Responding to Youth Crime in Canada

• Author: Nicholas Bala
• Profession: Professor of Law Queen's University
• Pages: 1-61

A. ADOLESCENCE AND THE RATIONALES

FOR A YOUTH JUSTICE SYSTEM

Every legal system recognizes that children and youths are different

from adults and should not be held accountable for violations of the

criminal law in the same fashion as adults. There are, though, very sub-

stantial differences in how countries give effect to this principle and in

how they define such concepts as “youth” and “child.” In Canada, the

nature of the special legal treatment for youth has dramatically evolved

over the course of history and remains controversial today. But there is

widespread recognition that children and adolescents — having special

needs and limited capacities — require distinctive, or at least separate,

treatment from adults.

When children are born, they have no physical, moral, or social

capacities. Although newborns have legal rights (for example, to inher-

it property) and are entitled to the protection of the law, these legal

rights can be exercised only through a legal guardian or other adult. As

children mature, they gradually gain physical strength, intellectual

judgment, and social maturity, and can begin to exercise legal rights and

assume legal obligations on their own. By the time legal adulthood is

reached (currently at the age of eighteen in most provinces in Canada),

a person generally has a full range of legal rights and obligations.

1

RESPONDING TO

YOUTH CRIME

IN CANADA

chapter 1

By the beginning of adolescence, about the age of twelve, youths

display a growing social, intellectual, moral, and sexual awareness, as

well as increasing physical size and strength. While for many youths,

physical growth ends at about the age of fifteen, adolescents continue

to mature intellectually, neurologically, psychologically, and socially

until adulthood. Indeed, attitudes, values, and behaviour change over

the course of adult life as well. Adolescence is a time of great change

and development, as parents, teachers, and youth themselves know.

Sometimes adolescents seem quite childish, while at other times they

act like adults or at least want to be treated like adults. Adolescence is

a period of growing self-awareness and increasing autonomy. It is a

period of life when challenging authority figures and testing limits

become very important. Adolescents tend to want new challenges and

excitement, to be more concerned about immediate consequences

rather than with their long-term well-being. They are also more sus-

ceptible to peer pressure than adults. While adolescents are accumulat-

ing knowledge of the world around them, they often lack judgment

and maturity. Frequently, they feel as though they are “invulnerable,”

and act in an impulsive and irresponsible fashion.

In far greater numbers than adults, adolescents engage in high-risk

activities, such as unsafe sex, drunken driving, substance abuse, and

violent behaviour.1Adolescence is often characterized by feelings of

alienation from parents, teachers, and society as a whole, with a greater

willingness to test social norms and conventions, as well as a greater

propensity to engage in offending behaviour. Adolescence is also a time

when, for some individuals, feelings of depression may peak, when

there is a high risk of suicide and self-destructive behaviour. While

there are very substantial differences among countries in types and lev-

els of crime and deviant behaviour, in all modern societies the rates of

violent and antisocial behaviour peak in late adolescence and early

adulthood — between the ages of fifteen and twenty-one — reflecting

2Youth Criminal Justice Law

1 On the relatively high rate of depression, smoking, drug use, and engaging in

unsafe sex practices by Canadian adolescents, see Health Canada, Toward a

Healthy Future: Second Report on the Health of Canadians (Ottawa: Ministry of

Supply and Services, 1999) available online at time of publishing at

sc.gc.ca>. The American psychologist William Damon points out that, “even

more than in the past, peer groups are highly significant for today’s adolescents:

as a group, they lead lives that are more adult-free than those of previous gener-

ations. This generation has spent more time on their own than any other in

recent history. . . . Teens are isolated to an extent that has never been possible

before” (“A World of their Own,” Newsweek, April 30, 2000).

the immaturity and lack of judgment of this period, as well as its ener-

gy and search for excitement.

Canadian law recognizes three distinct stages of criminal account-

ability. Childhood, lasting to the age of twelve, is without criminal lia-

bility. Youth, from twelve through seventeen years of age — a period

corresponding roughly to adolescence — is a stage of life with limited

accountability under the Youth Criminal Justice Act.2Legal adulthood,

starting at eighteen years, requires full legal accountability as well as

providing a full set of adult rights. The rationale for this distinctive age-

based treatment can be found in the basic premises of criminal law and

in the nature of childhood and adolescence as distinct periods of life.3

The fundamental criminal law concept of moral accountability and the

policy objectives of achieving social protection through deterrence of

crime and rehabilitation apply differently to children and youth than to

adults, because children and youth are different from adults.

A central premise of criminal law is that individuals are held

accountable for their acts only if they have a requisite degree of moral

culpability or responsibility, often known as mens rea (the guilty mind).

Therefore, a person who kills another by accident, such as the driver

who runs over someone darting in front of her vehicle, may have no

criminal accountability. A person who commits a wrongful act while

sleepwalking — even a very serious offence such as killing another per-

son4— must be acquitted because of the lack of intent to do harm.

Those who commit criminal acts while suffering from a mental disor-

der that renders them “incapable of appreciating the nature and quali-

ty” of their acts are not criminally responsible for their acts, although

they may be confined to protect the public or themselves.5Because of

the lack of capacity at the time of the offence, they are not criminally

accountable; if they later recover their mental capacity, they must be

released, even if they have committed very serious wrongful acts.

Similarly, the Youth Criminal Justice Act is premised on a recognition

that to be a youth is to be in a state of “diminished responsibility” in a

Responding to Youth Crime in Canada 3

2Youth Criminal Justice Act, S.C. 2002, c. 1 (royal assent February 19, 2002, to

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

YCJA repeals and replaces the Young Offenders Act (YOA), below note 23, which

also had an age jurisdiction of twelve through to the eighteenth birthday.

3 Some commentators and politicians argue that adolescence is not sufficiently

different from adulthood to justify distinct legal treatment: see, for example, S.J.

Morse, “Immaturity and Irresponsibility” (1998) 88 J. of Criminal Law and

Criminology 15.

4R. v. Parks, [1992] 2 S.C.R. 871.

5Criminal Code, R.S.C. 1985, c. C-46, s. 16.

moral and intellectual sense. Adolescents, and even more so children,

lack a fully developed adult sense of moral judgment. Adolescents also

lack the intellectual capacity to appreciate fully the consequences of

their acts. In many contexts, youths will act without foresight or self-

awareness, and they may lack empathy for those who may be the vic-

tims of their wrongful acts.6Youths who are apprehended and asked

why they committed a crime most frequently respond: “I don’t know.”

Because of their lack of judgment and foresight,7youths also tend to be

poor criminals and, at least in comparison to adults, are relatively easy

to apprehend. Youths who commit horrible murders often boast of their

misdeeds to their friends, even taking their friends to see the body of

the victim, making their arrest virtually inevitable. This is not to argue

that adolescent offenders should not be morally or legally accountable

for their criminal acts, but only that their accountability should, in gen-

eral, be more limited than is the case for adults.

An important function of the criminal justice system is the protec-

tion of society through deterrence of potential offenders: young people

may resist the impulse to commit crimes for fear of being caught and

punished. Because youth, especially those who are prone to commit-

ting offences, generally have less foresight and judgment than adults,

the deterrent effect of the youth justice system is much weaker than

that of the criminal justice system for adults. Although improved polic-

ing, thereby increasing the chances of catching offenders, can have a

deterrent effect on youth crime, increasing the severity of sanctions —

that is, increasing the consequences of getting caught — appears to

have no impact on youth crime.8This is not to argue that there should

be no consequences for youths who commit criminal offences, but that

there should be no expectation that social protection can be increased

by imposing more severe punishments on young offenders.

4Youth Criminal Justice Law

6 See, for example, E. Cauffman and L. Steinberg, “(Im)maturity of Judgement in

Adolescence: Why Adolescents May Be Less Culpable than Adults” (2000) 18

Behavioural Sciences and the Law 731–60.

7 Courts dealing with tort cases (civil actions for monetary damages as a result of

negligence) have also ruled that teenagers should not be held to an adult stan-

dard of care, with the reasonableness of their conduct assessed in light of their

age and experience: Nespolon v. Alford (1998), 40 O.R. (3d) 355 (Ont. C.A.)

8 See, for example, A.N. Doob, V. Marinos, and K.N. Varma, Youth Crime and the

Youth Justice System in Canada: A Research Perspective (Toronto: University of

Toronto, Centre of Criminology, 1995) at 56–71.

A further rationale for having a separate youth justice system is

that adolescents generally lack the judgment and knowledge to partic-

ipate effectively in the court process and may be more vulnerable than

adults. This justifies having a special court with legal rules and proce-

dures that protect the rights of youth and attempt to ensure their mean-

ingful participation in the legal process.

Historically, the prime rationale for establishing a youth justice sys-

tem that was separate from the adult system was the belief that youths

are more vulnerable than adults as well as more amenable to rehabili-

tation. Long-term social protection can best be achieved by concentrat-

ing resources on their rehabilitation and by protecting them from the

full glare of public accountability. At the very least, concerns about the

corruption or abuse of children and youth placed in correctional facil-

ities with adult offenders offer justification for their separate confine-

ment. However, concerns about the special needs and rehabilitation of

youth do not necessarily translate into more lenient treatment. At times

in Canada’s legal history, a desire to promote rehabilitation formed the

basis for a more intrusive approach or longer periods in a custody facil-

ity than an adult might receive for the same offence, albeit the youth

custody facility was separate from those used for adults with more

emphasis on the provision of rehabilitative and educational services.

The rationale for a longer sentence was that the youth needed the ben-

efit of a longer period in a rehabilitative environment or a longer peri-

od away from a corrupting situation at home.

The Youth Criminal Justice Act, however, provides that a youth

should not receive a greater punishment than an adult convicted of the

same offence in similar circumstances;9in most cases a concern with

rehabilitation and the principle of limited youth accountability will

result in a less serious sanction.10 The Youth Criminal Justice Act makes

clear that youth court sentences are not to be a vehicle for imposing

mental health or other treatment services if this type of response is

more intrusive than warranted by the offence and the record of the

youth. While one must not imagine that all young offenders want to be

or can be rehabilitated, the rehabilitative ideal remains an important

rationale for having a distinct youth justice system.

Responding to Youth Crime in Canada 5

9YCJA, above note 2, s. 38(2)(a).

10 Principles of youth justice court sentencing, found in the YCJA, above note 2,

ss. 3 and 38, are discussed in Chapters 2 and 8.

B. THE HISTORY OF CANADA’S YOUTH

JUSTICE SYSTEM

Prior to the nineteenth century there was little legal recognition of the

special needs of children and youth. Children might be subjected to

harsh discipline by parents and employers. Except among the upper

classes, by the age of seven, children were expected to work along with

adults on farms, in mines, and in trade shops. Only upper-class chil-

dren would receive any schooling, with an emphasis on the education

of boys. While youths had few civil or property rights until the age of

twenty-one, criminal liability started at the age of seven, and children

convicted of criminal offences were subjected to the same punishments

as adults, including hanging for such offences as theft. Children under

seven were considered to be “under the age of discretion” and were not

criminally accountable under the English common law, which also

came to be applied in Canada. By the seventeenth century it was estab-

lished that a child between the ages of seven and fourteen could raise

a defence of doli incapax (incapacity to do wrong) and would have

criminal immunity, if it were not proven that the child had the capaci-

ty to understand the “nature and consequences of his acts and to appre-

ciate that it was wrong.”11

The nineteenth century saw a growing understanding of the nature

and significance of childhood, with the beginnings of the modern dis-

ciplines of psychology and psychiatry. In England, the United States,

and Canada, social reform movements aimed at improving the lives of

children were loosely linked to the movements to abolish slavery and,

later, to gain the vote for women. Legislation was enacted to prohibit

child labour in mines and factories. Publicly funded education was

introduced and child-welfare agencies were established to care for

homeless and orphaned children. In the latter part of the nineteenth

century the positivist approach to criminology came into prominence,

premised on the belief that children and adolescents engage in crimi-

nal behaviour as a result of such external influences as poverty, family

breakdown, and lack of education, and that with appropriate social

intervention, these youthful offenders could be saved from a life of

crime. In 1857 the first Canadian legislation was enacted to separate

child and adolescent offenders from adults, placing them in training

schools or reformatories rather than adult penitentiaries. Initial steps

6Youth Criminal Justice Law

11 See S.S. Anand, “Catalyst for Change: The History of Canadian Juvenile Justice

Reform” (1998) 24 Queen’s L.J. 515.

were taken for community-based alternatives to incarceration for

youthful offenders, and the first probation officers specifically for juve-

niles began to work with them. In 1899 the first court to deal with

youthful offenders in a special judicial setting separate from adults was

established in Chicago.

1) The Juvenile Delinquents Act

In Canada, reformers persuaded Parliament to enact the Juvenile

Delinquents Act in 1908.12 This Act created a juvenile justice and correc-

tions system with a welfare-oriented philosophy based on positivist

criminology and a distinct parens patriae (parent of the country) philos-

ophy. This approach reflected the belief that there was little need to dis-

tinguish between juveniles who were offenders and those who were

abandoned or neglected by parents. One of the principal drafters of the

Juvenile Delinquents Act, W.L. Scott, explained the philosophy of the Act:

There should be no hard and fast distinction between neglected and

delinquent children. All should be recognized as in the same class

and should be dealt with a view to serving the best interests of the

child. . . . The spirit of the court is always that of a wise and kind,

though firm and stern, father. The question is not “What has this

child done?” but “How can this child be saved?”13

Under the Juvenile Delinquents Act, children could be subjected to

“delinquency proceedings” for violating any federal, provincial, or

municipal law, or for the status offence of “sexual immorality or any

similar form of vice.” Although “sexual immorality” was not an offence

for adults, it was felt that the well-being of children who engaged in

this type of behaviour could be promoted, if they were subjected to the

jurisdiction of a juvenile court and thereby obtained apparently appro-

priate treatment.

The philosophy that society should promote the welfare of youth

was reflected in provisions of the Juvenile Delinquents Act and in provin-

cial laws that dealt in similar ways with both delinquents and children

in need of protection. Generally, youths were processed through the

same courts and often placed in the same facilities whether they were

delinquent or in need of protection. Most provinces allowed children to

Responding to Youth Crime in Canada 7

12 Juvenile Delinquents Act, enacted as S.C. 1908, c. 40; subject to minor amend-

ments over the years, finally as Juvenile Delinquents Act, R.S.C. 1970, c. J–3.

13 Scott, quoted in O. Archambault, “Young Offenders Act: Philosophy and

Principles” (1983) 7:2 Prov. Judges J. 1 at 2–3.

be committed to training school for truancy and such vague offences as

“unmanageability.” The original courts for juveniles operated very

informally with the intention to ensure that “unnecessary technicali-

ties” would not interfere with or delay the treatment considered to be

in each child’s best interests.

The Juvenile Delinquents Act specified that no action of a juvenile

court was to be set aside because of any “informality or irregularity

where it [appeared] that the disposition of the case was in the best

interests of the child.” Even though most of the judges in the original

juvenile courts had no legal training and lawyers rarely appeared, the

Juvenile Delinquents Act restricted rights of appeal to courts presided

over by legally trained judges.14 The Act required judges to treat a

delinquent “as far as practicable . . . not as criminal, but as a misdirect-

ed and misguided child . . . needing aid, encouragement, help and

assistance.”15 This philosophy was reflected in indeterminate custodial

sentencing. If a delinquent was ordered by a juvenile court judge to be

confined in a training school, the youth would be released only when

correctional officials for juveniles determined that this was consistent

with the “best interests” of the youth. There were broad powers to

return a youth who was released back to training school until the juve-

nile became an adult, at that time the age of twenty-one.

The Juvenile Delinquents Act and the justice system for youths that

it created were an enormous improvement over the harsh treatment

inflicted on children and adolescents in the nineteenth century. Even

today that Act’s child-oriented philosophy has appealing aspects. Yet it

must also be recognized that the Act was often applied in an arbitrary

or discriminatory fashion. Youths from “good families” who committed

quite serious offences might be returned to the care of their middle-class

parents, while children from lower-income, Aboriginal, or immigrant

families could serve long periods in training school for quite minor

offences. These decisions would have been considered to be in the “best

interests” of the youths by judges, most of whom were white, male, and

middle class. Female adolescents were often sent to training school for

the vaguely worded status offence of “sexual immorality.” In practice,

this offence was used almost exclusively against girls, typically those

from socially disadvantaged backgrounds and racial minority groups.16

8Youth Criminal Justice Law

14 Juvenile Delinquents Act, above note 12, ss. 7 and 37.

15 Juvenile Delinquents Act, above note 12, s. 38.

16 S. Barnhorst, “Female Delinquency and the Role of Women” (1978) 1 Can J.

Fam. L. 254; and C. Strange, Toronto’s Girl Problem: The Perils and Pleasures of

the City, 1880–1930 (Toronto: University of Toronto Press, 1995).

