Youth Criminal Justice Act: Changing the law on young criminals
CBC News Online | June 23, 2006
Prior to the Juvenile Delinquents Act in 1908, young offenders were treated much like adults – they were held with adults while awaiting trial and received the same sentences as adults. Under the act a youth was treated "not as a criminal, but as a misdirected and misguided child."
Youths were not charged with specific offences, but with delinquency. Sentencing was left to the discretion of the judge and was based on the rehabilitation of the offender. Over time, the broad guidelines produced a wide disparity of sentences and the law was criticized for failing to recognize the rights of the child.
The Young Offenders Act in 1984 was an attempt to establish a tighter legal framework by allowing charges on specific offences, and by placing responsibility for the offence on the offender. It was criticized on many counts: for being too soft on the offender; for lacking a clear philosophy on youth justice in Canada; for inconsistent and unfair sentences; for not properly addressing serious and violent offences; for an overuse of the court system; and for not giving enough recognition to the victims.
On April 1, 2003, the Youth Criminal Justice Act (YCJA) officially replaced the Young Offenders Act. It aims to emphasize the rehabilitation and re-entry of a young offender into society. The new act addresses the criticism that Canada's youth justice system lacked a clear philosophy, laying out a Declaration of Principles:
"The youth criminal justice system is to prevent crime by addressing the circumstances underlying a young person's offending behaviour, rehabilitate young persons who commit offences and reintegrate them back into society, and ensure that a young person is subject to meaningful consequences for his or her offences, in order to promote the long-term protection of the public."
Highlights of the act include:
· An end to transfers to adult court. If the offender is found guilty in a youth court, the judge has the authority to impose an adult sentence.
· Lowering the age of presumption to 14. Under the YOA, it was presumed youths aged 16 and over convicted of a serious offence such as murder were transferred to adult court. The new act lowers the age to 14, but individual provinces can adjust the age to 15 or 16.
· Less emphasis on custody as a sentence for non-violent or less serious offences. Custody is to be reserved for violent and repeat offenders.
· Emphasis on alternative youth sentencing methods (out of court), such as referrals to community programs, formal letters of warning to parents, meetings with police.
· Access by victims to youth court records, and notification of victims if the offender is sentenced out of court.
· Imposition of a new mandatory period of intensive supervision on all young offenders following their release from jail.
Critics of the YCJA felt it was too lenient and when the Conservative Harper government came into power in January 2006, it lobbied for harsher sentences, arguing that they would be a deterrent to would-be youth criminals and cut down on repeat offenders.
In June 2006, the Supreme Court of Canada ruled "since no basis can be found in the Youth Criminal Justice Act for imposing a harsher sanction than would otherwise be called for to deter others from committing crimes, general deterrence is not a principle of youth sentence under the new regime."
Overview of the Youth Criminal Justice Act
The new legislation attempted to balance the legalistic framework of the Young Offenders Act and the social-needs approach underlying the Juvenile Delinquents Act. This goal is apparent in the Declaration of Principle, which states: “the purpose of the youth criminal justice system is to prevent crime by addressing the circumstances underlying a young person’s offending behaviour, rehabilitate young persons who commit offences and reintegrate them back into society, and ensure that a young person is subject to meaningful consequences for his or her offences, in order to promote the long-term protection of the public."
The Youth Criminal Justice Act differs from the Young Offenders Act in several ways:
· It contains a statement of principle that removes any uncertainty about how the Act should be interpreted, and expresses the philosophy that the needs of society and the offender are not in conflict;
· It increases the number of extrajudicial measures available such as police warnings, referral to restorative justice agencies in which the offender must face his/her victim and the victim's family, and deferred custody orders, whereby a young person can avoid incarceration by showing good behaviour;
· It reintroduces the concept of Youth Justice Committees, last used under the JDA. Made up of groups of citizens, the committee's purpose is to develop community-based solutions to youth offences. These can include extrajudicial measures such as restitution, arranging community support for the youth, or arranging a meeting between the victim and the young offender;
· It establishes that the court process is reserved for more serious offences. Police must consider all other options, such as a warning or making restitution, before laying charges;
· It clarifies the conditions for sentencing youth into custody; and
· It makes provisions for reintegrating youth in custody back into society. The Act introduces a graduated sentence, where youth spend two-thirds of their time in custody, and one-third in the community under supervision.
In addition, the Act makes substantive changes to the current system for sentencing youth as adults. First, youth will no longer be transferred to adult court. Instead, youth court judges have the authority to impose adult sentences. Second, the legislation lowers the age for sentencing youth as adults. Under the amended Young Offenders Act, there was a presumption that cases involving youth aged 16 or over charged with murder, attempted murder, manslaughter, or aggravated sexual assault would be transferred to adult court. The Youth Criminal Justice Act lowers the age of presumption to 14; however, individual provinces can raise the age to 15 or 16. Furthermore, in addition to the offences mentioned above, judges can hand out adult sentences to repeat serious offenders. However, the Act places more emphasis on treatment for violent young offenders than the Young Offender Act, believing that rehabilitating them is in the best interests of both the offender and society.
For more information on the provisions of the Youth Criminal Justice Act:
· Department of Justice Canada: Youth Criminal Justice Act (2001, c.1)
· Department of Justice Canada: The Youth Criminal Justice Act: Summary and Background
Debates on the Youth Criminal Justice Act
Since its introduction, the Youth Criminal Justice Act has received both praise and criticism. The Act has been successful in significantly reducing rates of incarceration among youths, especially for those who have committed less serious offences (Source: Statistics Canada, 2007). Instead, there has been an increase in the number of youths being sentenced to supervision in the community, as well as deferred custody orders, in which a young person can avoid incarceration by showing good behaviour. Moreover, there has been a greater emphasis placed on extrajudicial measures, such as referral to restorative justice agencies, where the offender must face his/her victim and the victim's family. For some, these trends are positive, as they move away from an approach to youth justice in which imprisonment is viewed as an effective means of addressing youth delinquency, and towards one which embraces alternative forms of dealing with youths in order to teach responsibility and respect for others.
However, for those that view incarceration as a just and beneficial means of punishing young offenders, such trends may be disappointing. It is important to note, however, that the Act does maintain stiff sentencing, including long-term incarceration, for youths that have committed serious offences, such as murder.
There have also been several legal debates regarding the Youth Criminal Justice Act. In 2006, the Ontario Court of Appeal struck down sections of the Act that forced some young offenders to prove that they shouldn't receive adult sentences for their crimes. A majority of the Court concluded that placing such an onus on the offender is a violation of Section 7 of the Canadian Charter of Rights and Freedoms, which provides that persons have the right to life, liberty, and the security of the person, and may only be deprived thereof in accordance with the principles of fundamental justice. According to the majority, the principles of fundamental justice require the onus be placed on the state to prove that an adult sentence is appropriate, as opposed to the accused having to prove that one is not (as was the case with the Act).
Also in 2006, the Supreme Court of Canada ruled that "general deterrence" (deterring others from committing offences) could not be used as a principle for sentencing youths under the Act. The Governments of Alberta and Ontario had appealed two cases on the grounds that the lower courts should have considered general deterrence when handing down their sentences and, as a result, should have given stiffer prison sentences in those cases. The Supreme Court disagreed, concluding that the Act adopts a system of sentencing for youths that is different than the one for adults. Moreover, that the Act intentionally excludes general deterrence as a sentencing principle. Instead, it emphasizes rehabilitation and reintegration into society in its sentencing considerations.