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CRJS 4476CRJS 4476Lecture #3Lecture #3

1. 1. Course Administration

• in-class presentationsin-class presentations• reserve readings reserve readings • job alertjob alert

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1. 1. The Young Offenders ActThe Young Offenders Act

• background:background:- up to mid-19th century, even very young- up to mid-19th century, even very young children treated as adults by the courts:children treated as adults by the courts:- between 1801 and 1836, 103 children - between 1801 and 1836, 103 children sentenced to death in London, England, sentenced to death in London, England, mostly for the crime of theftmostly for the crime of theft- children also executed in Canada in the- children also executed in Canada in the early period of Upper and Lower Canadaearly period of Upper and Lower Canada- little separation between the treatment of child and - little separation between the treatment of child and adult offenders, as childhood itself quite adult offenders, as childhood itself quite short (note recent UN discussion about thisshort (note recent UN discussion about this issue with Moslem countries)issue with Moslem countries)

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• background:background:- by mid-19th century, with the influence- by mid-19th century, with the influence of the ‘child-saver’ movement in theof the ‘child-saver’ movement in the United States and England, an easing ofUnited States and England, an easing of attitude toward youth attitude toward youth - under British common law, children under - under British common law, children under 7 believed to be incapable of 7 believed to be incapable of mens reamens rea- between 7 and 14 the principle of - between 7 and 14 the principle of doli incapaxdoli incapax applied, requiring Crown to applied, requiring Crown to establish capacityestablish capacity- 14 and over tried as adults before the - 14 and over tried as adults before the courtcourt

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- children incarcerated in same local - children incarcerated in same local facilities as adults, also in Kingstonfacilities as adults, also in Kingston Penitentiary from its opening in 1835 untilPenitentiary from its opening in 1835 until 18881888- 1848 Brown Commission documented- 1848 Brown Commission documented excessive use of corporal punishment in excessive use of corporal punishment in relation to young offenders, maltreatment, relation to young offenders, maltreatment, neglect, led to recommendation that ‘housesneglect, led to recommendation that ‘houses of refuge, for the reform of youth’ be of refuge, for the reform of youth’ be constructedconstructed- a perception of the need to remove some- a perception of the need to remove some youth to an institutional environment, a youth to an institutional environment, a ‘ ‘superior environment’ to their own homessuperior environment’ to their own homes

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• background (continued)background (continued)- 1857 - - 1857 - An Act for the More Speedy Trial andAn Act for the More Speedy Trial and Punishment of Juvenile OffendersPunishment of Juvenile Offenders

- 1857 - - 1857 - An Act for Establishing Prisons forAn Act for Establishing Prisons for Young OffendersYoung Offenders

- 1859 - two youth facilities opened, one in - 1859 - two youth facilities opened, one in Lower Canada, one at Penetanguishene for Lower Canada, one at Penetanguishene for terms typically running 2 - 5 yearsterms typically running 2 - 5 years

- 1875 - age of young offenders extended from- 1875 - age of young offenders extended from 14 to 1614 to 16- 1880 - implementation of ‘status offences’- 1880 - implementation of ‘status offences’

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• background (continued)background (continued)- 1880’s - creation of ‘industrial schools’ and- 1880’s - creation of ‘industrial schools’ and the growth of the ‘family model’ of youth the growth of the ‘family model’ of youth correctionscorrections- use of indeterminate sentences- use of indeterminate sentences- 1888 - - 1888 - An Act for the Protection and ReformationAn Act for the Protection and Reformation of Neglected Children (Child Protectionof Neglected Children (Child Protection Act) Act) passed in Ontariopassed in Ontario - also provided for the creation of separate - also provided for the creation of separate magistrates courts to deal with young magistrates courts to deal with young offendersoffenders- 1890 - formation of Toronto Children’s Aid - 1890 - formation of Toronto Children’s Aid Society by J.J. KelsoSociety by J.J. Kelso

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• background (continued)background (continued)- 1894 - separate trial for young offenders made- 1894 - separate trial for young offenders made mandatorymandatory

- growth of child welfare bureaucracy as an - growth of child welfare bureaucracy as an alternative to the criminal justice systemalternative to the criminal justice system

- 1904 - Ontario reformatory for Boys at - 1904 - Ontario reformatory for Boys at Penatanguishene closedPenatanguishene closed

