Juvenile Delinquents Act

The Juvenile Delinquents Act (JDA) was implemented in 1908 and originated with the ideas of J. J. Kelso and W. L. Wilson. Under this Act, children who committed crimes were termed “juvenile delinquents”. The JDA represented a large philosophical shift regarding treatment of juveniles, as stated in section 38 of the Act, “every juvenile delinquent shall be treated, not as criminal, but as a misdirected and misguided child”. The general belief was that delinquency was the result of a bad social environment and children should be “saved”. 

 The child saving concern caused the adoption of a child welfare philosophy. This indicated that the government had ownership over the wellbeing and rehabilitation of children by any means necessary. This led to the separation of the justice system to treat children and adults differently under the law with separate courts. The welfare- based juvenile justice system implemented under the JDA gave way for a Parens Patriae doctrine which formed a basis for the Child Savers Movement. This gave the state the power to act as a guardian, or “parent”, of the young offender. The responsibility of parent involvement in children’s lives was encouraged and the state placed absolute blame on them when their youth stepped outside the law. 

Under this Act, the age of delinquency was set by the province. The minimum age a child could be charged with a criminal offence was 7, while youth below the age of 12 could only be committed to an institution if no other option was available. Once labelled as a juvenile delinquent, youth remained under the control of the state up to 21 years of age in some cases. The Juvenile Court Committee required of the implementation of new roles such as probation officers and volunteers to assist in sentencing recommendations. The sentencing options for judges increased as rehabilitation became a leading motivation to consider, and enormous amounts of discretion were used. Children were often not charged with breaking a specific statute; rather, they were charged with delinquency. Sentencing included both sending youth to an industrial school or reformatory and probation.  

Criticisms of the JDA:

The focus of rehabilitation under the JDA had a positive effect on many children who passed through the juvenile justice system. However, this Act had many flaws which became more apparent over time. The implementation of the law by province resulted in large inconsistencies. Due to this, a 17-year-old would receive a much lighter sentence in certain provinces than he or she otherwise would. The varying levels of discretion used and lack of specific guidelines for judges in sentencing led to significant variations for similar offences. This caused a degree of discrimination to exist and lack of equality in sentencing. Additionally, this resulted in an abuse of discretionary power among social workers and other court appointed officials. Child advocates viewed the JDA as intrusive of the rights of children and their parents. Furthermore, Children’s Aid Societies questioned the means used in accomplishing the goals of the JDA. There were also concerns regarding the lack of lawyer representations and lack of a proper trial. 

            During the 1960’s, the Canadian Bill of Rights (which evolved to be the 1982 Canadian Rights of Freedoms) called for new changes to the JDA. For instance, the laws of evidence used in trials under the JDA were questioned and found to be a violation of the child’s rights. Under the JDA, a judge may have charged youth without proper evidence of the crime on the grounds that the sentence was in the youth’s best interest. Inconsistencies with the application of the law included the ability of judges to charge indeterminate sentences. Thus, children may have been forced to return to court at any time until they turned 21. Additionally, there was no set amount of time a child can be held in custody. Judges were able to sentence a child for an undetermined period of time until they felt the individual was reformed. Other critics asserted the ineffectiveness of the law to deter crime under the JDA. Conservative critics viewed the JDA as being too lenient on juveniles and over time, rising youth crime rates resulted in decreased public support for a social welfare approach. Therefore, public sentiment grew for legislation that adopted a more punitive approach to youth crime. 

Young Offenders Act

The Young Offenders Act (YOA) was implemented in 1982 replacing the JDA with a different approach to dealing with youth crime. Under the YOA, youth aged 12 to 17 who committed crimes were termed “young offenders”.  This Act represented a major change in legislation as it pushed youth to take responsibility for their actions while indicating that young people were seen to have “special needs”. This meant that youth could not be accountable for their actions to the same extent as adults. This standard asserted that youth were in a “state of dependency” and were in need of guidance rather than punishment. The YOA used alternate measures to prevent youth from committing crimes by focusing on implementing diversion programs. This intended to decrease the number of first-time offenders facing criminal charges and caused less time occupying judges and lawyers. Another main focus of this Act was to strongly assert the individual rights of the young offender, which was a direct improvement from the JDA. 

