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to a Liberal MP
Joseph Wamback
1046 Lockwood Circle
Newmarket, Ontario
L3X 1M2
May 4, 2000
Byron Wilfert MP
225 East Beaver Creek Road
Richmond Hill, Ontario.
L4B 3P4
via email only
Re: Your Response Newsletter
I read with interest your correspondence to Mr. Hendrick W.Heeringa
dated March 23, 2000 and wish clarification on some
issues and your
presumed statements of fact.
I must apologize for not responding earlier. I was preparing for a
debate with your fellow Minister, Anne McLellan, which
did not happen.
My first question to you is, have you or your fellow MP's in York
Region that you refer to, read the proposed Bill C
3?
The following comments and statements of fact refute your newsletter
and I respectfully request that you advise me and
other Canadians
what position you take on the following commentary.
The list of presumptive offences is not broadened as you state, as a
matter of fact Bill C-3 actually defines a
"violent offence" so as
to exclude assault.
Only assaults (rapes, robberies etc.) that "cause or create
substantial risk of bodily harm" constitute violent
offences.
Even then, C-3's measure of accountability for violent young offenders
is palpably weak as before such a person is even
presumed to be
liable to Adult consequences (themselves with wide discretion), by
virtue of section 61, (and section
2, definition of presumptive
offences), they must be charged with killing someone, or
aggravated sexual assault
(mere rape or robbery is not good enough)
or be charged with a serious violent offence
(causing or risking bodily
harm is not enough, it must be serious bodily harm)
AND have at least two previous convictions for serious violent
offences.
In addition, the two previous convictions have to be entered on two
different dates, so getting convicted for 4 serial
rapes,
shootings etc. wouldn't count if you had plead to them all in one day.
Apparently that kind of record and a
new serial rape or robbery
would not be serious enough to even presume you should be
liable to adult penalties,
which, by the way isn't binding and even if you
are one of the handful of offenders to get transferred.
The
Adult sentence also includes probation as an option.
Is this your definition of accountability and public safety?
Further, Bill C-3, uses subjective characterizations like "serious
violent offence" (which expert legal witnesses have
stated)
will lead to endless litigation generating delays and uncertainty
which has resulted in non use of the current transfer
process under
the YOA.
This almost appears to deliberately "rig" the rules so that the current
youth court jurisdiction remains intact.
There are no automatic transfers, irrespective of age, offence
or past records.
Expert testimony states that Bill C-3 creates a highly artificial and
complex process of Potential Transfer to adult
court.
In the proposed procedure, the Crown can provide an offender
charged with the most serious offences with notice that
it
will seek an adult sentence should a conviction follow.
While this potentially avoids the current transfer
process, it is
anything but certain that a violent young offender will face
adult consequences for serious crimes.
To the contrary, actual resort to custodial sentences has been
limited and by designation of presumptive offences
(excluding assault, sexual assault or robbery even with a record of
similar offences for example), C-3 perpetuates the
abdication of any sense
of balance of public and offender interest.
Whether or not an adult sentence is to be imposed is only to be
determined by reference to the "principles of sentencing"
which do not
include the concepts of deterrence or denunciation, are wholly
discretionary and clearly contemplate
the kind of protracted,
expensive and marginally under-utilized hearings as exist now.
In demanding reform to the young Offenders legislation, Canadians are
not looking for more transfer hearings with a
different name.
We are demanding substantive change not regressive
legislation that will be a make work project
for criminal defence
lawyers at taxpayers and victims expense.
Not a single mention has been made to swarming crimes , consecutive
sentencing, early intervention or bail reform.
The prohibition against publication of names in the YOA was meant to
prevent stigmatization of young people convicted of
offences.
Implicit in this approach was a recognition that there was a balance
between the legitimate right of the
public to know of persons
convicted of violent and sexual offences and the interest of the young
persons to not be
unduly burdened by a past that they were trying
to leave behind.
