CC200CC200Youth JusticeYouth Justice

Creating a Juvenile Justice Creating a Juvenile Justice System: Then and NowSystem: Then and Now

Chapter TwoChapter Two

IntroductionIntroduction

We tend to link the juvenile justice system We tend to link the juvenile justice system with understandings of crime prevention with understandings of crime prevention and crime control.and crime control.However, the creators of the system had However, the creators of the system had other objectives in mind.other objectives in mind.According to some, the jjs was created in According to some, the jjs was created in response to problems generated by the response to problems generated by the newly emerging capitalist system that newly emerging capitalist system that undermined traditional family supports.undermined traditional family supports.

The resulting problems included growing The resulting problems included growing numbers of young people on the streets numbers of young people on the streets and higher levels of street crime and higher levels of street crime committed by young people.committed by young people.

Other scholars argue that the juvenile Other scholars argue that the juvenile justice system was a creation of Victorian justice system was a creation of Victorian reformers, or ‘child-savers’.reformers, or ‘child-savers’.

These group argued that delinquency was These group argued that delinquency was the end-result of bad environments and the end-result of bad environments and that the state should act like a parent to that the state should act like a parent to ‘save’ children from these environments.‘save’ children from these environments.

This meant that the state should go so far This meant that the state should go so far as to remove children from their parent’s as to remove children from their parent’s homes and institutionalize them.homes and institutionalize them.

The child-savers were motivated by The child-savers were motivated by humanitarian concerns and a desire to humanitarian concerns and a desire to save children from harmful family save children from harmful family influences while protecting them from the influences while protecting them from the full force of criminal law and the negative full force of criminal law and the negative influence of adult criminal offenders.influence of adult criminal offenders.

Juvenile Delinquents ActJuvenile Delinquents Act

The Canadian juvenile justice system was The Canadian juvenile justice system was officially created in 1908 through the officially created in 1908 through the passage of the Juvenile Delinquents Act.passage of the Juvenile Delinquents Act.

This legislation did not occur in isolation This legislation did not occur in isolation but was, in fact, the culmination of a but was, in fact, the culmination of a number of pieces of legislation and welfare number of pieces of legislation and welfare reforms.reforms.

The JDA created a welfare-based juvenile The JDA created a welfare-based juvenile justice system (one based on the justice system (one based on the philosophy of rehabilitation) and was philosophy of rehabilitation) and was based on the principle of based on the principle of parens patriaeparens patriae..

Parens patriaeParens patriae can be translated as can be translated as ““parents of the countryparents of the country” and has its ” and has its historical roots in medieval England.historical roots in medieval England.

It began as the King’s right to control It began as the King’s right to control property of orphaned heirs for the purpose property of orphaned heirs for the purpose of protection.of protection.

By the 18By the 18thth century, parens patriae had century, parens patriae had expanded to include a ‘best interest’ expanded to include a ‘best interest’ principle as a means of actively promoting principle as a means of actively promoting the best interests or well-being of a child the best interests or well-being of a child or young person.or young person.

By the 19By the 19thth century, the doctrine had century, the doctrine had expanded beyond the monarch to the expanded beyond the monarch to the state and to children without property who state and to children without property who were orphaned or neglected by parents or were orphaned or neglected by parents or guardians.guardians.

This doctrine formed the foundation of the This doctrine formed the foundation of the new Juvenile Delinquents Act of 1908.new Juvenile Delinquents Act of 1908.

The JDA defined delinquency as the The JDA defined delinquency as the violation by persons under the age of 16 violation by persons under the age of 16 (this age varied by province) of any (this age varied by province) of any federal, provincial, or municipal law for federal, provincial, or municipal law for which a fine or imprisonment was the which a fine or imprisonment was the penalty, or the commission of any other penalty, or the commission of any other act that would make a young person liable act that would make a young person liable to be committed to an industrial school or to be committed to an industrial school or reformatory.reformatory.

The JDA gave the courts considerable powers.The JDA gave the courts considerable powers.

Cases were to be handled summarily.Cases were to be handled summarily.

If an offence was indictable, it was up to the If an offence was indictable, it was up to the court to decide if the youth would be tried in an court to decide if the youth would be tried in an adult court.adult court.

Indictable offence – CCC refers to offences that Indictable offence – CCC refers to offences that are of a serious nature; the minimum sentence is are of a serious nature; the minimum sentence is always two years or more.always two years or more.

More like hearings than trials, juvenile More like hearings than trials, juvenile cases were conducted privately and cases were conducted privately and notices of delinquency hearings were sent notices of delinquency hearings were sent to parents or guardians.to parents or guardians.

