, I only ask that while I speak he be restrained from vaulting over his desk.

Mr. Nixon: it is the only way I can respond to the minister.

Hon. Mr. Drea: I am thinking more of the clerks than of anyone else.

We are proud of both our juvenile and adult correctional systems in Ontario, and we look upon the Young Offenders Act as providing a clear mandate for continuing the programs of my ministry and of the Ministry of Correctional Services. These programs were developed not because they were required by federal act, but because they teach young people a sense of responsibility and offer alternatives that may better meet the needs of young people.

Because we view this act as a reinforcement of the direction we have taken, we co-operated with the federal government in the early stages of the bill's development and are continuing to co-operate as we negotiate a cost-sharing agreement. We were concerned about amendments to the federal bill introduced in February 1982 without consultation with this province, as was the former government of Saskatchewan. The then Minister of Social Services who had the responsibility, and I, were the only two who were able to get before the committee, and for the same reason.

The stipulation of a uniform maximum age under which young people can be dealt with under the Young Offenders Act is particularly problematic, not only for Ontario but for a majority of provinces. In Ontario, we will have to make sure the change does not affect the high quality of correctional services for juveniles and adults. The Young Offenders Act will have a significant impact on both systems. I am not thinking so much of the maximum age provision, but of other factors such as the sentencing patterns and the results of the question of the number of waivers of young people to adult court for trial, especially in cases of violent crimes.

The member for Riverdale was concerned about this waiver procedure. If I understood his concerns correctly, he was wary of a wholesale use of the waiver into adult court for those over 14. First, that is beyond the control of the minister or anyone in my ministry because the procedure of an application for waiver into the adult system is through the office of the crown attorney. Second, in the first seven weeks of operating under the Young Offenders Act, as I understand it, there have been no more requests for waiver to adult court than there were under the Juvenile Delinquents Act.

The customary reason for a waiver into adult court is very violent crime. The sentence, previously under the Juvenile Delinquents Act and now under the Young Offenders Act, is so much less than that of the adult penalty that the protection of the community is involved.

As my colleague to my left, the Provincial Secretary for Justice, announced on April 2, we need to have strengths and experiences of both systems brought to bear on the problems which the federal act imposes, and we need to be cautious if we are to maintain quality service. It is believed we need an initial period during which we can examine the effects of the new legislation before final decisions are made permanent.

In recognition of this need for co-operation, my ministry and the Ministry of Correctional Services have been working together for some time. Because of this advance planning, my ministry was prepared to implement the Young Offenders Act when it was proclaimed April 2 of this year. As the members are aware, the first phase applies only to 12- to 15-year-olds who will continue to come under the jurisdiction of our ministry.

During the debate several weeks ago, I was quite interested to hear both the New Democratic and Liberal parties indicate to this House they would like to see my ministry responsible for the 12- to 17-year-olds, inclusive. There has now been a minority opinion from the House leader of the Liberal Party. He wants the Ministry of Education made responsible.

Mr. Eakins: Why did you close the training schools?

Hon. Mr. Drea: We closed most of the training schools and even the four left now are half empty. Most of the children are served much better in the community. It is that simple. I am sure members can appreciate it would not be prudent to take --

Mr. Cassidy: How you scoffed when we started to propose that four or five years ago.

Hon. Mr. Drea: The Ministry of Correctional Services started to close training schools way back in the 1970s, not when the member proposed it five years ago.

Mr. Cassidy: It was 10 years ago.

Hon. Mr. Drea: Why does he not make it 15?

Mr. R. F. Johnston: All right, 15.

Mr. Speaker: Now back to the bill, please.

Hon. Mr. Drea: As I mentioned earlier, we need the shared responsibility over the short term to examine the impact of the Young Offenders Act in Ontario. After a period of experience, we will be able to review the application of the act and make decisions on the jurisdiction.

As I mentioned before, young offenders must be held separately from adults in both secure and open custody in detention facilities, no matter which ministry looks after children and youth. Therefore, it would not be difficult for one ministry to take responsibility for a single-service delivery system, and any further decisions regarding jurisdiction could be made with relative ease.

10:20 p.m.

A lot has been said about Ontario's stance in our negotiations with the federal government for cost-sharing. As long ago as the summer of 1981, we were asked, along with all the provinces, to provide details of current costs and projected costs for the new act. These were provided. At that time, the bill provided for a provincial option on the maximum age, so the costs were only for 12- to 15-year-olds. Then, out of the blue, the federal government took the position that the Charter of Rights required a uniform maximum age, and it imposed it at age 17 and under.

In the spring of 1982, we were asked to provide detailed information and costs for 16-and 17-year-olds. We also had to face the cost changes necessitated by amendments to the act. That was not a simple exercise. It was a new act and we had to make informed judgements about how to deal with young persons. We expected the submission of costs to be followed by a detailed federal-provincial discussion of our assumptions and dollar figures.

