Youth Offender Legislation and Social Change in Canada Since 1908

Home , Criminal Code (Canada), Juvenile Delinquents Act

Kaleigh Smith

Thesis submitted in partial fulfillment of the

requirements for the Degree of

Bachelor of Arts with

Honours in Sociology

Acadia University

April, 2012

This thesis by Kaleigh Smith

is accepted in its present form by the

Department of Sociology

as satisfying the thesis requirements for the degree of

Bachelor of Arts with Honours

Approved by the Thesis Supervisor

______

(Dr. Anthony Thomson) Date

Approved by the Head of the Department

______

(Dr. R. James Sacouman) Date

Approved by the Honours Committee

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(Dr. Pritam Ranjan) Date

I, Kaleigh Smith, grant permission to the University Librarian at Acadia

University to reproduce, loan or distribute copies of my thesis in microform, paper or electronic formats on a non-profit basis. I however, retain the copyright in my thesis.

______

Signature of Author

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Date

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Acknowledgements

I would like to thank Tony Thomson for being a significant source of insight and guidance. Tony, you always helped me feel calm and allowed me to build confidence in my researching and writing abilities. Additionally, my parents, siblings, and close friends deserve much thanks for their support. Thank-you for always being there to reassure me when I felt most doubtful about the quality or progress of my thesis. I would also like to thank Heather Kitchin for her advice and the knowledge she has shared with me. I wish to say thank-you to the students from the senior seminar class and Karen Turner, you added fun and humour to this process, and it was comforting to have a group of friends who understood the thesis procedures.

Table of Contents ACKNOWLEDGEMENTS ...... IV

LIST OF TABLES...... VI

ABSTRACT ...... VII

CHAPTER 1: INTRODUCTION ...... 1

CHAPTER 2: JUVENILE DELINQUENTS ACT, 1908 ...... 4

CONTEXT OF THE ACT ...... 4

PHILOSOPHY OF THE JUVENILE DELINQUENTS ACT ...... 12

THE JUVENILE DELINQUENTS ACT IN OPERATION ...... 19

CHAPTER 3: YOUNG OFFENDERS ACT, 1984 ...... 23

CONTEXT OF THE YOUNG OFFENDERS ACT ...... 23

PHILOSOPHY OF THE YOUNG OFFENDERS ACT ...... 32

SPECIFIC DETAILS OF THE ACT ...... 38

CHAPTER 4: YOUTH CRIMINAL JUSTICE ACT, 2003 ...... 42

CONTEXT OF THE YOUTH CRIMINAL JUSTICE ACT ...... 42

PHILOSOPHY OF THE YOUTH CRIMINAL JUSTICE ACT ...... 54

SPECIFIC DETAILS OF THE YOUTH CRIMINAL JUSTICE ACT ...... 60

CHAPTER 5: CONCLUSION ...... 65

REFERENCES ...... 69

List of Tables

FIGURE 1. BERNARD'S CYCLE OF JUVENILE JUSTICE ...... 44

Abstract

This thesis examines changes in youth legislation in Canada from the implementation of the Juvenile Delinquents Act in 1908 to the Youth Criminal Justice

Act in 2003. The thesis discusses the social context within which the legislation was enacted, the philosophy underlying the Acts, and specific details of the Acts. Secondary research is used as the method of data collection. The research highlights criticism of each Act and, up to 2003, the solutions to those criticisms that become embodied in the newer Act. The thesis provides an overview of different perspectives on the issue of youth legislation in Canada.

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CHAPTER 1: Introduction

Although there are important differences in this long tradition of thinking about the construction of delinquency, one fundamental insight is repeatedly offered: definitions of youth misbehaviour and the creation of a criminal category—the delinquent—were and are established within a web of power relations, reflecting the prevailing social standards of behaviour. (Sangster, 2002: 13-14)

I have chosen to conduct research on legislation for youth offenders in Canada, beginning with the Juvenile Delinquents Act in 1908. Law is a field within which I am keen to advance my knowledge, and I have a special interest in youth because of their vulnerability in society and because they are the next generation of adults. My interests led me to the specific thesis topic: youth legislation in Canada. Over the course of less than a century, Canada has enacted three different Acts dealing variously with the criminality and deviance of youth. This thesis analyzes this history through a comparison of the three Acts and understanding changes by analyzing the social context in which the three acts arose

