Principles for Responding to Youth Offending

• Author: Nicholas Bala
• Profession: Professor of Law Queen's University
• Pages: 62-144

62

A. PRINCIPLES of YOUTH JUSTICE LAW

What principles should be applied when responding to adolescent

offending and administering the youth justice system? This is an

important, contentious question to which different societies have dif-

ferent answers. Almost all societies now recognize that adolescence is

a distinct stage of life, with youth having less maturity than adults but

distinctive needs and vulnerabilities. Even so, there is controversy over

how to respond to youth crime. Within Canada, there have been dra-

matic changes over the past one hundred years in the fundamental

principles that Parliament has articulated for responding to youth

crime. Deciding which principles should govern the youth justice sys-

tem remains highly controversial.

The Juvenile Delinquents Act of 1908, which established Canada’s

first juvenile justice system, had a parens patriae (parent of the coun-

try) or child-welfare orientation. The Juvenile Delinquents Act stated

that a delinquent was not to be treated “as a criminal, but as a misdi-

rected and misguided child, and one needing aid, encouragement, help

and assistance.”1While this philosophy was not always reflected in how

juveniles were treated in the courts and juvenile corrections system, the

stated objective of the Juvenile Delinquents Act was the promotion of

PRINCIPLES FOR

RESPONDING TO

YOUTH OFFENDING

chapter 2

1 The Juvenile Delinquents Act, S.C. 1908, c. 40, s. 31; later R.S.C. 1970, c. J-3,

s. 38(1).

the welfare of juvenile offenders, with limited concern about punish-

ment for specific offences.

The introduction of the Young Offenders Act in 19842signaled a

marked change in philosophical approach. Although continuing to rec-

ognize the limited maturity of adolescents, it placed greater emphasis

on the protection of society, accountability for specific offences and

respect for legal rights. Under the Youth Criminal Justice Act,3which

replaces the YOA, Canada continues to have a separate criminal justice

system for youth predicated on the idea that youths are to be treated

differently from both children and adults. The Preamble and

Declaration of Principles of the YCJA are intended to give direction to

the judges, police, prosecutors, and youth correctional staff responsi-

ble for the implementation and interpretation of the Act. The enact-

ment of the YCJA reflects a change in legislative emphasis; the new Act

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

change from that Act to the YCJA is less dramatic than the change that

occurred in 1984, when the YOA replaced the Juvenile Delinquents Act.

In recognition of the vulnerability of adolescents, the YCJA, like the

YOA, extends legal protections to youth which are more extensive than

those afforded to adults. The YCJA continues the legal recognition that

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

stances that mandate special treatment. It also continues the philoso-

phy of the YOA that in comparison to adults young offenders are to

have limited accountability, and accordingly it emphasizes the value of

diversion of youth from the formal court system. Despite continuing

central aspects of the former law, the YCJA makes some important

changes to general principles and a large number of changes to the spe-

cific rules that govern youth justice issues in Canada. The YCJA places

a greater emphasis than did the YOA on using accountability as a prin-

ciple of sentencing. This is an attempt to ensure that the youth justice

system is not used to impose sanctions intended to meet the needs of

troubled adolescents that are a disproportionate legal reaction to the

offence. Child welfare or other social services are expected to meet

needs of youth who commit less serious offences.

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

youth justice system in protecting society than did the YOA. It also

makes more explicit reference to the importance of the justice system

Principles for Responding to Youth Offending 63

2Young Offenders Act, R.S.C 1985, c. Y-1, enacted as S.C.1980–81–82–83, c. 110.

3Youth Criminal Justice Act, S.C.2002, c. 1 (royal assent February 19, 2002, to

come into force April 1, 2003), usually referred to in this book as the YCJA. The

YCJA repeals and replaces the Young Offenders Act, above note 2.

respecting the needs of victims. It has a clearer set of provisions and

principles for dealing with serious violent offenders, for whom there is

an increased emphasis on accountability and a greater prospect for the

imposition of an adult sanction. In a broad sense, the YCJA continues

the shift begun with the enactment of the YOA. It moves away from a

welfare model and toward a more clearly criminal model of youth jus-

tice law without becoming simply a Criminal Code for youth.

Some ideas have continued to be important throughout the evolu-

tion of Canadian youth justice over the past century. Principles of lim-

ited accountability, rehabilitation, and the need to address the

underlying causes of youth crime remain central to society’s response

to offending behaviour by adolescents. There continues to be a recog-

nition that, for many adolescent offenders, an informal community-

based response is preferable to a formal court process.

This chapter discusses the principles that have guided responses to

youth crime with a specific focus on the principles in Canada’s new leg-

islation. The chapter begins with a consideration of the historical evo-

lution of approaches to youth justice in Canada. The chapter concludes

with a discussion of the significance of the United Nations Convention

on the Rights of the Child for Canada’s youth justice system and a brief

comparison of the principles of the YCJA with the principles that gov-

ern youth justice systems in some other countries.

B. THE EVOLUTION OF PRINCIPLES

GOVERNING YOUTH JUSTICE

As discussed in Chapter 1, Canadian youth justice law changed dra-

matically over the course of the twentieth century. An understanding

of the historical evolution of the principles that have governed youth

justice in Canada is necessary to appreciate the significance of princi-

ples selected by the federal government in the YCJA.

1) The Juvenile Delinquents Act

In Canada, before the twentieth century, as in most of the western

world, there was little legal recognition of the special needs of children

and adolescents in the criminal justice system. By the turn of the twen-

tieth century, however, the needs of children and adolescents were

receiving increasing social and legal recognition. The Juvenile

Delinquents Act of 1908 articulated a child welfare orientation. This

64 Youth Criminal Justice law