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

• Author: Kyle McCleery
• Position: Completed an LLM at the University of British Columbia and is a member of the Law Society of British Columbia
• Pages: 109-126

APPEAL VOLUME 25

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ARTICLE

MISSPENT YOUTH: THE MISAPPLICATION

OF THE YOUTH CRIMINAL JUSTICE ACT BY

THE CRIMINAL CODE REVIEW BOARDS OF

BRITISH COLUMBIA AND ONTARIO

Kyle McCleery *

CITED: (2020) 25 Appeal 109

ABSTRACT

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.

INTRODUCTION

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].

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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.

I. LEGISLATIVE CONTEXT: THE CRIMINAL CODE AND THE YCJA

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.