Harmonizing the sentencing of young and adult offenders: a comparison of the Youth Criminal Justice Act and Part XXIII of the Criminal Code.

• Author: Roberts, Julian V.

The proclamation into force of the Youth Criminal Justice Act (YCJA) in 2003 inaugurated a new era in the sentencing of juveniles in Canada. The act represents a significant break with the previous youth justice regime, and provides youth justice courts with more guidance regarding the sentencing of young persons. The purpose of this brief article is twofold: first to discuss some of the normative questions underlying the sentencing of juveniles. Appendix A compares the principal sentencing provisions applicable to adults and young persons in Canada. The second purpose is to explore the principal ways in which sentencing under the YCJA differs from the sentencing regime pertaining to adults and found in Part XXIII of the Criminal Code. Although the literature on youth justice is vast and constantly growing, relatively few publications address questions relating to the ways in which juveniles should be punished differently from adult offenders (but see Duff 2002; von Hirsch 2000; Feld 1998; Schrag 1991). (For comparisons of the YCJA and the Young Offenders Act, see Bala 2002.) For additional commentary on the sentencing provisions under the new act, the reader is directed to several recent publications: Anand 2003; Doob and Sprott 2004; Roberts and Bala 2003.

Relevance of adult sentencing principles for youth courts

Although populist politicians argue that "a crime is a crime, whatever the age of the offender," there is general agreement among scholars and legislators that sentencing should be different for juvenile offenders. The "crime is a crime" aphorism reflects a simplistic view of the sentencing process. It overlooks the fact that we do not punish crimes but rather individuals, and that the severity of sentence imposed should reflect both crime seriousness and offender culpability. While the former may not be affected by an offender characteristic, offender culpability is influenced by the age of the offender.

The challenge to the architects of the sentencing provisions of the YCJA was to determine whether the frame of reference for reform should be the status quo of sentencing, namely the Young Offenders Act (YOA), or the codified principles applicable to adults that were proclaimed in 1996 (see Roberts and Cole 1999). The government was aided in its reform activities in two respects. First, the sentencing framework created by the YOA was very broad and left a great deal to judicial discretion (see Bala 2002; Corrado and Markwart 1994); accordingly, there was a significant policy gap to fill. Second, Part XXIII of the Criminal Code contains an explicit statement of the purpose and principles that judges should follow when sentencing adults. Parliament could therefore contemplate how the sentencing provisions at the adult level might be modified for sentencing in youth justice courts, without being unduly constrained by an existing set of youth sentencing principles.

The primary normative question is the following: How relevant are adult sentencing principles for the sentencing of juveniles? Some commentators have argued that the adult sentencing principles have little or no relevance for young offenders, and that there should be two separate (and very different) regimes, one focusing on rehabilitation, the other oriented towards proportionality. This is a rather curious view to adopt; it implies that young offenders have little in common with their adult counterparts, and that having been treated according to one set of criteria in youth courts, juveniles enter, after their eighteenth birthday, a completely new world. Following this model, they would move from an environment in which rehabilitation reigns, to a world in which proportionality predominates. Maintaining two completely different sentencing regimes for juveniles and adults fails to recognize that young persons are capable of moral decision making and can distinguish between wrongful acts on the basis of their relative seriousness. (2) Sentencing is an exercise in communication--why then would one wish to communicate two very different messages, one to a 17-year-old and another to an adult?

Maintaining completely different sentencing regimes for adults and juveniles also undermines the very principles of the criminal law that infuse the sentencing process and that we attempt to instil in young persons as part of their civic education. As Duff (2002) notes, "If juveniles are capable of taking responsibility for their actions, we should treat them as responsible agents who, inter alia, can and should be called to account for the wrongs that they do. We owe this to them out of respect for their moral standing as agents who can take responsibility, and out of concern for their moral development into fully responsible members of the community" (131). (See Walgrave 2002 for discussion of an alternative, restorative perspective.)

Justifying the reduced severity of youth court sentences

All common law jurisdictions impose less severe punishments on juveniles than adults, although the way in which this is accomplished and the magnitude of the "discount" vary considerably. A number of grounds have been advanced to justify the mitigated punishments imposed on juveniles. Within a proportionality-based sentencing scheme (such as that created by the YCJA; see later section of this article), von Hirsch (2000) identifies several (3) justifications for this practice: (1) juveniles are less able to appreciate the harmfulness of criminal conduct and have had less opportunity to control their impulses; (2) juveniles are more susceptible to the influence of others, and have a less well-developed ability to act independently; and (3) the impact of certain sentences is disproportionately harsh when imposed on a juvenile. (4) The first two (but not the third) justify the reduced culpability of juveniles. In addition, von Hirsch (2000) argues that society should extend a certain degree of indulgence to juvenile offenders; this partial tolerance reflects the concept of a lapse in law-abiding behaviour and the claim that such a lapse is out of character.

Expressed in these terms, the juvenile discount is analogous to the first-offender discount under a proportionality-based sentencing rationale. First offenders (and those who are nearly first offenders) can claim some mitigation on the grounds that their offending was out of character when seen against a lifetime of law-abiding conduct. The plausibility of this claim to mitigation however, diminishes with repeated offending; offenders convicted, say, for the third or fourth time, can no longer claim the discount and are subject to the full tariff. So it is with juveniles: young offenders are entitled to a discounted sentence on the justifications arising from their youthfulness. However, as they grow more mature (and particularly as they accumulate additional convictions), this justification becomes less convincing, and the mitigation less appropriate. This explains why the youth sentencing discount should diminish with the age of the young offender, and why there should be a substantial difference in the severity of the sentences imposed across the age range of juvenile jurisdiction.

How much lower the penalties should be in youth court is a matter for some debate; however, it seems clear that there should be two tariffs, one for adults, one for juveniles. And several writers agree that within the juvenile jurisdiction, gradations of mitigation should be established to reflect age gradations. Ideally, the discount would reflect each individual's level of development, and hence culpability. Since establishing this would create insurmountable complexities for courts, we use chronological age as a proxy for the person's degree of moral development. Thus, the discount for young offenders should be greatest for those near the lower limit of criminal responsibility and least for those closest to the upper limit of juvenile jurisdiction (see von Hirsch 2000). One specific formula is offered by Feld (1998) who argues that the juvenile custodial sentence should range from 25% of the adult penalty for a 14-year-old, to 50-60% of the adult sentence for the oldest individuals still within the jurisdiction of the youth court. (5)

Should the sentencing distributions in youth and adult court ever overlap? That is, could the sentence imposed on, say, a multiple recidivist just short of adulthood be harsher than that imposed on an adult first offender convicted of the same crime? The answer depends upon the weight ascribed to youthfulness as a mitigating factor compared with another sentencing factor, such as first offender status. The YCJA has a provision which states that "a sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances" (emphasis added). This wording suggests that a recidivist young offender can receive a harsher penalty than an adult first offender, since their circumstances are dissimilar.

More discretion, more sanctions, more individualization

A related conceptual distinction between adult and juvenile sentencing concerns the degree of judicial discretion. Later in this article I shall argue that proportionality is important to the sentencing of juveniles, but not as important as at the adult level. This position is, in my view, consistent with the YCJA. As well, rehabilitation is more important for juveniles than adults. This can be stated in terms of the orientation of the sentencing process. Like the Roman god Janus, the sentencing process gazes in two directions: to the past, to determine the seriousness of the crime, and to the future, to weigh the likelihood of future offending. For the sentencing of adults, the attention is mostly on the past, in accordance with the just-deserts sentencing philosophy. For young offenders, the past is clearly important, but so...