TRANSFORMATIONS IN THE CANADIAN YOUTH JUSTICE SYSTEM CREATION OF STATUTES AND THE JUDICIAL WAIVER IN QUEBEC Veronica B. Pinero Thesis submitted to the Faculty of Graduate and Postdoctoral Studies in partial fulfillment of the requirements for the degree of Doctor of Laws (LL.D.) Faculty of Law University of Ottawa © Veronica B. Pinero, Ottawa, Canada, 2013 ABSTRACT The objectives of this thesis were to observe how the Canadian youth justice system has dealt with the regulation of the transfer of young offenders to the adult court and how the Canadian statutes have regulated the imposition of adult offences for young offenders. For this, I drew a distinction between two levels of observation: first, I observed the process of "creation of statutes" by the political system. Second, I observed the process of "understanding and interpretation of statutes" by the judicial system. The notion of "political system" includes the legislation enacted by Parliament, parliamentary debates, and reports published by the Government of Canada. The notion of "judicial system" includes the decisions of the Montreal Youth Court. For the first level of observation ("creation of statutes"), I observed and analyzed the work of the political system for the period 1842 to 2012. Starting in 1857, many statutes regulated different aspects of the criminal law system as it applied to young people. The first statute to deal with youth offenders comprehensively and different from adult offenders was the Juvenile Delinquents Act (1908); this statute was replaced by the Young Offenders Act (1982). The current statute is the Youth Criminal Justice Act (2002). With regard to the Juvenile Delinquents Act (1908) and the Young Offenders Act (1982), I observed how the political system regulated the mechanism of transferring a young person to the adult court. This mechanism allowed the youth court to decide a question of ii jurisdiction: whether the young person would be processed and sentenced within the youth justice system, or whether the young person would be sent to the adult court for him to be dealt with and sentenced therein. With regard to the Youth Criminal Justice Act (2002), I observed how the political system has regulated the imposition of adult sentences by the youth court. This statute replaced the mechanism of transfer under the two previous statutes by the imposition of adult sentences within the youth justice system. For the second level of observation ("the understanding and interpretation of statutes"), I observed how the Montreal Youth Court had understood and interpreted the statutory provision that allowed the youth court to transfer a young person to the adult court for the young person to be dealt with and sentenced therein. My period of observation is from 1911 to 1995. I argue that both the political and the judicial systems have been strongly influenced by the theories of deterrence, denunciation, retribution, and rehabilitation. The influence that each theory has exercised on each system varies. The political system, originally focused on the rehabilitation of young people, has been slowly “contaminated” by the most punitive theories, such as deterrence and denunciation. This shift started in the 70’s and slowly increased over the years. Conversely, while the judicial system does not seem to have been originally influenced by the theories of rehabilitation, its focus has slowly shifted towards this objective as the primary goal of their intervention towards young offenders since the 70’s. However, the “successful rehabilitation” of a young person has iii become a goal in itself, where “unsuccessful offenders” have been transferred to the adult court and dealt with the adult punitive justice system. KEYWORDS: transfer to the adult court; imposition of adult sentences; youth criminal justice system; Canada; creation of laws; Montreal Youth Court; theories of punishment; rehabilitation; Quebec; understanding and interpretation of statutes. iv ACKNOWLEGMENTS A doctoral thesis is a very long endeavour. I am thankful for all the support I received from my supervisors, family, and friends. I would like to thank my supervisor, Professor Rachel Grondin, and my co-supervisor, Professor Álvaro Pires, for all the academic guidance and advice I received during this project. It was their attentive comments and support that allowed me to complete this project. I would also like to thank them for their professional support and kind words. It has been a real pleasure working with them and being under their supervision. I would also like to thank the members of the jury of my doctoral defence for their comments, suggestions and observations: Professors Maria José Bernuz Beneitez, Natalie Des Rosiers, André Jodouin and Yves Cartuyvels. I very much appreciate the time they took to read my thesis and their kind comments. The Social Sciences and Humanities Research Council of Canada generously funded my studies through a doctoral Canada Graduate Scholarship and a Summer Research Scholarship. Their generosity has allowed me to fully focus on my research, for which I am very thankful. As well, I would like to thank the Canada Research Chair in Legal Traditions and Penal Rationality, and The Osgoode Society for Canadian Legal History for their generous grants for conducting research in the city of Montreal. v The support of my family and friends has been fundamental for this long-term project. My mother Nilda Di Croche and my sister Gabriela Pinero have always supported me on all my endeavours and given me the confidence to complete this project. My friend Gérald Pelletier has always been able to provide me with the best advice – no matter the issue at hand. My friends Margarida Garcia and Richard Dubé generously received me in their house during the last weeks of my program and made me feel like being at home. My last note is for my partner, John Cecchetti. A doctoral thesis can be a very solitary project, but this was not my experience. John’s love and patience (and patience and patience) have provided me with the perfect home for working on my thesis, and above all, enjoying life. vi TABLE OF CONTENTS INTRODUCTION............................................................................................................. 1 CHAPTER 1. Elements of History and Methodology.................................................... 8 1.1. Introduction.................................................................................................................. 8 1.2. Historical Background................................................................................................11 1.3. The Political System and the Creation of Criminal Law Statutes...............................14 1.3.1. Enacted Federal Legislation (1841-2012)...........................................................14 1.3.2. Parliamentary Discussion....................................................................................16 1.3.3. Federal Reports...................................................................................................18 1.4. The Judicial System: Quebec......................................................................................19 1.4.1. The Constitution of the Sample – Youth Criminal Law System........................23 1.4.1.1. Data from the Quebec National Archives in Montreal................................26 1.4.1.1.1. Period 1911-1921.................................................................................27 1.4.1.1.2. The Year 1924 – The Amendment of the Definition of “Juvenile Delinquent”..........................................................................................................29 1.4.1.1.3. The Year 1929 – Increasing the Circumstances for a Transfer...........29 1.4.1.1.4. The Year 1936.....................................................................................30 1.4.1.1.5. The Year 1942.....................................................................................30 1.4.1.1.6. The Year 1948.....................................................................................31 1.4.1.1.7. The Year 1954.....................................................................................31 vii 1.4.1.1.8. The Year 1960.....................................................................................32 1.4.1.1.9. The Year 1966.....................................................................................33 1.4.1.1.10. The Year 1972...................................................................................33 1.4.1.2. Data from the Quebec Court in Montreal, Youth Division.........................34 1.4.1.2.1. The Year 1978.....................................................................................35 1.4.1.2.2. The Year 1984 – The Young Offenders Actt (1982) Comes into Force................................................................................................................... 35 1.4.1.2.3. The Year 1992 – The Amendment of the Transfer Requirements......36 1.4.1.2.4. The Year 1995 – The Introduction of the “Presumptive Transfer”.....37 1.4.1.2.5. The Year 2003 – The Youth Criminal Justice System (2002) comes into force..............................................................................................................37 1.4.2. The Constitution of the Sample – The Adult Criminal Law System..................38 PART I – THE FEDERAL LEGISLATIVE PRACTICE IN CANADA 1841-2012.41 INTRODUCTION...........................................................................................................42