While training schools in theory promoted the “best interests” of

their residents, these often harsh environments subjected many youths

to physical and sexual abuse by staff.17 Tragically, this reality did not

begin to become publicly known until the 1980s when former inmates

of juvenile facilities — many of them emotionally scarred adults —

started to come forward to disclose the abuse they had experienced

decades earlier as adolescents in the care of the state. Today, abuse in

youth corrections facilities continues to be a serious concern, although

increased government supervision and improved access to advocates

for young inmates have resulted in less abuse by correctional staff. In

contrast to the high level of political and media attention to youth jus-

tice issues at present, the original enactment of the Juvenile Delinquents

Act in 1908 received scant public attention and only ten minutes of

Parliamentary debate.

For the first half of the twentieth century there was relatively little

public concern about the legal responses to youth crime.18 By the 1960s

the Juvenile Delinquents Act was coming under growing scrutiny and

attack. More legally trained judges and an increasing number of

lawyers were appearing in juvenile courts. The informality and lack of

legal rights for youths were being challenged, especially since the

Juvenile Delinquents Act created a highly discretionary regime which

gave judges, police, and juvenile correctional officials broad powers to

deal with individual youths in accordance with their own perceptions

about each child’s “best interests.” Too often, and perhaps inevitably,

the discretionary “best interests” standard seemed to reflect the values

and biases of individual officials. A further concern was expressed that

the Juvenile Delinquents Act allowed for substantial interprovincial vari-

ation in how juveniles were treated. This was most obvious in regard

to age jurisdiction: the minimum age of juvenile court jurisdiction by

province varied from seven to fourteen years of age, and the maximum

age ranged from fifteen to seventeen years. There were also substantial

disparities in access to legal services, in the degree of respect for legal

rights, in the use of diversion from juvenile court, and in the use of

custodial sentences for juveniles.

By the 1960s fundamental questions were being raised about the

welfare-oriented philosophy underlying the Juvenile Delinquents Act.

Responding to Youth Crime in Canada 9

17 There have recently been public inquiries, as well as civil suits and criminal

prosecutions against staff at many of the juvenile institutions as a result of abuse

in the period from 1940 to 1980: see R. Bessner, Institutional Child Abuse in

Canada (Ottawa: Law Commission of Canada, 1998).

18 S.S. Anand, “Catalyst for Change: The History of Canadian Juvenile Justice

Reform” (1999) 24 Queen’s L.J. 515.

While there was acceptance of the importance of promoting the well-

being of juveniles, there was a growing controversy about whether this

should be the only principle guiding the societal response to juvenile

offenders. A number of critics challenged the rehabilitative ideal, point-

ing out that many delinquents were not being rehabilitated by the juve-

nile justice system. In addition to problems of abuse by staff in some

juvenile correctional institutions, many youths, even in well-run facili-

ties, were not being rehabilitated and reoffended after their release.19

Critics of the Juvenile Delinquents Act argued that the protection of

the public and the accountability of offenders are as important as reha-

bilitation — perhaps even more important. Indeed, it was apparent that,

while the Act, as it was written, focused on the best interests of juve-

niles, in practice judges were not focusing exclusively on the interests

of children. In fact, concerns about social protection and accountabili-

ty were often reflected in sentencing decisions under the Act; this was

most apparent in decisions about transfer to adult court, which was to

occur only if both the “good of the child and the interest of the commu-

nity demand it” [emphasis added].20 On its face, this standard for trans-

fer would seem to be almost impossible to meet, especially in murder

cases where a juvenile might face capital punishment after transfer.

Judges nevertheless regularly persuaded themselves that the “good of

the child” demanded the possibility of facing hanging rather than the

much more lenient juvenile sentence.21 While these transfer decisions

may have been socially justifiable, it was appropriate to rewrite the law

to acknowledge frankly that the interests of the youth was not the dom-

inant factor considered in making a decision about transfer.

2) The Young Offenders Act

The deficiencies of the Juvenile Delinquents Act were becoming clear by

the mid-1960s. Youth justice reform, however, was not a priority of the

federal government, especially in the face of controversy among different

provincial governments and various advocacy groups about the best

approaches. The release of the federally commissioned report, Juvenile

10 Youth Criminal Justice Law

19 See, for example, S. Shamsie, “Anti-Social Adolescents: Our Treatments Do Not

Work — Where Do We Go From Here?” (1981) 26 Can. J. Psychiatry 357.

20 Juvenile Delinquents Act, above note 12, s. 9(1).

21 See, for example, R. v. Truscott, [1959] O.W.N. 320 (H.C.J.): “it would be for the

good of the child to have his position in respect of such a serious charge estab-

lished by a jury which would remove any possible criticism of having such a

serious matter determined by a single [Juvenile Court] judge in in camera pro-

ceedings” (at 321).

Delinquency in Canada,22 in 1965 began a lengthy period of debate and

gradual reform. By the 1970s some provinces, most notably Quebec, took

steps to change their juvenile justice system by, for example, ensuring

that youths had access to lawyers. Other provinces continued to maintain

informal juvenile courts with little recognition of legal rights. At the fed-

eral level, discussion papers and draft legislation were released and com-

mented on; it was not until February 1981 that the bill which would

finally be enacted as the Young Offenders Act was tabled in Parliament.23

A strong impetus to federal action was the constitutional entrench-

ment of the Canadian Charter of Rights and Freedoms in 1982. The infor-

mality and lack of legal rights for youths in the Juvenile Delinquents Act

were inconsistent with the legal protections recognized in the Charter,

while the interprovincial variation allowed by the Juvenile Delinquents

Act appeared inconsistent with the equal protection of the law guaran-

teed by section 15 of the Charter,24 a provision that came into effect in

1985. The YOA was enacted in 1982 with the support of all members of

Parliament and came into force on April 1, 1984.

The YOA provided much more recognition of legal rights than the

Juvenile Delinquents Act, as well as establishing a uniform national age

jurisdiction, developments consistent with the emphasis in the Charter

on due process of law and equal treatment under the law.25 The YOA tried

Responding to Youth Crime in Canada 11

22 Canada, Department of Justice, Report of the Committee on Juvenile

Delinquency, Juvenile Delinquency in Canada (Ottawa: Queen’s Printer, 1965).

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

24 Canadian Charter of Rights and Freedoms, enacted as Part I of the Constitution Act,

1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (subsequent-

ly referred to as the Charter). Policy makers in 1982 feared that the differences in

age jurisdiction under the Juvenile Delinquents Act, above note 12, would violate

s. 15 of the Charter and acted to prevent a court challenge. No court ever ruled

on this issue. There is also an argument that such variations might be constitu-

tionally justifiable in a federal state; see R. v. S.(S), [1990] 2 S.C.R. 254.

25 Some critics have decried the increased emphasis on due process and legal

rights. See, for example, J. Hackler, “An Impressionistic View of Canadian

Juvenile Justice: 1965 to 1999” (2001) 20 Can J. Comm. Mental Health 17, who

writes that the enactment of the YOA, above note 23, represented: “a basic

change . . . a transfer of influence from social workers to lawyers. Juveniles got

certain legal protections, but we did not foresee that the juveniles and their fam-

ilies would become victims of the legal process. . . . The vast increase in the

number of judges, prosecutors, defence lawyers and closed-custody institutions

is the result of one profession, law, expanding into an area previously dominated

by another, social work . . . but it is too late to go back. Lawyers have replaced

social workers as the main players in juvenile justice. We must work with them”

(at 17–21).

to balance a concern for the special needs of youth with the protection

of the public. It abolished the indeterminate sentences of the Juvenile

Delinquents Act, providing for determinate (fixed) custodial dispositions,

subject to judicially controlled early release. The YOA was a much more

detailed piece of legislation than the Juvenile Delinquents Act, regulating

every stage of the youth justice process, including arrest and police ques-

tioning, diversion to alternatives to youth court, access to legal counsel,

public disclosure of information, and the sentencing process, as well as

the possibility of transfer to adult court for youths charged with the most

serious offences. The YOA moved away from the child-welfare philoso-

phy of the previous Act, abolishing the vague status offence of “sexual

immorality” and focusing on federal criminal offences.

At the same time the YOA came into force in 1984, several

provinces transferred some or all of the responsibility for young offend-

ers from their social services ministry to the adult corrections ministry,

although this was not required by the new federal Act. Quebec, how-

ever, maintained a youth justice and corrections system that was close-

ly linked to its child-welfare system.

In 1986 minor amendments were made to respond to some con-

cerns raised by police and provincial governments about difficulties

implementing the YOA and to toughen the Act slightly. Provisions were

added to facilitate charges for breach of probation orders and to allow

publication in a community of information about the identity of dan-

gerous young persons at large.26

By the late 1980s the YOA was subject to public criticism.

Concerns were being raised about the perceived inadequacy of the

maximum three-year sentence for violent young offenders, especially

those convicted of murder, and the difficulty in transferring youths to

the adult court where they might face much longer sentences in adult

prisons. In 1992, the Progressive Conservative federal government

responded by enacting further amendments to the Act, lengthening the

maximum sentence for murder in youth court to five years less a day,

and amending the transfer provisions to stipulate that the “protection

of the public” was to be the paramount consideration.27

In 1995 the Liberal federal government enacted another set of

amendments to the Act, again primarily intended to demonstrate to the

12 Youth Criminal Justice Law

26 An Act to amend the Young Offenders Act, the Criminal Code, the Penitentiary Act

and the Prisons and Reformatories Act, R.S.C. 1985 (2d Supp.), c. 24, in force

September 1, 1986 and November 1, 1986.

27 An Act to amend the Young Offenders Act and the Criminal Code, S.C. 1992, c. 11.

See N. Bala, “Dealing with Violent Young Offenders: Transfer to Adult Court and

Bill C-58” (1990) 9 Can. J. Fam. L. 11; see also Chapter 9 of this book.

public that it was getting tougher, in particular for the most violent

offenders. These amendments lengthened to ten years the maximum

youth court sentence for murder, created a presumption that sixteen-

and seventeen-year-olds charged with the most serious offences would

be transferred to adult court where longer sentences could be imposed,

and promoted information-sharing with such professionals in the com-

munity as teachers.28 Other amendments were also introduced to

attempt to emphasize the rehabilitative themes of the YOA and, in par-

ticular, to increase the use of community-based dispositions for youths

who did not pose a risk of serious harm to the community.

3) Canadian Politics and Youth Crime

When enacted by Parliament in 1982, the YOA was supported by all fed-

eral political parties and was hailed as ushering in a new era in juvenile

justice. Ironically, after unanimous Parliamentary support when it was

enacted, the Act became the focus of enormous public controversy and

was ultimately attacked by federal and provincial politicians across a

broad political spectrum for being too lenient with young offenders and

failing to protect society adequately. In 1993, for the first time in

Canadian history, federal politicians made juvenile justice an election

issue with all parties taking a stand concerning — typically against — the

YOA. The four national parties played to growing public fears of youth

crime and pledged to toughen the Act again.29 The Bloc Québécois, pre-

pared to “speak out against law-and-order rhetoric,” supported the Act,

taking an approach consistent with the provincial policies more oriented

to child welfare in Quebec.30 These attacks on the Act continued in the

1997 and 2000 federal election campaigns, as well as in some provincial

elections, even though criminal law is an area of federal responsibility.

Since 1984, although it is not clear that youth crime has actually

become an increasingly serious problem, the political concern about

youth crime and media reporting about this issue have greatly increased.

Responding to Youth Crime in Canada 13

28 An Act to amend the Young Offenders Act and the Criminal Code, S.C. 1995, c. 19.

See N. Bala, “The 1995 Young Offenders Act Amendments: Compromise or

Confusion?” (1994) 26 Ottawa L.Rev. 643. See also Chapter 9 of this book. For

a critical commentary on the 1995 reforms, see K. Campbell, M. Dufresne, and

R. MacLure, “Amending Youth Justice Policy in Canada: Discourse, Mediation,

and Ambiguity” (2001) 40 Howard J. 272.

29 The Liberal, Reform, Progressive Conservative, and the New Democratic parties.

See Bala, above note 28 at 652.

30 See L. Gagnon, “Quebec’s Soft-Love Approach to Young Offenders,” Globe and

Mail, March 13, 1999: D3.

While police reports of youth crime in Canada increased in the late

1980s, the reported rate of youth crime peaked in the early 1990s. The

rise in police reports about youth crime in the late 1980s and early 1990s

reflected, at least in part, changes in police charging patterns and in

reporting practices; for example, school officials were required by poli-

cies of zero tolerance of violence to report minor assaults that previous-

ly would have been resolved informally.31 Certain key indicators of

serious youthful criminality, such as the youth homicide rate, have

remained relatively constant for years, as have measures of youth offend-

ing based on self-reports by adolescents.32 Further, as media reports

about youth crime and political concerns about the YOA were increas-

ing in the 1990s, the actual rate of youth crime reported by police was

slowly falling for much of the decade. Although youth crime may not

have been increasing in the 1990s, media reports of youth violence and

public anxiety about the problem of youth crime have escalated dramat-

ically in Canada.33

There was a public misperception that the YOA contributed to, or

at least was associated with, a substantial increase in youth crime.

Ironically there was even a vague sense among the public that the old

legal regime under the Juvenile Delinquents Act afforded the public

greater protection than the YOA, although in reality the former Act

actually had more of a welfare-oriented philosophy. While the actual

youth crime rate may not have increased substantially after the YOA

came into force, that Act resulted in a more punitive regime than under

the Juvenile Delinquents Act, with much higher rates of custody use for

adolescent offenders.

Public perceptions about the inadequacy of police and court

responses to crime are affected more by the fear of crime than by actu-

al experience as a victim.34 The media, by focusing on relatively rare

14 Youth Criminal Justice Law

31 P.J. Carrington, “Trends in Youth Crime in Canada 1977–1996” (1999) 41 Can J.

Crim. 1.

32 M. LeBlanc and S. Girard, “The Generality of Deviance: Replication over Two

Decades with a Canadian Sample of Adjudicated Boys” (1997) 37 Can J. Crim.

171.

33 J.B. Sprott, “Understanding Public Views of Youth Crime and the Youth Justice

System” (1996) 38 Can J. Crim. 271. See F. Estrada, “Juvenile Violence as a

Social Problem: Trends, Media Attention, and Social Response” (2001) 41 Brit J.

Crim. 639–55 analyzing the sharp increase in media coverage and police reports

of youth crime in western Europe despite other evidence that youth crime rates

are quite stable.

34 J.B. Sprott and A.N. Doob, “Fear, Victimization and Attitudes to Sentencing, the

Courts and Police” (1997) 39 Can. J. Crim. 275.

instances of serious youth violence, may contribute to a distorted pub-

lic perception of youth crime. Fears about youth crime may also be

fuelled by the ageing demographic make-up of the population, and by

the insecurity felt by many Canadians in the face of accelerating social

and economic change. Owing to differences in birth rates in various

ethnic communities, Canada’s population has a relatively high propor-

tion of youth from visible minority and Aboriginal backgrounds. As a

result, some of the public fear about youth crime may derive from

unarticulated elements of racism, as reflected in certain expressions of

concern about crimes committed by youths who are immigrants or

from visible minorities.35

Political and public criticisms of the YOA also held an element of

anti-youth sentiment. The perception of many adults that youth are

more rebellious and less respectful than when they were young is as old

as human history. But the level of anti-youth rhetoric may be more

intense today, as reflected in the 1999 Ontario election campaign;

Progressive Conservative premier Mike Harris argued in favour of low-

ering the maximum age of youth court jurisdiction to fifteen and com-

plained that the YOA was “too soft . . . too lenient, it does not teach

respect and responsibility and it’s got to be toughened up.” At the same

time, the Premier suggested that teenagers’ “lack of respect” might be

improved by introducing a province-wide common code for schools of

student behaviour and dress.36 This campaign rhetoric clearly plays to

the sentiments of many older members of the public that young people

are increasingly out of control.

Adult sensitivity to antisocial adolescent attitudes may be height-

ened by certain aspects of popular culture, reflected in music, movies,

videos, and computer games. Over the decade of the 1990s, some

aspects of youth culture became increasingly alienated from adult cul-

ture. The dress, language, and demeanour of many young people con-

form less to adult expectations than in the past. Many youth now have

more of an aggressive attitude and are less respectful of adults than

teenagers of a few decades ago. But it must be appreciated that adult

society has also changed dramatically: interactions take place on an

Responding to Youth Crime in Canada 15

35 During the 1999 Ontario election campaign, the Toronto Police Association

sponsored a controversial advertisement urging voters to support “law and

order” candidates. The ad pictured five obviously Latino young men, who were

actually in Los Angeles when the picture was taken: “Group Wants Apology for

Police Poster,” Globe and Mail, June 1, 1999: A13.

