Probation sentences and proportionality under the Young Offenders Act and the Youth Criminal Justice Act.

• Author: Pulis, Jessica E.
• Position: Canada

La presente etude a pour but d'evaluer dans quelle mesure les juges essaient d'etablir des peines de probation proportionnelles en vertu de la Loi sur les jeunes contrevenants (LJC) et de la Loi sur le systeme de justice penale pour les adolescents (LSJPA). Pour ce faire, les auteures ont analyse l'impact de la nature de l'infraction sur la duree de la peine de probation en exploitant (1) un echantillon de causes jugees en vertu de la LJC et (2) un echantillon de causes jugees en vertu de la LSJPA. Or, selon les resultats de leur analyse, les juges du tribunal pour adolescents seraient davantage influences par la nature des infractions les plus graves jugees dans le cadre de la LSJPA qu'ils ne l'etaient dans le cadre de la LJC. Une telle tendance constituerait ainsi une preuve provisoire de l'impact de l'article 38(2)(c) de la LSJPA. En effet, selon cet article, la peine doit etre proportionnelle a la gravite de l'infraction et au degre de responsabilite de l'adolescent a l'egard de l'infraction.

Introduction

This case study is an investigation of one area of youth sentencing that is not as widely understood as it should be: probation. Probation is the sentence most frequently imposed (2) by youth courts in Canada, and in 2002/2003 it was the most severe sentence issued to young offenders in 57% of all guilty findings (Robinson 2004). But little is known about the use of proportionality in crafting community or non-custodial sentences such as probation. This study provides some insight into the judicial use of probation under the Young Offenders Act (YOA) and the Youth Criminal Justice Act (YCJA).

Under the YOA, youth court judges were to consider several principles that would guide the type of sentence imposed on young people. These principles included protection of society, accountability, special needs of the youthful offender, rehabilitation, alternative measures, rights of young persons, and least possible interference (YOA s. 3(1)(a-h)). While the YOA did not explicitly direct youth court judges to consider proportionality when sentencing offenders, there was some evidence that they did, in fact, use this principle. As Trepanier notes, "section 24 [of the YOA] specifies that the court must take into account the seriousness of the offence (among other factors) when deciding to commit a young person to custody" (1989: 32). Although proportionality was only one of many principles to be considered, it appears that the seriousness of the offence committed emerged as a criterion that served to guide judges in deciding the type (open/secure) and length of custodial sentences they imposed (Trepanier 1989).

In the only Supreme Court case judgment under the YOA regarding proportionality, the Supreme Court of Canada argued that while sentences, whether imposed on young or on adult offenders, must be proportionate to the offence committed, the principle of proportionality should have greater significance for adults than in the sentences of young people (R. v. M. (J.J.)). (For a discussion of the use of proportionate sentencing with young offenders, see Bala 2004; von Hirsch 2001; Anand 2003). The Court ruled that when taking into account the special needs of young people, the kinds of guidance and assistance they require, and the protection of society, courts could issue disproportionate sentences (R. v. M. (J.J.)). Under the YOA, therefore, judges could issue dispositions that were "disproportionately severe or intrusive, if the youth had needs that required a greater degree of intervention than would be warranted by the seriousness of the offence" (Barnhorst 2004: 243). However, the YCJA, which replaced the YOA in April 2003, explicitly promotes proportionate sentences for young people as an essential goal of Canada's youth criminal justice system.

Unlike the YOA, the YCJA clearly lists proportionality as a principle of sentencing: a sentence "must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence" (YCJA s. 38(2)(c)). The principle of proportionality dictates that the more severe the offence and the greater the responsibility of the young person, the more severe the punishment. Roberts (2004) maintains that proportionality is an essential principle of any youth justice system. He writes, "a youth justice system that ignored proportionality might well have merit in other respects, but one would have to question whether it was a criminal justice system at all" (2004: 309).

Youth court judges must also issue dispositions that are the least restrictive, are the most likely to rehabilitate and reintegrate the young person back into society, promote a sense of responsibility in the offender, and lead them to acknowledge the harm done to the victim(s) and the community (YCJA s. 38(2)(e)(i-iii)). The aforementioned goals must be achieved and maintained within the limits of proportionate sentencing. Anand explains, "The other sentencing principles [e.g., rehabilitation] can inform the youth sentencing process so that the severity of an otherwise proportional sentence is reduced. But the other sentencing principles cannot make a sentence more punitive than the principle of proportionality dictates" (2003: 951). Doob and Sprott further explain that "the judge is not balancing or choosing between a proportional sentence and rehabilitation. Instead, the judge is required to hand down a sentence that is proportional and is then charged with the responsibility of ensuring that, within those constraints, the sentence is as rehabilitative as possible" (2004: 15). In other words, sentences must represent meaningful consequences for the young person, but this goal must be achieved and maintained within the limits of proportionate sentencing.

Under the YOA, it appears, judges already considered proportionate sentencing in their use of custody. However, there are no data on whether judges considered proportionate sentencing in their use of community sentences such as probation. Therefore, this case study aims to explore judges' use of the principle of proportionality when issuing sentences of probation--specifically, whether or not the length of a probation sentence is related to the seriousness of the offence--under the YOA and YCJA. One might expect, for example, that as offence seriousness increases, so too will the length of the probation order. Moreover, the nature of the offence may have more impact under the YCJA than it had under the YOA, given the focus on proportionality in the YCJA.

The article will first present an...