Sangster’s point about the long history of thinking about youth justice, quoted above, grasps the ever-changing social view of what it means to be delinquent, how the definition of delinquency coincides with current norms in society, and how change and the development of law is continuous. Through my thesis I examine how the social construction of control over delinquent youth and the perceptions of youth crime have changed over the past 100 years and connect this change to the factors identified in

Sangster’s argument. As Sangster notes, what it means to be a criminal changes over time and even the language used to describe delinquent youth is altered; delinquent, offender,

youth criminal, misguided child are all terms that have been used when referring to a young person breaking the law.

The three Acts that have shaped “definitions of youth misbehaviour and the creation of a criminal category” (Sangster, 2002: 14) are the Juvenile Delinquents Act of

1908, the Young Offenders Act of 1983 and the Youth Criminal Justice Act of 2003. The main purpose of the thesis is to demonstrate that transformations in society are reflected in legislation concerning youth crime. I draw out relevant contextual information that helps explain how the changes brought about can be understood sociologically. The thesis will not simply outline what each Act entails, but will also focus on connecting changes in society to the philosophies of the Acts and their content. I assess each approach to dealing with youth crime in society by looking at how well the legislation of each Act operates in response to youth offences. The thesis also addresses the criticisms of each

Act and the defenses that have been argued, looking at why changes have occurred and continue to occur for youth justice.

Limitations I have put on my thesis research include a concentration only on legislation concerning youth crime in Canada. The conclusion will touch on future directions concerning youth justice, but this will not be a primary goal of the thesis.

Youth crime and the laws pertaining to youth crime have significant connections to the study of sociology. There will always be a need for research on legislative change and through this thesis, it will become clear changes in social conditions are connected to changes in legal philosophies and specific legislation. My thesis topic is important to sociology because youth crime is an issue that continues to be a social problem, and it is viewed from different perspectives. The legislation that responds to youth crime is also

implemented in different ways, a point that will be demonstrated in my thesis. We will continue to need solutions and research conducted in the area of youth justice to see future improvement.

The thesis entails a review of secondary sources as the method for collecting my information about youth crime and legislation. Through the study of books and articles written about juvenile justice, I was able to draw out information that relates to my thesis goal. The relevant information I gathered from my sources pertain to the intellectual, social, and political context in which each Act was implemented, the philosophies underlying each act, and the specific aspects of the legislation.

This thesis proceeds in a chronological ordering of chapters beginning with a chapter on the Juvenile Delinquents Act. Each chapter begins by describing the historical setting and offering a description of the sociological context in which each Act was created and implemented. I address the following key questions: Why was a separate youth system needed? What was the intellectual context in which the Act was created?

Were there key people formulating the Act? How did the new Act address criticisms of the Act preceding it? Following this discussion, the next section of the chapter concentrates on describing the philosophy behind the Act, which is followed by a section on findings and discussion. I continue this outline for the next two chapters looking at the Young Offenders Act and the Youth Criminal Justice Act.

CHAPTER 2: Juvenile Delinquents Act, 1908

CONTEXT OF THE ACT

The Juvenile Delinquents Act of 1908 was the first piece of Canadian legislation created for the specific purpose of addressing deviance and crime. It was deemed necessary to ensure young people were held to a different standard than adults and were recognized as less developed and mature. This principle is visible in each of the three

Acts examined in this thesis, making limited accountability the essence of youth justice.

The decision to separate the youth justice system was part of a larger picture which included other issues of social welfare (Davis-Barron, 2009). Other issues of reformation of the legal system at the time of youth justice separation included new ideas about how physically to treat criminals in Canadian society, criticism on use of the death penalty, and conditions of prisons.