36 Canadian Press, “Teenagers Still a Hot Topic: Premier Renews Call for Tougher

Young Offenders Act,” March 2, 1999.

increasingly informal basis and adults do not display the same defer-

ence to authority figures that they once did. There is generally greater

social tolerance of profanity, and sexual matters have become a fre-

quent topic of public commentary. This greater adult informality — a

broadening of the scope of acceptable social behaviour — has impor-

tant repercussions for youth. To test social limits — a normal step in

attaining autonomy as one matures — adolescents have to go further.

A generation ago, mild but visible adolescent rebellion might have

been signalled by wearing blue jeans, for females not wearing a

brassiere, and for males growing their hair long. Now this type of

appearance would be considered normal for adults. Youths and some

young adults search for other forms of distinctiveness, through bright-

ly coloured hair, tattooing, and body piercing.

Adolescents today treat adults in a less deferential manner; previous

generations would not have dreamed of behaving toward that way their

elders. This behaviour, which is easily perceived as disrespectful, can be

shocking for older people. However, less deferential adolescent behav-

iour mirrors a generally less deferential society. Young people face a

more uncertain and competitive economic future than did previous

post-World War II generations. Does some of the political rhetoric

about youth crime reflect adult fears that young people seem increas-

ingly out of control and perhaps less likely than the youth of earlier

generations to assume future roles as productive tax-paying citizens?

In Canada, a vital element of the political and administrative concerns

about youth justice issues relates to the division of responsibilities

between the federal and provincial governments.37 Under the Constitution

Act, 1867, section 91(27), the federal government has jurisdiction over

“Criminal Law . . . [and] Procedure,” while the provinces have jurisdic-

tion under section 92(14) for the “Administration of Justice,” as well as

responsibility for such important related services as education, health,

and child well-being. The federal legislative power in this area has been

interpreted by the courts “in its widest sense,” to permit the federal

Parliament to enact laws “intended to prevent . . . juveniles [from

becoming] prospective criminals and to assist them to be law-abiding

citizens.”38 The courts consistently rejected challenges under the

16 Youth Criminal Justice Law

37 Territorial governments have essentially the same responsibilities as provincial

governments with regard to youth justice, although their jurisdiction derives

from federal statutes. For the sake of simplicity, most references in this text are

only to provincial governments.

38 B.C. (A.G.) v. S., [1967] S.C.R. 702 at 710.

Constitution Act, 1867 to the Juvenile Delinquents Act39 and the YOA,

accepting that the federal government could enact laws to deal with

prevention of youth crime, the control of youth corrections facilities,

and diversion from the court system. The courts have also rejected

most Charter challenges to the YOA, accepting that some restrictions

on the rights of young persons are justifiable in light of the more lim-

ited sanctions that they face.40

The federal government has a broad power to enact legislation deal-

ing with young offenders, and may enact laws to deal with such issues

as protection of the privacy of proceedings41 and the establishment of

non-court alternative measures.42 Provincial governments are obliged to

implement these laws, including paying for the legal, judicial, correc-

tional, and social services required for youths. The federal government

transfers money to the provinces for some of the expenses associated

with the administration of juvenile justice, but after the YOA came into

force in 1984, as a result of efforts to reduce the federal deficit, the level

of federal financial support for such services declined. For financial and

philosophical reasons, some provincial governments disagreed with

various provisions of the YOA. For example, when the Act was enacted

in 1982, provinces such as Ontario, which had a minimum age of six-

teen under the Juvenile Delinquents Act, opposed establishing eighteen

as the minimum age of adult jurisdiction. Quebec, which already used

eighteen as the adult minimum under the Juvenile Delinquents Act, sup-

ported the higher age. The opposition of Ontario reflected financial

concerns about the increased cost of their youth court jurisdiction, as

well as a belief that sixteen- and seventeen-year-olds are mature enough

to be treated like adults.

In a federal system, it is understandable that provincial politicians

will criticize federal politicians for imposing costs and obligations on

provincial governments. The federal government consults extensively

with provincial governments about law reform in the youth justice

field, and the provinces played a significant role in the development of

Responding to Youth Crime in Canada 17

39 Some of the provisions of the Juvenile Delinquents Act, which failed to adequately

recognize legal rights, were successfully challenged in the period after the

Charter came into effect in 1982 and before the YOA came into force in 1984.

See N. Bala, “Constitutional Challenges Mark Demise of Juvenile Delinquents

Act” (1983), 30 C.R. (3d) 245.

40 See, for example, R. v. L.(R.) (1986), 52 C.R. (3d) 209 (Ont. C.A.), upholding

denial of right to a jury trial.

41 Southam Inc. v. R. (1984), 48 O.R. (2d) 678 (H.C.J.), aff’d. (1986), 53 O.R. (2d)

663 (C.A.).

42 R. v. S.(S.), above note 24.

the Youth Criminal Justice Act. However, the provinces do not always

agree among themselves about the directions that they would like the

federal government to take. Further, in regard to some issues the fed-

eral government was not prepared to adopt the consensus position of

the provinces, although the YCJA gives the provinces significantly

more flexibility to shape youth justice policies than they had under the

YOA. While the increasing provincial control over juvenile justice pol-

icy has given the new law a degree of provincial support, it has also

increased concerns that youths in different provinces may receive very

different legal treatment.

By the end of the 1990s the decline in the level of federal financial

support for provincial spending on youth justice ended. The YCJA is

part of a federal strategy that includes some additional federal support

for provincial spending on youth justice, although the federal govern-

ment is imposing conditions on how this increased funding is to be

spent, with an emphasis on community-based programs and alternatives

to custody. The decrease in federal financial support in the early 1990s

was bound to cause political tension in this area. While somewhat

increased federal funding may help to reduce tensions, the provinces are

concerned about burgeoning federal controls on their spending.

There was another dimension to some of the provincial critiques of

the youth justice system, given increasing public concern over youth

crime. The YOA was an easy target for provincial politicians responsi-

ble for many of the expensive services that most directly affect public

safety, such as policing, social services, and child welfare. It may, for

example, be easier for provincial politicians to attack the federal legis-

lation for not being tough enough than to take responsibility for

improving police services to increase community protection, or to

make the changes to the health, education, and social service systems

that may in the long term produce a less violent society.

C. THE ENACTMENT OF THE

YOUTH

CRIMINAL JUSTICE ACT

Demands for politicians to get tough with youth crime grew louder in

the late 1990s as Canada became more conservative. The Reform (now

Canadian Alliance) Party with its law-and-order agenda pressed for

major changes in many criminal laws, including those governing the

youth justice system. This included demands from some Reform Party

members for the total repeal of the YOA, although even the advocates of

18 Youth Criminal Justice Law

this position recognized the value of both separate correctional facilities

for most young offenders and special treatment for less serious offences

committed by adolescents.43 Especially when elections are close, politi-

cians seem to focus on getting tough with young offenders, although in

their more reflective moments most politicians and many members of

the public appreciate the limitations of this approach as a way of reduc-

ing youth crime and of increasing the protection of society.

While making demands for getting tough on youth crime, politi-

cians have become increasingly aware of the costs of an approach to

youth crime that emphasizes use of expensive custody facilities.

Although the numbers of youth in custody rose sharply after the YOA

came into force, more than three-quarters of youth receiving custodial

sentences under that Act had not committed violent offences.

Compared to other countries, Canada relied very heavily on court and

custody responses to non-violent youth crime that are relatively expen-

sive and ineffective. Other countries divert most of their less serious

adolescent offenders from the court system, and make greater use of

community-based dispositions for those who are sent to court. For

example, the United States has a much more serious youth crime prob-

lem than Canada — a youth homicide rate that is six times higher than

that in Canada. But under the YOA, Canada was sending youth into

custody at twice the rate of American courts.44

1) Reform of the Young Offenders Act in 1995

Government publicity surrounding the 1995 reforms to the YOA

focused on facilitating transfer to adult court for a relatively small

number of the most violent offenders. Some of the less publicized pro-

visions of those reforms, however, were intended to increase the use of

community-based dispositions for youths not committing offences

Responding to Youth Crime in Canada 19

43 See, for example, R. Howard, “Reform’s Grassroots Dig in on Tough Ground:

Party Would Scrap Young Offenders Act, New Gun-Control Law,” Globe and Mail,

June 8, 1996: A4.

44 Department of Justice Canada, A Strategy for Youth Justice Renewal (Ottawa, May

1998) at 20, and J. Hornick, N. Bala, and J. Hudson, The Response to Juvenile

Crime in the United States: A Canadian Perspective (Calgary, AB: Canadian

Research Institute for Law and the Family, 1995). It is interesting to observe

that, in the United States in the 1990s, politicians and the public demanded a

get-tough approach to youth crime, even though youth crime rates were actually

falling: see Barry Glassner, “School Violence: The Fears, the Facts,” New York

Times, August 13, 1999.

involving serious personal injury. There was also in 1995 a specific

addition to the YOA’s Declaration of Principle to recognize that crime

prevention and the protection of society are best achieved by address-

ing the causes of crime and rehabilitating youth.45 Although less publi-

cized than the demands to toughen the YOA, there are many examples

of Canadian politicians recognizing the need to address the root caus-

es of youthful criminality. Indeed many politicians and members of the

public who in some contexts appear to support “get-tough” policies

also recognize the importance of crime prevention, rehabilitation of

young offenders, and the application of principles of restorative justice

for young offenders.46

In introducing the 1995 YOA amendments, which increased sen-

tences for murder in youth court, the Justice Minister at the time

observed: “If the answer to crime was simply harsher laws, longer

penalties and bigger prisons, then the United States would be nirvana

today. . . . We are only going to be able to have long term and effective

results if we create a society in which we minimize the conditions which

breed crime.”47 Even Ontario’s Progressive Conservatives, who cam-

paigned in the 1995 elections on a law-and-order platform — including

a promise of boot camps for young offenders — recognized, once in

office, that there is no quick fix for youth crime. The government’s pilot

program for strict-discipline custody emphasizes competent staffing,

counselling, education, and employment skills, while accepting that

discipline as a punishment will not prevent youths from reoffending but

must be part of a program to change the attitudes and values of young

offenders and to instil self-discipline. Following a period in secure cus-

tody, youths in the new Ontario strict-discipline program have signifi-

cant community-placement participation involving their families and,

20 Youth Criminal Justice Law

45 Young Offenders Act, 1995, above note 28, s. 15(i) (enacting YOA, s. 24 (1.1).

Young Offenders Act, 1995,ibid., s. 1 (enacting YOA, s. 3(i)(a) and (c. 1)). Even

the Reform Party, which sought to “replace the Young Offenders Act with meas-

ures that hold young criminals accountable for their actions,” also pledged to

“[p]ursue crime prevention through social policies that strengthen families and

communities.” See the Reform Party of Canada’s 1997 election platform, A Fresh

Start for Canadians.

46 See “Canadians Prefer Prevention,” Southam News, March 12, 2001 reporting on

a public opinion poll in which a majority of Canadians recognized that poverty,

inadequate social programs, and difficult family situations caused most crime,

not a “lenient criminal justice system.” A further 68 percent said that preventive

programs are the most effective deterrent against youth crime.

47 Then Justice Canada Minister Allan Rock, quoted in R. Howard, “Longer Terms

for Young Killers Expected in Legislation Today,” Globe and Mail, June 2, 1994:

A6.

where appropriate, help to secure employment.48 In early 1999 Ontario’s

Conservative government even announced that it would be expanding

community-based diversion programs for minor first offenders. A few

months later in a provincial election campaign, Ontario’s Conservatives

loudly denounced the federal Liberal government for its weak respons-

es to youth crime and attacked the leader of the provincial Liberals for

being soft on crime on the grounds that he had previously worked as a

lawyer representing youths charged with offences.

2) Federal–Provincial/Territorial Consultations

on Youth Justice

In response to public and political pressures to deal with youth crime,

the federal, provincial, and territorial governments established a task

force of senior bureaucrats to review the YOA and propose amend-

ments. In 1996 this task force delivered its report.49 The federal govern-

ment then had a Commons Committee hold hearings across Canada to

gather responses to youth crime and propose amendments to the YOA.

The final report of this Committee, released in the spring of 1997,

reflected the political tensions over youth justice issues.50 The Liberal

majority on the Committee wrote a report that tried to place greater

emphasis on crime prevention and rehabilitation, while toughening

some of the provisions of the YOA. The report, for example, recom-

mended increased federal spending on crime prevention and greater

use of such alternatives to youth court as family-group conferencing. It

recommended explicit recognition of the principle that the protection

of society is the main goal of criminal law, but also advocated that, for

young offenders, the protection of society, crime prevention, and reha-

bilitation are mutually reinforcing strategies. Recommendations in this

report included lowering the minimum age of youth court jurisdiction

Responding to Youth Crime in Canada 21

48 Ontario, Solicitor General and Minister of Correctional Services,

Recommendations from Task Force on Strict Discipline for Young Offenders

(Toronto: Queen’s Printer, 1996); see also Canada, House of Commons, Twelfth

Report of the Standing Committee on Justice and the Solicitor General: Crime

Prevention in Canada: Toward a National Strategy (Ottawa: Ministry of Supply

and Services, 1993).

49 Canada, Federal–Provincial/Territorial Task Force on Youth Justice, Review of the

Young Offenders Act and the Youth Justice System in Canada (Ottawa: Ministry of

Supply and Services, 1996).

50 Canada, House of Commons, Thirteenth Report of the Standing Committee on

Justice and Legal Affairs: Renewing Youth Justice (Ottawa: Ministry of Supply and

Services, 1997).

for serious offences from twelve years of age to ten, facilitating transfer

of serious offenders to the adult system, and publishing the names of

young offenders believed to pose a risk of serious harm to the commu-

nity after their release.

The Bloc Québécois members of the Parliamentary Committee crit-

icized the majority report for its lack of understanding of the problem of

youth crime and opposed any amendments to the YOA. The Bloc also

opposed any efforts by the federal government to change provincial

spending priorities for youth justice, arguing that provincial jurisdiction

must be respected. The Reform Party also criticized the Liberal majority

for its recommendations about spending on crime prevention, as an area

of primarily provincial jurisdiction. But the Reform members advocated

sweeping changes to the YOA, including establishing an age jurisdiction

from the tenth to the sixteenth birthdays, providing automatic transfer

to adult court for fourteen- and fifteen-year-olds charged with violent

offences, imposing longer sentences in youth court, and allowing publi-

cation of identifying information about any violent young offenders.

After the Parliamentary Committee report was released in 1997,

the federal government again consulted with the provinces, convening

a meeting of Cabinet ministers with the hope of achieving a consensus

about reforming the youth justice system. The discussions included

financial and philosophical, as well as detailed law and policy, issues.

As the discussions proceeded and public pressure for a response to the

Parliamentary Committee report increased, the federal government

developed a strategy for reform that included but was not limited to

legislative reform. The May 1988 document, entitled Strategy for the

Renewal of Youth Justice, set out the general themes the federal govern-

ment was adopting.51 After further consultation, mostly with provincial

officials, the Liberal government introduced Bill C-68, called the Youth

Criminal Justice Act in March 1999, setting out the new law.52

The original Bill was the subject of lengthy committee hearings

during which it was criticized by the Canadian Alliance and

Conservative parties for being too soft on young offenders, while the

Bloc Québécois continued to argue that no changes were needed in the

YOA, expressing concern that the new law would result in more youths

being treated as adult offenders. The Bloc had strong support from

youth advocates in Quebec, and delayed the progress of the original

22 Youth Criminal Justice Law

51 Department of Justice Canada, A Strategy for Youth Justice Renewal (Ottawa:

1998). (Available online at time of writing at .)

52 Bill C-68, First session, 36th Parliament, First reading March 11, 1999; reintro-

duced as Bill C-3, 2nd Session, 36th Parliament, October 14, 1999.

Bill through Parliament. When the federal election was called in the fall

of 2000, the YCJA had not yet been enacted. Youth crime was again an

issue in that election, the Liberals pledging to act on their youth jus-

tice strategy, the conservative opposition parties again raising such

issues as lowering the age of youth court jurisdiction, and the Bloc

Québécois criticizing the federal plans as interference with provincial

responsibility over youth justice.

3) The New Act

When the Liberals were re-elected in 2000, they reintroduced the Youth

Criminal Justice Act (Bill C-7), making a few relatively minor changes

to the previous version of the new law.53 To try to ensure relatively swift

passage of the Bill through Parliament, only federal and provincial gov-

ernment officials were called as witnesses to the Commons committee

hearings held in the spring of 2001. The Ontario government made

public calls for amendments that would “finally get tough on youth

crime,” for example by allowing publication of names of any youth

charged with serious offences, having mandatory custody terms for

youth convicted of weapons offences, and imposing longer sentences

for youths dealt with as adults.54 In June 2001, however, the YCJA was

passed by the House of Commons without further amendment.

In the fall of 2001, the Senate Committee55 held hearings on the

YCJA, with strong representations from Quebec to give that province

Responding to Youth Crime in Canada 23

53 YCJA, above note 2. The relatively minor changes responded to some of the con-

cerns expressed during prior hearings, and tended to “soften” the new law a lit-

tle, for example restricting the scope for admission of youth statements that

police obtained in situations where youth were not fully apprised of their legal

rights.