Separate detention and jail facilities were Separate detention and jail facilities were mandated for delinquents.mandated for delinquents.

The JDA also allowed for a wide range of The JDA also allowed for a wide range of dispositions (sentences).dispositions (sentences).

Probation was a core element of the Probation was a core element of the juvenile court, with probation officers juvenile court, with probation officers playing a key role.playing a key role.

The court could place a child in the The court could place a child in the custody of a probation officer as a form of custody of a probation officer as a form of sentence.sentence.

The JDA required probation officers to The JDA required probation officers to conduct investigations for the court, to conduct investigations for the court, to assist and direct the court, and to assist and direct the court, and to represent the interests of the child in court.represent the interests of the child in court.

The probation officer was also responsible The probation officer was also responsible for supervising children sentenced to a for supervising children sentenced to a period of probation.period of probation.

Once adjudicated as delinquent, children Once adjudicated as delinquent, children remained wards of the court until the court remained wards of the court until the court released them or until they reached the released them or until they reached the age of 21.age of 21.

Under the JDA, the provinces were Under the JDA, the provinces were allowed to set the maximum age under allowed to set the maximum age under which a young person could be which a young person could be adjudicated as delinquent.adjudicated as delinquent.

Because the juvenile justice system Because the juvenile justice system required probation officers, separate required probation officers, separate courts, separate judges, and separate courts, separate judges, and separate detention facilities, its implementation was detention facilities, its implementation was costly.costly.

As a result, provinces were allowed As a result, provinces were allowed significant leeway the time allowed to significant leeway the time allowed to implement of these policies. implement of these policies.

This meant that there was a great deal of This meant that there was a great deal of time between the time the first court was time between the time the first court was set up (Manitoba in1909) and the last set up (Manitoba in1909) and the last (Northwest Territories in 1979)(Northwest Territories in 1979)

NFL never did implement the JDA, but NFL never did implement the JDA, but established instead, a juvenile court established instead, a juvenile court through provincial legislation.through provincial legislation.

Opposition to the JDAOpposition to the JDA

The JDA faced opposition.The JDA faced opposition.

Those opposing the act did so on either Those opposing the act did so on either the grounds that it was not punitive the grounds that it was not punitive enough or out of concern about potential enough or out of concern about potential abuses to the rights of children and abuses to the rights of children and parents.parents.

Victorian reformers ignored the opposition.Victorian reformers ignored the opposition.

Most were not overly concerned with Most were not overly concerned with protecting the rights of children because protecting the rights of children because they were convinced they were acting in they were convinced they were acting in the best interests of the child and were the best interests of the child and were protecting children.protecting children.They, therefore, believed that the They, therefore, believed that the decisions and actions of anyone working decisions and actions of anyone working in the justice system would also be in the justice system would also be focused on the best interests of the child.focused on the best interests of the child.

The system itself was also considered to The system itself was also considered to be focused on meeting the needs of be focused on meeting the needs of children and on ‘helping’ rather than children and on ‘helping’ rather than punishing with the objective to treat and punishing with the objective to treat and rehabilitate.rehabilitate.

Modifying the Juvenile Justice Modifying the Juvenile Justice SystemSystem

Serious challenges to the JDA began to Serious challenges to the JDA began to emerge in the 1960s as a result of a emerge in the 1960s as a result of a growing international and national rights growing international and national rights discourse.discourse.

A major source of concern directed at the A major source of concern directed at the JDA was in regard to status offences.JDA was in regard to status offences.

Status offences – behaviors only Status offences – behaviors only considered to be illegal because of the considered to be illegal because of the age status of the individual.age status of the individual.

Critics argued that lumping all child and Critics argued that lumping all child and youth offences together undermined the youth offences together undermined the seriousness of some offences and thereby seriousness of some offences and thereby weakened the deterrent effect of weakened the deterrent effect of punishment on criminal behaviors.punishment on criminal behaviors.

The opposite effect was considered equally The opposite effect was considered equally problematic by other critics who argued that problematic by other critics who argued that young people who were not breaking criminal young people who were not breaking criminal laws were being punished in the same manner laws were being punished in the same manner as those who did.as those who did.

They were also concerned that status offenders They were also concerned that status offenders were being negatively affected by close were being negatively affected by close associations with chronic offenders in associations with chronic offenders in institutions.institutions.

Another concern was the lack of set terms Another concern was the lack of set terms of sentences.of sentences.

Incarceration lasted as long as it took for a Incarceration lasted as long as it took for a young person to be ‘reformed’ or young person to be ‘reformed’ or rehabilitated.rehabilitated.

While this served the welfare interests it While this served the welfare interests it did not satisfy those who were concerned did not satisfy those who were concerned with matters of due process.with matters of due process.

