Canada s Juvenile Justice Law & Children s Rights

Nov. 28, 2004 edited version Canada s Juvenile Justice Law & Children s Rights Prof. Nicholas Bala Faculty of Law, Queen s University Presented at Conference on Making Children s Rights Work: National & International Perspectives International Bureau for Children s Rights Montreal, November 19, 2004

CANADA S JUVENILE JUSTICE LAW & CHILDREN S RIGHTS NICHOLAS BALA * There have been profound changes in Canada s juvenile justice system during the century that it has been that it has been in existence, most recently as a result of the Youth Criminal Justice Act[Y.C.J.A.] 1 coming into force on April 1, 2003. This statute was intended to reduce Canada s high rate of custody use for adolescent offenders, based on the belief that community-based responses are often more effective and more appropriate for dealing with most young offenders. This paper provides an introduction to Canada s youth justice legislation, and discusses the extent to which the Act is consistent with Canada s obligations under the United Nations Convention on the Rights of the Child. Some of the Convention rights of children are well recognized in Canada s youth justice system, most notably those governing the legal rights of children. Canada s youth justice system treats youths differently from adults, placing greater emphasis on rehabilitation than for adults, but the focus of Canada s youth justice laws is on accountability and protection of the public. The principle of the best interests of the child, which is prominent in the Convention, receives no explicit recognition in the Y.C.J.A. A Century of Change in Canada s Juvenile Justice System Canada s first juvenile justice law, the Juvenile Delinquents Act[J.D.A.] 2 of 1908 recognized that children and adolescents should not be held accountable for criminal offences in the same fashion as adults. The J.D.A. had an explicitly welfare-oriented philosophy, providing that juveniles who violated the law were not to be treated as criminal offenders, but rather as misdirected and misguided children, needing aid, encouragement, help and assistance. 3 Since the focus of the law was on the promotion of the welfare of the child, there was little concern for legal rights of youths, and sentences were indeterminate. The stated legislative concerns about the special needs and rehabilitation of youth did not, however, necessarily translate into more lenient treatment. Sentencing under the J.D.A. could result in light sanctions for some adolescents, particularly those from good homes with middle class parents, but it also produced intrusive responses to some youthful offenders, especially juveniles from marginalized backgrounds who were often placed in custody facilities for longer periods than adults who committed the same offences. Adolescent girls were sometimes placed in custody for the vaguely worded delinquency of sexual immorality. Aboriginal juveniles were placed in juvenile correctional facilities in disproportionate numbers. Despite the rehabilitative aspirations * For a fuller treatment of some of the complex issues raised here, see N. Bala, Youth Criminal Justice Law (Toronto : Thompson Educational Publishing, 2003); S N. Bala & S. Anand, The First Months Under the Youth Criminal Justice Act: A Survey of Caselaw (2004), 46 Can. J. Crim. 251. See also M.S. Denov, Children s Rights, Juvenile Justice, and the UN Convention on the Rights of the Child: Implications for Canada, chapter 4 in K. Campbell edit., Understanding Youth Justice in Canada (Toronto: Pearson, 2004) 1 Youth Criminal Justice Act, S.C. 2002, c. 1 2 Juvenile Delinquents Act, first enacted as S.C. 1908, c. 40. 3 J.D.A, s. 38. 2