54 Ontario Ministry of the Attorney General, “No More Free Ride for the Young

Offenders Act,” June 12, 2001. (Available online at time of writing at

.on.ca>.)

55 Canada’s Parliament is made up of two chambers, the elected House of

Commons and the appointed Senate. Technically the Senate has considerable

power but, since all of its members are appointed by the prime minister and

serve to age seventy-five, it has little legitimacy. There is near-unanimous public

agreement that the Senate should be radically reformed or abolished but,

because of a lack of consensus about how to do this, it continues as an unre-

formed reminder of Canada’s history as a colony run by appointees of the British

government. For a discussion of the role of the Senate in Canadian government,

and the challenges of reforming that body, see Michael Lusztig, “Federalism and

Institutional Design: The Perils and Politics of a Triple-E Senate in Canada”

(1995) 25 Publius 35–50.

more flexibility and to give the Act more focus on rehabilitation, while

the Ontario government again advocated more of a get-tough approach.

The Senate Committee, slowed in its hearings when the government

gave priority to anti-terrorism legislation, then recommended more

than a dozen changes to the Act, mainly aimed at addressing some of

the concerns raised by witnesses from Quebec. A few days before vot-

ing on the YCJA, the Senate had been pressured by the Liberal govern-

ment into accepting anti-terrorism legislation without amendment.

The full Senate adopted only two relatively minor amendments to

the YCJA that gave more explicit recognition to the need to consider all

alternatives to custody in the sentencing of young offenders, with par-

ticular attention to the circumstances of Aboriginal youth. These

amendments were not significant, as section 39 of the Act already made

clear that youth justice court judges are to consider all alternatives to

custody and the Declaration of Principle stated that those responding

to youth offending should respect the needs of Aboriginal offenders.56

While greater clarity on the need for special consideration of the cir-

cumstances of Aboriginal offenders may have been desirable, the Senate

amendments were more of a political statement: the message was that

Senate approval of legislation should not be seen as a formality.

The more substantial amendments to the Act that had been pro-

posed by the Senate Committee were not adopted by the full Senate.

On February 4, 2002, the Senate amendments to the YCJA were

approved by the House of Commons and the Act received royal assent

on February 19, 2002. The federal government, in response to pressure

from the provinces, announced that the law would not be proclaimed

into force until April 1, 2003, to allow time for provincial governments

to introduce the new programs and policies required by the new Act.

The federal youth justice reform strategy was intended to respond

to the belief that there had been a “disturbing decline in public confi-

dence in the youth justice system” in Canada. The most prominently

publicized aspect of the strategy, accordingly, was the stated intention

“to respond more firmly and effectively to the small number of the

most serious, violent young offenders.”57 But there was also an impor-

tant recognition by the federal government that Canada has made too

much use of expensive and often ineffective court-based responses and

custody for the majority of young offenders who are not committing

serious violent offences. The federal strategy also calls for more use of

24 Youth Criminal Justice Law

56 YCJA, above note 2, s. 3(1)(c)(iv).

57 Remarks in Ottawa, May 12, 1999, by (then) federal Justice Minister, Anne

McLellan.

community-based alternatives to court and custody, and for more

resources for crime prevention. The strategy aimed to achieve these

objectives by changing the law, and working with the provincial gov-

ernments and various professional groups to change the way in which

the youth justice and corrections systems operate.

The main area of federal authority in this area under the

Constitution Act, 1867, is statutory, and this is where much of the gov-

ernment’s efforts have focused. The federal government also committed

over $200 million to provincial governments, principally to increase

community-based alternatives and over $30 million to initiatives to

prevent youth crime, mainly directed to local groups. One of the sig-

nificant developments in youth justice has been the federal initiative to

give provincial governments greater flexibility in how they deal with

youth justice and youth corrections. While greater provincial flexibili-

ty increases the support of provincial governments for the strategy, it

also tends to increase disparities in the ways in which different

provinces deal with youth offenders.

Initial federal government planning in 1997 had called for the

amendment of the YOA rather than enactment of an entirely new

statute. Significant changes were contemplated to the YOA but not the

type of radical reforms that the YOA had produced when it replaced the

Juvenile Delinquents Act in 1984. However, as discussions with the

provinces about changes to the Act continued, the changes grew in

number and complexity. It also became apparent that an entirely new

statute would be easier to understand and use than adding a large num-

ber of amendments. Politically, the repeal of the YOA and its replace-

ment by a new statute enabled the federal government to claim that it

had put “a new youth justice regime in place.”58 Institutionally, the

enactment of a new statute signals police, prosecutors, judges, proba-

tion officers, and others that some fundamental changes are expected

in the administration of youth justice.

The new YCJA is a complex piece of legislation, a detailed consid-

eration of which is the prime focus of this book. Despite the complex-

ity of the Act, its salient features in comparison to the YOA can be

summarized as:

• a Declaration of Principle that places a clearer emphasis on the long-

term protection of the public, meaningful consequences for offend-

ers, and reparation to victims, while continuing to recognize that,

Responding to Youth Crime in Canada 25

58 Ibid.

compared to adults, there should be a lesser degree of accountabili-

ty and more emphasis on rehabilitation;

• making “fair and proportionate accountability” a central sentencing

principle, and making clear that custodial sentences are not justified

solely for achieving rehabilitative objectives;

• introducing statements of principle and specific provisions intended to

encourage police and prosecutors to divert more young persons from

the court process, and to encourage more use by judges of non-custo-

dial sentences for youths not convicted of serious violent offences;

• encouraging involvement of victims, parents, and members of the

community in the youth court process, for example through confer-

ences that may advise the court or meet to deal with youth outside

the court system;

• facilitation of the imposition of adult sentences on the relatively

small number of young offenders fourteen years and older who com-

mit the most serious violent offences;

• permitting the publication of the names of young offenders convict-

ed of the most serious violent offences in specified circumstances;

• giving courts limited authority to admit statements made to police

even if there has been a technical irregularity in the way in which a

youth has been fully advised of his/her legal rights;

• allowing provinces to require parents with financial means to repay

governments for legal counsel provided to their children;

• giving provinces greater authority to establish youth justice policies,

for example by allowing provincial correctional officials rather than

courts to determine the level of custody for young persons, and by

permitting provinces to select a higher age than 14 for the very seri-

ous charges for which there is a presumption of an adult sentence

being imposed;

• requiring that young offenders receiving custodial sentences ordi-

narily serve the last third of their sentence on community supervi-

sion, thereby promoting a planned reintegration of the youth into

the community;

• introducing new sentencing options such as “intensive rehabilitative

custody” and “attendance centres.”

The new legislation in many respects represents a political compro-

mise. It is an attempt to find a better, or at least a more politically pop-

ular, balance on youth justice issues.

To appease the large vocal law-and-order lobby, a number of provi-

sions of the YCJA appear to get tough on youth crime by increasing

accountability, especially for serious violent offenders, and addressing

26 Youth Criminal Justice Law

some concerns of victims. These provisions are likely to result in a rel-

atively small number of the most serious offenders serving longer sen-

tences, sometimes in adult prisons, and in the publication of

identifying information about young offenders who have committed

very serious offences. While the new statute continues to recognize

that young persons have the right to due process of law, there is a weak-

ening compared to the YOA in the protection of legal rights — a fur-

ther reflection of the law-and-order agenda. Especially troubling is the

provision in the YCJA that allows provinces to require parents to reim-

burse their governments for the cost of legal services provided to their

children. This may result in many youths feeling parental pressure to

waive the right to counsel, which will in turn may make it much less

likely that youths will be able to enforce their legal rights.

For child-advocacy groups and politicians who wanted a more sup-

portive and preventive approach to youth offending, the YCJA offers

the prospect of increased rehabilitative services in the youth correc-

tions system, although it will be up to each province to determine

whether these services will be more available. The new Act is also

intended to move youths charged with less serious offences out of cus-

tody facilities and the youth courts, and to have more effective commu-

nity-based responses to youth offending. The overall strategy adopted

by the federal government includes a recognition of the social context

of youth crime and attempts to address crime prevention issues. One

can also see the YCJA as placing a greater and clearer emphasis on some

of the salient themes of 1995 amendments to the YOA: more of an

effort to divert many youthful offenders from court and make use of

community-based responses to youth crime, and, for a small minority

of the most violent youth offenders, increased possibilities for adult

sentences and publication of identifying information.

The YCJA substantially changes how the justice system responds to

youth offending and will significantly affect both youths and profes-

sionals. However, the legislation does not provide for the type of

sweeping change that occurred in 1984 when Canada repealed the

Juvenile Delinquents Act and adopted the YOA.59 Rather, the YCJA has a

large number of relatively small changes, which cumulatively should

result in significant change in the youth justice system.

Responding to Youth Crime in Canada 27

59 The title of one of the books that was written a few years after the YOA came

into force reflects the profound change that Act was intended to effect: A.W.

Leschied, P. Jaffe, and W. Willis, eds., The Young Offenders Act: A Revolution in

Canadian Youth Justice (Toronto: University of Toronto Press, 1991).

D. THE NATURE AND CAUSES OF YOUTH

CRIME IN CANADA

While a detailed discussion of the nature and causes of youth crime is

beyond the scope of this book, some appreciation of these issues pro-

vides a necessary context for understanding the youth justice system. To

work effectively in that system, professionals must have sensitivity to

the complexities and variation in youth crime. In 2000–2001, under the

YOA, youth courts processed just over 99 000 cases involving young

persons charged under the Criminal Code and other federal criminal

statutes. This represented about 21 percent of all criminal cases in

Canada, even though youths aged twelve to seventeen represent only

about 8 percent of the total Canadian population.60 About 60 percent of

these cases resulted in convictions. These 99,000 cases involved about

60,000 youths, as some were charged on more than one occasion; that

is roughly 3 percent of the population aged twelve through seventeen.

Charge rates are low for twelve-year-olds but increase rapidly for

each age group until sixteen-year-olds, when they start to level off; just

over half all charges under the YOA involved sixteen- and seventeen-

year-olds. Males represent just under 80 percent of youths charged,

although the proportion of female adolescents charged has been slow-

ly increasing in recent years. By the time a generation of youths reach-

es the age of eighteen, about 12 percent of the male population and 3

percent of the female population were charged under the YOA at least

once with a violation of the Criminal Code or another federal statute.

1) Recent Patterns in Youth Crime

The majority of Canadian youths are charged with such property-relat-

ed offences as break and enter or theft. Under the YOA, about one-quar-

ter of all charges against young persons arose out of breach of probation

terms, or a failure to attend court or to obey a court order. In other

words, a substantial number of youths were charged not because of any

immediate risk to the public but because of their failure to respond

appropriately to earlier judicial intervention. One of the aims of the

YCJA is to reduce the tendency of an initial minor offence resulting in

28 Youth Criminal Justice Law

60 Canada, Canadian Centre for Justice Statistics, Youth Court Statistics 2000–2001

(Ottawa: Statistics Canada, March 2002) and Statistics Canada, Youth Court

Statistics 2000–2001 (2002) 22: 3 Juristat. Some of the cases involved more than

one charge against a young person.

a series of more intrusive involvements with the youth justice system,

by focusing more on prevention and diversion of cases from the court

system. About one-fifth of youth charges involved violence, with minor

assaults being by far the most common offence. While youth homicide

(murder, manslaughter, and infanticide) has been the focus of media

attention, such offences represent a tiny fraction of all charges: an aver-

age of about 50 youth homicide charges a year. The rate of youth homi-

cide in Canada has remained relatively constant over the past few

decades at about 2 per 100,000 youths. While youth charges represent

over 20 percent of all criminal charges, adolescents commit only about

10 percent of all homicides in Canada. Although Canada’s rate of youth

homicide is less than one-sixth that of the United States, it is still one

of the highest in the world.61

The number of charges under the YOA increased dramatically from

the time that Act came into force in 1984 until 1991. While the rate fell

slowly after 1991 — with the greatest decline for property-related

offences — by 2001 the officially reported level of youth offending was

still significantly higher than when that Act came into force in 1984.

Official police and youth court statistics, however, tell only part of the

story. Criminologists engage in serious debate about whether the level

of youth crime in Canada actually increased under the YOA.62 Most

offences involving youth are not reported to the police or other author-

ities and, even for those cases that are reported, the police have a sig-

nificant discretion about whether to lay a charge and take a youth to

court or deal with the matter informally (for example, by simply warn-

ing the youth and speaking to the parents). Some criminologists argue

that, at least in part, increased reporting to the police and increased

charging by the police resulted in the increase in youth crime statistics.

For example, as noted earlier, some time after the enactment of the

YOA in 1984, many school boards and provincial governments adopt-

ed a policy of zero tolerance for violence; school officials were required

to report to the police relatively minor assaults that previously might

have been dealt with informally by a teacher or principal in the school.

In contrast, other criminologists and some police officers and

teachers who work with youth argue that there have actually been

increases in youth crime since the early 1980s. While recognizing that

Responding to Youth Crime in Canada 29

61 W. Meloff and R.A. Silverman, “Canadian Kids Who Kill” (1992) 34 Can. J.

Crim. 15; and T. Harper, “The Truth is Kids Aren’t Getting away with Murder,”

Toronto Star, September 7, 1996: C1.

62 Contrast Carrington, above note 31, and A. Markwart and R.R. Corrado, “A

Response to Carrington” (1995) 37 Can J. Crim. 74.

some of the increase in official youth crime statistics may reflect

changes in reporting and charging practices, they argue that changes in

the family, social, and cultural structure of Canadian society are pro-

ducing youth who are more prone to violence and offending.63 Family

structures and behaviour have changed profoundly over the past few

decades, with divorce and single-parent families becoming increasing-

ly common. Even in two-parent families, both parents may work long

hours, leaving less time and energy for parental involvement with chil-

dren. Computers and the Internet may also have an impact on youth

crime, allowing some disaffected youth, for example, to find it easier to

communicate with one another and plan criminal activities. Through

such electronic links, youths anywhere can acquire greater exposure to

violent images, hate propaganda, or even information about how to

make bombs. Some commentators argue that there is an international

trend, with the combined effects of violence in movies, on television,

and in video and computer games as well as changes in social and

familial structure, resulting in a culture of violence. Thus, vulnerable

youths today may be less empathetic and more prone to violence.64

In all societies and throughout history, adolescence has at least for

some youth been a period of alienation from adult values and attitudes.

Some commentators, though, are arguing that changes in family struc-

ture and technology have broadened the gulf between youths and

adults. Some types of behaviour have clearly changed, such as, for

example, more teenagers being sexually active at an earlier age than

were adolescents a decade ago.65 Youth unemployment is at high levels

and the economic future for many youth, especially those with difficul-

ties in the school system, seems uncertain. While among the wealthier

nations of the world, Canada nevertheless has increasingly serious

child poverty; a sizeable group of have-not youth have limited educa-

tion and bleak employment prospects in our knowledge-based society.

30 Youth Criminal Justice Law

63 See, for example, Reginald W. Bibby, Canada’s Teen’s: Today, Yesterday, and

Tomorrow (Toronto, ON: Stoddart, 2001); and D. Owen Carrigan, Juvenile

Delinquency in Canada: A History (Concord ON: Irwin Publishing, 1998).

64 See, for example, David Grossman, Stop Teaching Our Kids to Kill (New York:

Random House, 1999).

65 See Bibby, above note 63; and Patricia Hersch, A Tribe Apart: A Journey into the

Heart of American Adolescence (New York: Ballantine Books, 1998). See also

“Teens Have Sex Early, Often, and Unprotected,” Ottawa Citizen, October 23,

1999, reporting on an international survey indicating that North American

youth lose their virginity on average at the age of fifteen, and that the average

age of loss of virginity has been falling over the past half-decade.

All of these factors may be affecting youth crime rates in Canada.

Ultimately, it may not be possible to establish with certainty the extent

to which the increase in reported youth crime in the period after the

enactment of the YOA reflected actual changes in behaviour as opposed

to changes in reporting. It seems certain that some of the increase in

reported youth crime simply reflected changes in reporting practices. It

also seems likely, however, that over the past half century the nature

and amount of youth crime have changed as a result of profound soci-

etal changes. D. Owen Carrigan, a social historian, is among those who

argue that social and cultural changes have resulted in “an increasing

number of young people who are angry and disdainful of authority”

and, as a result, there is more youth violence and crime than was the

case a few decades earlier.66

2) Risk Factors for Youth Involvement in Crime

Even if the total national level of youth crime has not increased sub-

stantially since the YOA came into force, patterns of youth crime are

not constant. As society and communities change, so do patterns of

youth crime. Economic, social, and demographic changes as well as

population migration affects crime patterns and rates in individual

communities. Studies based on interviews and anonymous surveys of

adolescents indicate that almost all youth commit some offences —

primarily property-related crimes or offences involving drugs or alco-

hol — but that most of these offences are not reported. Indeed, wide-

spread offending by young people occurs in all societies, although its

nature and extent vary in different societies.

