Principles for Responding to Young Offenders

• Author: Nicholas Bala/Sanjeev Anand
• Pages: 77-173

77

Chapter 2

PRINCIPLES FOR

RESPONDING TO

YOUNG OFFENDERS

a. prINCIpLeS OF YOUth JUStICe LaW

What principles should be applied when responding to adolescent of-

fending and administeri ng the youth justice system? This is an import-

ant, contentious question to which dif ferent societies have different

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

tinct stage of li fe, with youth hav ing more matur ity and resp onsibility

than children, but less m aturity than adults and also having distinct-

ive needs and vulnerabilities. Even so, there is controversy over how

to respond to youth crime. Within Canada, adolescent offenders h ave

been treated di fferently from adults for over one hundred years, w ith

recognition of their limited maturity and special needs. Some pri nci-

ples of youth justice have rem ained relatively constant throughout the

history of juvenile justice in Canada and some pr inciples a re f‌inding

widespread international recognition in the Convention on the Rights of

the Child.1 There is, however, great debate over the articulation and ap-

plication of some of the principles of youth justice law.

The Juvenile Delinquents Act of 1908, which established Ca nada’s

f‌irst juvenile justice system, had a parens patriae (pa rent o f the coun try)

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

1 UN Doc. A/44/ 736 (1989), adopted by United Nations General A ssembly, 20

November 1989 [Convention].

YOUTH CRIM INAL JUSTICE LAW78

to be treated “as a crimina l, but as a misd irected and misguided child,

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

philosophy was not always ref‌lected in how juvenile s were treated in

the courts and juvenile corrections system, the st ated objective of the

JDA was the promotion of the welfare of juvenile offenders, with lim-

ited concern about punishment for specif‌ic offences.

The i ntroduction of the Young Offenders Act in 19843 signalled a

marked change in philosophical approach. Although continuing to rec-

ognize the limited m aturity of adolescents, compared to the J DA, the

YOA placed greater emphasis on the protection of society, accountability

for specif‌ic offences, and respect for legal rights. Under the Youth Crim-

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

have a separate criminal justice system for youth predicated on the idea

that youths are to be treated d ifferently from both children a nd adults.

The Preamble and Declar ation of Principle of the YC JA are intended to

give direction to the judges, police, prosecutors, and youth correctional

staff responsible for the implementation and inter pretation of the Act.

The enactment of the YCJA ref‌lects a change in legislative emphasis; the

new Act has a more coherent set of principles than t he 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 JDA.

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

the YOA, extend s legal protections to youth that are more extensive

than those afforded to adults. The YCJA continues the legal recogni-

tion t hat youth, because of their immatur ity, have special needs and

circumstances that mand ate special t reatment. It also continues the

philosophy of t he YOA that, in comparison to adult s, young offenders

are to have limited accountability. Accordingly, it emphasizes the va lue

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

central aspects of the former law, the YCJA made some important chan-

ges to general principles and a large number of changes to the specif‌ic

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

greater empha sis t han d id the YOA on using accountability as a prin-

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

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

2 Juvenile Delinquents A ct, 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 and r eplaced the YOA.

Principles for Re sponding to Young Offenders 79

troubled adolescent s t hat are a disproportionate legal reaction to the

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

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 th an did the YOA. It also

makes more explicit reference to the i mportance of the justice system

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

principles for de aling with serious violent offenders, for whom there

is an increa sed emphasis on accountability. In a broad sens e, the YCJA

continues the philosophical shi ft from the JDA that began w ith the en-

actment of the YOA. It moves 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 consistently 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 behaviour remain central to soci-

ety’s response to youth crime. There is a lso recognition t hat, for many

adolescent offenders, an informal community-based response is prefer-

able to a formal court process.

This ch apter addre sses the principles t hat h ave guided responses

to youth cri me, with a focus on the pri nciples in C anada’s legislation.

The chapter begins with a brief 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 internat ional

document that has inf‌luenced the interpretation of the YCJA. The major

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

YCJA. The chapter 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 t he principles of the YCJ A, it doe s not attempt to d is-

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

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

the provisions of the YCJA. Most of the chapters that follow are devoted

to a discussion of cases that apply those principles and provisions.

B. eVOLUtION OF prINCIpLeS OF YOUth

JUStICe:

JDa

aND

YOa

As discussed in Chapter 1, Can adian youth just ice law changed dra-

matically over the course of the twentieth centur y. An understanding