Check Against Delivery

Introduction

Good morning. Thank you, Kirk, for that kind introduction and for your invitation to speak here this morning.

Let me begin by congratulating the CBA for organizing an ambitious two-day curriculum that goes well beyond what we traditionally think of as legal education. One comes to appreciate as Justice Minister that many of the problems we expect our justice system to resolve aren’t amenable to purely legal solutions. I think that all of us, lawyers and policy-makers alike, can learn a lot from sociologists, social workers and health professionals about the needs of our clients and constituents.

It’s great to see such a large group in attendance at this mid-winter meeting of CBA Alberta. By taking the time to keep up with the latest developments affecting your practice, you’re doing more than you realize. As practitioners out on the front lines of our justice system, it’s your integrity and know-how that keep the system functioning at the high standard it does.

This morning, I will provide an overview of some of the new directions we’re pursuing in the Department of Justice. There are three initiatives in particular that I’d like to update you on ¾ our work on victims of crime, youth justice renewal and, most recently, child custody and access.

Despite the wide range of issues they cover, all three areas have a lot in common. All reflect the challenges inherent in overlapping federal-provincial jurisdiction. All have involved a great deal of public consultation, through parliamentary committees, federal-provincial working groups or task forces. All of them have also involved a search for compromise between competing rights or values, often in a highly polarized and emotional policy environment. And all three underscore the limitations of law reform as an antidote to what ails our justice system. Our solutions must, therefore, be developed with a high degree of consultation and co-operation with different levels of government, rely as heavily on new programs, services and institutions as they do on legislative reform and involve disciplines and policy areas outside of the justice system.

Victims of Crime

Let me begin with our work on victims.

When I took on the justice portfolio in 1997, I said I would make the concerns of crime victims a high priority. Victims’ rights advocates were expressing a lot of frustration with the criminal justice system. They wanted a voice in a process from which they felt excluded. They wanted and needed information, a chance to participate and an opportunity to heal.

Traditionally, our system has supported the interests of the state or the collective — the "Queen’s Peace" — over those of the individual in criminal justice matters. Because criminal offences are considered offences against the state, rather than the individual, the criminal justice system provides a very limited role for victims. While the principles underpinning this approach are worthy, the effect on individuals victimized by crime can be painful.

Much thought and work has gone into this dilemma. The Federal-Provincial-Territorial Working Group on Victims of Crime has been exploring necessary improvements to the justice system since 1996, producing an interim report in December 1997. Last spring, the Standing Committee on Justice and Human Rights conducted its own thorough review of the victim’s role in the criminal justice system, hearing from victims of crime, victim service providers, the police, Crown attorneys, defence lawyers and others.

The Committee’s report, entitled A Voice Not A Veto, was tabled last fall and has become the focal point for a federal action plan, which I announced last month, that aims to improve the situation of victims in our justice system. First, we are establishing a new office or policy centre for victims’ issues within the Department of Justice, which has as its first mandate the implementation of the Committee’s recommendations to the fullest extent possible. The new office will coordinate and develop all federal policy and legislative initiatives related to victims to ensure that the perspectives of victims and witnesses are considered in policy development and law making. We expect that the new office will become a centre of expertise on emerging issues and trends in victim advocacy, legislation and services.

I also will bring forward legislative amendments to the Criminal Code that will implement several other recommendations of the Standing Committee. These changes will improve opportunities for victims to make impact statements, including oral statements. Other amendments to the Criminal Code will make it easier for victims to participate as witnesses in trials. We will also reform the "victim fine surcharge" to enable the provinces and territories to increase revenue to expand available and develop additional services for victims.

Although our actions focus on initiatives within the mandate and priorities of the Department of Justice, we hope to encourage initiatives in the provinces, as well as joint federal-provincial initiatives, that will make it easier to provide information to crime victims. I said earlier that much of the work on the justice agenda this year was conducted in a highly charged policy environment and our challenge has often been to find the right balance between equally legitimate, but competing positions. We’ve had to do this while respecting the fact that the provinces have primary jurisdiction in this area. The challenge has not just been to meet the need for reform with measures that do not unduly impact on the rights of the accused, but also to do so without upsetting my provincial colleagues. I think it is a tribute to our country’s democratic approach to policy-making in general, and to the work of the Standing Committee on Justice and Human Rights in particular, that we have succeeded.