New ideas about social welfare and the appropriate treatment of criminals developed from the Enlightenment. This was an era in which social thinkers attempted to change the focus of society from superstition and religion to science and progressiveness, often leaving behind outdated customs and traditions. It was a time when philosophers were beginning to see the human race as distinct from other species because of their ability to reason. It was optimistically believed that people were capable of intellectual improvement and, perhaps, perfection. Thinkers and leaders during the Enlightenment worked toward change in many ways that included the fight to end slavery, equality of rights, education, and reform of inhumane punishment (Davis-Barron, 2009). Among the changes brought by Enlightenment thinking in the justice system were the end to public

corporal punishment, a restriction of the use of capital punishment, and the rise of the penitentiary based on the idea that depriving someone of their freedom was sufficient punishment. In the area of juvenile justice, the idea that the most important aspect of humanity was rationality was reflected in the idea that those who were less capable of rationality should not be judged on the same standards as those who were deemed fully rational. People seen as mentally defective or ill and children were separated out for distinct treatment.

The influence of Enlightenment thinking on Canadian law came largely from

British and American sources. Canadians began to reform law in the same way. Ideas were beginning to arise that suggested even criminals should be treated humanely and taught ways that would help them change rather than being hanged or tortured. Changes included the idea that children constituted a separate and vulnerable part of the population, leading to awareness of their need for training early in life.

Dr. Charles Duncombe was of the first reformers of law in Canada who suggested youth crime was part of the social environment in which youth are raised. In 1834

Duncombe was elected into the Upper Canada Legislature. He established a report on prisons and asserted that a humanitarian approach be applied to youth. He suggested that youth were not fully rational beings who could possess the ability, independently, to live an unrestricted, crime-free life. He focused his concerns around youth criminals turning into adult criminals, suggesting the problem of delinquency must be solved at a young age (Davis-Barron, 2009). Many of the ideas presented by Duncombe are found throughout the Juvenile Delinquents Act, especially his ideas about youth being moldable and victims in society.

Along with Duncombe was George Brown who also advocated for a reform of the

Canadian prison system. He used his position as founder and editor of the Globe (the current Globe and Mail) to protest and voice his thoughts. He was responsible for releasing reports of harsh and inhumane punishments being served at the Kingston

Penitentiary. Before Confederation, young teenagers were sometimes sentenced to prison terms that they served with adult offenders. Bringing young, impressionable people into constant contact with sometimes hardened criminals contributed to their criminality rather than reformation (Davis-Barron, 2009). This criticism is part of a larger, international picture that eventually led to the creation of separate justice systems for youth in most

Western societies. Brown and Duncombe’s new approaches to punishment became widely accepted, leading in Upper Canada to An Act for establishing Prisons for Young

Offenders—for the better government of Public Asylums, Hospitals and Prisons, and for the better construction of Common goals. If youth were not imprisoned with adults, they needed separate facilities. This act, although a step in the direction of the JDA, proved to be unsatisfactory and posed many of the same issues as before its creation in 1857. The legislation gave youth a distinct standing from adults, ensuring that they could receive more prompt trials, reducing detention time before trial, and calling for the opening of special prisons for youth (Trepanier, 1999). Nonetheless, the Act was a step in the direction of the Juvenile Delinquents Act (JDA), and the spirit behind it demonstrated that the fight for a separate youth system was gaining attention.

Ten years later, in 1867, provincial legislatures in Canada were given control over the juvenile justice systems under the terms of the British North America Act. This Act reserved for the federal government the right to make criminal legislation, including laws

specifically for youth, and provided a legislative framework for developing provincial courts, police forces, prisons, and rehabilitative institutions (Trepanier 1999). Changes that occurred throughout these years leading up to the JDA had significant effects on the regulations that were written into the JDA.

Carrigan (1998) suggests that juvenile crime in Canada became a public issue when the population began to rise; between 1873 and 1903 an estimated 95,000 orphans and “delinquent” children were imported to Canada through immigration agencies for children. Canada was a common destination for settlers. Many people immigrated because of free grants of land, and by the time of Confederation, the population of

Canada had grown to approximately 1.5 million (Carrigan, 1991). With population rise came the development of business and industry, which meant economic development but also more opportunities for criminal activity. Many of the immigrants who had left their home countries in the hope of finding a better life brought with them illiteracy, few employable skills, and criminal behaviours. Carrigan points out that the juveniles who were most commonly caught for crimes in this period were young, white males who were mal-nourished and uneducated. These youth frequented urban areas and were often abandoned or orphaned, growing up in low socio-economic circumstances and struggling because of a lack of proper parenting (Carrigan, 1998). Sangster (2002: 14) argues that youth crime was rooted in socially disadvantaged lifestyle and quotes the Ministry of

Justice during the time of the JDA as stating: “The causes of child crime are want of proper parental control, lack of good home training and the baneful influence of bad homes, largely due to the culpable neglect and indifference of parents and evil effects of

drunkenness”. This conclusion followed an investigation into the causes of delinquency in Canada.

