Youth justice in Canada: theoretical perspectives of youth probation officers.

• Author: Corrado, Raymond R.

Introduction

Like other areas of the criminal justice system, youth probation in Canada has historically been influenced by different political, social, cultural and philosophical principles embedded within the legislative frameworks of juvenile justice beginning with the Juvenile Delinquents Act (1908) (JDA), followed by the Young Offenders Act (YOA) (1984) and the current Youth Criminal Justice Act (YCJA), which came into force in 2003. At the same time, over the past century, understandings of the roles of youth probation officers (YPOs) have oscillated philosophically between requiring rehabilitative, caring interventions and requiring interventions oriented towards public safety, accountability, and control. Under the JDA, YPOs "acted in the best interest of the child" by providing information to assist juvenile court judges in informal and non-criminal adjudications and in supervision of these decisions. In contrast, the YOA shifted the YPO role to reflect regulatory due process and public safety principles. However, the YOA was criticized for having a set of philosophical principles whose incoherence resulted in major discrepancies among the different provinces and territories, particularly in regard to the sentencing of young offenders; and for relying too heavily on the court process and custodial dispositions for minor offenders (Corrado and Markwart 1992).

After nearly two decades of criticism, the YOA was replaced with the YCJA on 1 April 2003. This legislation provides an explicit preamble and numerous principles that are expected to interweave at different stages of the youth justice process, seeming to allow considerable discretion and individual interpretation regarding the importance and relevance of the various overarching objectives built into the Act. Some scholars view the YCJA as more focused and directive than the YOA (Corrado, Gronsdahl, and MacAlister 2007); however, the authors will illustrate, using five distinct theoretical models of youth justice, that this Act is very complex, particularly when it comes to the provisions governing the sentencing of young offenders. (2) It was hypothesized that youth probation officers would not be consistent in their interpretations and applications of the more complex sections of the YCJA in relation to five hypothetical cases typical of the challenges faced in their youth justice roles. To test this hypothesis, a study was conducted with youth probation officers, involving an analysis of their theoretical orientation under the YCJA. This article reports the results of that study.

Youth justice models

For several decades social scientists and legal scholars have examined the structures and operations that influence the establishment of juvenile justice laws in Western societies. Once laws are enacted, they often become unwieldy and cumbersome to understand, and deciphering the complexities of some legislation can prove to be challenging. Canada's YCJA, with its 165 sections (compared to 70 sections under the YOA), is no exception: Enormous effort and depth of legal knowledge is required to comprehend its various definitions, principles, and procedural provisions. Youth justice models provide a comprehensible set of concepts and principles that can be used to understand complicated laws. In effect, such models reduce laws to an essential set of legal, philosophical, and procedural themes. In addition, models can provide a summary depiction of the actual functioning of a youth justice system compared to its operation as stipulated by law (Roach 1999).

This study asked YPOs to reflect on five different models, based on differing philosophical conceptions of youth justice. The models can be conceptualized on a continuum, focusing on the needs of the young person at one end and the protection of society at the other end. Most youth justice scholars are cognizant of the three long-established models of juvenile justice; namely, welfare, justice, and crime control. Each model has distinct philosophical principles and, for the most part, different procedures. The welfare model focuses on identifying a youth's problems and needs and then adjudicating dispositions or sentences that address them through juvenile or youth court proceedings. The justice model emphasizes youth procedural rights and proportional sentencing, while the crime control model places a premium on protection of the public through incapacitation of young offenders and custodial sentences to enhance both the specific deterrence of the young offender and the general deterrence of other potential young offenders. Elements of all three models are reflected in the YCJA: the welfare model emphasis on the rehabilitation and reintegration of young offenders; the justice model emphasis on due process, rights, and procedures; and the crime control model, as reflected in the potential for lengthy adult sentences for some very serious young offenders. Furthermore, two rather innovative models have been developed over the past two decades as alternatives to the three traditional and purist models.

John Pratt's (1989) corporatist model was formulated as an option to the welfare and justice models that had been the focus of debate in England and Wales until the late 1980s. This model emphasizes an increase in the use of administrative decision making and broader discretion for professionals such as social workers and YPOs. It also embodies a decreased reliance on the formal criminal procedures central to the justice model. A corporatist process, therefore, envisions the merging of various multidisciplinary juvenile-justice agencies and personnel to manage, negotiate, and resolve conflicts with most young offenders in order to produce a planned outcome that often includes diversion to specific community programs. Equally important, this model trifurcates the youth justice process by separating procedural and sentencing approaches for minor offenders (usually first time and non-serious property offenders), moderate offenders (multiple property offenders and less serious violent crimes), and serious or violent offenders (presumptive offences, including murder, attempted murder, manslaughter, aggravated sexual assault, or a third serious violent offence for which an adult is liable to imprisonment for a term of more than two years).

Corporatist options are evident in the YCJA in the increased use of extrajudicial measures and conferencing. Extrajudicial measures, such as police diversion, which are presumed to be adequate under the Act for non-violent offenders who have not previously been found guilty of an offence, avoid formal judicial hearings and more punitive sentencing outcomes. Beyond police diversion, most provincial governments have explicit policy and administrative guidelines for YPOs (or sometimes agencies) to conduct screening assessments for extrajudicial sanctions, a more formalized kind of diversion from court. Typically, most cases involving repeat minor offenders are referred by Crown counsel to a YPO, to assist in deciding the appropriate non-judicial sanction(s).

The clearest expression of the corporatist model in the YCJA is found in the provisions promoting conferencing. The main goal of conferencing is a resolution--mutually agreed upon by the young offender, the victim, community members, and youth justice representatives--of the harm done by the crime. The YCJA's definition of a conference is purposefully vague, allowing for broad discretion and differing approaches among the provinces and territories in setting up and convening conferences. For instance, British Columbia, and specifically, Calgary, Alberta have youth justice specialists, such as POs, as the primary case workers responsible for convening judicially ordered conferences. (3) Once a resolution has been reached among the various parties, the youth probation officer formally reports the outcome back to the youth justice court, where the judge can decided whether or not to incorporate the suggestions into the sentence. As an explicit example of the corporatist model, conferencing offers a seemingly important alternative to the mainstream justice-model proceedings typically characterized under most juvenile justice laws. (4)

The modified justice model (Corrado 1992) reflects the more recent trend, evident first in the United Kingdom as early as 1908, of combining different elements of the other youth justice models. This approach originally synthesized the justice, welfare, and crime control models, and much later, beginning in the 1970s, brought in elements of the corporatist model. Under this model, Crown prosecutors, defence counsel, and judges are guided by the goals of ensuring procedural fairness, protecting society, holding young persons accountable for their offending in accordance with their maturity level, maintaining proportionality between the harm caused by the offence and the severity of the sentence, and providing rehabilitative resources to meet the needs of the youth. Again, procedural fairness is the dominant process principle in the modified justice model; thus, a youth is protected from making uninformed and/or coerced choices regarding admissions of guilt or selection of procedures and, where outcome options exist, is supported in selecting the least intrusive alternative. Both the YOA and the YCJA have been characterized as examples of the modified justice model, albeit with differences in emphasis with reference to the principles espoused in the other four models (Corrado 1992; Corrado et al. 2007). For example, the option of adult custodial sentences for presumptive offences, such as murder, currently available in the youth justice court can be seen as a shift to the crime control principle of incapacitating serious and violent offenders in order to protect the public. It also embodies the justice model's principle of proportionality connecting the seriousness of the offence to...