Related issues were inconsistencies in the Related issues were inconsistencies in the application of the law.application of the law.

Sentence lengths varied according to Sentence lengths varied according to individual characteristics and individual characteristics and circumstances rather than the nature of circumstances rather than the nature of their behavior.their behavior.

Maximum ages for delinquency varied Maximum ages for delinquency varied across the country.across the country.

And treatment provisions were not consistent And treatment provisions were not consistent from one jurisdiction to another.from one jurisdiction to another.

In addition, concerns were raised about the role In addition, concerns were raised about the role of social workers in the system and the amount of social workers in the system and the amount of discretionary power they were able to of discretionary power they were able to exercise.exercise.

Since social workers were not part of the Since social workers were not part of the juvenile justice system, they were not juvenile justice system, they were not accountable to the courts for their decisions.accountable to the courts for their decisions.

On the other side, there was the ever-present On the other side, there was the ever-present argument that the Juvenile Delinquents Act argument that the Juvenile Delinquents Act failed to provide public protection from the failed to provide public protection from the criminal behavior of children and youth.criminal behavior of children and youth.

Reform attempts of the act began in 1965 and Reform attempts of the act began in 1965 and by 1977 a new Young Offenders Act had been by 1977 a new Young Offenders Act had been drafted.drafted.

In April of 1984 the Juvenile Delinquents Act In April of 1984 the Juvenile Delinquents Act was formally replaced by the Young Offenders was formally replaced by the Young Offenders Act.Act.

Principles of Juvenile Justice under Principles of Juvenile Justice under the YOAthe YOA

The YOA created a very different juvenile justice The YOA created a very different juvenile justice system from the JDA.system from the JDA.

The JDA referred to delinquents as ‘misdirected The JDA referred to delinquents as ‘misdirected and misguided’ children in need of ‘aid, and misguided’ children in need of ‘aid, encouragement, help, and assistance’ the YOA encouragement, help, and assistance’ the YOA referred to young people as persons in a ‘state referred to young people as persons in a ‘state of dependency’ how have ‘special needs and of dependency’ how have ‘special needs and require guidance and assistance, as well as require guidance and assistance, as well as supervision, discipline, and control’.supervision, discipline, and control’.

The YOA included new principles to the The YOA included new principles to the juvenile justice system that provided juvenile justice system that provided emphasis on youth responsibility, emphasis on youth responsibility,

1.1. protection of society, special needs, protection of society, special needs, alternative measures, and legal rights alternative measures, and legal rights and freedomsand freedoms

AccountabilityAccountability

A principle of juvenile justice was created A principle of juvenile justice was created that young people who commit criminal that young people who commit criminal offences would have to assume offences would have to assume responsibility for their behavior.responsibility for their behavior.

However, the YOA recognized that young However, the YOA recognized that young people have people have limited accountabilitylimited accountability compared to adults.compared to adults.

Protection of SocietyProtection of Society

The protection of society was included in The protection of society was included in the original act and was revisited in the the original act and was revisited in the 1995 amendment.1995 amendment.

This amendment underscored its This amendment underscored its importance as a guiding principle in importance as a guiding principle in juvenile justice by stating that it is juvenile justice by stating that it is a a primary objective of the criminal lawprimary objective of the criminal law..

Special NeedsSpecial Needs

Section 3(1)(c)(C.1) outlined more specifically Section 3(1)(c)(C.1) outlined more specifically the rationale for a youth justice system.the rationale for a youth justice system.

Because of their immaturity and dependency Because of their immaturity and dependency relative to adults, young people are said to have relative to adults, young people are said to have ‘special needs’.‘special needs’.

The term ‘special needs’ is not defined in The term ‘special needs’ is not defined in legislation and, based on case law, seems to be legislation and, based on case law, seems to be interpreted as the psychological and social interpreted as the psychological and social needs of the child.needs of the child.

These needs include a safe and secure These needs include a safe and secure home environment and parents or home environment and parents or guardians who are willing and able to guardians who are willing and able to provide for the child’s psychological and provide for the child’s psychological and physiological needs.physiological needs.

Alternative MeasuresAlternative Measures

Section 3(1)(d) expressed the principle of Section 3(1)(d) expressed the principle of diversion: that where the protection of society is diversion: that where the protection of society is not compromised, measures other than formal not compromised, measures other than formal court processing, with its potentially negative court processing, with its potentially negative effects, should be considered.effects, should be considered.

In most provinces only first time offenders and In most provinces only first time offenders and young persons guilty of minor offences were to young persons guilty of minor offences were to be processed through alternative measures.be processed through alternative measures.