Youth Justice Renewal

Let me move on now to youth justice, which poses a similar kind of challenge, in that we are here again trying to strike the right balance between competing ¾ or seemingly competing ¾ values. On the one hand, Canadians want assurances that young offenders will face meaningful consequences for their crimes. But they also want a system that reflects our society’s hope for youth, and that gives young offenders the opportunity to turn their lives around ¾ a system that believes every young person can become a productive and responsible citizen.

Although all Canadians would agree that protection of society is the paramount objective of any criminal justice regime, we have trouble agreeing on how best to ensure that protection. Some critics of the Young Offenders Act have demanded stiffer penalties for youth who break the law, and the act has been amended twice in the past 10 years to provide for longer sentences for young offenders. However, as the House of Commons Standing Committee on Justice and Legal Affairs determined after a lengthy review of the act, Canada relies too heavily on incarceration as a response to non-violent young offenders, who represent by far the majority of youth convicted. The Committee argued for alternative, community-based approaches as a more effective way of instilling social values and righting wrongs.

Last May, in response to the Standing Committee’s report, I announced a strategy for youth justice renewal. In the next few weeks, I will ask Parliament to replace the Young Offenders Act with a new youth justice statute, which will build on the strengths of the Young Offenders Act while addressing its weaknesses along lines recommended by the Standing Committee in 1997. The new act will be the result of some of the most extensive consultations my department has ever conducted ¾ with the provinces, the Bar, child advocates, the police, victims’ groups and others. It will recognize the distinction between violent and repeat young offenders, from whom society needs to be protected, and the non-violent, lower-risk youth who are in the majority, and it will provide different and appropriate measures to deal with each. In so doing, the act will provide the provinces and territories with the flexibility they need to respond to the specific challenges they face, respectful of the very different approaches to youth crime taken across jurisdictions.

New measures will include an additional sentencing option for the most violent, high-risk offenders, who may require both longer periods of control and guaranteed treatment aimed at rehabilitation. We will be increasing the likelihood that youth convicted of serious, violent offences aged 14 to 17 will receive adult sentences and that their names will be published. We will also reduce procedural wrangling in the youth justice system that will curb the time between the laying of a charge and the pronouncement of a verdict.

We will be redesigning our approach to non-violent offenders. Consequences that are meaningful and necessary for offenders at one end of the spectrum are not appropriate for the majority at the other. Our goal for non-violent offenders should not be to warehouse them and run the risk that they become more sophisticated and possibly violent offenders. Rather, it should be to impose sentences that make plain the harm done, instill social values and focus on repairing the harm done to the victim and to society.

The new legislation will recognize and encourage the involvement of communities. Consistent with the recommendations of the Standing Committee, it will give the police greater flexibility to make use of effective alternatives to formal judicial procedures, such as police warning and formal police cautioning. The act will also encourage judges to use alternative sentences, including restitution orders, community or personal service orders and alternatives to custody, such as intensive supervision programs.

In support of this legislative framework, I’m optimistic that I will be able to provide significant new resources to encourage the provinces and territories to develop a wide range of alternatives ¾ alternatives to custody that emphasize responsibility to the victim and community, as well as alternatives to the courts, which include diversion programs, family-group conferencing and restorative justice programs.

In a nutshell, these measures will constitute the most dramatic changes to the youth justice regime since the YOA was proclaimed in 1984. But, as I said earlier, law reform is rarely an answer in and of itself. And this is certainly true for youth justice. Criminal justice legislation cannot repair the social problems that manifest as crimes. The solution has to be a more comprehensive approach that looks downstream for the root causes of crime and that supports youth and encourages community efforts to reduce crime.

Our strategy for youth justice will require a high degree of federal-provincial cooperation and the functional integration of the child welfare, mental health and court systems. Renewing our youth justice system will be an undertaking of epic proportions. There will be no shortage either of lead and supporting roles, involving lawyers, judges, families, communities, teachers, the police, social workers and many others. And I am optimistic that the broad range of measures we’ll be implementing, from early intervention for children at risk to prevention programs, tailored sentencing and other integrated approaches, will ultimately give us a youth justice system in which Canadians will have confidence.

Child Custody and Access

Last on my agenda this morning is to update you on where we are on the issue of child custody and access. I take from your workshop agenda that many of you are probably family lawyers, who will be interested in knowing the direction the Justice Department plans to take in response to the recent report of the Special Joint Committee that reviewed these matters last year. I’m afraid that for the moment, there’s little I can report, because it’s an area where substantial work will be done over the next few months with my colleagues in the provinces and territories to formulate a response. But let me say a few things.

