The first months under the Youth Criminal Justice Act: a survey and analysis of case law.

• Author: Bala, Nicholas

Introduction

Although a common public and political criticism of Canada's youth justice system has been that juvenile offenders are treated too leniently, the federal government's enactment of the Youth Criminal Justice Act (YCJA) was not primarily motivated by a desire to respond to "get tough" critics of the old Young Offenders Act (YOA). A House of Commons report on youth crime and the youth justice system, released in 1997, one year prior to the introduction of the YCJA into Parliament, found that youths are given custodial sentences at a rate four times higher than that of adults, and that Canada's youth incarceration rate was twice that of the United States and ten to fifteen times that of many European countries, Australia, and New Zealand (Canada, House of Commons 1997: 18).

Federal government publications and the Preamble to the YCJA make clear that this legislation was enacted to achieve two main objectives. The primary objective is in regard to the treatment of the vast majority of young offenders who commit less serious offences, for whom the YCJA is intended to reduce Canada's reliance on the use of youth courts and youth custody, and to increase the use of diversionary options and of community-based sentences. The second objective of the act, as drafted, was to "toughen the response" for youths found guilty of the most grave violent offences. For these youths, the new act was intended to facilitate the process for imposing adult sentences as well as allowing for the publicizing of their identities.

The incarceration rate for young offenders was slowly but steadily dropping since the 1995 amendments to the Young Offenders Act (Johnson 2003: 10), which also emphasized the importance of using restraint in imposing custody on youths, and this drop occurred even during years in which the youth crime rate remained relatively stable (Wallace 2003: 13-14). However, it is apparent that the YCJA has directly resulted in a further, substantial reduction in the use of incarceration for young offenders. Media reports indicate that populations in youth custody facilities in Alberta, Ontario, and Newfoundland have declined by 20% to 50% in the act's first months in force and that these changes are the result of the new legislation (Blackwell 2003a;

Blackwell 2003b; Canadian Broadcasting Corporation 2003). It remains to be seen whether these initial reports will be reflected in long-term trends in the use of youth custody, especially if youth crime does not significantly decline. Most judges accept that the YCJA makes proportionate accountability the dominant sentencing principle, although they also recognize the new act's limitations on the use of custody and encouragement of community-based sentences, such as deferred custody and supervision. Further, the most important ruling pertaining to the YCJA rendered to date, the Quebec Court of Appeal decision in Reference Re Bill C-7, ruled unconstitutional the provisions of the act intended to facilitate the more punitive responses for those young people found guilty of the most serious offences, though that decision also indicated that youth courts should "balance" accountability concerns with a consideration of the needs of young offenders.

Diversion and extra-judicial measures

The YCJA explicitly recognizes a variety of measures designed to divert youths from the courts, such as encouraging police warnings, cautions and pre-court referrals to community programs of "extrajudicial measures" (Bala 2003b). The extent to which various pre-court diversionary measures are used instead of court-based responses is primarily a matter of discretion for police and prosecutors. There was quite extensive training for police and Crown prosecutors before the YCJA came into force, and it would appear that the use of non-court diversion has increased under the new act and that fewer less serious cases are being referred to the courts.

Further, while the primary responsibility for diversion rests with police and prosecutors, as illustrated by a decision from Nova Scotia, the courts may have a role in encouraging non-court responses. A 15-year-old girl who had serious mental health problems and was in the care of the child welfare authorities was found guilty of uttering threats and assault against staff for an incident that resulted from the use of physical restraints on her in the facility where she resided (R. v. K.D.). She had eight prior findings of guilt for similar offences under the YOA. The sentence imposed was simply a judicial reprimand, one of the new non-custodial sentences ushered in by the YCJA, and the mildest sanction that can be imposed on a young person under the new juvenile justice legislative regime. It is similar to an absolute discharge in that after the court appearance in which the sentence is imposed, the court requires nothing further of the young person, but the record of a judicial reprimand may be used for only two months after it is imposed, while the record of an absolute discharge may be used for a year.

While noting that the girl's behaviour was not appropriate, Justice Lynch was concerned about the inappropriate use of the youth justice court for this youth. Using the youth justice court for adolescents who are in the care of child welfare agencies to deal with what are essentially discipline problems that technically constitute minor criminal offences was one of the causes of Canada's high rate of use of custody under the YOA.

Pre-trial release and detention

One of the most difficult and important decisions made in youth justice court is whether a youth should be detained after arrest or released. The decision is difficult because there is generally limited or conflicting information available about the young person. There may be pressure coming from parents or group-home staff to detain an adolescent who is difficult to live with, or there may be pleas that "something needs to be done" to help a youth who has nowhere to live or who is engaging in self-destructive behaviour. Placing a youth in detention, however, is a highly intrusive form of intervention that often has a punitive element, and placement in a facility with other youths with a history of offending may pose real risks in terms of negative peer influences or even peer abuse. Further, while some detention facilities have good programming and counselling, other facilities resemble jails where youths have little to do but watch television.

Section 29(1) states that a youth justice court judge should not order the pre-trial detention of a young person "as a substitute for appropriate child protection, mental health or other social measures," while s. 29(2) creates a presumption against detention based on concerns that a youth might reoffend while on release in circumstances in which a youth could not be placed in custody after a finding of guilt. Further the YCJA allows youths to be released under the supervision of a responsible adult in circumstances where an adult would be detained. These provisions have had an effect on the practices of police, prosecutors, and judges, and it is clear that some youths who would have been detained under the YOA are being released under the YCJA.

In R. v. J.R.M., Judge Davis of the Provincial Court of British Columbia was considering whether to detain a youth with mental health problems who was living in a group home and was charged with mischief after smashing dishes and breaking walls and glass in the group home. A forensic assessment conducted after his arrest concluded that the youth posed a substantial risk to reoffend if he were released because he was erratic in taking his prescribed antipsychotic medication. Because the youth could not be committed to custody if he were found guilty of the property offences with which he was charged, the court concluded that there was no basis for rebutting the presumption that the pre-trial detention of the youth was not necessary on the grounds of public safety or protection. In refusing to use the youth's mental disorder as the basis for rebutting the presumption against detention, the judge wrote,

this legislation precludes this young person from being detained notwithstanding the concerns that the Crown, the doctors and perhaps the Court has at this juncture. It may have been under the old legislation the young person would have been detained, however it is clear that the present legislation contemplates something else occurring where there are mental health issues. That is so, even if the young person is substantially likely to commit a criminal offence ... What is also clear is that the new legislation requires mental health issues to be dealt with by someone other than the courts, someone able to address the needs of an individual such as the young person (R. v. J.R.M, at para. 14). Although this ruling in J.R.M. helps achieve the laudable objective of reducing the admission to youth remand facilities of young persons solely on the basis that they suffer from mental disorders, the court's interpretation of the YCJA is problematic and may make it too difficult to detain youths who pose a risk to society. It is submitted that while s. 29(1) precludes the detention solely because a youth has child welfare or mental health needs, s. 29(2) merely creates a presumption against pre-trial detention. If a court is satisfied that there is a substantial risk that the youth will, if released from detention, commit a criminal offence, then the presumption against detention is rebutted and detention is justified under s. 515(10) of the Criminal Code.

It is submitted that the preferable approach to the interpretation of s. 29 was taken by Judge Auxier, also of the British Columbia Provincial Court, in R. v. T.S. Judge Auxier accepted that the presumption contained within s. 29(2) of the YCJA could be rebutted by means other than showing that the youth could be committed to custody if found guilty. As...