Conferencing in the Youth Criminal Justice Act of Canada: policy developments in British Columbia.

• Author: Hillian, Doug

Introduction

The Youth Criminal Justice Act encourages "conferencing," a process that brings people together to give advice regarding a decision required over how to respond to the commission of a harmful, illegal act by a young person 12 to 17 years of age. This article introduces the diversion and restorative justice movements from which conferencing emerges. Diversion attempts to screen juveniles from further involvement in formal procedures while restorative justice deliberately involves youth in interaction with significant others to reintegrate them into the community. Types of conferences encouraged are described, followed by a review of responsibilities of conference participants according to current government policies in British Columbia. In the ensuing discussion the authors raise several issues, including the support required to implement conferencing, the value of conferencing as a response to serious or minor offences, and the paradoxical processes that promote and restrict community participation in conferencing.

Diversion

The assumption that punishment is the best way of responding to juvenile delinquency has long been questioned. Various movements, programs, and legal provisions have been designed to promote community safety and avoid the incarceration of juveniles. Briefly, we first review the development of probation, diversion, and alternative measures, and second, the restorative justice movement.

Forms of probation were evolving early in the nineteenth century whereby, instead of being imprisoned, some offenders were allowed to remain in the community as long as reliable citizens would act as supervisors. Probation became a favoured response of the early juvenile courts in Canada after the passage of the Juvenile Delinquents Act in 1908 (Hagan and Leon 1977). Police have always used diversion, but by the 1960s, formal diversion programs were designed to screen out minor offenders before they came to court. Active use of diversion by police and community groups in both Quebec and British Columbia may be a reason proportionately fewer juvenile cases have come to courts in these two provinces compared with other Canadian provinces (Markwart 2002). The 1984 Young Offenders Act provided a legal framework for diversion in Canada, calling it alternative measures. But these measures were not mandatory, provincial implementation was uneven at best, and there was concern about "widening the net," bringing more youth charged with minor crimes into social and judicial systems. (Hackler 1978; Reitsma-Street and Stewart 1993; Trepanier 1983).

The new Youth Criminal Justice Act (YCJA) of 2003 also places emphasis on community-based responses to youth offending (Bertrand, Paetsch, and Bala 2002). It includes new diversionary provisions and terminology--extrajudicial measures--defined as "measures other than judicial proceedings under this Act used to deal with a young person alleged to have committed an offence ..." (1) (see YCJA, Interpretation Section). The new law is more prescriptive than the previous one, mandating extrajudicial diversionary measures to be used in particular situations and making specific the police and crown discretion that has always existed (see YCJA ss. 4-12).

Restorative justice

While diversion strategies focus on avoiding the negative consequences of involvement in the justice system, restorative justice strategies attempt to heal the wounds caused by crime. Rather than being a true innovation, restorative justice may actually have been the predominant form of justice as societies evolved. Before the rise of nation states in Europe, it was widely practiced in Germanic and Mediterranean tribes (Weitekamp 1989) and among some Pacific Island, African, and North American Aboriginal groups (Blumenfeld 2002). Rediscovered recently by cultures that have relied heavily on punishment to deter deviance, restorative justice has "made its way onto the criminal justice agenda with gusto" (Sullivan and Tifft 2001: vii).

Restorative justice approaches view crime in terms of the actual harm done rather than as a violation of the law (Braithwaite 1999: 2002). The purpose of restorative justice is to repair the harm done and prevent further harm. Marshall (1996) describes restorative justice as "a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future" (21). Canadian mediator Susan Sharpe (1998) puts forth five key principles of restorative justice, adapted by Van Ness, Morris, and Maxwell (2001): offering an invitation to full participation and consensus; seeking to heal what is broken; seeking full and direct accountability; seeking to reunite what has been divided; and seeking to strengthen the community to prevent further harm.

Conferencing, the coming together of those affected in a systematic and thoughtful process for the purpose of restoring harmony, reintegration, and healing, appears to be an initiative for developing both diversion and restorative strategies. The conferencing provisions in Canada's new Youth Criminal Justice Act of 2003, give proponents of restorative justice hope that .new resources will be allocated to program delivery, but there are significant tensions between government and community members over their respective roles. Sections 19(1) and (2) specify conferencing is an option, not a mandated obligation. A judge, police officer, justice of the peace, prosecutor or youth worker "may convene ... a conference for the purpose of making a decision required." The mandate of a conference "may be ... to give advice" regarding extrajudicial measures as an alternative to court proceedings as well as conditions of bail, sentences, and reintegration plans near the end of a custody sentence. The deliberately broad definition of conferencing in the act itself, "a group of persons who are convened to give advice ..." (YCJA, Interpretation Section) may aggravate this mixture of tension and hope. Along with the diversity of approaches developed by the provinces across Canada, it is apparent that there are questions about what constitutes restorative justice and misgivings over potentially unanticipated consequences and inadequate implementation of conferencing provisions. The question then is this: Does the YCJA conferencing option offer a new approach for youth, communities, and professionals or are we using new jargon to dress up older alternative measures and victim reconciliation initiatives that will fall short due to optional nature and lack of resources for implementation?

Types of conferences in British Columbia before and after the YCJA

The new Youth Criminal Justice Act, like its predecessors, is a balancing act. On the one hand, it attempts to appease those who always believe that juveniles are treated too leniently (Hackler 2001: 21). On the other hand, it tries to respond more effectively to youth crime by incorporating Integrated and restorative approaches into the youth justice system (Canada, Department of Justice 1998). An integrated approach implies that those involved in a youth's circumstances, whether through a relationship or as a provider of services, should work cooperatively in responding to that youth's offending behaviour. A restorative approach views crime from a perspective of harm done, and suggests that those affected by the crime take part in a process towards restoring that harm.

The YCJA definition, as noted, is deliberately vague, but conferences are understood to include multi-disciplinary or integrated case management conferences; family group conferences; community/neighbourhood accountability panels or youth justice committees; victim/ offender mediation/reconciliation; and Aboriginal sentencing and healing circles (Markwart 2000). Each of these conference types, as described below, has existed previously in some form in British Columbia and all are expected to continue under the YCJA.

Prior to YCJA implementation in 2003, federal-provincial-territorial discussions occurred regarding the intent of the proposed conferencing provisions. In British Columbia, there were also intergovernmental processes at work. A Conferencing Working Group, made up of representatives from the Ministries of Attorney General, Public Safety and Solicitor General, and Children and Family Development discussed and approved policy changes. There were various subcommittees and consultations with, for instance, the Community Youth Justice Advisory Group, comprised of youth justice consultants and managers from across the province. Conferencing policies and guidelines were drafted within the Youth Justice Policy and Program Support branch of the BC Ministry of Children and Family Development, and these policies were implemented to coincide with passage of the YCJA on 1 April 2003. (2)

(1) Multi-disciplinary or integrated case management conferences

This is a meeting of all parties working with a youth and family, usually including the young person and parents, to develop an integrated service plan. This type of conference is considered in policy as appropriate for medium- to high-risk youth where there are multiple service providers and significant challenges to service provision. A significant feature of integrated case management conferences is that they "should be considered when a youth ... has allegedly committed a serious violent offence or is a chronic offender" to review implications for service delivery and potential recommendations for court. (British Columbia, Ministry of Children and Family Development 2003: s. 2.05, emphasis added)

Integrated case management conferences are youth focused and do not include victims but, according to BC policy, should incorporate victim safety considerations. In practice these conferences have been post-sentence, dealing with issues including housing, supervision, treatment...