The Committee was asked to assess the need for a more child-centered approach to family law policies and practices, one that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children’s needs and best interests. Its report last month highlighted how difficult and controversial these issues remain — and how hard it is to agree on the nature and extent of the various problems, let alone solutions. Many recommendations have major resource implications and, as acknowledged in the report, are directed to provincial and territorial governments.

Although the Committee made numerous recommendations for legislative and policy reform, there were no fewer than three dissenting reports. Both the testimony of the witnesses who appeared before the Committee and the public’s response to the report after its release have been at times so polarized that it seems clear that a "one size fits all" formula for families whose parents are divorcing would be unworkable.

During the hearings, the Committee heard a lot of debate about joint custody and shared parenting and the need to preserve the parental role and status of both parents after divorce. It heard stories about the sense of loss and alienation experienced by both non-custodial parents and children in traditional sole-custody arrangements.

But the Committee also heard strong concerns and warnings about the misuse of joint legal custody for high conflict families, and that any revised legislative framework would need to retain a high degree of flexibility to ensure that the economic and psychological well-being of children is the primary object of any post-divorce parenting arrangement.

The Committee proposed several amendments to the Divorce Act that are meant to reflect modern ideas about parenting after divorce. For example, they recommended replacing the terms "custody" and "access" with new statutory language and concepts like "shared parenting," changes that might help parents and the family law system focus on customized arrangements that respond to the needs of children.

If anything seems clear, however, it is that an adversarial, litigation-based system is not particularly well suited to address the difficult and emotional issues associated with custody and access determinations. In fact, many of the Committee’s recommendations addressed ways of keeping divorcing couples out of the courts. We have to remember that the vast majority of relationships that break down are resolved amicably. The majority of witnesses who appeared before the Special Joint Committee expressed concern about how the procedures, high costs and delays associated with the current legal processes contribute to increased conflict between the parties; but these represent only the small percentage of cases that required litigation, where the parties were unable to resolve their differences amicably. So, while amendments to the Divorce Act may be needed to help improve the way the system deals with this minority of difficult divorces, the solution likely has less to do with legislative reform and more to do with giving parents the support they need to make less adversarial post-divorce parenting decisions and to focus on the needs of their children.

The federal government is also funding an array of provincial pilot projects throughout the country under its federal child support guidelines initiative. These projects cover areas like case management, supervised access, mediation and parenting education. Last year, the Justice Department invested more than $650,000 to support provincial and territorial parent education programming across the country. Since then, the provinces and territories have increased their program activities and most jurisdictions have approached the Department for funding to develop or enhance parent education programs in 1998–99.

One Alberta example is a series of seminars on parenting after separation, which has been well received by participants. I understand that the Alberta’s Court of Queen’s Bench has now made attendance at these seminars mandatory before the Court will hear a contested divorce action. I applaud these steps, as well as the recent efforts of the Alberta Government to improve the Maintenance Enforcement Program.

I think that, as with youth justice renewal, we will not find the answers in legislative reform alone. It is clear that cooperative parenting can often promote healthy child adjustment and that children and youth benefit from secure and positive relationships with both parents. No amount of tinkering with the Divorce Act will improve people’s interpersonal skills or attitudes. No amount of legislative reform will help parents who, for whatever reason, have difficulty putting the child’s best interests first. Although law reform may symbolize our desire for change, the real power lies with the lawyers, social workers, educators, mediators and other helping professionals who advise and interact with divorcing parents and their children.

Most of this infrastructure falls under provincial and territorial jurisdiction. This means that reform initiatives in family law and policy will require coordinated federal, provincial and territorial efforts. And Justice Department officials are working closely with their provincial and territorial counterparts through the Federal-Provincial-Territorial Family Law Committee to review, research and consult on priority family law reform issues. They will welcome the guidance and insight of family law practitioners, and their recommendations will certainly inform my report to Parliament in May on a proposed role for the federal government in family law reform.

Conclusion

In the coming year, much of my energy and that of the Justice Department will be devoted to working with the provinces and territories to oversee the smooth transition to a new youth justice regime and launching the new policy centre on victims issues.

There will be no shortage of work in 1999; and I enjoy the highly charged environment in which much of my work takes place. I am not expecting it to be easy or without controversy, but I hope that with the continuing cooperation and goodwill of my colleagues in the provinces and territories, the CBA and others, I’ll have much progress to report back on this time next year.

I wish you a stimulating and productive two days of learning.

Thank you.