Evaluating the Youth Criminal Justice Act after five years: a qualified success.

• Author: Bala, Nicholas
• Position: Canada

The context for Canadian youth justice reform

The Young Offenders Act (YOA), which came into force in 1984, was a highly controversial statute. While conservative politicians criticized the law for being "soft on youth crime," there were also concerns that, under the YOA, use of courts and custody had risen, and by the early years of the millennium, Canada had one of the lowest rates of youth diversion and one of the highest rates of youth custody in the world (Canada, Department of Justice 2002; Doob and Sprott 2004). Successive federal governments responded to these criticisms by enacting amendments to the YOA in 1986, 1992, and 1995 and finally by having a Parliamentary Committee undertake a review of the act in 1998. In 2002, the then Liberal government enacted a completely new statute to replace the YOA, the Youth Criminal Justice Act (YCJA), which came into force in 2003. The most prominent objectives of the YCJA were to address the two major concerns about the YOA: to reduce the use of courts and custody for the majority of adolescent offenders and to improve the effectiveness of responses to the relatively small number of young offenders convicted of serious crimes of violence (Canada, Department of Justice 2002).

In many ways, the YCJA represents an astute political compromise. The legislation attempts to address continuing public anxiety about a relatively small number of highly publicized cases involving the most violent youth offenders, while also responding to the growing concerns of juvenile justice professionals, advocates for youth, and academic critics about the large numbers of youth being processed through the courts and placed in custody, often for non-violent offences. At the time that the YCJA was introduced, a prominently publicized aspect of the act was the provisions intended "to respond more firmly and effectively to the small number of the most serious, violent young offenders" in order to respond to the "disturbing decline in public confidence in the youth justice system" in Canada (Justice Minister Anne McLellan, as cited in Canada, Department of Justice 1999). The provisions of the YCJA that facilitate the imposition of adult sentences for the most serious offenders address these concerns. The preamble to the YCJA itself makes clear that the act is also intended to address Canada's "over-reliance on incarceration" for young offenders.

Scope of article

This article reviews the first five years of implementation of the YCJA, with a particular focus on issues related to diversion from court and the use of custody. (2) The article examines salient provisions of the act, especially those relating to diversion and sentencing, and discusses recent Supreme Court of Canada decisions interpreting the YCJA during its first five years in effect. (3) The Supreme Court has affirmed the position that custody is to be used as a last resort for adolescent offenders and thereby contributed to the reduction in the use of custody. The Court has also emphasized that youth are to be treated differently from adults and has ruled unconstitutional certain provisions of the YCJA that created a presumption that youths found guilty of the most serious offences would receive adult sentences, thus limiting the effect of provisions of the act directed at serious violent offenders. Our paper presents statistical data from the first five years that the YCJA was in effect, including data on youth justice caseloads at several stages in the system, culminating in rates of young persons in custody. The paper concludes with a brief discussion of continuing controversy about the YCJA and some of the proposals for amendment of the act.

Reducing use of courts and custody

Relative to that of other western nations, the use of juvenile custody in Canada was high under the YOA (e.g., Bala 2003a; Doob and Sprott 2004; Doob and Cesaroni 2004). Most scholars agreed that the YOA provided little real guidance with respect to the exercise of police discretion (Carrington 1999; Carrington and Schulenberg 2003) or the use of custody for juveniles (e.g., Anand 1999b; Doob and Sprott 2004). This absence of guidance may have contributed to the relatively high rates of use of youth court and rates of youth custody in Canada, as well as to substantial variation across jurisdictions in Canada with respect to the use of courts and custody.