Rights of Young PersonsRights of Young Persons

It is in s.3(1)(e) and (g) that one finds the It is in s.3(1)(e) and (g) that one finds the major difference between the YOA and the major difference between the YOA and the JDA.JDA.In addition to rights and freedoms In addition to rights and freedoms guaranteed through the Canadian Charter guaranteed through the Canadian Charter of Rights and Freedoms and the Canadian of Rights and Freedoms and the Canadian Bill of Rights, the YOA established that Bill of Rights, the YOA established that young people would have special young people would have special guarantees.guarantees.

These special guarantees included the right to These special guarantees included the right to legal representation and the right to be informed legal representation and the right to be informed as to their rights and freedoms under the act.as to their rights and freedoms under the act.

Some rules pertained to statements made to Some rules pertained to statements made to ‘persons of authority’ and to the admissibility of ‘persons of authority’ and to the admissibility of statements made to these people.statements made to these people.

Interesting to note that parents were not Interesting to note that parents were not considered ‘persons of authority’ and so considered ‘persons of authority’ and so statements made to them in confidence by their statements made to them in confidence by their children were admissible in court.children were admissible in court.

Minimal Interference with FreedomMinimal Interference with Freedom

Section 3(1)(f) applied to every aspect of Section 3(1)(f) applied to every aspect of youth justice and affected every young youth justice and affected every young offender except where there were offender except where there were concerns regarding the protection of concerns regarding the protection of society.society.This principle encouraged the use of This principle encouraged the use of alternative measures, but also encouraged alternative measures, but also encouraged police to divert youth from the system police to divert youth from the system altogether.altogether.

This principle also influenced bail hearings This principle also influenced bail hearings and sentencing.and sentencing.

It encouraged the court to apply sentences It encouraged the court to apply sentences more lenient than custody and more lenient than custody and discouraged the court from effecting discouraged the court from effecting transfers to the adult system.transfers to the adult system.

Parental ResponsibilityParental Responsibility

Section 3(1)(h) marked another significant Section 3(1)(h) marked another significant difference from the JDA.difference from the JDA.

The YOA did not consider parental The YOA did not consider parental responsibility but instead addressed responsibility but instead addressed parental involvement with youth and the parental involvement with youth and the justice proceedings.justice proceedings.

Parents or guardians were required to be Parents or guardians were required to be notified of their child’s arrest or of youth notified of their child’s arrest or of youth court proceedings and they could be court proceedings and they could be ordered to attend court.ordered to attend court.

Other sections of the YOA allowed parents Other sections of the YOA allowed parents to make statements regarding dispositions to make statements regarding dispositions and transfers.and transfers.

Modifications to the YOAModifications to the YOA

Most resistance to the YOA emerged after its Most resistance to the YOA emerged after its enactment.enactment.

The debate over the YOA was reminiscent of the The debate over the YOA was reminiscent of the debates provoked by the creation of the juvenile debates provoked by the creation of the juvenile justice system 100 years earlier.justice system 100 years earlier.

Groups expressed concerns over the rights of Groups expressed concerns over the rights of children and the differences in the children and the differences in the implementation of principles found within the act.implementation of principles found within the act.

Other groups argued that the act was not Other groups argued that the act was not punitive enough.punitive enough.

This resulted in three major sets of This resulted in three major sets of revisions to the act, all of which moved the revisions to the act, all of which moved the justice system away from the welfare justice system away from the welfare model and towards a crime control model.model and towards a crime control model.

Bill C-37 was an amendment of note and Bill C-37 was an amendment of note and came into force on December 1, 1995.came into force on December 1, 1995.

The major changes to the YOA under this The major changes to the YOA under this amendment included:amendment included:Sentences for ten years for youth convicted of Sentences for ten years for youth convicted of first-degree murder or seven years for second-first-degree murder or seven years for second-degree murder.degree murder.Automatic transfer to adult court for 16 and 17 Automatic transfer to adult court for 16 and 17 year olds charged with serious “personal injury” year olds charged with serious “personal injury” offences unless able to satisfy a judge that the offences unless able to satisfy a judge that the two objectives – public protection and two objectives – public protection and rehabilitation – could be achieved better through rehabilitation – could be achieved better through the youth court.the youth court.

And, an emphasis that rehabilitation for And, an emphasis that rehabilitation for youth charged with minor offences is best youth charged with minor offences is best achieved in the community.achieved in the community.

Still, law-and-order groups were not Still, law-and-order groups were not satisfied.satisfied.

After seven years, three drafts, and more After seven years, three drafts, and more than 160 amendments, the Youth Criminal than 160 amendments, the Youth Criminal Justice Act came into force in April 2003.Justice Act came into force in April 2003.