Misspent Youth: The (Mis)application of the Youth Criminal Justice Act by the Criminal Code Review Boards of British Columbia and Ontario

AuthorKyle McCleery
PositionCompleted an LLM at the University of British Columbia and is a member of the Law Society of British Columbia
Kyle McCleery *
CITED: (2020) 25 Appeal 109
is article ex amines the t reatment of young people, as dened in t he Youth Criminal
Justice Act (YCJA), by the Criminal Code review boards of British Columbia and Ontario.
Section 141(6) of the YCJA requ ires provincial review boards to g ive special consideration in
making d isposition decisions applicable to young people found not criminal ly responsible
on account of mental disorder (NCR MD). rough an ana lysis of decisions made by
the two review boa rds in 2015 and 2016, this article concludes that neither re view board
is consistently giving e ect to this provision. It then considers w hether there is a need
to provide distinct treat ment to young people in this context, conclud ing that there are
compelling reasons for g iving special consideration to young people found NCR MD, but
also that the requ irements of section 141(6), even if given their full ee ct, are insucient
to account for the unique circum stances of this population.
Among the foundationa l principles of the Canadia n criminal justice system is t hat each
individual is an autonomous and rat ional being, who can disti nguish right from wrong and
whose actions can gi ve rise to criminal liability.1 However, Canadian law does reco gnize
some limits to this principle. A mong these are that, i n some circumstanc es, individual s
suering from mental d isorders should not be held responsible for criminal acts and t hat
young people under the age of 18 bear less resp onsibility for their c rimes than do adults.
Both of these exceptions have be en recognized by t he Supreme Court of Canada a s
principles of fundamenta l justice2 a nd have been the subject of sign icant academic and
* Kyle McCleery complete d an LLM at the University of British Colum bia and is a member of the
Law Society of Britis h Columbia.This article is based o n research made possible through a grant
from the Law Foundation of Br itish Columbia. The author is grateful to Pr ofessor Isabel Grant for
her guidance and thought ful feedback on a previous draf t of this article.
1 R v Bouchard-Lebrun, 2011 SCC 48 at paras 48–49.
2 R v DB, 2008 SCC 25 at para 70 [DB]; R v Swain, [1991] 1 SCR 933 at 976–977 [Swain].
judicial attention.3 Far less consider ation has been given to cases in which the y intersect;
that is, when young people commit cri minal acts while sueri ng from a mental disorder.
is article is i ntended to begin to l l this gap in two ways. First, it presents data on t he
population of young people, as dened i n the Youth Criminal Justice Act4 (“YCJA” or the
“Act”), under the jurisdiction of the British Columbia and Onta rio Criminal Code review
boards in 2015 and 2016. Second, it examines how the two review boa rds have treated
these accused , ultimately concluding t hat neither is giving mea ningfu l consideration to
their status under t he YCJA.
e article proceed s in four parts. It begi ns with an overv iew of the legislative context
created by the Criminal Cod e of Canada5 and the YCJA. Part t wo presents data regarding
the population of young people under revie w board jurisdiction in British Columbia and
Ontario in 2015 and 2016. Part three e xamines the approach taken by the rev iew boards
to cases involving you ng people and considers whether they are sati sfying the requirements
of section 141(6) of the YCJA. S ection 141(6) provides that:
Before making or re viewing a disposition in respect of a young p erson under
Part XX .1 (mental disorder) of theCriminal Code, a youth justice court or
review board sha ll consider the age and specia l needs of the young person and
any representations or submissions made by a pa rent of the young person.
Finally, part four disc usses the implicat ions of the analyse s set out in parts t wo and
three and identies d irections for future re search. It argue s that there are compel ling
reasons to treat young ac cused found not crimin ally responsible by reason of menta l
disorder (“NCRMD”) di erently from adults. is argument is g rounded in the elevated
impact of an NCRM D verdict on the liberty interests of a young person a nd the dierent
incentives facing young pe ople considering pursuing the NCRMD verdic t. In its present
form, section 141(6) does not allow provincia l review board s to adequately recogniz e
the unique circumst ances of young people as it does noth ing to expand the scope of the
review board ’s decision-making be yond the narrow dangerousness analy sis mandated by
the Criminal Code.
e legal status of you ng people accused of criminal oenc es while suering from mental
disorder is governed by two pieces of legi slation. Section 16 and Part XX.1 of the Criminal
Code apply to all accu sed, regardles s of age, who successf ully raise t he mental disorder
defence. e YCJA als o applies in cases where the accused wa s 12 years old or older6 and
under the age of 18 at the time of the alleg ed oence.
3 See Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625; Bouchard-Lebrun,
supra note 1; Swain, supra note 2; DB, su pra note 2; R v BWP; R v BVN, 2006 SCC 27; R v CD; R
v CDK, 2005 SCC 78; Anne G Crocker, “The Nation al Trajectory Project on Indivi duals found
Not Criminally Responsibl e on Account of Mental Disorder” (2015) 60:3 Canadian Journa l of
Psychiatry 96; Isabel G rant, “Canada’s New Mental Disorder Dis position Provisions: A Case Study
of the British Columbia Criminal Code Review Boar d” (1997) 20:4 International Journal of Law and
Psychiatry 419; James D Livingston et al, “A Follow-Up Stu dy of Persons Found Not Criminally
Responsible on Account of Ment al Disorder in British Columbia” (2003) 48:6 Can J Ps ychiatry
408; Nicholas Bala et al, “ Evaluating the Youth Criminal Justice Act Afte r Five Years: A Qualied
Success” (2009) 51:2 Canadian Journal of Criminolo gy and Criminal Justice 131; Lihui Zhang, “Are
youth oenders responsi ve to changing sanctions? Evidence from th e Canadian Youth Criminal
Justice Act of 2003” (2016) 49:2 Canadian Journal of Economi cs 515.
4 SC 2002, c 1 [YCJA].
5 RSC 1985, c C-46 [Criminal Code].
6 Section 13 of the Criminal Code, supra note 5, provides that children under the a ge of 12 bear no
criminal responsibility for their acts.

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