Responding to Youth Crime in Canada

• Author: Nicholas Bala/Sanjeev Anand
• Pages: 1-76

1

CHAPTER 1

RESPONDING TO

YOUTH CRIME

IN CANADA

A. ADOLESCENCE AND THE R ATIONALES

FOR A YOUTH JUSTICE SYSTEM

Every legal system recognizes that children and youth are di fferent

from adult s and should not be held accountable for v iolations of the

crimina l law in the same fashion. There is, however, substanti al varia-

tion in how dif ferent countries give effect to this principle and in how

they def‌ine such concepts as child and youth. In Can ada, the nature of

the speci al legal treatment of youth has evolved sign if‌icantly over the

course of history and remains controversia l tod ay. But t here remains

widespread recognition that children and adolescents — having special

needs and l imited capacitie s — 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 in-

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

rights can be exercised only t hrough a legal guardian or other adult.

As children mature, they gradually gain physic al strength, intellectual

judgment, and social maturity, and can begin to exercise legal r ights

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

is reached (currently at t he age of eighteen in most province s in Can-

ada), a person generally has a full range of legal rights a nd obligations.

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

a growing social, intellectual, moral, and sex ual awarene ss, as well as

YOUTH CRIM INAL JUSTICE LAW2

increasing physical si ze and strength. While for many physical growth

ends at about age f‌ifteen, individuals continue to mature intellectually,

neurologically, psychologically, and socially until well into adulthood.

Recent research on brain development makes clear that the brain grows

continuously throughout adolescence. In particular, the frontal cortex,

the part of the brain that deals with judgment, organization, and self-

control, is developing until the early t wenties (matur ing earlier in fe-

males than i n males).1

Adolescence is a time of great change and development, as parents,

teachers, and youth 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 grow ing self-awareness and in-

creasing autonomy. Authority f‌igures are challenged and personal lim-

its tested. Parents become less important, while peers become more

important. Adolescents a re more susceptible to pressures from their

friends; t hey are attracted to new challenges and excitement; they are

more concerned about immediate pleasures and consequences than

with t heir long-term well-being. While t hey are accumulating knowl-

edge of the world around them, they often lack judgment and maturity.

Not infrequently, 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 uns afe sex, dr unken driving, substance abuse, and

violent behaviour.2 Adolescence 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, and a greater propen-

sity to engage in offending behaviour. Adolescence is also a time when,

for some individuals, feelings of depression m ay peak, when there is a

high risk of suicide and self-destructive behaviour. While there are sub-

stantial differences among countr ies i n ty pes and levels of crime and

1 See, for example, L aurence Steinberg & Elizab eth S. Scott, “Less Guilty b y Rea-

son of Adolescence: Developme ntal Immaturity, Dimi nished Responsibil ity, and

the Juvenile Deat h Penalty” (2003) 58 American Psychologi st 1009.

2 On the relative ly high rate of depression, smoking, d rug use, and engaging in

unsafe sex pr actices by Canadia n adolescents, see Health Ca nada, Healthy Set-

tings for Young People (Ottawa: Health Can ada, 2008). US psychologist Willia m

Damon points out th at, “even more than in the past, p eer groups are highly

signif‌ica nt for today’s adolescents: as a group, the y lead lives that are more

adult-free than t hose of previous generations. Thi s generation has spent more

time on their ow n than any other in recent h istory . . . . Teens are isolated to an

extent that h as never been possible before”: “A World of Their Own” Newsweek

(8 May 2000). See also Jeffre y Arnett, “Reckless Be havior in Adolescence: A

Developmental Persp ective” (1992) 12 Developmental Rev iew 339.

Respondin g to Youth Crime i n Canada 3

deviant behaviour, in all modern societie s the rates of violent and anti-

social behaviour p eak in late adolescence and early adulthood — be-

tween the ages of f‌ifteen and t wenty-one — ref‌lecting the immatur ity

and lack of judgment of this period, as well as its energy and search for

excitement.

Canadian law recognizes th ree distinct stages of cr iminal account-

ability. Childhood, lasting to the age of twelve, is without crimina l

liability, though children under twelve who engage in offending behav-

iour may be subject to child welfare proceedings. 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.3 Legal adulthood, star ting at eighteen years,

requires full legal accountability as well as providing a full set of adult

rights. The rationa le for this distinctive age-based treatment can be

found in the basic premise s of criminal law and in the n ature of child-

hood and adolescence as distinct periods of life.4 The f undamental

crimina l law concept of moral accountability and the policy objectives

of achieving social protection through deterrence of crime and rehabili-

tation apply differently to chi ldren and youth t han to adults, because

children and youth are different from adults.

A central premi se of criminal law is t hat individuals are held ac-

countable 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 t he dr iver

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

crimina l accountability. A person who commits a wrongful act while

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

son5 — may be acquitted because of the lack of intent to do harm.6

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

force 1 April 2003) [YCJA]. The YCJA repeale d and replaced the Young Offenders

Act (YOA), R.S.C. 1985, c. Y-1, enacted as S.C. 1980 –81–82–83, c. 110 [YOA],

which also ha d an age jurisdiction of twelve t hrough to the eighteenth birt hday.

4 Some commentators a nd politicians argue t hat adolescence is not suff‌icientl y

different from adu lthood to justify dis tinct legal treatment: se e, for example,

Stephen J. Morse, “Immat urity and Irrespon sibility” (1998) 88 J. Crim. L. &

Criminolog y 15.

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

6 The defence that give s rise to the acquittal i s known as “non-mental di sorder

automatism” and it amount s to the negation of the voluntari ness aspect of the

actus reus ( guilty act). However, sleepwalking can a lso give rise to the defence

of mental dis order automatism, which result s in a verdict of not crimina lly

responsible on accou nt of mental disorder. For a more thorough disc ussion of

sleepwalki ng, non-mental disorder automati sm, and mental disorder automa-