The YOA was considered a hybrid law in terms of its integration of three models of justice. First, the Justice Model was viewed as a large focus of this Act. The court wanted to ensure that a “just” system was achieved to ensure that the fairest sentencing was given to children. This was implemented surrounding the rule of law, meaning that a fair trial and the punishment should fit the crime. This also asserted the right to due processing for youth, such as being able to make an appeal and the right to legal counsel. Second, the Modified-Justice Model was used as the court adhered to “pure justice”. Thus, it did not allow for indeterminate sentencing. This combined the Justice Model with elements of the child welfare approach. Third, the Crime Control Model was viewed as a key element of the YOA. This “get tough” on crime model was retributive in its approach to justice. Instead of being charged with delinquency, as seen under the JDA, youth were charged with violating a specific section of the Criminal Code. 

Revisions of the YOA:

As the media played a major part in fueling public condemnation of the YOA, it faced three separate revision regarding the Crime Control Model. In 1986, “dangerous” young people were defined and identified as the publication ban was abolished, meaning their names were released to the public. Additionally, this modification altered the treatment of youth who breached probation. The second revision took place in 1991 which focused on raising maximum sentencing. This was a direct result of individuals believing the YOA was too lenient and that the public was not being adequately protected. Thus, the maximum sentencing for youth was changed from 3 to 5 years. Furthermore, this revision allowed youth to be transferred to adult court in specific cases. The last revision took place in 1995 which emphasized rehabilitation served in the community for minor offences and tougher legislation for more severe acts of crime. This resulted in the maximum sentence being changed to 10 years for first degree murder and 7 years for second degree murder. Additionally, this revision allowed an increase in youth aged 14 and older to be transferred to adult court. 

Criticisms of the YOA:

Since its introduction in 1984, the YOA received resistance. This is due, in part, to its number of conflicting principles and variety of possible interpretations. Much of the opposition came from conservative interest groups that advocated the Crime Control Model. Their efforts were reinforced by various provincial governments concerned about the cost of the correction programs. This Act reduced the degree of secrecy surrounding the youth justice system and thus, public opinion had a greater effect on legislation. Under this Act, it was not uncommon for federal and provincial legislation to conflict.   

The YOA did not explicitly take into consideration parental responsibility for the child’s behavior. However, the parents were to be tried in court with their child. If the judge believed the parents were irresponsible or neglectful, the court had the power to remove the children from the parents. Parens Patriae was removed from the YOA. The ambiguity of parental responsibility under this Act accounted for large amounts of inequalities in the youth justice system. For instance, Aboriginal youth were at a large disadvantage and received harsher sentences due to poverty and lack of resources.  

Under the YOA, all trials took place in the youth court regardless of the severity of the crime. Thus, only after the trial and conviction occurred may youth be subjected to adult sentencing. This created an issue as an adult sentence could to arise out of a trial geared toward juvenile sentencing. This Act also caused juveniles to serve adult sentences in youth facilities which was highly problematic. Young offenders who committed minor crimes were mixed with older youth convicted of murder, rape and repeated violent offences.   

The strong public opinion that the YOA was too lenient stemmed from publicized cases where young offenders were given limited jail sentences for severe offences. Many individuals pushed for a more retributive approach suggesting that long and stiff punishments were necessary for proper deterrent measures. In contrast, other citizens believed that the Act was too harsh and counter- productive. Evidence for this was reflected in the large increase in youth incarceration rates in Canada. In 1977, it was reported by the federal Standing Committee on Justice and Legal Affairs that Canada’s rate of youth incarceration was more than twice the amount in the United States and 10 to 15 times higher than many European countries. The general belief was that prison provided a space for breeding life-long criminals and increased repeated offenders. This called for reform based on providing alternatives to incarceration and more change in legislation. 