Typically, youths commit relatively few, minor offences and are

likely not be apprehended; if arrested and charged, most do not reof-

fend. Some adolescents, however, have a more serious history of illegal

behaviour, committing a greater number and broader range of offences

and, if apprehended, reoffending even if charged and sent into custody.

A relatively small portion of all adolescents are in the latter group of

more serious, repeat offenders, who are responsible for a dispropor-

tionately large amount of violent offences and cause the youth justice

system the greatest difficulty. A Montreal study, for example, found that

6 percent of youths account for 20 percent of all adolescent offenders

brought before youth courts and for 50 percent of the charges.67

Responding to Youth Crime in Canada 31

66 D. Owen Carrigan, above note 63 at 163–212.

67 National Crime Prevention Council, Offender Profiles (Ottawa: 1995) at 5.

Research suggests that children who have early contact with the police

as a result of offending behaviour under the age of twelve are more

likely to have significant and repeat involvement in the youth court

system later in adolescence.68

No single theory can explain why adolescents commit crimes, nor

why some youths commit more violent offences or repeatedly offend.

No model can predict with certainty whether a particular youth will or

will not offend. Perhaps more crucially, from the perspective of the

youth justice system, there can be never be certainty about which of

the youths who appear in court will reoffend despite intervention.

There are cases of youths — seemingly ordinary and from an advan-

taged background without any prior history of offending — who com-

mit the most brutal crimes with no apparent warning or explanation.

Cases in which offending behaviour appears unpredictable or inexpli-

cable, however, are relatively rare. More commonly, certain social and

personal risk factors can strongly predict which adolescents are likely

to be involved in the youth justice system on a recurrent basis. The

Commission on Youth Violence of the American Psychological

Association observed:

Although no definitive answer yet exists that would make it possible

to predict exactly which individuals will become violent, many fac-

tors have been identified as contributing to a child’s risk profile.

Biological factors, child rearing conditions, ineffective parenting,

emotional or cognitive development, gender differences, sex role

socialization, relation to peers, cultural milieu, social factors such as

economic inequality and lack of opportunity, and media influences

among others, all are thought to be factors that contribute to violent

behaviour. Psychologists continue to search for a unified theoretical

model that can account for these factors and assign them appropriate

weight as risk factors for a child’s or adolescent’s involvement as a

perpetrator, victim, bystander or witness.69

Among the factors that researchers associate with a high risk of serious

or repeat offending are:

32 Youth Criminal Justice Law

68 D. Day, “Risk for Court Contact and Predictors of an Early Age for Court

Contact among a Sample of High-Risk Youth” (1998) 40 Can J. Crim. 421. See

also B.B. Potter, et al.,Youth Violence: A Report of the Surgeon General

(Washington D.C.: Surgeon General, 2001).

69 American Psychological Association, Commission on Youth Violence, Violence

and Youth: Psychology’s Response (Washington, D.C.: American Psychological

Association, 1993) at 17. See also Statistics Canada, “Problem Behaviour and

Delinquency in Children and Youth” (2001) 21:4 Juristat.

• poor parenting behaviour, which includes such home factors as

child abuse, poor supervision or neglect, and erratic or excessive

discipline;

• high levels of parental conflict70 and living in a family where there is

spousal abuse or battering even without direct abuse of the children;

• parental drug or alcohol addiction;

• a parental record of criminal activity;

• difficulties in school, which may be the result of a learning disability71

or a condition such as fetal alcohol syndrome (FAS) or fetal alcohol

effect (FAE): a child who has trouble learning in school will often

have difficulty in learning societal rules, and delinquent behaviour is

associated with truancy and dropping out of school;

• drug and alcohol abuse in adolescence or even in childhood: a risk

factor in itself, many crimes are committed when drugs or alcohol

have reduced inhibitions.

Poverty by itself is not a significant risk factor for delinquency, but

economic deprivation when associated with family disruption or poor

parenting exacerbates other risk factors. While poverty in childhood is

related to poor educational achievement and to low income as an adult,

it does not in itself seem to correlate significantly with delinquency.

Street youth who have left home are prone to engage in offending

behaviour. These youth, who have left their families and have no per-

manent residence, are likely to be neither attending school nor work-

ing. They may sleep in shelters, parks, or abandoned buildings, or stay

with diverse friends in rotation for short periods at each place. Such

youth may commit various offences, including prostitution and drug

offences, as well as violent and property offences. Some of this offend-

ing doubtless relates to their economic difficulties, as youths under

eighteen have difficulty finding employment or getting welfare, as well

as to the lack of supervision that characterizes life on the street.

Parental abuse and neglect often contribute to adolescents leaving

Responding to Youth Crime in Canada 33

70 Interestingly, it would appear that living in a single-parent family does not in

itself correlate with a higher rate of criminal behaviour, but children who grow

up in a family where there is a high level of parental conflict, whether or not the

parents ultimately divorce, is related to higher levels of offending behaviour: H.

Juby and D. Farrington, “Disentangling the Link between Disrupted Families

and Delinquency” (2001) 41 Brit J. Crim. 22.

71 Research indicates that as many as three-quarters of young offenders in custody

have some form of learning disability; assessment and treatment of young

offenders should take this into account. See Learning Disabilities Association of

Canada, Position Paper on the Proposed Amendments to the Young Offenders Act

(Ottawa: 1996).

home and engaging in offending behaviour;72 not all street youths are

from neglectful or abusive families and sometimes anguished parents

turn to the police and various social agencies to try to get their children

off the street.

Research suggests that, while no single factor determines how an

adolescent will behave, the more risk factors a youth has the more like-

ly it is that the youth will engage in criminal or self-destructive behav-

iour.73 While most serious or repeat offenders have at least one of these

risk factors, and often more than one, not all of them do. Many youths

from apparently deprived backgrounds do not become involved with

the justice system. The lack of a single clear explanation for youthful

criminality suggests that this social problem can never be wholly

solved. The fact that virtually all young people engage in some criminal

activity also indicates that, at least at some level, youthful offending

should probably be viewed as a normal societal occurrence. Further,

even youth who commit quite serious offences may simply be going

through a “phase,” and will “outgrow” their anti-social behaviour.

3) Prediction and Prevention

In relatively rare but highly publicized cases, young people without a

significant history of offending and without apparent risk factors com-

mit very violent acts. This has occurred recently, for example, in tragic

shootings at schools, more often in the United States, although it has

also happened in Canada. The youths who commit these offences

invariably felt alienated from their families and socially isolated from

their classmates, and have been suffering psychological disturbance. In

some cases, hindsight has suggested that there were warning signs to

which parents or others might have reacted, which might have prevent-

ed the tragedies — but some seem almost impossible to have predict-

ed.74 Some acts of this nature might have been prevented through

community or school-based programs, or through better school securi-

ty, but increased sanctions in the justice system would have had no

effect. The youths committing some of these school shootings were

34 Youth Criminal Justice Law

72 M. Webber, Street Kids: The Tragedy of Canada’s Runaways (Toronto: University

of Toronto Press, 1991); and B. Schissel and K. Fedec, “The Selling of

Innocence: The Gestalt of Danger in the Lives of Youth Prostitutes” (1999) 41

Can J. Crim. 33.

73 James Gabarino, Raising Children in a Socially Toxic Environment (San Francisco,

CA: Jossey-Bass, 1995) at 149–64.

74 E.P. Mulve and E. Cauffman, “The Inherent Limits of Predicting School

Violence,” [2001 October] American Psychologist 797–802.

clearly not concerned about possible apprehension, and were usually

suicidal as well as homicidal.

Social and legal policies may contribute to a reduction in offending

behaviour but cannot eliminate all youth crime. This does not mean

that youth crime should not be the subject of legal responses. It is

important, though, to assess the appropriateness of societal responses

to youth crime in context. There are steps that society can take in terms

of prevention, policing, and intervention that can reduce (but not elim-

inate) youth offending. A simplistic approach to youth offending that

focuses on longer custody and more adult sentences is not likely to

have a significant impact.

It should also be recognized that certain social policies and condi-

tions can contribute to an increase in the youth crime rate. A compar-

ison with American circumstances should make Canadians who are

concerned about youth crime very cautious about wanting changes to

gun-control laws or further fraying of our social safety net. While there

is no single explanation, commentators have suggested factors that, in

combination, have created a much higher rate of serious youth vio-

lence in the United States than in Canada: relatively poor public health

and education systems, relatively great income disparities, lax gun-

control laws, and a history of institutionalized racism. The fact that the

American juvenile justice system has much more severe sanctions,

including in some states capital punishment for juveniles who commit

murder, clearly shows that a get-tough approach is not an effective

approach to creating a safer society. While youthful offending in

Canada is not as serious as in the United States and may not have sig-

nificantly increased in recent years, youth crime in Canada — especial-

ly violence — is a serious social problem.

E. GROUP AND GANG OFFENCES

The most frequent victims of youth crime are other adolescents. There

is significant evidence that many Canadian youth are afraid of acts of

violence and extortion perpetrated by other youths in their schools and

elsewhere.75 One of the realities of youth crime is that most offences

involve more than one adolescent perpetrator; in many cases, a few

Responding to Youth Crime in Canada 35

75 See, for example, C. Ryan, F. Matthews, and J. Banner, Student Perceptions of

Violence (Toronto: Central Toronto Youth Services, 1993); and S. Trevethan,

“Teenage Victims of Violence” (1992) 12:6 Juristat 1. See also “Shakedowns in

the Schoolyard,” Globe and Mail, October 4, 1997: A1.

youths form an informal group that becomes involved in committing

criminal acts, perhaps with one or more youths taking a leadership role

and others feeling pressured to participate. Youths who are generally

law abiding may become involved in criminal activities when with

their peers. This has resulted, for example, in incidents of swarming (a

group taunting or attacking an individual) and groups of adolescents

committing robberies or acts of violence, sometimes against lone indi-

viduals. The infamous beating death of teenaged Reena Verk in

Victoria, B.C., by a group of youths, many of whom barely knew her, is

a troubling example of how adolescents in a group may behave in a

more callous and brutal fashion than any member of the group might

do alone. Interaction with peers who seem untroubled by an initial

assault can result in an escalation of violence by members of the group.

The term “gang” does not have a precise legal or sociological defi-

nition, but is generally used to describe a group of adolescents or

young adults who regularly engage in criminal activity, often together.

There is great diversity in the composition and activities of youth

gangs.76 Some gangs are just loose groups of friends who only occasion-

ally engage in criminal acts, usually without much planning.

Some gangs can have a quite stable membership and leadership

structure, perhaps with some unifying form of behaviour or dress code,

such as distinctive colours. These more formal gangs engage in crimi-

nal acts with much more deliberation and a clearer monetary objective,

for example, drug dealing and extortion. In more criminally oriented

gangs, violence within and between gangs is common, and innocent

individuals are frequently victimized.77 While some of these criminal

gangs are ethnically mixed, others — to which the media now give

prominent attention — form along ethnic lines: these include

Aboriginal gangs in prairie cities, Chinese and South-Asian gangs in

Vancouver, and Vietnamese gangs in Toronto.78 Although criminal

36 Youth Criminal Justice Law

76 See, for example, Esbensen, et al., “Youth Gangs and Definitional Issues: When

is a Gang a Gang, and Why Does it Matter?” (2001) 47 Crime & Delinquency

105–30.

77 See, for example, R. Weiler, T. Caputo, and K. Kelly, Youth Violence and Youth

Gangs: Responding to Community Concerns (Ottawa: Solicitor General Canada,

1994); I.A. Spergel, The Youth Gang Problem: A Community Approach (New York,

NY: Oxford University Press, 1995); and L.W. Sherman, et al., Preventing Youth

Crime: What Works, What Doesn’t, What’s Promising (Washington D.C.,: Office of

Justice Programs, U.S. Department of Justice, 1997).

78 See, for example, “Teen Gangs: Fear in our Schools”, Toronto Star, October 24,

1998; and “Gangs Recruiting in Schools: Police,” National Post, September 6,

2001.

gangs have conventionally been more of a concern for low-income

youth, there is some evidence that disaffected middle-class youths also

form gangs that engage in criminal and violent acts.79 Some gangs may

avow a political, religious-cult, or social philosophy that might be

described as anarchist or racist (i.e., skinheads and white-power

groups); such thinking may be used to justify violence or other crimi-

nal acts. Some youths belong to groups that engage in occult practices,

or participate in secretive recreational, religious, or cultural practices.

Abuse of drugs and alcohol is common among criminal gangs.

Parents or other adults may be concerned about the involvement of

youth in groups whose members have antisocial attitudes or a distinc-

tive youth-culture appearance, even if they do not engage in criminal

behaviour. For youths who have weak relationships with parents, teach-

ers, or other adults, gang membership may take on a special impor-

tance: indeed, many youths who are members of gangs may find their

primary sources of social interaction and values among other members

of their gang. Gang membership may also be vital for social support or

physical protection inside of custody facilities, although this is a more

widespread concern in adult rather than youth custody facilities.

Some public discourse about gangs appears to be based on an

assumption that youth gangs are a recent phenomenon, a reflection of

societal disintegration, or even related to the existence of a legal regime

that is perceived by critics to be ineffective. However, there have long

been concerns about youth gangs, the existence of which is a phenome-

non of concern to a greater or lesser extent in many modern societies.

The public of seventy-five or a hundred years ago in Canada was also

very concerned about gangs formed by youths from disadvantaged immi-

grant groups, at that time Irish and Jewish gangs. While the identity of

the socially disadvantaged groups forming gangs may have changed, the

problem of youths from disadvantaged groups forming gangs is not new.

The situation today, however, may be worse than the one a hundred years

ago, owing to changes in societal values and social structures. Popular

culture may tend to glorify gangs more than was once the case, and the

breakdown of family units may make gangs a more significant source of

emotional support and protection for greater numbers of adolescents

than in the past. Canada is now a much more urban society. Youth gangs

engaging in criminal activities tend to be a more serious problem in

cities, although youth gangs are becoming a concern in suburban areas

as well as in some rural and remote Aboriginal communities.

Responding to Youth Crime in Canada 37

79 Dan Korem, Suburban Gangs: The Affluent Rebels (Richardson, TX: International

Focus Press, 1994).

While the media may exaggerate, there is no doubt that youth

gangs are a serious social problem. In particular, students in schools

may be intimidated by the presence of even loosely organized groups

whose members are prepared to use threats and violence to extort

money or gain other advantages; students from certain ethnic commu-

nities may be especially vulnerable to extortion and intimidation.

Effective policing in schools and elsewhere in the community can play

a substantial role in dealing with youth gangs. Improved recreational

programs, community-based mentoring, and violence-prevention pro-

grams in schools may also be useful in reducing levels of gang-related

offending. Numerous communities are also trying to have social (or

street) workers meet with gang members and redirect them away from

criminal activities.80

Participation in a group offence may be legally significant in that

members may be charged as parties to an offence pursuant to section

21 of the Criminal Code. If youths have formed a common intention to

commit a criminal act and provided assistance in doing the act, they are

“parties” to an offence — that is, technically equally guilty to the prin-

cipal perpetrator. However, youth courts tend to be more lenient in

making decisions about sentencing a youth who was only a party to an

offence with a relatively minor role, as opposed to being a principal

perpetrator or ring-leader. If a situation involves a very serious offence,

such as a homicide, the court may assess the degree of participation in

the violence and character of each youth before passing sentence and

deciding whether to impose an adult or a youth sentence. A judge in a

case under the YOA deciding whether a youth should be tried in adult

court observed that it “is self-evident that a young person who delivers

the death blows to a victim is more likely to be a threat to the safety of

the public than one who is an aider or abetter, and perhaps a somewhat

reluctant one, to a murder.”81

In 1997 Parliament made participation in a criminal organization

a criminal offence under section 467.1 of the Criminal Code. A “crim-

inal organization” is defined as: “any group . . . consisting of five or

more persons, whether formally or informally organized, having as

one of its primary activities the commission of an . . . offence [punish-

able for an adult by a sentence of five years or more] and any . . . mem-

bers of which . . . engage in . . . the commission of a series of such

38 Youth Criminal Justice Law

80 See “Youth Input Urged in War on Teen Gangs,” Toronto Star, January 19, 1999;

and S.S. Anand, “Preventing Youth Crime: What Works, What Doesn’t, and What

it All Means for Canadian Juvenile Justice Policy” (1999) 25 Queen’s L.J. 177.

81 R. v. S.(G.) (1991), 5 O.R. (3d) 97 at 108 (C.A.), Goodman J.A.

offences.”82 A criminal organization may have members who are young

persons as well as adults. Under section 467.1(2), if an adult, or a

young person who is to be sentenced as an adult, is found to be mem-

ber of a criminal organization in the context of the commission of any

offence, a sentence consecutive to any other sentence is to be imposed

for membership in the organization. While the mandatory sentencing

provisions of section 467.1 do not have direct application to youths

sentenced under the YCJA, youth courts may take gang membership

into account as an aggravating circumstance in sentencing or in decid-

ing whether to deal with a youth as an adult.