Finally, in the fall of 1982, we heard we could soon expect to receive the federal cost-sharing offer. It was not until March 1984 that we finally received a federal offer of financial support, but there had been no discussion with us about our cost expectations or the federal government's expectations. However, we were finally talking about it. A major joint federal-provincial effort was undertaken in the summer of 1983 to analyse respective expectations about costs and produce joint papers about results.

All these efforts affected considerably the major changes that were made to the federal offer we eventually received this year. In the final analysis, no one knows what the costs will be until we have had experience. Basically, we wanted -- and I think it is a very fair want -- the federal government to share and recognize the risks of the unknown with us and the other provinces.

I would like to respond to the concerns that the facilities and programs necessary to implement the Young Offenders Act for 12- to 15-year-olds are not in place. As I have already stated, for the most part the Young Offenders Act formalizes an approach to juvenile corrections that we are already practising in this province. This is an approach we plan to continue.

We have placed particular emphasis on providing alternatives to incarcerating young offenders. These community alternatives to training schools have included restitution, community service and the personal service order programs.

Group home and similar residential services previously developed for training school wards on aftercare will continue to be used under the federal act as places of open custody. The training school system will be used for the small proportion of young offenders who receive a disposition of secure custody. Similarly, the ministry's observation and detention homes will continue to be used for young people who are detained prior to and during trial.

To answer the sceptics who suggest we are placing too much emphasis on custodial care -- and just the opposite was raised by one member tonight -- we point out that the government has closed 10 of 17 training schools since the early 1970s. In fact, the Ministry of Community and Social Services has reduced training school beds. Where there were almost 1,500 beds, there are now about 400 and only about half of those are used at any one given time.

This government obviously needs no convincing on the advantages of community alternatives to custodial care. We are more than satisfied that we have a full array of programs and facilities in place for 12- to 15-year-olds and that we have a delivery system flexible enough to respond to the requirements of the Young Offenders Act no matter what its final impact. Furthermore, we have every intention as a government to ensure that the same range of services will be available to 16- and 17-year-olds when they come under the federal act.

Extensive training and orientation has been undertaken for all relevant personnel by my ministry to ensure their ability to implement both the letter and the spirit of the law. We should remember that our primary role as a ministry is the care, control, counselling and treatment of young people. That remains the same under the Young Offenders Act.

Where the change occurs, it is, as I mentioned before, an interaction with the youth court. This has led to the development of some new operating policies and procedures and, as I pointed out, they have been communicated right across the province to the field staff and agencies through a number of local training sessions held in the first quarter of this year.

There is one other matter I would like to deal with, and that is children under 12 years of age. A policy to address this issue was developed by an interministerial committee which included representatives from a children's aid society and the police. The committee considered responses to the consultation paper in its deliberations. We feel, therefore, that we are as ready as we can be to deal with the new issues posed by the federal legislation. What is more important is that we have a system that can respond quickly from both a policy and a program base to any changes in direction. This is true for all ministries involved.

The specific of those who are no longer under the auspices of the Young Offenders Act -- that is, those from seven to 12 years of age, because the minimum age of criminal responsibility is now 12 -- is clarified under Bill 28. The police authority under the Child Welfare Act is particularly stated in the bill. A police officer who is unable to return home within a reasonable time a child under 12 takes the child to a place of safety as designated under the act. The child can be held there for 12 hours, and if the parents still cannot be reached, the child is deemed to be in need of protection, and further action can be taken under the Child Welfare Act.

The only provision required is to clarify police authority to apprehend and temporarily detain a child under 12 who has committed what otherwise would be an offence and to return the child to his or her parents or the person having charge of the child. The provision is intended to provide the police with reasonable flexibility in continuing the practice of returning children to their parents whenever circumstances warrant. The 12-hour limit ensures the children are not detained for extended periods of time in either places of safety or police stations. That was a particular concern of some members. We believe the 12-hour limit, and that is the maximum, ensures the children are not detained for extended periods of time.

I look forward to discussing Bill 28 at the committee stage. This bill is interim legislation, essentially of a housekeeping nature. It is legislation and procedures that obviously work. We have had seven weeks in the courts. Not being a lawyer, I do not know how many trials have taken place, but obviously trials have taken place. Contrary to the opening statement by a member of the opposition that there would be chaos in the courts, there has been no chaos in the courts.

In fact, I venture that at least the first phase, which is all we are dealing with, of the transition from the Juvenile Delinquents Act to the Young Offenders Act -- even with all the structural changes in the courts in the federal act, the new disposition authority and other matters -- has proceeded very smoothly. I think it would be far too optimistic if I suggested that phase 2, which contains the very significant changes, will not have a more substantial transition period, but that is some months down the road.

On motion by Hon. Mr. Drea, the debate adjourned.

The House adjourned at 10:30 p.m.