The high rate of use of courts and custody is generally acknowledged to be a more pressing problem at the juvenile level than for adults, as involvement in the formal justice system and imprisonment can have more profound and deleterious effects for adolescents than for adults. Community-based responses represent a cost-effective way to deal with juvenile offenders, especially those who have committed less serious offences and who do not have an extensive history of offending. Custodial placement can often be a more punitive sentence for juveniles than for adults because they are less able to cope with penal sequestration, and they may be more susceptible to the negative effects of inmate subculture (Cesaroni and Peterson-Badali 2005). Further, even though there is generally a greater emphasis on rehabilitation in youth custody facilities, imprisonment deprives adolescents of the social milieu on which they depend for their moral and psychological development, and this may increase the likelihood of school failure, a well-established contributor to juvenile delinquency (Howell 1997). While there is a need to imprison some adolescent offenders, the inappropriate use of custody is expensive, ineffective, and inhumane; indeed, imprisonment may contribute to a cycle of juvenile re-offending. For example, recent research has suggested that the deeper that a young person penetrates into the youth justice system, the less likely he or she is to desist from further offending (see McAra and McVie 2007 (4); Laub and Sampson 2003). Thus one of the goals of any youth justice system--encouraging desistance and reducing re-offending--can be impeded by the use of more intensive forms of intervention, such as custody.

Accordingly, early in this decade, the federal government set as a primary goal of its juvenile justice reform a reduction in the number of juveniles being sentenced to imprisonment (Canada, Department of Justice 2002). The clarity of the government's position with respect to the goal of the new legislation has likely played an important role in achieving a significant reduction in the number of admissions to youth custodial facilities. This level of clarity for sentencing legislation has rarely, if ever, been achieved in Canada. A Royal Commission on Sentencing (Canada 1987) and a number of academics (e.g., Anand 1999a) recommended that Canada adopt formal sentencing guidelines for adult offenders, but the government has steadfastly rejected this approach to structuring judicial discretion, despite the use of guidelines in many other common law jurisdictions. With respect to adult sentencing, there were some relatively modest reforms enacted in the 1990s directed at reducing the use of custody. Section 718.2(e) of the Criminal Code simply directed judges sentencing adults to "take into consideration ... all available sanctions other than imprisonment that are reasonable in the circumstances" prior to imposing custody but did not create explicit criteria for the imposition of a term of imprisonment. Finally, the 1996 reforms also included creation of a community-based sentence of imprisonment, the conditional sentence of imprisonment.

The YCJA, Supreme Court judgments and the impact of the YCJA

The discussion that follows summarizes the most salient provisions of the YCJA that deal with sentencing and diversion, reviews Supreme Court jurisprudence interpreting the act, and presents statistical data bearing on their impact on youth justice. It does not purport to review all elements and provisions of the YCJA, and there is, for example, no discussion of provisions that are intended to protect the legal rights of adolescents, involve their parents in proceedings, or protect their (and their families') privacy.

General principles

Preamble

The preamble to the YCJA makes clear the intent of Parliament that Canada should "have a youth criminal justice system that reserves its most serious interventions for the most serious cases and reduces the over-reliance on incarceration for non-violent young persons." In its 2005 decision in R. v. C.D. (at para. 36), the Supreme Court cited the preamble as a justification for adopting a narrow interpretation of the term "violent offence," restricting the possibilities for utilizing s. 39(1)(a) to impose a custodial sentence. Similarly, in R. v. B.W.P. (at para. 35), the Court cited the preamble as a justification for ruling that general deterrence is not a legitimate consideration in the sentencing of adolescents under the YCJA.

Purpose and nature of the youth justice system

The "Declaration of Principle" (s. 3) provides that the criminal justice system for youths "must be separate from that of adults." The Declaration establishes the overall purpose of Canada's youth justice system, with s. 3(1)(a) stating that

the youth criminal justice system is intended to

i prevent crime by addressing person's offending behaviour,

ii rehabilitate young persons who commit offences and reintegrate them into society, and

iii ensure that a young person is subject to meaningful consequences for his or her offence

in order to promote the long-term protection of the public.

Thus rehabilitation is as important as preventing crime and imposing meaningful consequences upon the offender. Further, the long-term protection of the public is seen as the consequence of rehabilitation and accountability, rather than as an independent objective of the youth justice system. This statement directs judges to impose sentences that facilitate the rehabilitation of young offenders, rather...