of the J.D.A., juveniles inevitably felt that they were being punished. Not only were juveniles in custody facilities under the J.D.A. often not rehabilitated, it is now clear that all too often these juveniles were subjected to physical abuse or sexual exploitation by staff, or intimidation by other inmates. 4 In 1984, the Juvenile Delinquents Act was replaced by the Young Offenders Act[Y.O.A.]. 5 The introduction of the Y.O.A. represented a dramatic change in Canada s response to youth offending, moving from a discretionary welfare-oriented law to a regime that was clearly criminal law. The Y.O.A. emphasized legal rights for young persons, and provided that young offenders were to be held accountable for their crimes, albeit not as accountable as adults. The Y.O.A was in turn replaced by the Youth Criminal Justice Act in 2003. While there are significant differences between these two more recent statutes, both statutes share some important characteristics, emphasizing respect for legal rights of youth and the accountability of young offenders. The Y.C.J.A. makes clear that youth court sentences are not to be a vehicle for imposing child welfare, mental health or other treatment services if this type of response is more intrusive than warranted by the offence and the record of the youth. While youth justice intervention may serve to rehabilitate a youth, if the primary purpose of intervention is to achieve child welfare or mental health objectives, this should be done under provincial programs and statutes which focus on the best interests of children rather than under youth justice legislation is premised on offender accountability and the protection of the public. The Youth Criminal Justice Act: A Summary The Y.C.J.A. is a complex and lengthy piece of legislation, but its salient features can be summarized as follows: The Act governs offending by youths aged 12 to their 18 th birthday (as of the date of the alleged offence) with children under 12 who commit offences being dealt with by means of voluntry measures or under child welfare legisaltion. The Preamble states that Canada should youth justice system that reserves its most serious intervention for the most serious crimes and reduce the over-reliance on incarceration for young persons. The Y.C.J.A. encourages police and prosecutors to divert youths from the court process; the Act also encourages the involvement of victims, parents, and members of the community in the youth court process, for example through conferences that may advise the court or meet to deal with youth outside the court system. The Y.C.J.A. places restrictions on the use of pre-trail detention of youths. The Y.C.J.A. continues the protection of legal rights in the Y.O.A., giving youths the right to a lawyer paid by the government, and requiring any police officer questioning a youth to an explanation about the youth s legal rights in language appropriate to the youth s age and stage of development. 4 See e.g Ronda Bessner, Institutional Abuse in Canada (Ottawa: Law Commission of Canada, 1998). 5 Young Offenders Act, R.S.C 1985, c. Y-1, enacted as S.C. 1980 81 82 83, c. 110. 3

The Y.C.J.A. places an emphasis on meaningful consequences for offenders and reparation to victims, while continuing to recognize that, compared to adults, there should be a lesser degree of accountability and more emphasis on rehabilitation. The maxiumum sentence under the Y.C.J.A. is three years, and youths are to be confined in separate facilities from adults. Fair and proportionate accountability is the central sentencing principle, making clear that custodial sentences are not justified solely for achieving child welfare or rehabilitative objectives. The Y.C.J.A. introduces new community-based sentencing options such as intensive commmunity supervision and attendance centres. The Y.C.J.A restricts the use of custody to cases where a youth has: (1) committed a violent offence; or (2) committed a non-violent offence and has a history of non-compliance with community-based sentences; or (3) committed a non-violent offence and has a history that indicates a pattern of findings of guilt; or (4) committed a non-violent offence in exceptional circumstances. The Act allows for a judge to decide whether a youth who receives a custodial sentence will be placed in open or secure custody, though correctional officials will decide on the specific facility within that level of custody. Youths receiving custodial sentences are ordinarily to serve the last third of their sentence on community supervision, thereby promoting a planned reintegration of the youth into the community. The Y.C.J.A introduces a new treatment oriented sentencing option for youth found guilty of the most serious offences, intensive rehabilitative custody and supervision. The Y.C.J.A. facilitates the imposition of longer adult sentences on the relatively small number of youths fourteen years and older who commit the most serious violent offences; these youths may receive sentences up to life in prison, and may be placed in an adult prison, though generally they will serve the first part of their sentence in a youth facility and will only be placed in an adult facility only after reaching the age of 18. The Y.J.C.A. generally protects the privacy of youths, preventing the publication of identifying information and restricts access to youth records. The Act does, however, permit the publication of the names of young offenders convicted of the most serious violent offences in specified circumstances. The Quebec Court of Appeal in Reference Re Bill C-7 When the Y.C.J.A. was being debated in Parliament, politicians and youth justice professionals from Quebec were concerned that the Act s focus on accountability would undermine the more welfare-oriented approach to youth justice in that province. Prior to 4

