Federalism and youth justice.

• Author: Seebaran, Mark

Unless Quebec succeeds in declaring it unconstitutional, the new Youth Criminal Justice Act will replace the Young Offenders Act next April. Why worry about a law that's almost a fait accompli? Because of the power it abandons to provinces. It dreams of revolutionising the treatment of adolescents in trouble with the law, but promotes piecemeal solutions.

A three strikes rule presumes that kids who commit "serious violent offences" get adult time with the same sentences we see today. New ideas for rehabilitative sentences are left to each province or territory to consider. Non-violent kids may get "programs of extrajudicial sanctions" in the community, if their home government chooses to establish a program. Does this law suffer from trying to please too many people?

The Act suggests rehabilitative sentencing and community input but stops short of setting national standards for provinces to follow. Dangerously, it allows them to opt out of almost every suggestion.

Why such timidity? Young offenders, compared to adults, have the greatest potential to reform, and pose, by their longevity, the greatest threat to national safety if left unreformed. On gun control, Ottawa didn't shy from national standards on registration and licensing. This Act, though, says only that provinces "may" establish programs. Where and when programs exist will depend on the priorities of provincial governments. Most have chosen to implement some programs for now. But, when they come to cut costs, they may remember the Supreme Court of Canada acknowledged that "may" includes "may not," the option to do nothing (as when, in 1990, Ontario was told it could refuse to build any program to settle youth crime out of court (R. v. S. (S.), 1990).

Ottawa complains the Young Offenders Act lacked "a clear and coherent youth justice philosophy." The new law creates its own contradictions. Three strikes at "serious violent offences" sound like they deserve adult time, until you consider the definition. It means serious bodily harm, which means seriously significant harm to a victim's comfort, including psychological discomfort (R v. McCraw, 1991). Ottawa decries the number of youth in custody for "minor assaults," but now youth may not be sentenced as youth if they cause victims significant psychological harm three times. Three strikes of that, and our new youth justice system, under the bad influence of...