Prior to the creation of the JDA and during the early years of the Act, detention centers specifically for youth were being set up in the United States, Europe, and Canada.

Jean Trepanier notes that D. Garland’s compared the Canadian JDA with the British youth legislative system. The British Children Act of 1908 is based on the goal of reforming young people for the best interest of the youth and society while taking the focus away from punishment (Trepanier, 1999). These principles were also added to

Canada’s legislation for delinquent youth.

Bernard (1992) asserts that at this time in history there were four influences that contributed to the creation of distinct juvenile crime, which separate it from adult crime.

Traditional mechanisms for dealing with inappropriate behaviour of youth were no longer applicable during and after the shift to an industrialized society. Traditionally, parents were responsible for having authority over their children, and it was quite common to send children to live with another family who could better control them if necessary. As communities grew and people became more anonymous, these tactics became outdated and youth were more often sent to adult prisons or sometimes not convicted at all because of the cost of incarceration and the challenge of institutionalizing a rebellious youth.

Industrialization created the mass production of personal and transportable goods.

Through this economic change, crimes such as stealing became more prevalent. Before industrialization, the most valuable possessions people had was land, which cannot be stolen or destroyed in the same way as portable objects. Urbanization and growing population of condensed areas encouraged crime to take place. Children who were

homeless were surrounded by other needy children, and they could develop delinquent behaviours as a group. Crime became a way of life for many homeless immigrant children living on the streets of the expanding urban areas. Connected with these three influences stated by Bernard is population growth, which increased the number of youth and also the numbers of the homeless, orphaned, and delinquent.

The distinction among age categories of people in European society was first acknowledged at the time of the industrial revolution. Before this time, children were viewed as small adults in European society, often working from a young age and participating fully in social life (Tanner, 2001). Today, we commonly discuss age and use age to differentiate between members of society, but these categories have not always existed. Adolescence is simply a social construction or distinction we have molded into modern Canadian society. Frank Musgrove is quoted in Tanner as pointing out that “the adolescent was invented at the same time as the steam engine,” a point that relates to

Carrigan’s argument that the industrial revolution marks the beginning of a distinct consciousness of youth crime. After the Industrial Revolution began, technology began to take over the jobs that had once given young people the opportunity to work and keep occupied. Simultaneously, humanitarian reformers demanded child labour regulations, ensuring youth were not in factories (Tanner, 2001). Under English common law, children under the age of seven were seen as incapable of committing crime, while youth between seven and fourteen were deemed to have diminished responsibility.

Platt argues that the separate justice system for youth was created or two reasons

(Bell 1999). First, the turn of the twentieth century was marked by a moral panic about youth crime and, in this context, legal reform was a way for middle class Victorian

citizens to ease their fears of poor young people who threated their safety. Secondly, liberals viewed the separate system as a way for children to be saved by Victorian reforms and reshaped into worthy citizens (Bell, 1999). Wealthy and conservative industrialist families wanted to solve the problems of the poor and protect their own value, and they worked to achieve this goal through social control. By giving the state the power to control young people and their direction in life, it meant that power would remain in the hands of elite and undistributed privilege would remain in place in society (Tanner,

2001).

J. J. Kelso and W. L. Scott were the two men who are acknowledged for establishing the juvenile justice system in Canada (Bell, 1999). They played the role of what Howard Becker called a “moral entrepreneur,” a middle class reformer who expects changes in legislation to affect moral changes in society. Kelso’s first aim was to get delinquent children into foster homes instead of institutions. He became the main force working for the establishment of the Toronto Humane Society and Children’s Fresh Air

Fund (Bell, 1999). Within his position of superintendent for Neglected Children, Kelso pushed for the development of community structures for children in need—those who were abandoned, orphaned, or beggars—and began using these techniques of reforming children on delinquent youth. These techniques included taking youth away from their families and communities and re-situating them within institutions or under the care of social workers. When the same solutions began to be used for all children who struggled in society whether they were delinquent or socially disadvantaged, it allowed for the broad definition of delinquency under the JDA to arise. This pressure from Kelso and