the Act coming into force the Quebec government launched a court case 6 challenging the constitutional validity of many of the provisions of the Y.C.J.A. In Reference Re Bill C- 7, 7 the Quebec Court of Appeal ruled unconstitutional some of the provisions of the Y.C.J.A. that deal with young persons aged fourteen and older found guilty of the most serious violent offences. The Y.C.J.A., as enacted by Parliament, has extensive provisions to deal with youths convicted of the most serious offences, facilitating the process by which adult sentences could be imposed and allowing for the publication of their identity even if a youth sentence was imposed. The Act created a presumption that an adult sentence would be imposed on youths fourteen years of age and older and found guilty of some of the most serious offences. The Quebec Court of Appeal decision in the Reference case held that it is constitutionally acceptable for Parliament to permit judges to impose adult sentences and to allow for the publication of identifying information in regard to adolescents found guilty of the most serious offences, such as murder, provided that each case is individually assessed and Crown satisfies the onus of justifying this response to a young person s criminal behaviour. The Court held, however, it is a violation of the Charter of Rights to have any offences for which there is a presumption that an adult sentence will be imposed and to allow for the publication of identifying information about a youth who is not subject to an adult sanction. The federal government announced that it would not appeal this decision and that it will enact legislation consistent with this decision. While it is still possible for a youth who is found guilty of a very serious offence to receive an adult sentence, in all cases the onus will be on the Crown to justify this, and identifying publicity will still be permitted, but only if an adult sentence is imposed. The Court of Appeal recognized that for nearly one hundred years the Canadian justice system has accepted the need to protect one of the most vulnerable groups in society, adolescents, and to treat them separately and differently from adults in the criminal justice system. The Court accepted that the principles of fundamental justice include the requirements that: 8 (1) Young offenders in the criminal justice system must be kept separate and treated differently than adults; (2) Rehabilitation, not repression and deterrence, must be the basis of legislative and judicial intervention involving young offenders; 6 Unlike an ordinary appeal that arises out of an actual case, such as a conviction in youth court, and requires a decision that affects a specific youth, this was a reference case. Such a case is placed before the appeal court with the government asking the court for its opinion on one or more stated, general questions. In this case, the government of Quebec asked the Court of Appeal in that province a series of questions about the constitutional validity of the Y.C.J.A. 7 The Reference decision is officially known as Québec (Ministrie de la Justice) v Canada (Ministre de la Justice) (2003), 10 C.R. (5 th ) 281, [2003] Q.J. 2850 (C.A.). For a detailed discussion, see S. Anand & N. Bala (2003), "The Quebec Court of Appeal Youth Justice Reference: Striking Down the Toughest Part of the New Act" (2003), 10 Criminal Reports (6th) 397. 8 At para 215 & 231. 5