Sometimes a youth court judge will decide that a particularly

severe response to an offence is necessary because it was committed by

a gang member and a message must be sent to other gang members in

the community — that is, a sentencing decision may be intended to

have a deterrent effect. For example, a sentence of twenty-four months’

secure custody was imposed under the YOA on a seventeen-year-old

member of a street gang who injured another youth while the gang was

stealing skateboards; in upholding the sentence, the Manitoba Court of

Appeal stated: “Although deterrence to others is less of a goal in the

case of a young offender, it remains a factor in a group crime such as

this. Extremely violent behaviour by groups of youth simply cannot be

tolerated. A lengthy term of secure custody is therefore in order.”83

The principles that govern adult sentencing set out in section

718.2 of the Criminal Code require that a court should consider as an

aggravating factor that an offence was committed “for the benefit of, at

the direction of or in association with a criminal organization.” While

this provision is not directly applicable to youths sentenced under the

YCJA, youth justice court judges, prosecutors, and police will likely be

Responding to Youth Crime in Canada 39

82 Criminal Code, s. 2 (enacted as S.C. 1997, c. 23). This legislation was enacted in

response to the growing concern about some of the very sophisticated organized

criminal gangs that engage in a range of illegal activities including drug dealing,

prostitution, money laundering and extortion, gangs that use violence and mur-

der as a part of their ordinary operations. These criminal gangs often have inter-

national affiliations. The more sophisticated, stable criminal gangs do recruit

younger members, though they tend to have largely adult membership. They

tend to regard adolescents as too inexperienced, unreliable or unpredictable to

have regular membership or central roles, although some of these criminal gangs

do have affiliated members or “wannabes” who are under eighteen years of age.

In some cases, criminal gangs may exploit these younger members to engage in

criminal activities with the assurance (not always reflecting the reality) that they

will receive more lenient treatment in the courts if they are apprehended.

83 R. v. E.(R.K.) (1996), 107 Man. R. (2d) 200 at 204 (C.A.), per Twaddle J.A.

influenced by the principles articulated by judges under the YOA and,

accordingly, treat gang participation or involvement as an aggravating

factor in sentencing and other decisions, such as whether to divert a

youth from the court system.

F. YOUTH OFFENDERS FROM VISIBLE

MINORITy AND ABORIGINAL

COMMUNITIES

While offences are committed by youths from all economic and ethnic

backgrounds, some special issues relate to youth offenders from visible

minorities and Aboriginal communities in Canada, as in other coun-

tries. Nationwide data on the ethnicity of young offenders are not kept

in Canada since this type of information can be difficult to obtain reli-

ably, and governments have been reluctant to collect it for fear that it

may be misused. Some national data, however, are available about

Aboriginal youth in the justice system: while they comprise only about

5 percent of the adolescent population of Canada, based on 1998–99

data, Aboriginal youth accounted for 18 percent of youth court proba-

tion orders and 24 percent of the youth custody admissions, with the

greatest proportion of Aboriginal youth in custody in Canada’s western

provinces and northern territories.84 Further, several local studies have

been done, and some police forces and corrections departments collect

some youth data based on ethnicity. These data clearly reveal that the

majority of young offenders in Canada are Caucasian; they also reveal

that youths from certain backgrounds — including black (i.e., of

African, Caribbean, and other ancestry), East Asian (i.e., of Pakistani,

Indian, or other ancestry), and Aboriginal — are over-represented in

the youth justice system by comparison with their proportional repre-

sentation in the total Canadian population.85

40 Youth Criminal Justice Law

84 Statistics Canada, “Youth Custody and Community Service 1998–99” (2000)

20:8 Juristat 9; Quebec and New Brunswick did not provide data. Aboriginal

peoples, under the Constitution Act, 1982, above note 24, s. 35(2), are Inuit,

Métis, and “Indians” (now mostly known as First Nation members).

85 See, for example, Ontario, Report of the Commission on Systemic Racism in the

Ontario Criminal Justice System (Toronto: Queen’s Printer, 1995) at 85; L.D.

Bertrand, et al., The Experiences of Minority Youth in the Canadian Justice System

(Calgary: Canadian Research Institute for Law and the Family, 1996), and S.

Moyer, “Race, Gender, and Homicide: Comparisons between Aboriginal and

Other Canadians,” in Ruth M. Mann, ed., Juvenile Crime and Delinquency: A

Turn-of-the-Century Reader (Toronto: Canadian Scholars Press, 2000).

Although the causes for higher representation of youths from social

minorities in the justice system are debated, two basic explanations are

accepted. First, the social and economic conditions faced by many

youths with racial minority backgrounds affect relative rates of offend-

ing behaviour. Secondly, systemic discrimination on the part of police,

justice, and corrections officials — most of whom are not themselves

from social minorities — affects how Aboriginal youths and youths

from visible minorities are dealt with by the justice system. While some

try to argue that differences in reported offence rates are exclusively a

product of discrimination, or exclusively a reflection of the differential

offending patterns which in turn are a product of social and economic

conditions,86 it is apparent that both are operative concerns.87

From all that is known about the causes of delinquent behaviour,

one would expect that youths who are members of minority groups

that are socially and economically disadvantaged would have high rates

of youth crime. While some media reports express — in purely racial

terms — concerns about Aboriginal and immigrant youth gangs or vio-

lence in urban Canada, more detailed news reports acknowledge that

“[p]olice, sociologists and outreach workers agree the street-gang phe-

nomenon is the consequence of an endemic and unrelenting cycle of

poverty, racism, family breakdown and unemployment.”88 Adolescents

from some disadvantaged immigrant groups have high youth crime

rates; the relative poverty, social dislocation, family stresses, and cul-

tural upheaval often associated with immigration may all play a role.

Children who have grown up in brutal war-torn environments or

refugee camps and then move to Canada may face special risks.89

Responding to Youth Crime in Canada 41

86 There are also a few “biological determinists” — such as psychologist Philippe

Rushton of the University of Western Ontario — who seek genetic explanations

for differential rates of criminal behaviour, but there is no evidence from biolo-

gists or geneticists to support these extreme and widely discredited views.

87 Since Canadian researchers are only starting to address this type of issue, it is

difficult to draw conclusions about the weighting of the factors. The Canadian

Race Relations Foundation collects research of this nature: see .crrf.ca>.

An American scholar writing about his assessment of the experience in the

United States concluded: “Racial disparities, especially affecting Blacks, have

long bedeviled the criminal justice system. . . . Racial bias and stereotyping no

doubt play some role, but they are not the major cause. In the longer term, dis-

parities in jail . . . are mainly the result of racial differences in offending pat-

terns” (M. Tonry, “Racial Politics, Racial Disparities, and the War on Crime”

(1994) 40 Crime & Delinquency 475 at 479–80).

88 D. Roberts, “The Street Gangs of Winnipeg,” Globe and Mail, May 18, 1996: D5.

89 See, for example, T. Appleby, “Battle-Scarring Tied to Violence,” Globe and Mail,

June 13, 1990: A8; and M. Valpy, “When Jamaican Children Come to Canada,”

Globe and Mail, March 5, 1996: A17

Canada is a culturally and racially diverse society. While some

commentators remark on the relative racial tolerance of today’s youth,

many of whom are attending schools with multiethnic populations,90

racial conflict is a problem in some Canadian schools.91 Adolescents

from a visible minority or immigrant background are sometimes the

victims of racially motivated bullying in schools and violence in their

communities, which in turn may provoke a violent response by minor-

ity youth.92 Some youth offending reflects racist, sexist, or homophobic

attitudes at their crudest and most overt. Over-representation of

Aboriginal and minority youth in police charge statistics may represent

subtler, covert forms of the same sentiments within the justice system.

Unemployment and a host of social problems also affect Aboriginal

communities and have an impact on the criminal behaviour of adoles-

cents. Some Canadian research suggests that the risk of offending

behaviour may be very similar for Aboriginal and non-Aboriginal pop-

ulations provided that account is taken of such factors as relative rates

of unemployment, family background, academic difficulties, and alco-

hol or drug abuse.93 Aboriginal youth also face enormous challenges,

whether they live on a reserve or in a city. They often grow up in com-

munities that are culturally and economically marginalized by the

dominant society and where parenting skills have been damaged by

inter-generational cycles of abuse and violence traceable to victimiza-

tion in Aboriginal residential schools. Great social, economic, and cul-

tural dislocation and inter-generational tensions arose when Aboriginal

parents and Elders were forced to give up their nomadic existence and

settle into communities where their children could attend school and

learn a language and culture with which parents were not familiar .94

Aboriginal leaders are concerned about the effects of poverty, sys-

temic racism, and the loss of identity and self-esteem, and the “cultur-

al genocide” that has led to cycles of abuse, family dysfunction, high

42 Youth Criminal Justice Law

90 See, for example, Bibby, above note 63 at 321.

91 See, for example, “Racial Violence Grips B.C. High School,” National Post,

October 12, 1999.

92 For a particularly gruesome example, see “Suspect Confessed to ‘Racist, Nazi

Beliefs’,” National Post, May 29, 2001, describing the racially motivated murder

by a sixteen-year-old youth of a fifteen-year-old girl who immigrated from Cuba

when an infant.

93 J. Bonta, et al., “Risk Prediction and Reoffending: Aboriginal and Non-

Aboriginal Offenders” (1997) 39 Can. J. Crim. 127.

94 See, for example, R. Ross, Dancing with a Ghost: Exploring Indian Reality

(Markham, ON: Octopus, 1992) and Returning to the Teachings: Exploring

Aboriginal Justice (Toronto: Penguin, 1996).

youth suicide rates, and drug and alcohol abuse.95 These circumstances

in turn have contributed to a relatively high prevalence of fetal alcohol

syndrome or FAS. (FAS is a condition manifested by neurological brain

damage and sometimes physical appearance that is caused by a moth-

er’s ingestion of alcohol during pregnancy. A related but less severe

condition is known as fetal alcohol effect or FAE.) Adolescents (and

adults) with FAS or FAE have significant learning disabilities and have

greater difficulty in comprehending the difference between right and

wrong. In some Aboriginal communities there are also very significant

problems with children and adolescents sniffing gasoline and other sol-

vents, which can cause serious and permanent neurological damage.

Rehabilitation and reducing offending behaviour among those who

suffer from fetal alcohol syndrome or the effects of solvent sniffing is

much more challenging than with other offenders, although adoles-

cents with this condition can learn to control their behaviour through

appropriate treatment.96

1) Systemic Discrimination in the Justice System

When considering issues relating to ethnicity and culture in adolescent

crime, it is important to address both relative offending rates and the

effects of systemic discrimination. Studies have long documented the

problem of racism in the American justice system.97 There is now a grow-

ing body of evidence that racism affects how Canadian youth are dealt

with by the justice system, including effects on police arrest practices;

decisions in the courts by judges, lawyers, and probation officers; and

the actions of corrections officials.98 Canadian judges are demonstrating

Responding to Youth Crime in Canada 43

95 See, e.g., Canada, Royal Commission on Aboriginal Peoples, Bridging the Divide:

A Report on Aboriginal People and the Criminal Justice System in Canada (Ottawa:

Ministry of Supply and Services, 1996).

96 See “Native Murder Rate in Manitoba Alarming, Study Shows,” Globe and Mail,

November 2, 1998.

97 See, for example, L. LeFlore, “Minority Youth in the Juvenile Justice System: A

Judicial Response” (1990) 41 Juv. & Fam. Ct. J. 1.

98 See, for example, Ontario report on systemic racism, above note 85 at 86; and

Bertrand, et al., above note 85. Others include: John Boyko, Last Steps to

Freedom: The Evolution of Canadian Racism (Toronto: J. Gordon Schillingford

Publishing, 1995); Frances Henry, Carol Tator, Mattis Winston, and Tim Rees,

The Colour of Democracy: Racism in Canadian Society (Toronto: Harcourt Brace,

1995); Sherene H. Razack, Looking White People in the Eye: Gender, Race, and

Culture in Courtrooms and Classrooms (Toronto: University of Toronto Press,

1998); and R. James, “Why I fear for my sons,” Toronto Star, October 21, 2002,

A1; part of a series on “racial profiling” in the Toronto Star.

greater awareness of issues of systemic and societal discrimination. For

example, it is now a regular practice for potential jurors in trials involv-

ing non-Caucasian accused persons to be asked whether they have racial

prejudices that might prevent them from fairly deciding a case.99 While

this reflects a recognition that the biased attitudes of some members of

the community may influence their judgments and actions, screening

jurors by asking whether they perceive themselves as biased does not

assure that all who may be influenced by race are excluded from serving

on a jury. While many who work in the youth justice system in Canada

are becoming more sensitive to discrimination, and are trying to ensure

that their decisions and actions are not tainted by bias, there continue to

be concerns, for example, about the high incidence of police arrests and

of police shooting of visible-minority youths and young adults.

In recent years, at least in the courts, incidents of overt racism have

been relatively rare, since professionals are generally cautious about

what they say in such a public forum. However, outside the courtroom

there are many documented cases of police and correctional workers

using racial epithets and stereotyping, and some lawyers and judges may

do so as well. Judicial bias may be barely disguised even in the court-

room, as in a 1990 Toronto case where the sentencing judge stated:

Sometimes I send young men from Vietnam to jail rather severely.

They’ve been in Canada a short time . . . and I have to work out a sen-

tence that appears to have no bias. We’re supposed to treat everyone

in front of us the same way . . . but often I have to lay out sentences

to make it clear that in the circumstances of recent immigrants’

arrival into Canada. . . . I lay out some severe sentences that perhaps

wouldn’t apply in the same set of facts with someone who’d been in

Canada [longer].100

This judge, while stating that there is a need to treat everyone fairly,

was in fact suggesting that recent immigrants from Vietnam should be

punished more severely. Beyond the more obvious discriminatory atti-

tudes and acts, there is a concern that subtle, often unconscious, dis-

criminatory attitudes and acts have a cumulative effect over a range of

decisions, including those involving police charging and arrest, prose-

cutorial failure to use non-court diversion, judicial decisions about

pre-trial detention, adjudication and sentencing, and decisions of cor-

rectional workers and probation officers about access to programs and

44 Youth Criminal Justice Law

99 R. v. Williams, [1998] 1 S.C.R. 1128; R. v. Koh (1998), 42 O.R. (3d) 668 (C.A.).

100 R. v. Butcher (September 4, 1990) (Ont. Prov. Div.) (unreported), quoted in the

Ontario report on systemic racism, above note 85.

release from custody.101 While decision makers may be unaware that

their judgments may be influenced by cultural factors or communica-

tion difficulties, youth likely to be targets of systemic discrimination

clearly perceive that they are less likely to get “the benefit of the

doubt,” for example, when a police officer is deciding whether to cau-

tion a youth rather than lay charges.102 Crucial decisions about a youth

and assessments of credibility may be affected by perceptions of police,

prosecutors, and judges about the attitude and demeanour of such

youths or their parents.

The complex task of identifying and responding to systemic dis-

crimination is illustrated by R. v. S.(R.D.), a youth court case from

Nova Scotia that ended up in the Supreme Court of Canada. A fifteen-

year-old black-skinned youth had been charged with interfering with

an arrest and with assault on a police officer, arising out of an incident

that had occurred when a police officer was arresting the youth’s

cousin. The officer alleged that the youth came onto the scene of the

arrest, yelled at the officer, and then pushed into him. The youth

acknowledged that he was at the scene of his cousin’s arrest but said

that he was only speaking to his cousin, who was already in a police

car, to ask if he should call the cousin’s mother. The youth denied that

he had pushed into the officer but testified that the officer had told

him: “Shut up, shut up, or you’ll be under arrest too.”103 The youth tes-

tified that, when he had kept talking to his cousin, the officer had put

him in a choke hold and arrested him. The case was tried before the

only black female judge in Nova Scotia, Judge Sparks, who concluded:

The Crown says, well, why would the officer say that events occurred

in the way in which he has recalled them to the Court this morning.

Responding to Youth Crime in Canada 45

101 See, for example, P. J. Carrington, S. Moyer, and F. Kopelman, “Factors Affecting

Pre-Dispositional Detention and Release in Canadian Juvenile Courts” (1988) 16

J. Crim. Just. 463.

102 J. Warner, et al., “Marijuana, Juveniles, and the Police: What High-School

Students Believe about Detection and Enforcement” (1998) 40 Can J Crim. 401.

See also G.S. Bridges and S. Steen, “Racial Disparities in Official Assessments of

Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms” (1998)

63 Am. Sociological Rev. 554, who suggest that it may not be overt racism that

results in probation officers being more likely to recommend a more severe sen-

tence. Rather, it is the assessment of “character” that is influenced by race: “In

so far as [probation] officials recommend more severe sentences for black

youths than white, they do so because they recommend more severe sentences

for youths whose crimes they attribute to more negative personality traits and

who they perceive as more dangerous than others” (at 567).