Youth Criminal Justice Act:

When implemented in 2003, the Youth Criminal Justice Act attempted to restore credibility with the public by pushing contemporary reforms. A Declaration of Principle was created which defined the overall purpose of the youth criminal justice system in Canada. This focused on the need for prevention before the crime, rehabilitation during punishment and reintegration into society. In addition, this highlighted the need for meaningful consequences and promoted the long-term protection of the public. Under this Act, juveniles were termed “youth criminals”. In 1997, the Standing Committee on Justice and Legal Affairs submitted a report to the House of Commons which contained 14 recommendations for improving the YOA. This was the basis for change and resulted in the first draft of the YCJA which underwent three revisions before eventually being put in motion. This Act is currently the legislation in which society follows in dealing with juvenile youth. 

The YCJA contains a statement that removes ambiguity regarding the interpretation of the Act and encourages the principle that the needs of society and the offender are not in conflict. Through this legislation, the concept of youth justice committees, which was last used under the JDA, is reintroduced. The committee contains groups of citizens with the purpose of developing community-based solutions in order to help youth to avoid incarceration. Additionally, the amount of extrajudicial measures available has increased. These measures were first labelled alternative measures under the YOA and served to prevent non-violent, first time youth offenders from facing trial and instead to participate in diversion programs. The creation of the committee, along with other extrajudicial measures, is based on the principal under the YCJA that court processing is reserved form more serious offences. All possible options must be considered before laying charges. 

This Act also clarifies conditions for sentencing youth. Under the YCJA, the maximum sentencing for youth is 10 years for first degree murder. All trials for young people aged 12 to 17 are held in youth court and follows the same rules regarding use of evidence and formalities as adult trials. However, this Act lowers the age for sentencing youth as adults. Cases involving youth aged 14 or older who are charged with severe crimes or are repeated offenders may be transferred to adult court, although this varies in some provinces. The goal of sentencing under the YCJA is to hold young criminals accountable for their actions and to consider the needs of the victim. This follows the Crime Control Model. As well, it aims to impose appropriate sanctions while emphasizing rehabilitation and reintegration into society. This aligns with the welfare model and encourages restorative justice. Before a sentence is applied to a young criminal, a youth pre-sentence report must be completed. This report includes the collection of an interview with the victim, parents and offender, as well as school records and medical or psychiatric records. An important factor in sentencing for youth is their attitude towards the crime they have committed. The sentence will be better if the child shows significant remorse and emotion. They may be sentenced to custody, absolute discharge, probation, or community service. There are currently two types of custody in Canada for youth. Open custody is required for youth who are not considered dangerous to the community but are in need of structure and supervision. This can include restrictions to freedom such as probation and being placed in foster care. On the other hand, secure custody is used regarding youth that are considered dangerous to the community or themselves or have committed severe crimes. Probation is often used while dealing with youth and includes standard conditions which differ from adult probation. These conditions often require standard conditions such as performing community service, refraining from drugs or alcohol and attending school regularly, among other things. Under the YCJA, the names of accused youth are not open to the public unless they are convicted with very serious offences. 

In 2010, Bill C-4, known as Sebastien’s Law, was introduced under the YCJA with the focus of protecting the public from violent young offenders. This included the presumption of diminished moral blameworthiness, prohibiting youth to serve time in adult prisons and defining serious violent offences. It also added elements regarding deterrence and crime control measures which reduced the focus of the YCJA on rehabilitation. Additionally, this Bill deemed publication bans on youth as problematic and required courts to consider publishing their names. This resulted in public debates on the right to privacy for youth. Following this, in 2011 Bill C-10, or the Safe Streets and Communities Act, was implemented. This Act includes changes to the YCJA that were previously implemented in Bill C-4. The YCJA includes emphasis on specific deterrent and denunciation as youth sentencing principles are now used only when necessary. Denunciation was proven to be ineffective because it was based on the assumption that people were bad due to their mistakes. The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person. Additionally, a revised definition of a violent offence was asserted through this Bill. This allows the court to consider both “extrajudicial sanctions” and “findings of guilt” in determining sentencing for youth. The YCJA now protects the identity of youth criminals from the community with discretion. Additionally, Bill C-10 placed under the YCJA asserts that no young person under the age of 18 is able to serve in adult prison regardless of their sentence. 