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• background (continued)background (continued)- 1908 - - 1908 - Juvenile Delinquents ActJuvenile Delinquents Act passed. authored passed. authored largely by W.L. Scott of Ottawa CASlargely by W.L. Scott of Ottawa CAS

- fundamental principles of JDA:- fundamental principles of JDA:1. children are children even when they 1. children are children even when they break the lawbreak the law2. juvenile delinquents can be reformed by 2. juvenile delinquents can be reformed by probation officersprobation officers3. adults should be held criminally liable 3. adults should be held criminally liable for bringing about delinquency in childrenfor bringing about delinquency in children

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• background (continued)background (continued) - JDA created the federal offence of being a- JDA created the federal offence of being a ‘ ‘juvenile delinquent” who shall be:juvenile delinquent” who shall be:

any child who violates any provision any child who violates any provision of the Criminal Code, any (federal) orof the Criminal Code, any (federal) orprovincial statute, or of any by-law or provincial statute, or of any by-law or ordinance of any municipality, for whichordinance of any municipality, for whichviolation punishment by a fine or violation punishment by a fine or imprisonment may be awarded; or, whoimprisonment may be awarded; or, whois liable by reasons of any other act to beis liable by reasons of any other act to becommitted to an industrial school or juvenile committed to an industrial school or juvenile reformatory under the provisions of anyreformatory under the provisions of any(federal) or provincial statute(federal) or provincial statute

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• background (continued)background (continued)- in short, you could qualify as a juvenile - in short, you could qualify as a juvenile delinquent without committing a criminal delinquent without committing a criminal offence - not charged with specific crimes, ratheroffence - not charged with specific crimes, rather accused of ‘delinquency’accused of ‘delinquency’- did not plead guilty/not guilty - instead, denied- did not plead guilty/not guilty - instead, denied or agreed to accusationor agreed to accusation- the concept of - the concept of parens patriaeparens patriae- JDA provided for fines, placement in foster home,- JDA provided for fines, placement in foster home, commitment to care of CAS, or confinement, or,commitment to care of CAS, or confinement, or, preferably, probationpreferably, probation

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• background (continued)background (continued)- by 1960’s, clear that JDA no longer served - by 1960’s, clear that JDA no longer served purpose of addressing issues of juvenile crimepurpose of addressing issues of juvenile crime- notably:- notably:

1. fines too small (max $25)1. fines too small (max $25)2. no uniform upper age limit2. no uniform upper age limit3. proceedings too informal, too much3. proceedings too informal, too much discretion, inconsistencydiscretion, inconsistency4. language of JDA stigmatizing4. language of JDA stigmatizing5. denial of due process rights to accused5. denial of due process rights to accused6. no discernible national strategy6. no discernible national strategy7. failure to provide clear definition of7. failure to provide clear definition of “ “delinquency”delinquency”

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• background (continued)background (continued)- 1984 - - 1984 - Young Offenders ActYoung Offenders Act- shift from ‘social welfare approach’ to ‘offence-- shift from ‘social welfare approach’ to ‘offence- oriented approach’oriented approach’

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2. 2. The Trial ProcessThe Trial Process

• about 100 - 120,000 cases a year involving YO’sabout 100 - 120,000 cases a year involving YO’s processed through the Youth Court systemprocessed through the Youth Court system

• an increasing trend in court cases (for the mostan increasing trend in court cases (for the most part) since 1986, though much of the growth in part) since 1986, though much of the growth in the area of ‘administrative offences’ - failuresthe area of ‘administrative offences’ - failures to comply with disposition, failures to appear, to comply with disposition, failures to appear, escape from custody, unlawfully at large, escape from custody, unlawfully at large, breach of probation, etc.breach of probation, etc.

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• almost half of youth court cases are for propertyalmost half of youth court cases are for property crimes, in particular theft under, mischief)crimes, in particular theft under, mischief)

• about 80% of youth court cases are males 16 - 17;about 80% of youth court cases are males 16 - 17; females appearing generally slightly younger thanfemales appearing generally slightly younger than malesmales

• repeat offenders make a sizeable proportion of therepeat offenders make a sizeable proportion of the court workload (41% are repeats; about a quarter court workload (41% are repeats; about a quarter of these with three or more priors)of these with three or more priors)

• older youth general up for more serious offencesolder youth general up for more serious offences

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• pre-trial detentionpre-trial detention

