The Youth Criminal Justice Act: new directions and implementation issues.

• Author: Barnhorst, Richard

In passing the Youth Criminal Justice Act (YCJA), Parliament addressed fundamental issues of youth justice policy that have been the subject of controversy for decades. Parliament's response to some of these issues was to make no change in the law. For example, despite considerable pressure to "get tough" from some political parties and provincial governments, the minimum age of criminal responsibility was not lowered to 10 and remains 12; the age at which a person is considered an adult under criminal law was not lowered to 16 and remains 18; the maximum lengths of youth sentences were not increased; and the proposal of automatic adult sentences for some offences was rejected. Parliament made significant legislative changes in addressing other fundamental matters that, in its view, had not been adequately addressed in the Young Offenders Act (YOA). It rejected the position, expressed particularly by witnesses from Quebec, that the YOA was not flawed and that any difficulties were the result of inappropriate implementation. The YCJA contains new policy directions in several areas, including the philosophical underpinnings of the youth justice system; the use of the court versus less formal responses to youth crime; conferencing; restrictions on pre-trial detention; sentencing principles; sentencing options; elimination of transfer of cases to the adult court; and custody and the reintegration of youth into society.

This article will briefly explain some of the act's key provisions and policy directions and contrast them with the approach under the YOA. (1) Early indications are that two of the major objectives of the act--reduction in the use of the youth court and reduction in custody--are being achieved but it will take more time and information to determine whether these apparent early trends are real and long-lasting. The article will also discuss some of the implementation issues that can have a significant impact on how the youth justice system operates under the act. The use of new federal funding that has been made available to the provinces and the re-allocation of existing funding are obviously important issues that can affect the availability of programs and the effective implementation of the act. However, the focus of this article with respect to implementation will be on some of the equally significant policy, practice, and interpretation issues that often receive less attention.

Youth justice philosophy

The Declaration of Principle of the YOA contained general principles that lacked clarity and coherence and failed to provide sufficient guidance to decision makers. This problem was particularly significant under the YOA because the Declaration was the primary source of principles to guide all decisions under the YOA. One result was that decision makers--police, prosecutors, judges, and provincial governments--could justify almost any decision under one or more of the principles. The absence of clear legislative direction in the general principles was an important factor, although not the only factor, that contributed to the youth justice system's problems that were of concern to Parliament. These problems included the high rate of incarceration, over-use of courts for minor cases, and sentencing disparities.

The new act's youth justice philosophy is contained in a Preamble, a Declaration of Principle, and specific principles at key decision points in the youth justice process. Main components of the philosophy can be summarized as follows:

Restraint

The theme of exercising restraint in the use of the youth justice system is reflected throughout the act. The Preamble states that the youth justice system should reserve its most serious interventions for the most serious crimes. Restraint is to be exercised not only in sentencing but also in deciding whether to use the formal court process at all, as well as in the measures that may be used outside the formal court process. The act makes clear in various provisions that custody is to be reserved for the most serious offences and offenders. In an unusually blunt and specific statement of the need for restraint, the Preamble provides that the youth justice system should reduce its overreliance on incarceration for non-violent youths.

Accountability

The act provides that the primary task or objective of the youth justice system is to hold a youth accountable in a fair way for the offence s/he committed. Holding a youth accountable for the current offence is the focus in deciding whether to use extrajudicial (non-court) measures and in determining what those measures should be. In sentencing, the act requires the court to impose just sanctions that will hold the youth accountable for the offence committed. Accountability is to occur through the imposition of meaningful consequences and measures that will promote the rehabilitation and reintegration of the youth into society. Accountability must be fair and proportionate, and it must be consistent with the greater dependency and reduced maturity of youths.

Proportionality

In addressing how a youth is to be held accountable, the act requires that consequences be proportionate to the seriousness of the offence and the degree of responsibility of the youth. This principle sets the degree of intervention that is required in holding the youth accountable for the offence. Exceeding a proportionate response is prohibited by the act. This basic principle of fairness was not stated in the YOA, and the Supreme Court of Canada interpreted the YOA as authorizing disproportionate sentences (R. v. M. (J.J.)).

Protection of the public

The act addresses the issue of how the youth justice system may be able to have an impact on the protection of the public. The act provides that if the system can achieve the objective of holding youths accountable in a fair and proportionate manner, it can make a contribution to the protection of the public in the long-term. Parliament's references to protection of the public indicate that such protection is a desired longer-term outcome or result of the activities of the youth justice system. The system can "contribute" to such protection, which reflects that there are many factors outside the youth justice system that can have as much effect, or greater effect, on public protection than the activities of the youth justice system.

Rehabilitation and addressing needs

The youth justice system has a long history of using criminal justice interventions as a means of addressing social or other problems of youths. A recurring issue has been the tendency to over-intervene in the lives of youths in order to attempt to address such needs, regardless of the seriousness of the offence that the youths committed. Parliament has made clear in the YCJA that measures (extrajudicial measures and sentences) taken with youths should address the rehabilitative needs of youths within the limit of a proportionate response to the offence. Parliament has concluded that it is unfair for the youth justice system to impose an intervention that is disproportionate to the seriousness of the offence in order to address a youth's needs, no matter how well intentioned the system may be. The seriousness of the offence sets the degree of intervention, and efforts to address the rehabilitative needs of the youth must fit within the proportionate response. The Preamble to the act recognizes that addressing the needs of youths and preventing youth crime is a broad societal responsibility; the youth justice system has a role in these areas as well, but the role is limited.

Structured discretion

The YCJA reflects Parliament's view that officials in the youth justice system need to be given more legislative direction in making decisions that are consistent with the act's objectives. Although the act leaves considerable room for discretion, the act structures the discretion of decision makers to a much greater extent than the YOA and the Criminal Code. At each stage of the youth justice process--extrajudicial measures, pretrial detention, sentencing, and custody and reintegration--specific provisions guide how decisions are to be made. These provisions include basic principles, specific criteria and considerations, and presumed responses to certain situations, such as the presumption that non-violent first offenders should be dealt with through extrajudicial measures. In some areas, the act includes prohibitions, such as the prohibition on the use of pre-trial detention for child welfare or mental health purposes.

Use of the court

Parliament has made clear that, in its view, the youth justice system under the YOA relied too heavily on court processing as the response to youth crime. A major objective of the YCJA is to reduce the use of court, particularly for less serious offences.

Approximately 50% of youth court cases under the YOA consisted of relatively minor offences (Canadian Centre for Justice Statistics 2000). Parliament has concluded that many of these types...