103 R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 67.

I am not saying that the Constable has misled the court, although

police officers have been known to do that in the past. I am not say-

ing that the officer overreacted, but certainly police officers do over-

react, particularly when they are dealing with non-white groups. That

to me indicates a state of mind right there that is questionable. I

believe that probably the situation in this particular case is the case

of a young police officer who overreacted. I do accept the evidence of

[R.D.S.] that he was told to shut up or he would be under arrest. It

seems to be in keeping with the prevalent attitude of the day.

At any rate, based upon my comments and based upon all the

evidence before the court, I have no other choice but to acquit.104

The Crown appealed the acquittal, arguing that there was a reasonable

apprehension that the black judge was biased against the Caucasian

police officer.

The Supreme Court was badly split on how to deal with the case,

although the majority upheld the acquittal.105 In writing the plurality

opinion, Justice Cory acknowledged the problem of system discrimina-

tion in the Canadian justice system: “[T]here is a realistic possibility

that the actions taken by the police in their relations with visible

minorities demonstrate both prejudice and discrimination . . . racial

tension exists at least to some degree between police officers and visi-

ble minorities. Further, in some cases, racism may have been exhibited

by police officers in arresting young black males.”106 But Cory J. went

on to suggest that the comments by Judge Sparks were troubling since

“there was no evidence . . . that would suggest that anti-black bias

influenced this particular police officer’s reactions.” Cory J. concluded

that, considering the judge’s reasons in their entirety, the Crown had

not demonstrated that there was a reasonable apprehension of bias,

although her remarks were “close to the line.”107

Justices L’Heureux-Dubé and McLachlin agreed in the result but

went further than Cory J., arguing that Judge Sparks was “alive to the

well-known racial dynamics that may exist in interactions between

police officers and visible minorities” and concluding that her

oral reasons show that she approached the case with an open mind,

used her experience and knowledge of the community to achieve an

understanding of the reality of the case, and applied the fundamental

46 Youth Criminal Justice Law

104 Ibid. at para 4.

105 Ibid.

106 Ibid. at para. 149.

107 Ibid. at paras. 150–152.

Responding to Youth Crime in Canada 47

principle of proof beyond a reasonable doubt. . . .In alerting herself to

the racial dynamic in the case, she was simply engaging in the process

of contextualized judging which, in our view, was entirely proper and

conducive to a fair and just resolution of the case before her.108

In a dissenting judgment, Major J. argued that, in the absence of

evidence of specific racist attitudes or behaviour by this particular offi-

cer, the trial judge herself was displaying bias: “It can hardly be seen as

progress to stereotype police officer witnesses as likely to lie when

dealing with non-whites. This would return us to a time in the history

of the Canadian justice system that many thought had passed. This rea-

soning, with respect to police officers, is no more legitimate than the

stereotyping of women, children or minorities.”109 Although the

Supreme Court was split on the question of how trial judges should

take account of the possibility that systemic discrimination has affect-

ed the conduct or testimony of police officers in a particular case, all of

the judges recognized that it is a serious concern in the administration

of justice in Canada, including the youth justice system.

While it may never be possible to determine fully the effects of sys-

temic discrimination on the administration of youth justice in Canada,

many members of Aboriginal and visible-minority communities believe

that there is bias in the justice system, and there is substantial evidence

to justify their perception that they are victims of discrimination.110

Everyone working in the justice system needs to be aware of problems

of subtle racism and cultural bias. Lawyers need sensitivity and train-

ing for representing youths from diverse backgrounds. Programs for

young offenders need to take account of the needs of youths from a

range of cultural backgrounds and ethnic ancestries. There should be

appropriate mechanisms for dealing with complaints about bias.

108 Ibid. at para. 59.

109 Ibid. at para. 18.

110 See also R. v. Brown (2002), 57 O.R.(3d) 615 (Sup. Ct.), where a young black-

skinned adult male driving an expensive car in Toronto was stopped by a police

officer and ultimately charged with impaired driving. He made an application for

dismissal of the charges based on a violation of the Charter, above note 24, argu-

ing that this arrest was “arbitrary as he was stopped based on ‘racial profiling,’

rather than due to any erratic driving or excessive speed. “The trial judge

refused the application, saying that he had “distaste for the matters raised.” The

appeal court found that there was a “reasonable apprehension of bias” on the

part of the trial judge, and ordered a new trial, with Trafford J. commenting: “It

is helpful to emphasize that racism, whether it be conscious or unconscious,

will rarely, if ever be proven directly. If it be proven in court, it will be proven

most often through circumstantial evidence” (at para. 17).

48 Youth Criminal Justice Law

2) Aboriginal Youth Justice Issues

Issues relating to Aboriginal youth reflect both the unique constitution-

al and political position of Aboriginal peoples within Canada, and the

relatively large numbers and concentration of Aboriginal offenders in

Canadian youth courts and custodial facilities. In some parts of the

country, Aboriginal youths form a majority of the population in custody,

and in some youth courts — those sitting in Aboriginal communities —

all of those who appear are Aboriginal youth.

Because Aboriginal communities in Canada tend to have a relative-

ly large youth population, there is a profound concern that these com-

munities will suffer long-term consequences if its young members

grow into adult offenders rather than productive, contributing adults.

Aboriginal communities are also anxious about youth crime issues

because members of their communities are the most frequent victims

of this offending and bear the immediate costs of it.

The treatment of Aboriginal peoples in Canada’s justice system is a

long and well-documented tragedy, reflecting at best insensitivity and

at worst blatant racism.111 Problems in the courts may be compounded

by cultural and language difficulties. For example, as some Aboriginal

youth may lack comprehension of such legal concepts as “not guilty,”

they may plead guilty in circumstances where other youth might not.

Or their cultural background may make them reluctant to engage in an

adversarial trial process.112 The significant cultural variations among

Aboriginal communities have produced diverse traditions and philoso-

phies for dealing with offending behaviour, which differ from those

found in the Canadian justice system. A member of the Oji-Cree Sandy

Lake First Nation in Ontario stated in a presentation that: “Probably

one of the most serious gaps . . . is the different perceptions of wrong-

doing and how to best treat it. In the non-Indian community, commit-

ting a crime seems to mean that the individual is a bad person and

therefore must be punished . . . the Indian communities view a wrong-

doing as a misbehaviour which requires teaching or an illness that

111 See, for example, Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba

(Winnipeg, MN: Queen’s Printer, 1991), ch. 15; Canada, Royal Commission on

Aboriginal Peoples, Bridging the Divide: A Report on Aboriginal People and

Criminal Justice in Canada (Ottawa, ON: Ministry of Supply and Services, 1996);

Ross 1992, above note 94; and D. Bercuson and B. Cooper, “Justice System is No

Friend to Indians,” Globe and Mail, February 8, 1997: D2.

112 See, for example, T.T. Daley, “Where Cultures Clash: Native Peoples and a Fair

Trial” (1992) 8 Can. Fam. L.Q. 301; and C.C. Brant, “Native Ethics and Rules of

Behaviour” (1990) 35 Can. J. Psychiatry 534.

Responding to Youth Crime in Canada 49

requires healing.”113 Although the restorative philosophy of the YCJA

may be closer to traditional Aboriginal philosophies than those princi-

ples found in the Criminal Code for dealing with adult offenders, the

challenges of dealing effectively with Aboriginal youth who offend

have no easy solution. Some Aboriginal communities are working

toward establishing Aboriginal control over police forces and justice

programs, with a special emphasis on dealing with young persons.

The Canadian justice system is being modified to deal more fairly

and effectively with Aboriginal youth and adult offenders, with some

judges using “sentencing circles” — composed of community mem-

bers, the victim, and the offender as well as the police, prosecutor, and

defence counsel — to try to reach a consensus about an appropriate

disposition. While in theory the judge is not bound by the outcome of

such a sentencing process, in practice it is rare for a judge not to adopt

a restorative justice solution proposed by this process. Sections 19 and

41 of the YCJA expressly allow for conferences involving family and

community members to advise the courts, police, and youth probation

officers. These provisions are especially relevant for Aboriginal youth

and should encourage various forms of both community-based and

court-based “sentencing circles” to provide advice and support for the

appropriate response to youth who are engaging in offending behav-

iour. (Conferences and sentencing circles are discussed more fully in

Chapters 5 and 8.)

Some Aboriginal communities — on reserves and in urban settings

where there are significant Aboriginal populations, especially in west-

ern Canada — are also establishing innovative treatment programs for

Aboriginal young offenders, often involving community Elders, an

Aboriginal philosophy, and healing principles. A long-term objective of

many Aboriginal communities is the establishment of autonomous

Aboriginal justice systems: pilot projects have been set up to deal with

certain less serious offences in some Aboriginal communities. To

ensure that adequate attention is paid to the interests of the offender,

the victim, the Aboriginal community, and Canadian society, many

political, practical, and philosophical questions are to be addressed in

undertaking this type of project.114

113 From the justice proposal made to the Ontario government, quoted in Ross,

1992, above note 94 at 123.

114 C. LaPrairie, “Community Justice or Just Communities? Aboriginal Communities

in Search of Justice,” (1995) 37 Can. J. Crim. 521. For a good discussion about

the idea of Aboriginal justice, see Ross 1992 and 1996, above note 94.

50 Youth Criminal Justice Law

In 1996 Parliament added section 718.2(e) to the Criminal Code to

require a court sentencing an adult offender “to consider all available

sanctions other than imprisonment that are reasonable in the circum-

stances . . . with particular attention to the circumstances of Aboriginal

offenders.”115 In R. v. Gladue, the Supreme Court of Canada recognized

that this provision was a response to the “acute problem of the dispro-

portionate incarceration of Aboriginal peoples,” and the failure of

incarceration to reduce levels of offending.116 The Court recognized

that support for the Aboriginal ideal of restorative justice — which

involves “some form of restitution and reintegration into the commu-

nity . . . [and] for offenders to take some responsibility for their

actions” — means that an “aboriginal offender’s community will fre-

quently understand the nature of a just sanction in a manner signifi-

cantly different from that of many non-aboriginal communities.”117

The Supreme Court emphasized that section 718.2(e) does not

necessarily require a less severe sanction for all Aboriginal offenders.

Concerns about deterrence, accountability, and protection of the pub-

lic, especially from the most serious violent offenders, may require sim-

ilar treatment for Aboriginal and other offenders. However, for

Aboriginal offenders who commit less serious offences, there should be

special judicial consideration of alternatives to incarceration, such as

holding the offender accountable through a community-based sanc-

tion, even if the individual has a significant record of prior offending.

Justices Cory and Iacobucci further emphasized that these principles

apply to the sentencing of Aboriginal offenders in urban centres as well

as those who live on reserves, stating:

the different conceptions of sentencing held by many aboriginal peo-

ple share a common underlying principle: that is, the importance of

community-based sanctions. Sentencing judges should not conclude

that the absence of alternatives specific to an aboriginal community

eliminates their ability to impose a sanction that takes into account

principles of restorative justice and the needs of the parties involved.

Rather, the point is that one of the unique circumstances of aborigi-

nal offenders is that community-based sanctions coincide with the

aboriginal concept of sentencing and the needs of aboriginal people

and communities. It is often the case that neither aboriginal offend-

ers nor their communities are well served by incarcerating offenders,

115 Criminal Code, above note 5, s. 718.2(e).

116 R. v. Gladue, [1999] 1 S.C.R. 688.

117 Ibid. at para. 77.

Responding to Youth Crime in Canada 51

particularly for less serious or non-violent offences. Where these

sanctions are reasonable in the circumstances, they should be imple-

mented. In all instances, it is appropriate to attempt to craft the sen-

tencing process and the sanctions imposed in accordance with the

aboriginal perspective.118

While most of the sentencing principles and provisions of the YCJA

differ from those sections of the Criminal Code that govern the sentenc-

ing of adults, section 718.2(e) of the Criminal Code has been specifical-

ly incorporated into the new Act to apply to the sentencing of

Aboriginal youth.119 Further, section 3(1)(c)(iv) of the Declaration of

Principle of the YCJA has a general statement that young persons who

commit offences should be treated in a manner that “respect[s] gender,

ethnic, cultural, and linguistic differences and respond[s] to the needs

of Aboriginal young persons.” It is therefore clear that the approach of

the Supreme Court in Gladue is relevant to the sentencing of Aboriginal

youth.120 The Court’s sensitivity to the unique circumstances of

Aboriginal offenders is also relevant for the types of decisions made by

police, probation officers, Crown prosecutors, and community mem-

bers about how to deal with Aboriginal youth. Even if they are not first

offenders, consideration should be given to community-based respons-

es rather than making use of court and custody.

The recognition of special provisions to deal with the sentencing

of Aboriginal youth is not uncontroversial. The conservative Canadian

Alliance Party has been opposed to this type of special treatment of

Aboriginal offenders, arguing that it is racist. That party was especial-

ly critical of section 38(2)(d) of the YCJA, which was added in 2002,

as a result of the action of the Senate, and provides that “all available

sanctions other than custody that are reasonable in the circumstances

. . . with particular attention to the circumstances of Aboriginal offend-

ers.” In arguing against the enactment of this provision, Chuck

Cadman, the leading Canadian Alliance spokesman on youth justice

issues, said:

Gail Sparrow, former Chief of the Musqueam Band, has been very

critical of this type of legislation. The majority of crimes by

Aboriginals [sic] are committed against other Aboriginals [sic]. The

118 Ibid. at para. 74.

119 YCJA, above note 2, s. 50; see also s. 38(2)(d).

120 See, for example, R. v. Bero, [1998] O.J. 4882 (Prov. Div.), per Renaud Prov. J.,

which held s. 718.2(e) should be applied when an Aboriginal youth was sen-

tenced under the Young Offenders Act.

52 Youth Criminal Justice Law

legislation would diminish the suffering and recognition the victims

deserve. Sufficient guidelines already exist for judges to consider all

mitigating factors for all offenders irrespective of race. The declara-

tion of principles already sets out respect for ethnic, cultural and lin-

guistic differences.

Why is it necessary to introduce an element of race into the leg-

islation? Why should any victim receive a lesser degree of justice

based solely on the racial origin of his or her victimizer?121

While these views are shared by many conservative commentators

and even some academics,122 Parliament has recognized the unique

constitutional status and great social disadvantages of Aboriginal youth

by requiring youth justice court judges to take special account of their

circumstances. The approach adopted by Parliament reflects the recog-

nition that conventional Canadian judicial responses to youth crime

based on custody have generally proven ineffective in dealing with

Aboriginal young offenders, who have had high rates of recidivism.

The YCJA encourages use of community-based responses to youth

crime, such as police cautioning, diversion from the court system for

extrajudicial measures, conferencing, and youth justice committees.

These types of programs are especially important for Aboriginal com-

munities, giving them some control for responding to their youthful

offenders, while allowing Elders, victims, and family members of the

youth to be involved in decisions that invoke Aboriginal concepts of

restorative justice.

121 Canada, Hansard, No. 138, House of Commons, Thirty-Seventh Parliament, First

Session, February 4, 2002 (12:50). Chuck Cadman’s son, Jessie, was killed by a

young offender (not Aboriginal) who at the time had been released on bail and

was supposed to be under parental supervision. The young offender was in

breach of his curfew at the time of the killing, which was an unprovoked stab-

bing in the course of the robbery of Jessie Cadman. Prior to this tragic killing,

Chuck Cadman had had little interest in politics, but after that he became

involved in the victim’s rights movement and was then elected to Parliament as a

member of the Reform — now the Canadian Alliance — Party.

122 P. Stenning and J. Roberts, “Empty Promises: Parliament, The Supreme Court,

and the Sentencing of Aboriginal Offenders” (2001) 64 Sask. L Rev. 137 and S.S.

Anand, “The Sentencing of Aboriginal Offenders: Continued Confusion and

Persisting Problems: A Comment on the Decision in R. v. Gladue” (2000) 42

Can. J.Crim. 412.

Responding to Youth Crime in Canada 53

G. FEMALE YOUNG OFFENDERS

Only about one-fifth of charges against youths involve females, but

concerns about the incidence and treatment of female young offenders

are growing. Under the Juvenile Delinquents Act, relatively few females

were charged, although girls were far more frequently charged with the

vague status offences of “sexual immorality” and “unmanageability”

than boys. Some girls were charged with these delinquent acts for

prostitution-related activities, and it was quite common for parents to

have this type of charge brought when their daughters were perceived

as being “out of control” or merely sexually active. Girls charged with

“sexual immorality” or “unmanageability” could serve long periods in

training schools; it is now tragically clear that many of these girls were

sexually exploited by training school staff with long-term emotional

harm.123 The YOA, with its offence-oriented approach and emphasis on

legal rights, reduced the possibility of the juvenile justice system being

used in this highly discriminatory and destructive fashion. It did not,

however, eliminate concerns related to gender bias.