Bill C-3 even more, fails to use this balance and instead extends the
cloak of anonymity (and absence of deterrence and
public confidence)
to wholly inappropriate offences.
Until this fundamental defect is remedied, specialized
youth justice
will always be less than what it needs to be.
Under Bill C-3 the only young offenders identities, which can, without
judicial intervention be published, are those
convicted of a
presumptive offence and sentenced
(after the previously mentioned marathon procedure), to an adult
sentence.
In all other instances of a youth charged with a presumptive offence
(not possible in any other circumstances), the
court
(that presumably just decided the young person should be in youth court)
must decide whether such an order
would compromise the "importance of
rehabilitating" the young person. If the crown decides not to
pursue an adult
sentence, no publication is allowed.
There is no improvement and perhaps Bill C-3 is even more restrictive
than the current YOA.
You state that judges have the power to impose special sentences with intensive treatment.
Section 41, para. 7 of Bill C-3 states:
"A youth court justice may make an intensive rehabilitation custody and supervision order…only if:
(i) the young person has been found guilty of a presumptive offence
(mere rape, robbery and assault do not count)
(ii) the young person is suffering from a mental illness or disorder…
(iii) a plan of treatment has been developed for the young person, and there are reasonable grounds to believe that the plan
might reduce the risk of the young person repeating the offence or committing another presumptive offence, and
(iv) the provincial director consents to the young person's participation in the program.
In addition under section 41, para 2q
"subject to subsection 7, make an intensive rehabilitative custody and supervision order in respect of a young person"
(i) that is for a specified period of time that must not exceed.
(A) two years from the date of committal, or
(B) if the young person is found guilty of an offence for which the
punishment provided by the criminal code or any other
act of
Parliament is imprisonment for life, three years from the date of committal.
Intensive mandatory counselling or treatment and public protection this is not.
Bill C-3 does not accomplish any support for victims and does nothing
to enhance victims especially vis a vis
offenders.
No reference is made to victims in relation to protection of public
(or deterrence or denunciation).
Only non mandatory direction is made in relation to victims
in terms of proceedings.
Consent of victims is not required for not invoking
criminal proceedings.
Sections 6-8 permit (and arguably mandate) not laying charges
where a crime has occurred without imput from the
victim.
Extra judicial measures and extra judicial sanctions
avoid the criminal process and do not permit
victim impact or
veto.
Section 10(5) restricts
the long held right of victims to pursue
private prosecution.
This is a dangerous invasion and removal of individual Canadian rights
and liberties in a democracy and I am sure
will
be challenged under the Charter.
I for one will commence such a challenge and encourage every
Canadian to do
likewise if Bill C-3 becomes law.
Section 12 requires a victim to request notification
of extra judicial sanction disposition.
Why isn't this mandatory?
Most victims suffer
from emotional and psychological trauma and are in
no state to follow proceedings and know the
process of law.
Did you know that if Bill C-3 is passed then every young offender in
Canada will be automatically paroled if they have
served 2/3 of
their sentence, regardless of the crime or their readiness
to re-enter society?
Are you aware that incarceration for manslaughter is being reduced
to 2 years? Are you aware that there are no
additional
rights or provisions for victims?
This is protecting Canadians?
I ask you to read and understand Bill C-3 and to listen to 900,000
Canadians that are asking, no, demanding that
their
elected officials prepare and pass legislation
that protects victims and innocent Canadians and get
serious about
youth crime and early intervention.
You said the "The Wamback case is a very tragic one".
If you really mean what you say then do not let my son's
injuries be in vain. Make this the issue
that motivates you
to take a stand against arrogance and do the right thing.
Vote against Bill C-3 and demand that the Minister of Justice
create legislation that serves law abiding Canadians every
where.
Protection of Canadians is not a political issue.
It is your responsibility.
This legislation will be an election issue.
I will no longer be a victim and will not stand by and let other
Canadians be victimized by flawed legislation.
You
have the opportunity to do the right thing NOW.
Sincerely
Joseph Wamback
Cc Hendrik W. Heeringa
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