(3) The youth justice system must restrict disclosure of the identity of minors in order to prevent stigmatization, which could limit rehabilitation; and (4) The youth justice system must consider the best interests of the child. One issue in the Reference decision was how to interpret s.38 of the Y.C.J.A., which establishes the principles that are to govern sentencing. The generally accepted view of politicians and academic commentators before the Act came into force was that s. 38 establishes proportionality as the central sentencing principle of the Y.C.J.A., though also requiring youth courts to consider rehabilitative concerns in fashioning an appropriate sentence. The Court of Appeal considered how s. 38 should be interpreted in light of the Convention on the Rights of the Child, which requires that state actions in regard to those under the age of eighteen are to be guided by a concern with the best interests of the child. The Court concluded that youth court judges must seek a balance between the protection of the public and the needs of young persons. 9 In taking this balancing approach, the Court of Appeal allows youth justice courts to impose custodial sentences that may be disproportionately long, if considered necessary to promote the best interests of an adolescent. The approach of the Quebec Court of Appeal on this issue reflects the concerns of the Quebec-based opponents of the Y.C.J.A. who wanted to retain the more welfare-oriented approach to youth justice that prevailed in that province under the Y.O.A.. It seems unlikely that this aspect of the decision will affect courts outside of Quebec, which have generally accepted that the Y.C.J.A. does not allow for disproportionately intrusive responses that are intended to meet welfare objectives. Charging & Sentencing under the Y.C.J.A. Nationwide data on sentencing will only be available in June 2005, but it is already clear that the Act has substantially changed Canada s youth justice system. As intended by its drafters, the Act has resulted in a substantial increase in community-based responses to youth crime. While there continues to be significant variation across the country in custody rates, populations in youth custody facilities declined by up to 50% in the first months that the Act was in force, and a number of youth custody facilities have been closed. This decline in the number of youths in custody is a result of several factors: More use by police and prosecutors of diversion of youth from the courts by increasing the use of warnings, conferencing and extrajudicial measures. In different places there have been declines in police charging of youths in the range of 10% - 30%. A decrease in the use of pre-trial detention due to Crown prosecutors and police seeking detention less frequently, as well as judges releasing more youth on supervision. There has been a decline of at least 10% in the numbers of youth in pre-trial detention. 9 Reference, para. 146-147. Emphasis added 6

Judges making less use of custodial sentences and greater use of communitybased sentences, and the last third of almost all custodial sentences are to be served in the community under supervision. As a result, there have been declines of 20% - 50% in the number of youths in custody, with some youth custody facilities closing. In some provinces, such as Ontario, there has been a corresponding increase in numbers of adolescents in the care of child welfare agencies Although there have been differences in how the courts have interpreted some of the provisions of Y.C.J.A, in general the police, prosecutors and judges in Canada have responded to the admonition in the Preamble that the Act is intended to reduce the overreliance on the incarceration of...young persons. 10 Youth court judges have generally accepted the principle that a youth sentence must be a fair and proportionate response to youth crime, and are not using pre-trial detention or custodial sentencing to achieve child welfare objectives. Further, in fashioning a proportionate response, youth courts have generally recognized the limited accountability of youth in comparison to adults and focused on the need to impose community-based sentences that promote...rehabilitation and reintegration into society. 11 In cases involving more serious offences or youths with lengthy records who clearly are not responding to community-based options, youth courts have generally continued to impose custodial sentences. The Limited Role of the Youth Justice System in Responding to Youth Crime It is understandable that youth court judges want to ensure that appropriate rehabilitative services are provided to the offenders with whom they deal. The statements in the Declaration of Principle of the Y.C.J.A. about the importance of crime prevention and rehabilitation require a youth court judge to consider the rehabilitative value of different sentences that might be imposed in accordance with principles of fair and proportionate accountability. Rehabilitative concerns might, for example, result in a youth court judge deciding that a term of probation with appropriate community-based rehabilitative services should be imposed rather than a custodial sentence that would be warranted on purely accountability-based principles. This could be justifiable in light of the rehabilitative potential of a community-based treatment program that could help reduce the likelihood of a young offender committing further offences, and would be more consistent with the Convention Art. 40(1) and its emphasis on promoting rehabilitation and reintegration into society. Courts of Appeal, however, have made clear that it is not for youth court judges to decide what types of rehabilitative services a provincial government will choose provide for a young offender. 12 While a youth court judge may make recommendations for the provision of specific services, the court cannot order the government to provide any 10 Y.C.J.A. ss. 3(1)(c) & 3(1)(b)(ii). 11 Y.C.J.A. s. 38(1). 12 R. v. L.E.K., [2000] S.J. 844 (Sask C.A.), para 20. To the same effect see, R. v. R.J.H., [2000] A.J. 396 (Alta C.A.). 7

