Working "in the trenches" with the YCJA.

• Author: Harris, Peter
• Position: Youth Criminal Justice Act

Rhetoric and Reality Under the YCJA Justice Peter Harris--Metro East Court (Scarborough)

Common orthodoxy has it that what the legislature proclaims as law is in fact carried out by those charged with administering it. The YCJA holds out the promise of substantial reform in the way we treat young persons in conflict with the criminal law. Paradoxically, rather than the dawn of a new age, the early days under the new youth law have been marked by changes that are inconsequential for the majority of youth facing charges. There is a gap--at times small and at times large--between the discourse of entitlements under the YCJA and the practice.

Certainly it must be acknowledged that, for the time being, the rate of youth incarceration appears to be falling, more youth are being diverted from youth court, and the repositioning of the adult sentence hearing (for the most serious offences) to follow the trial rather than precede it, have all had a significant impact on a small minority of youth in the juvenile justice system. While it is too early to offer any more than an individual and rather localized impression, it is becoming apparent that the YCJA currently represents heightened expectations and, as yet, a largely unrealized potential. Some specifics will serve to illustrate this viewpoint.

Court administrative delay: Curtailed or continued?.

There are vital components of the new youth law that are simply not working. The "timeliness" provision is a case in point. The statutory policy on court delay in s.3 of the act creates the illusion of a legislative entitlement to a speedy trial. This laudable aim has not been offered so much as a passing glance in the youth courts with which this writer is familiar. (1) Section 3 of the YCJA sets out the following guiding principles as to how cases should proceed through the youth criminal justice system:

Section 3(1)(b): the criminal justice system for young persons must be separate from that of adults and emphasize the following:

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time;...(Emphases added.)

While all that can be offered at this time is anecdotal evidence, it is this writer's experience that these provisions have not been implemented in Ontario. Particularly in high volume court locations, some of the worst cases of delay under the YOA have typically resulted in youths being brought to trial more than a year after the alleged offence was committed. There is no indication that trial delay will be treated differently under the YCJA.

Why is "procedural speed" and "timely intervention" of any real importance as a policy and goal of youth justice? Besides the constitutionally protected value of a trial within a reasonable time (Canadian Charter of Rights, s. 11(b)), there are special reasons why youth courts should strive to achieve this goal:

1. In terms of the rehabilitation of youthful offenders, there is a well-grounded concern that delay dilutes the effectiveness of any disposition, should the youth be found guilty (what was once a major event becomes a soon forgotten minor inconvenience).

2. The frequently lengthy period between the crisis surrounding the arrest and court intervention results in parents feeling that the court is not likely to give them the timely support which they need, and they often do not appear for sentencing (some argue that effective parental guidance is the front line of probation supervision).

3. Long delays before trial and sentencing (should a guilty finding be made), cause anger, frustration, and distress to victims and as a result the youth justice system suffers a loss of credibility as a mechanism for the redress of socially unacceptable behaviour. (2)

One may wonder how such an important, newly enacted legal principle can be ignored with such apparent ease. The reality is that there are many important competing values that are in tension with, and serve to thwart, the legality principle (which holds that criminal justice systems are required to follow the laws proclaimed by Parliament).

The first competing value is judicial conservatism. If one examines what courts do, one will find that it is exceedingly rare for courts to interpret legislation in a manner that is anything other than cautious and hesitant. When, as here, the legislature utilizes vague phraseology such as "timely intervention" and "promptness and speed," without specific requirements as to administrative delay guidelines that must be followed, there can be little hope for any meaningful interpretive departure from the procedural guidelines established under the Young Offenders Act: "cases should be brought to trial within five or six months, after the neutral period required to retain and instruct counsel, obtain disclosure, etc." (R. v. M.(G.C.)). In other words, when specifics are absent, the existing standards become the rule (and with neutral intake periods consuming four to six months the real delay is far beyond the statutory requirements under the YCJA).

The second competing value is the avoidance of organizational costs, where possible. It has been shown that criminal justice organizations will ignore changes in the law if their adoption leads to serious organizational costs. This was a conclusion of a study conducted in the State of Washington between 1985 and 1995. Strict new sentence guidelines for narcotics offences were simply ignored and circumvented where the primary value of the justice system was shown to be cost-reduction through administrative efficiency (Engen and Steen 2000). It goes without saying that cost-cutting and administrative efficiency should never be allowed to become the primary operational value of a justice system. Nevertheless, there is no question that in Ontario the costs of the additional administrative and judicial resources necessary to give effect to the "timeliness" principle have acted as a brake on initiatives in this area.

Finally, the third competing value is divided authority. Under s. 92(14) of the British North America Act (Canada's original constitutional document), the administrative authority for justice is conferred on the provinces. However, it follows from the principle of "separation of powers" and its progeny, "judicial independence," that judges must have authority over administrative matters incidental to the proper administration of justice (Vanderbilt 1963: 6). In Ontario, the operative model of court administration is primarily executive-centered rather than judge-controlled. Judges in Canada generally accept the staff, facilities, and resources provided by the provinces and have assumed a largely adjudicative role without significant administrative responsibility. The question is, Who is responsible for the implementation of the speedy trial principle, the executive branch or the judiciary? The divided authority and split responsibility for court administration is arguably one main reason for the ineffective response to the "timeliness" principle.

It is only when the judiciary and the executive branch agree on priorities that resources are made available and new initiatives such as reduction in youth court delays are possible. Where particular initiatives are not a priority for both branches of government, all ends in stalemate and institutional change remains unfulfilled. Meanwhile, this constitutional conflict disturbs judges and inhibits court administrators wishing to innovate, and "in the absence of some resolution of this tension, the existing concept of court administration can survive, but its work (in responding to changes in the law) will remain stunted, without the fullness of success and always falling short of its potential" (Millar and Baar 1981: 53).

Detention Before Sentencing Justice Brian Weagant--Downtown Toronto Youth Court

In harmony with the overall policy direction of the YCJA, the "bail" sections of the new legislation have a philosophical bent against detention before trial. Sections 28 to 31 of the new act govern judicial interim release, and although the provisions are subject to Part XVI of the Criminal Code, the code's provisions need not be applied if they are inconsistent with or excluded by the YCJA. The court is directed not to detain a young person in custody prior to being sentenced as a substitute for appropriate child protection, mental health, or other social measures. Further, a young person's detention is presumed not necessary on the so-called secondary ground of detention (protection or safety of the public; substantial likelihood that the young person will comment an offence or interfere with the administration of justice, s. 515 (10)) if the young person could not, on being found guilty, be committed to custody on the grounds set out in the sentencing provisions of s. 39 (a) to (c). The one exception to this presumption in s. 39 of the YCJA is if the case is an exceptional one where the alleged offence is indictable and is committed in such aggravated circumstances that a non-custodial disposition would be inconsistent with the purpose and principles of sentencing as set out in the act. One, then, would expect that under the YCJA there would be a decrease in detention orders and an increase in undertakings and recognizances.

It is important to note that the YCJA also has a "responsible person" mechanism, not unlike that of the former legislation. Once the court addresses the primary, secondary, and tertiary grounds and decides that detention is justified, the court must then take a further step and inquire as to whether there is a responsible person who will enter into an undertaking to take the young person into care. Presumably, this person will almost always be the parent or guardian proffered as surety. Nonetheless, the increased legal safeguard of...