Introduction: the Youth Criminal Justice Act - a new era in Canadian juvenile justice?

• Author: Carrington, Peter J.

This issue marks the first anniversary of the proclamation into force of the Youth Criminal Justice Act. The title of our Introduction emulates that of an article by Nicholas Bala (1986) on the then-new Young Offenders Act. When the YOA was proclaimed in April 1984, it was widely heralded as ushering in a "new era," or even a "revolution," in Canadian juvenile justice (Corrado and Markwart 1992; Leschied, Jaffe, and Willis 1991), although, as the interrogative title of Professor Bala's article suggested, expectations were mixed. Implementation of the YOA was expected to sweep away many paternalistic and increasingly archaic practices and attitudes that had accumulated during almost 80 years under the Juvenile Delinquents Act. It would replace them with modern principles and practices: for example, a clear distinction between young offenders and children in need of protection; explicit recognition of the rights and freedoms of young persons; due process and the absolute right to legal counsel; and the principle of restraint by decision makers when intervening in young persons' lives. While the dominant orientation of the YOA seemed to be towards the "justice" model, it nevertheless incorporated significant elements of paternalism, such as the assertion of the "special needs" of young persons, and their need for "guidance and assistance" due to their "state of dependency and level of development and maturity" (YOA s. 3(1)). The "crime control" model was also apparent in the recognition in the YOA of the right of society to protection from crime (YOA s. 3(1)(b)).

While a new era in juvenile justice may have been implicit in the Young Offenders Act, its realization lay in the hands of those responsible for implementing the legislation: principally, the provincial governments, the police, the Youth Courts and appellate courts, and probation and correctional officials and staff. Due to its assertion of principles that were to some extent mutually contradictory, and its provision of little specific guidance as to their interpretation, the YOA was open to a wide variety of interpretations and forms of implementation. Furthermore, Parliament could only encourage, and not compel, provincial governments and police services to adopt new programs, such as Alternative Measures. For these reasons and others, the new era of the Young Offenders Act fell far short of the expectations that it had aroused. Certain consequences seemed to many commentators to be directly contrary to the intended effect of the act: notably, a decrease in the use by police of informal action with alleged young offenders (Carrington 1999), an increase in the use of custodial dispositions by the Youth Courts (Doob 1992), and substantial disparities in the sentencing of young offenders (Doob and Cesaroni 2004: Chapter 9).

At the same time, the YOA suffered a public relations disaster, as the amount and seriousness of reported youth crime in Canada climbed steadily during most of the first decade after its proclamation. Largely unaware that post hoc does not imply propter hoc, the public seemed to blame the YOA for this apparent youth crime wave, and became increasingly intolerant of youth crime and hostile to the act. Policy-makers and legislators responded by first amending the YOA and then repealing it (Bala 2003: 13-18). Thus, the new era of the Young Offenders Act came to a somewhat ignominious end.

We have dwelt at some length on the fate of the YOA because, in our opinion, the big question about the Youth Criminal Justice Act is whether history will repeat itself. In our view, the YCJA is, in itself, a revolutionary piece of juvenile justice legislation. One has the sense in reading the statute that its framers were determined to usher in the new era which the YOA promised but did not entirely deliver. In many areas, the YCJA provides explicit and precise guidance as to the application of its principles. For example, where the YOA had simply stated the principle of "least possible interference with freedom," the YCJA provides specific rules to limit interference with freedom, by police, judges, and correctional officials: police are required--somewhat paradoxically--to use their discretion, and judges are prohibited from ordering custodial sentences unless certain restrictive criteria are met.

Yet, as was the case with the YOA, the fate of the YCJA lies in the hands of those responsible for its implementation. The adoption, or not, of certain programs that are provided for in the YCJA is necessarily within the discretion of provincial authorities. While police can be required to exercise their discretion, the outcome of this exercise is discretionary. And judges--and counsel--display remarkable ingenuity in interpreting laws in unanticipated and sometimes unintended ways.

In commissioning articles for this issue, we tried to provide the reader with a variety of information and opinions from academics and practitioners on the impact of the new act--the impact which it has already had, and the impact which it is likely to have in...