Principles for Responding to Young Offenders

• Author: Nicholas Bala, Sanjeev Anand
• Pages: 83-177

83

CHA PTER 2

PRINCIPLES FOR

RESPONDING TO

YOUNG OFFENDER S

A. PRINCIPLES OF YOUTH JUSTICE LAW

What principles should be applied when responding to adolescent of-

fending and administer ing the youth justice system? This is an import-

ant, contentiou s question to wh ich different s ocieties have different

answers. Almost all societies now recognize that adolescence is a dis-

tinct stage of life, with youth havi ng more maturity and responsibility

than children, but les s maturity than adults and als o having distinctive

needs and vulnerabil ities. Even so, there is profound controversy over

how to respond to youth crime. Within Canada, adolescent offenders

have been treated dif ferently from adults for over one hundred years,

with vary ing recognition of their limited maturity and capacities and

their special need s. Some principles of youth justice have remained

relatively constant throughout the history of juvenile justice in Canada

and some principles are f‌inding w idespread international recognition

in the Convention on the Rights of the Child.1 There is, however, great

debate over the articulation and application of some of the principles of

youth justice law, and there has been substantia l change over the past

century in the governi ng principles of our youth justice system.

The Juvenile Delinquents Act of 1908, which established Can ada’s

f‌irst juvenile just ice system, had a parens patriae (parent of the country)

1 UN Doc. A/44/ 736 (1989), adopted by United Nations Genera l Assembly, 20

November 1989 [Conventi on].

YOUTH CRIM INAL JUSTICE LAW84

or child welfare orientation. The JDA stated that a delinquent was not

to be treated “as a crim inal, but as a misdirected and misguided child,

and one needing aid, encouragement, help and assista nce.”2 While this

philosophy was often ignored in the actual t reatment of juveniles in the

courts and juvenile corrections system, the stated objective of the JDA

was the promotion of the welfare of juvenile offenders, with lim ited

concern about punishment for specif‌ic offences.

The introduction of the Young Offenders Act in 19843 signalled a

marked change in philosophical approach. Although continuing to rec-

ognize the lim ited maturity of adolescents, compared to the J DA, the

YOA placed greater empha sis on the protection of society, accountabil-

ity for offences, and respect for legal rights. Under the Youth Criminal

Justice Act,4 which replaced the YOA in 2003, Canada continues to have

a separate crimi nal justice system for youth predicated on the idea that

youths are to be treated dif ferently from both children and adults. The

Preamble and Declaration of Pr inciple of the YCJA are intended to give

direction to the judges, police, prosecutors, and youth correctional sta ff

responsible for the implementation and interpretation of the Act. The

enactment of the YCJA ref‌lected a change in legislative emphasis; the

2003 Act has a more coherent set of principles than the YOA . However,

the change from that Act to the YCJA was les s dramatic than the change

that occurred in 1984, when the YOA replaced the JDA.

In recognition of the vulnerabil ity of adolescents, the YCJA, like t he

YOA, extends legal protections to youth th at are more extensive than

those afforded to adults. The YCJA continues the legal recognition th at

youth, because of their immaturity, have special needs and circum-

stances that ma ndate special treatment. It also continues the philoso-

phy of the YOA that, in compar ison to adults, young offenders are to

have limited accountabilit y, a statement further articulated in the 2012

amendments by the recognition of the principle of the “diminished

moral blameworthiness” of youth. Accordingly, the YCJA emphasizes

the value of diversion of youth from the formal court system. Despite

continuing central aspects of the former law, the YCJA made some im-

portant changes to general pr inciples and a large number of changes to

the specif‌ic rules t hat govern youth justice issues in Canada. The YCJA

places a greater emphasi s than did the YOA on using accountability a s a

2 Juvenile Delinq uents Act, S.C. 1908, c. 40, s. 31; later R.S.C. 1970, c. J-3, s. 38(1)

[JDA].

3 Young Offenders Act, R.S.C. 1985, c. Y-1, enacted as S.C. 1980– 81–82– 83, c. 110

[YOA].

4 Youth Criminal Justice Act, S.C. 2002, c. 1 (royal a ssent 19 February 2002; in

force 1 April 2003) [YCJA]. The YCJA repealed a nd replaced the YOA.

Principles for Re sponding to Young Offenders 85

principle of sentencing. This is an attempt to ensure t hat the youth jus-

tice system is not used to impose s anctions intended to meet the needs

of troubled adolescents that are a disproportionate legal re action to the

offence. Child welfare or other social ser vices are expected to meet the

needs of youth who commit less serious offences.

The YCJA provided a more explicit recognition of the role of the

youth justice system in protecting society th an did the YOA, with the

2012 amendments5 providing further articulation of the importance of

the protection of the public as the primar y objective of the youth jus-

tice system. The YCJA also makes more explicit reference than does the

YOA to the importance of the justice system respecting t he needs of

victims. It has a cle arer set of provisions and principles for dealing with

serious violent offenders, for whom there is an increased empha sis on

accountability. In a broad sense, the YCJA continued the philosoph ical

shift from the JDA that began with the enactment of the YOA. It moved

further away from a welfare model and toward a more clearly criminal

model of youth justice law, but without becoming a Criminal Code for

youth.

Over the past century, some ideas have stayed consistent ly import-

ant throughout the evolution of Canadian youth justice. Principles

of limited accountability, rehabilitation, and the need to address the

underlying causes of youth offending beh aviour remain central to soci-

ety’s response to youth crime. There is al so recognition that, for many

adolescent offenders, an informal community-bas ed response is prefer-

able to a formal court process.

This chapter addresse s the principles that have guided re sponses

to youth crime, with a focus on the pri nciples in Canada’s legislation.

The chapter begins with a br ief consideration of the historical evolu-

tion of approaches to youth justice in Canada. It then discusses the

signif‌icance of the Convention on the Rights of the Child, an inter national

document that has in f‌luenced the interpretation of the YCJA. The m ajor

portion of this chapter is devoted to a consideration of principles of the

YCJA, including those in the 2012 amendments. The chapt er concludes

with a brief comparative discussion of the principles that govern youth

justice systems in some other countries.

While this chapter highlights some of the leading precedents that

have interpreted the principles of the YCJA, it does not attempt to dis-

cuss all the ca ses that interpret and apply those principles. The focus

of this chapter is on a discussion of principles and their relationship to

5 S.C. 2012, c. 1.