specific services for a young offenders. Judges can make orders that may allow various professionals and agencies to work towards the objectives of rehabilitation and reintegration, but judges must also appreciate that their role is limited. Under the Y.O.A. there was very significant variation both within and between jurisdictions in the types of programs and facilities available for young offenders, and this had a significant effect on youth court sentencing. Under the Y.C.J.A. there continues to be substantial disparities across Canada in the programs, services and facilities that provincial governments are making available for young offenders, and this is having an impact on youth justice courts and sentencing. Some of this variation in access to resources and programs reflects differences in the financial support that is available for youth corrections and related programs, but there are also significant philosophical differences due to variations in political philosophies. One important example of this disparity under the Y.C.J.A is the differences in the availability of the community-based sentence of intensive support and supervision, a sentence that can only be imposed with the agreement of the provincial director. 13 In comparison to ordinary probation, this type of sentence offers a greater possibility for control of the youth in the community as well greater access to rehabilitative services, and this could be an important, rehabilitation focused alternative to custody. While intensive support and supervision is available in most jurisdictions, it is generally not available in Saskatchewan or Ontario.. Conclusion The Y.C.J.A is an attempt to find a better approach to responding to youth offending in Canada. The more coherent message of the Y.C.J.A. has resulted in significantly less use of courts and custody for adolescent offenders. However, the Act continues to allow for substantial variation between jurisdictions in terms of policies and resources available to deal with young offenders. As under the Y.O.A., judges dealing with individual young offenders are constrained by what resources and programs are available. Moreover, the policy and resource decisions of provincial governments will continue to have a profound effect on Canada s youth justice system and on how principles are applied in individual cases. Ultimately, it will be the cumulative effect of these decisions by provincial and territorial governments, and by individual judges and professionals, which determines whether the hopes of Justice Canada for the new Act are achieved, namely the aspiration that the Y.C.J.A. will correct fundamental weaknesses of the Y.O.A. and result in a fairer and more effective youth justice system. 14 In every society there are real limits to the potential of criminal laws and the youth justice system to protect society and reduce youth crime. Public policies related to health, education, child welfare, law enforcement and gun control, as well as a range of cultural and social factors, are much more important for determining a country s youth crime rate than its youth justice system. Whether the Act contributes to Canada having less youth offending and a safer society remains to be seen. It is submitted that ultimately, the law can only play a limited role in making society safer and in advancing the interests of youth. Decisions of governments about resources for the youth justice and corrections systems, and broader range of social policies are much more likely to have a significant impact on levels of youth crime. 13 YCJA s. 42(2)(l) and 42(3) 14 Department of Justice Press Release, Why New Youth Justice Legislation? (February 2001). 8

In some important respects the Y.C.J.A. is consistent with Canada s obligations under the Convention on the Rights of the Child, most notably in its protections of legal rights. The Y.C.J.A. also establishes a minimum age of criminal responsibility 12 years of age that is relatively high by international standards, and encourages diversion from the courts and imposition of community-based sentences. Further, the Y.C.J.A places greater emphasis on rehabilitation than does for Canada s laws for adults. However, a major focus of Canada s youth justice law is on accountability and protection of the public, which is not fully consistent the principle of the best interests of the child, a principle that is prominent in the Convention, and receives no explicit recognition in Canada s Youth Criminal Justice Act. Further, young offenders in Canada do not have the right of access to rehabilitative services, and judges can not order that they receive such services. It is for the provinces to decide what services youths will receive. Canada s decision to reserve on Article 37(c) and allow placement of young offenders with adults even if it is not in their interests to do so is clearly inconsistent with the spirit of the Convention, though international law allows for this. Interestingly, the Quebec Court of Appeal decision in Reference Re Bill C-7, which relies heavily on the Convention, will mitigate some of the most punitive aspects of the Y.C.J.A. in regard to adult sentencing. 9