In 2000–01 about 21 percent of charges involving youths were

against females; in 1988 the rate was only 16 percent.124 The increase

in relative offending rates, as well as the opinions of professionals in

the field, suggest that female adolescents are engaging in more offend-

ing behaviour, including more violent offences, although they are

clearly not as violent as males.125 Female children and adolescents can

be as emotionally aggressive and callous toward their peers as males,

but they are more likely to engage in manipulation and verbal aggres-

sion, for example, by spreading false rumours, and less likely to engage

in criminal acts of violence towards their peers.126 While female adoles-

cents rarely commit the most serious offences (i.e., homicide or sexu-

al assault), they are charged with a greater proportion of ordinary

assaults (about 30 percent) than property offences (about 20 percent).

In the category of property offences, girls make up a relatively small

123 See, for example, Bessner, above note 17.

124 Statistics Canada, A Profile of Youth Justice in Canada (Ottawa: 1998); Statistics

Canada, Youth Court Statistics, 2000–2001 (2002) 22:3 Juristat.

125 See, for example, I. Vincent, “Girl-Gang Violence Alarms Experts,” Globe and

Mail, September 12, 1995: A10.

126 See, for example, “Experts Report Girls as Aggressive as Boys But in Verbal

Ways,” Globe and Mail, October 23, 1999 at A3; and A. Cummings and A.W.

Leschied, “Understanding Aggression with Adolescent Girls: Implications for

Policy and Practice” (2001) 20 Can J. Comm. Mental Health 43.

54 Youth Criminal Justice Law

proportion of those charged with the more serious offence of break and

enter (under 10 percent) in comparison to those charged with theft

under $5000, mainly shoplifting (about 25 percent). Female adoles-

cents are much more likely than males to be charged with prostitution-

related offences.

Many of the characteristics of persistent female adolescent offenders

are similar to males, such as having learning disabilities and mental

health problems, and coming from homes where there is a history of

abuse or family violence. However, female adolescent offenders may be

somewhat more likely to have emotional and psychological distur-

bances, and to have been victims of sexual abuse.127 Research also shows

that male offending increases with age throughout adolescence and

peaks between the ages of seventeen and twenty-one, while female

offending peaks at the age of fifteen, and declines in the sixteen- and sev-

enteen-year-old population.128 This is consistent with the fact that girls

tend to reach physical and psychological maturity earlier than boys.

Youth courts are apparently more lenient with female young

offenders than with males. Taking into account the seriousness of the

offence and the prior record, an adolescent female is less likely to

receive a custodial sentence for any given offence than a male youth.129

While this lenient treatment may seem to be advantageous to females,

and may reflect judicial biases about females, it may also reflect a judi-

cial recognition that females have lower rates of recidivism. Available

Canadian research indicates that females have substantially lower

recidivism rates following probation or a custodial sentence than male

young offenders.130 Further, despite the relative leniency in sentencing,

research also suggests that under the YOA there was still a tendency for

judges to impose custodial sentences on female adolescent offenders to

127 R. Corrado, C. Odgers, and I. Cohen, “The Incarceration of Female Young

Offenders: Protection for Whom?” (2000) 42 Can. J. Crim. 189–207.

128 P.J. Carrington, Age and Youth Crime in Canada (Ottawa: Department of Justice,

1995).

129 See, for example, Statistics Canada, “Sentencing of Young Offenders in Canada,

1998–99” (2000) 20:7 Juristat; S.M. Kowalski and T. Caputo, “Recidivism in

Youth Court: An Examination of the Impact of Age, Gender, and Prior Record”

(1999) 41 Can. J. Crim. 57; M. Reitsma-Street, “A Review of Female

Delinquency” in A.W. Leschied, P.G. Jaffe, and W. Willis, eds., The Young

Offenders Act: A Revolution in Canadian Juvenile Justice (Toronto: University of

Toronto Press, 1991) 248; and P. Pearson, When She Was Bad: Violent Women and

the Myth of Innocence (Toronto: Random House Canada, 1997).

130 Statistics Canada 1998, above note 124; S. Moyer, “A Profile of the Juvenile

Justice System in Canada,” Federal–Provincial/Territorial Task Force on Youth

Justice (Ottawa: Ministry of Supply and Services, 1996) at 182.

Responding to Youth Crime in Canada 55

“protect them” from engaging in such high-risk activities as prostitu-

tion and drug use, rather than because of concerns about accountabil-

ity or the protection of the public.131

Because females constitute a relatively small proportion of the

young offender population, they have difficulty getting access to appro-

priate programs and services. In particular, a disproportionate number

of female offenders have been victims of physical and sexual abuse but

do not have access to adequate treatment in custody for the emotional

and behavioural problems that often result from such abuse. Although

many open-custody facilities have both males and females, program-

ming tends to be geared to the males, who are the majority of residents.

While some secure-custody facilities are co-educational, there is a ten-

dency to segregate older and more serious offenders by sex, resulting

in fewer facilities for the relatively small number of female offenders

and a greater likelihood that they will be sent farther away from home

or even placed in adult facilities.

A 1999 Alberta case under the YOA,R. v. K.L.M., illustrates some of

the issues that can arise for female young offenders.132 A girl who had

committed a number of offences received a sentence of ninety days of

open custody, and was placed in the female offender unit of a “prison

for youth” (as it was characterized by the judge in the case). The centre

had several units for males with different levels of security and freedom,

but since there were few female offenders, there was only one unit for

them, designated by the government as both open and secure custody.

The girl was the only female youth on open custody, and her living con-

ditions and daily routine were identical to that of the girls in secure cus-

tody. The girl challenged the legality of her continued confinement. The

province argued that the small number of female offenders did not war-

rant creation of a separate unit for open-custody female offenders, and

that there was no suitable place for this girl at the small number of open

custody facilities for girls in the community. The girl was eighteen years

old by the time she was sentenced, and correctional officials had con-

sidered placing her in a correctional facility for female adults — which

would have required court approval — but they could not justify such

131 Corrado, Odgen, and Cohen, above note 127. See also J.M. MacDonald and M.

Chesney-Lind, “Gender Bias and Juvenile Justice Revisited: A Multi-Year

Analysis” (2001) 47 Crime and Delinquency 173–95.

132 R. v. K.L.M., [1999] A.J. 943 (Q.B.). This case was decided on an application for

habeus corpus [Latin for produce the body] to a superior court to review the

legality of detention.

a request. The court ruled that, under these circumstances, the girl had

to be placed in a truly open custody facility or be released.

Section 3 of the YCJA recognizes that young persons who commit

offences should be treated in a manner that “respect[s] gender . . . dif-

ferences” as much as possible; accordingly, there should be programs

and facilities that meet the distinctive needs of female offenders. In

cases involving female youths being sentenced under the YCJA, it may

be appropriate for a court to consider the lack of suitable available cus-

tody facilities in reasonable proximity to a youth’s residence as a factor

in favour of imposing a non-custodial sentence. There may also be an

argument, in some cases, that unequal access to suitable programs or

facilities for girls may violate section 15 of the Charter, the guarantee

against discrimination based on gender.

H. OVERVIEW OF THE YOUTH JUSTICE

COURT PROCESS

Before beginning the detailed study of the principles and provisions of

the YCJA — the focus of the rest of this book — it is useful to have an

overview of the youth court process and of salient issues that typically

arise in these cases. (See Figure 1.)

A significant proportion of offences committed by youths, especial-

ly minor ones, are resolved informally by victims or are not detected.

Many offences, however, are reported to the police by witnesses or vic-

tims. A police investigation will involve the questioning of the victim

and any witnesses, and possibly some forensic work (i.e., the taking of

fingerprints from a crime scene, or, in a sexual assault case, having a

medical exam performed on the victim). If the police are not able to dis-

cover who committed an offence, no further action can be taken.

Assuming that the investigation identifies a suspect, the police will usu-

ally attempt to interview the suspected perpetrator of the offence. All

the protections of the Charter apply to youths who are suspects of crim-

inal offences, and the YCJA requires that the police must take special

measures to protect the rights of young persons who are being ques-

tioned by police about offences they are suspected of having committed.

In some cases involving less serious offences, the police may decide

not to take any official action against a youth whom they believe com-

mitted an offence. The YCJA encourages the police to consider an

informal response to less serious offences, by cautioning a youth. The

police may warn the youth about not committing any further offences,

56 Youth Criminal Justice Law

Responding to Youth Crime in Canada 57

Figure 1: YOUTH JUSTICE COURT PROCESS

Report to Police and Investigation

Substantiated Unfounded

Police or

Crown

Caution

Extrajudicial

Sanctions

Police

Charge

Extrajudicial

Sanctions

Completed

Youth Does

Not Complete

Extrajudicial

Sanctions

Youth Detained

Youth Detained

Youth Not

Detained

Youth Justice Court

Bail Hearing

Notice that

Adult Sanctions

May Apply

Youth Justice Court

With Possible Jury

Not Guilty

Plea

Guilty

Plea

Trial

Not

Guilty

Not Guilty

Plea

Guilty

Plea

Trial

Not

Guilty

s. 72 Hearing

Adult Sentence

Place of Custody

Hearing

Found

Guilty

Found Guilty

Youth Court

Sentencing

Hearing

Pre-Sentence

Report

Absolute or

Conditional

Discharge

Community

Service Probation

Custody

and

Supervision

Intensive

Rehabilitative

Custody

Compensation

or

Restitution

to Victim

Fine

up to

$1,000

Review Hearing Mandatory

After 1 Year Custody;

Optional in Other Situations

Progress

Report

perhaps speaking to the parents as well. The youth, and possibly the

parents, may also be referred to a social agency or some other source

for assistance on a voluntary basis. If, however, the police have reason-

able grounds to believe that a youth has committed an offence, the

police may lay charges and commence the youth justice court process.

Before or after a charge is laid, a youth may be diverted to a program of

“extrajudicial sanctions” instead of proceeding through court. These

programs are intended to provide a relatively expeditious, informal res-

olution for less serious cases and may, for example, involve restitution,

an apology to a victim, or community service. In more serious cases

that are proceeding through the court system, the Crown prosecutor, in

consultation with the police, may decide to seek detention of the youth

in a custody facility pending trial. The decision about whether to

detain a youth is made by a judge at a pre-trial detention (bail) hear-

ing. A youth should not be detained before trial if an adult in a similar

situation would be released, or if the youth would not receive a custo-

dial sentence if convicted. The judge may decide not to detain the

youth but may impose conditions on release. It is not uncommon for

youths to be released into the care of their parents, provided that the

parents are willing and able to supervise their child.

As soon as a youth is arrested, the police must inform the youth of

the right to consult a lawyer. In proceedings under the YCJA, if a youth

wants to have legal assistance and is unable to afford a lawyer, there is

a right to have a government-paid lawyer, though if parents have the

means to pay for a lawyer, the provincial government has the option of

seeking reimbursement from the parents after the conclusion of the

court proceedings. The lawyer may provide assistance at the time of

pre-trial questioning by the police, at a pre-trial bail hearing, at trial,

and at a sentencing or review hearing. After an initial appearance

before a judge, a youth, often acting with the advice of a lawyer, will

decide whether to plead guilty or not guilty. In practice, most youths

decide to plead guilty, sometimes in the context of a plea bargain with

the Crown prosecutor. Trials in youth justice court are generally

resolved by a judge sitting without a jury, with special rules to limit the

public disclosure of information about the youth before the court. After

a trial a youth may be found not guilty and be acquitted, or found

guilty of the offence.

If there is a finding of guilt, the youth court judge will impose a

sentence on the youth. In some cases, a sentence will be imposed

immediately after the finding of guilt. In more serious situations, the

case is likely to be adjourned so that a pre-sentence report may be pre-

pared, or a medical or psychological assessment may be carried out for

58 Youth Criminal Justice Law

the sentencing hearing. The YCJA gives judges a range of sentencing

alternatives, from a verbal reprimand to three years in youth custody,

except that for a conviction of murder in youth justice court, the max-

imum sentence is ten years. There is not a direct equivalent to parole

for young offenders. However, if a youth justice court imposes a custo-

dial sentence, normally the last third of the total sentence is to be

served under community supervision. The period of community super-

vision is intended to allow for the reintegration of the young offender

into the community under supervision. There is a narrow discretion for

a youth justice court to decide later that, if the youth is too likely to

reoffend, the youth will not be released for the last third of the custo-

dial sentence. The youth justice court retains jurisdiction to review the

sentence of a youth, that is, to lessen its severity. For example, a young

offender may be released from custody by a youth justice court judge

at a review hearing even before two-thirds of the sentence have been

served, if there has been sufficient progress toward rehabilitation.

Unless a youth is in breach of a term of an original order, a more severe

sentence cannot be imposed as part of the review process.

Several provisions of the YCJA are intended to protect the privacy

of young offenders. These provisions reflect notions of the limited

accountability of youth and are intended to promote their rehabilita-

tion and reintegration into society. There are restrictions on the disclo-

sure of information from the records of police and the courts about

young offenders. There is a prohibition on the publication of informa-

tion that might identify a young person involved in the youth justice

court process. The only exception is a narrow judicial discretion to

allow publication when a youth has been convicted of a very serious

offence, or where a youth at large poses a serious risk to the public.

Youth justice court proceedings are presumptively open to the public,

though the judge has the discretion to exclude specific witnesses or

members of the public.

The YCJA provides that young persons aged fourteen and older

may receive adult sentences for the most serious offences. In these

cases, before the youth decides how to plead, the youth must be

informed of the possibility that an adult sentence may be sought. The

youth then has the right to have a jury trial, although even if there is a

jury trial the provisions of the YCJA concerning issues such as pre-trial

detention, admissibility of statements, and prohibitions on public dis-

closure of identifying information apply to the proceedings until the

completion of the trial. If the youth is found guilty, the court proceeds

to hold a hearing to determine whether the sentencing options of the

YCJA are adequate to hold the youth accountable for the offence. If the

Responding to Youth Crime in Canada 59

Act is considered adequate, the youth is sentenced under it. If the pro-

visions of the Act are not considered adequate to hold the youth

accountable, the youth will receive an adult-length sentence and may

be identified in the media. The court may determine that part of an

adult sentence be served in youth custody facilities. In most situations

a youth receiving an adult sentence will be eligible for parole under the

adult rules, although, in the case of murder, youths may be eligible for

earlier parole.

FURTHER READINGS

ANAND, S.S., “Catalyst for Change: The History of Canadian Juvenile

Justice Reform” (1999) 24 Queen’s L.J. 515

BALA, NICHOLAS, J.P. HORNICK, M.L. MCCALL, & M.E. CLARKE,State

Responses to Youth Crime: A Consideration of Principles (Ottawa,

ON: Department of Justice, 1994)

BIBBY, REGINALD W., Canada’s Teens: Today, Yesterday, and Tomorrow

(Toronto, ON: Stoddart Press, 2001)

CANADA, DEPARTMENT OF JUSTICE,A Strategy for Youth Justice Renewal

(Ottawa, ON: Ministry of Supply and Services, 1998)

CANADA, FEDERAL–PROVINCIAL/TERRITORIAL TASK FORCE ON YOUTH

JUSTICE,A Review of the Young Offenders Act and the Youth Justice

System in Canada (Ottawa, ON: Ministry of Supply and Services,

1996) cc. 2, 12

CANADA, HOUSE OF COMMONS,Thirteenth Report of the Standing

Committee on Justice and Legal Affairs: Renewing Youth Justice

(Ottawa, ON: Ministry of Supply and Services, 1997)

CORRADO, R., et al. eds., Juvenile Justice in Canada: A Theoretical and

Analytical Assessment (Toronto, ON: Butterworths, 1992)

DOOB, A.N., V. MARINOS, & K.N. VARMA,Youth Crime and the Youth

Justice System in Canada: A Research Perspective (Toronto, ON:

University of Toronto, Centre of Criminology, 1995)

GROSSMAN, DAVID,Stop Teaching Our Kids to Kill (New York, NY:

Random House, 1999)

KOREM, DAN,Suburban Gangs: The Affluent Rebels (Richardson, TX:

International Focus Press, 1994)

60 Youth Criminal Justice Law

LESCHIED, A.W., P.G. JAFFE, & W. WILLIS, eds., The Young Offenders

Act: A Revolution in Canadian Juvenile Justice (Toronto, ON:

University of Toronto Press, 1991)

MANN, RUTH M., ed., Juvenile Crime and Delinquency: A Turn-of-the-

Century Reader (Toronto, ON: Canadian Scholars Press, 2000)

ROSS, R., Returning to the Teachings: Exploring Aboriginal Justice

(Toronto, ON: Penguin, 1996)

SCOTT, E., & T. GRISSO, “The Evolution of Adolescence: A

Developmental Perspective on Juvenile Justice Reform”

(1998) 88 J. L. and Criminology 137

UNITED STATES,Youth Violence: A Report of the Surgeon General

(Washington DC: Surgeon General, 2001)

Responding to Youth Crime in Canada 61