- both YOA and CC provisions regarding bail - both YOA and CC provisions regarding bail apply to YO’s apply to YO’s - must be held separately from adults, parents - must be held separately from adults, parents must be notified, must be brought for must be notified, must be brought for appearance within 24 hours, onus on prosecutionappearance within 24 hours, onus on prosecution to demonstrate need to detain to demonstrate need to detain - youth charged with another offence while out on- youth charged with another offence while out on bail have reverse onus provisions applybail have reverse onus provisions apply- both primary and secondary grounds apply- both primary and secondary grounds apply with respect to detention prior to trialwith respect to detention prior to trial

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- detention facilities, group homes, sometimes- detention facilities, group homes, sometimes open/closed facilities serve as pre-trial facilitiesopen/closed facilities serve as pre-trial facilities

- big increase since YOA in number held pre-trial,- big increase since YOA in number held pre-trial, up 33% since 1986up 33% since 1986

- generally same conditions, practices used with- generally same conditions, practices used with adults apply to bail: sureties, undertaking to adults apply to bail: sureties, undertaking to appear recognizance consent by prosecutor,appear recognizance consent by prosecutor, deposit of cash or some other valuable, with deposit of cash or some other valuable, with a wide variety of imposed conditionsa wide variety of imposed conditions

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• not the issue of ‘net widening’ here with not the issue of ‘net widening’ here with pre-trial detention among YO’s - largely non-pre-trial detention among YO’s - largely non- violent offences, high probability of failures toviolent offences, high probability of failures to comply, returns to custody, discriminatory againstcomply, returns to custody, discriminatory against homeless, poor kidshomeless, poor kids

• note: issue with YO’s and prostitution-related note: issue with YO’s and prostitution-related charges - is pretrial detention the way to handlecharges - is pretrial detention the way to handle this? the case of the revolving door!this? the case of the revolving door!

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• transfer to adult court:transfer to adult court:- note that, in fact. YOA allows transfer to - note that, in fact. YOA allows transfer to adult court even to the age of 14 for very adult court even to the age of 14 for very serious indictable offencesserious indictable offences- applications made by Crown or by offender- applications made by Crown or by offender- again: note considerations re: transfer decisions,- again: note considerations re: transfer decisions, especially access to treatment & rehabilitationespecially access to treatment & rehabilitation- note too: reverse onus provisions for 16, 17- note too: reverse onus provisions for 16, 17 year olds regarding serious indictables and year olds regarding serious indictables and transfer to adult courttransfer to adult court- Beaulieu (1994) - does the transfer violate the- Beaulieu (1994) - does the transfer violate the right to be presumed innocent until proven right to be presumed innocent until proven guilty?guilty?

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• Court ProceedingsCourt Proceedings

- most YO’s plead guilty (as do adults)- most YO’s plead guilty (as do adults)- no preliminary hearing and, except in murder - no preliminary hearing and, except in murder cases, no jury trialcases, no jury trial- right to legal representation (private, legal aid,- right to legal representation (private, legal aid, duty counsel, court appointed/funded)duty counsel, court appointed/funded)- note differential outcomes depending on legal- note differential outcomes depending on legal representation - what, really, is the role of therepresentation - what, really, is the role of the lawyer, in particular the duty counsel?lawyer, in particular the duty counsel?- lost in the process? to what extent is the youth- lost in the process? to what extent is the youth court ‘fair’ to youth?court ‘fair’ to youth?

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• Court sentencingCourt sentencing

- key use of PDR reports and submissions by - key use of PDR reports and submissions by Crown, defence counsel, also use of victim-Crown, defence counsel, also use of victim- impact statementsimpact statements- types of dispositions:- types of dispositions:

absolute dischargeabsolute dischargefinefineCSOCSOprobationprobationtreatment ordertreatment orderconditional dischargeconditional dischargecustodycustody

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• was the YOA too lenient?was the YOA too lenient?- actually, an increase (41%) in custody - actually, an increase (41%) in custody dispositions under the YOAdispositions under the YOA- more cases processed through the courts under- more cases processed through the courts under the YOAthe YOA- actually, in some cases, longer sentences for- actually, in some cases, longer sentences for YO’s compared to adults for some crimesYO’s compared to adults for some crimes- fewer due process rights- fewer due process rights

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Principal Charge in Majority of Cases in Youth Court(Canada, 1998-99)