Criticisms of the YCJA:

The YCJA continues to receive both praise and criticism. For many, the trends of reduced incarceration for youth is positive. However, others view incarceration as just and beneficial in punishing young criminals. There have been many legal debates regarding the YCJA. The Act maintains stiff sentencing surrounding long-term incarceration for youth who have committed serious offences. In 2006, the Ontario Court of Appeal removed sanctions that forced some young offenders to prove they should not receive adult sentences for their crimes. This conclusion was based on the argument that placing such onus on the offender violated Section 7 of the Canadian Charter of Rights and Freedoms. Thus, the onus must be placed on the state to prove that an adult sentence is necessary. 

The YCJA is criticized for being more of the “same old, same old”. It combines elements from the JDA and YOA that were Many believe there needs to be a more transparent approach to young criminals. For those who are in favor of a tougher approach to crime, the Act contains little improvement. As a result of Bill C-10, the number of adult sentences given to youth has increased. It has been criticized for not upholding the UN Convention on the Rights of the Child. Canada has experienced an increase in youth criminal records. Arguably, society has been placed in elevated danger due to the ambiguity regarding the publication ban and children are being released from custody with a lack of rehabilitation. The lack of restorative justice under the YCJA that was brought on by Bill C-10 has long-term negative effects on society. The YCJA is considered an improvement from past legislation on youth; however, our society is still in need of change with respect to the treatment of young criminals. 

SOURCES:

Department of Justice. “Recent Changes to Canada’s Youth Justice System.” Youth Justice, 23 Sept. 2015, http://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/sheets-feuillets/amend-modif.html.

Nicholson, Rob. “Bill C-4 (Historical).” Openparliament.ca, openparliament.ca/bills/40-3/C-4/.

“41st Parliament, 1st Session Legislative Summary.” Research Publications, Library of Parliament , lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/411C10E#a1.

“Topic 1: Youth Crime in Canada.” Law Lessons, 2016, http://www.lawlessons.ca/lesson-plans/2.4.youth-crime-in-canada.

“Youth Justice in Canada: History & Debates.” Youth Justice in Canada: History & Debates | Mapleleafweb.com, www.mapleleafweb.com/features/youth-justice-canada-history-debates.html#juvenile.

Department of Justice. “The Youth Criminal Justice Act Summary and Background.” Government of Canada, Department of Justice, Electronic Communications, 8 Aug. 2017, http://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/back-hist.html.

Bala, Nicholas, and Heino Lilles. Youth Criminal Justice Law. Irwin Law, 2015.

“Youth Justice in Canada: History & Debates.” Youth Justice in Canada: History & Debates | Mapleleafweb.com, http://www.mapleleafweb.com/features/youth-justice-canada-history-debates.html#juvenile.

“Chapter 2.” Young Offenders and Youth Justice: A Century after the Fact, by Sandra Jean Bell and Sims Family, W. Ross MacDonald School Resource Services Library, 2016.

McMahon, Fred. “Getting Tough on the Young Offenders Act.” Fraser Institute, http://www.fraserinstitute.org/article/getting-tough-young-offenders-act.

“Youth Justice in Canada: History & Debates.” Youth Justice in Canada: History & Debates | Mapleleafweb.com, http://www.mapleleafweb.com/features/youth-justice-canada-history-debates.html#juvenile.

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