  Total Number of Cases

Percent

Theft under $5,000 15,801 15%

Possession of stolen property 5,208 5%

Failure to appear 11,597 11%

Failure to comply with a disposition 13,072 12%

Subtotal 45,678 43%

Other thefts 4,975 5%

Mischief/damage 5,336 5%

Break and enter 12,251 11%

Minor assault 10,545 10%

Total: Sum of eight offences 78,785 74%

All cases 106,665 100%

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• YCJA introduced with the explicit purpose of YCJA introduced with the explicit purpose of addressing identified faults with the YOA, in addressing identified faults with the YOA, in particular with the goal of balancing accountabilityparticular with the goal of balancing accountability with rehabilitation (the ‘justice’ model)with rehabilitation (the ‘justice’ model)

- actually, an increase (41%) in custody - actually, an increase (41%) in custody dispositions under the YOAdispositions under the YOA- more cases processed through the courts under- more cases processed through the courts under the YOAthe YOA- actually, in some cases, longer sentences for- actually, in some cases, longer sentences for YO’s compared to adults for some crimesYO’s compared to adults for some crimes- fewer due process rights- fewer due process rights

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The system lacked a clear and coherent youth justice philosophy.The system lacked a clear and coherent youth justice philosophy.

Canada has the highest youth incarceration rate in the Western Canada has the highest youth incarceration rate in the Western world, including the United States. world, including the United States.

The courts are over-used for minor cases that can be better dealt The courts are over-used for minor cases that can be better dealt with outside the courts. with outside the courts.

Sentencing decisions by the courts resulted in disparities and Sentencing decisions by the courts resulted in disparities and unfairness in youth sentencing. unfairness in youth sentencing.

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The YOA did not ensure effective reintegration of a young The YOA did not ensure effective reintegration of a young person after being released from custody. person after being released from custody. The process for transfer to the adult system resulted in The process for transfer to the adult system resulted in unfairness, complexity and delay. unfairness, complexity and delay. The system did not make a clear distinction between serious The system did not make a clear distinction between serious violent offences and less serious offences. violent offences and less serious offences. The system did not give sufficient recognition to the concerns The system did not give sufficient recognition to the concerns and interests of victims.and interests of victims.

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•increased federal funding to the provinces and territories; •crime prevention efforts; •effective programs; •innovative approaches; •research; •public education; •partnerships with other sectors, such as education, child welfare and mental health; •improvements to aboriginal communities; and •appropriate implementation by provinces and territories.

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•Society has a responsibility to address the developmental challenges and needs of young persons.  •Communities and families should work in partnership with others to prevent youth crime by addressing its underlying causes, responding to the needs of young persons and providing guidance and support.   •Accurate information about youth crime, the youth justice system and effective measures should be publicly available.   •Young persons have rights and freedoms, including those set out in the United Nations Convention on the Rights of the Child.  

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• The youth justice system should take account of the interests of victims and ensure accountability through meaningful consequences and rehabilitation and reintegration.   • The youth justice system should reserve its most serious interventions for the most serious crimes and reduce the over-reliance on incarceration.

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Extrajudicial Measures The police officer has reasonable grounds to believe a young person has committed an offence.Step 1The police officer must first consider whether to take one of the following steps:Take no further action. Warn the young person. Caution the young person. Refer the young person to a community program or agency of assistance. If option applied, end of the matter.

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Step 2If none of the previous options was adequate to hold young person accountable, the police officer should next consider using an Extrajudicial Sanction.

If sanction applied, end of the matter.

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Step 3If Extrajudicial Measures are not adequate to deal with the incident the police officer has two choices:

Choice 1The police officer may charge the young person.Young person is charged.Note: Extrajudicial measures may also be considered after charges have been laid Charges may then be withdrawn, stayed, or proceeded with, depending on the circumstances.

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Choice 2The police officer may refer the matter to a Crown Prosecutor.The Crown Prosecutor has four options:The Crown Prosecutor may:

Option 1 Caution the young person.

Option 2 Use an extrajudicial sanction or,

Option 3 Follow a pre-charge screening program in place in the jurisdiction..If the Crown Prosecutor selects one of these 3 options this is the end of the matter.

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Option 4If an extrajudicial measures should not adequate to deal with the matter, the Crown Prosecutor may lay a charge.

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Step 4Young person is charged.Note: Extrajudicial Measures may also be considered after charges have been laid.

Charges may then be withdrawn, stayed, or proceeded with depending on the circumstances.

End of Extrajudicial Measures