Scott eventually brought about a new law passed by the federal Parliament in 1894

making it mandatory for youth to have separate trials and detentions from adults

(Trepanier, 1999). Until this time in Canada, youth were still being treated as adult offenders. Their offences were handled through the provisions of the Criminal Code because no separate model of youth justice had been legislated. Kelso and W. L. Scott advocated having legislation put in place specific for youth. Both men argued that punishment as it existed at the time was not the way in which to train successful members of a society. The Victorian view on youth did not distinguish children who were neglected and wayward from those who were criminal. The former situation was considered to be the cause of the later criminality.

W. L. Scott was a lawyer and also the president of Ottawa Children’s Aid Society.

He advocated for the creation of the Juvenile Delinquents Act and worked toward this goal by raising awareness in meetings, public speeches, and by organizing petitions, pressing the ideas he shared with Kelso. Scott’s father, Senator R. W. Scott, was responsible for drafting the Juvenile Delinquents Bill, the first Bill that called for the creation of a separate youth justice system. Senator Scott introduced the Bill in 1907 and it was passed by Parliament the next year (Carrigan, 1998). Trepainer (1999: 50) quotes

W. L. Scott as saying: “there should be no hard fast distinction between neglected and delinquent children, but…all should be…dealt with a view to serving the best interests of the child”. Consistent with the thinking of the time, Scott supports the blurring blurs the distinction between delinquent and neglected children. In the history of Canadian youth legislation, these two categories would eventually be treated separately. Trepanier stresses that the JDA was a creation of law that came from the experience of its initiators,

Kelso and Scott, and their time spent with Children’s Aid Societies in Ontario. The first

youth justice Act sprouted specifically from personal experiences of working for the welfare of children.

The key points that arose for juvenile justice at this time and were combined in thought and in legislation were the welfare of youth and control over youth. The perspective of the moral entrepreneurs and reformers responsible for initiating youth justice all were concerned to repair troubled youth and put them back on the path to success as an adult. It was recognized that youth need special attention, but they drew no clear distinction between criminal youth and youth who are part of a welfare approach; there are imprecise definitions and categories of youth. Overall, it is fair to say that welfare was the major theme that appears in the JDA: youth are a vulnerable and underdeveloped population that has the potential to change and, therefore, they should be given complete guidance by responsible adults who will stand in for the negligent or absent parents.

PHILOSOPHY OF THE JUVENILE DELINQUENTS ACT

The Juvenile Delinquents Act follows a welfare model of Justice, working toward aiding youth rather than punishing their criminal conduct. Parens patriae is the concept that constitutes the main philosophy underlying the JDA. This simply translates into

“parent of the state”, meaning that, under the JDA, the state acted as a parent and made decisions for the youth. Decisions about the welfare of youth were based upon common thoughts and opinions about the best interest of the child. The JDA was meant to work as a support for the juvenile in trouble and to protect him or her from involvement with further wrong-doings in society. The JDA does not use ideologies concerned with

“defending a society” but, rather, aims to “protect the offender from society.” Davis-

Barron (2009) says the Act was expected to protect and reclaim destitute youths, who were neglected by their parents and had acquired bad habits that led them into a life of crime. Section 38 of the JDA concisely states the philosophy underlying the JDA and demonstrates the system of the welfare model:

…the care and custody and discipline of a juvenile delinquent shall approximate as nearly as may be that which should be given by his parents, and … as far as practicable every juvenile delinquent shall be treated, not as a criminal, but as a misguided and misdirected child … needing aid, encouragement, help and assistance. (Hudson, Hornick and Burrows 1988: 12)

This section of the JDA demonstrates that, instead of youth legislation as an instrument of punishment in which young people are deemed responsible for their choices, it is about helping the unfortunate youth regain an admirable or at least acceptable standing in society. The JDA reinforced the idea that young people, because of their inexperience with the world, were simply misguided and in need of help. This situation is often the fault of their parents. This argument reflects the philosophy of determinism, often found in literature concerning the JDA, which is an ideology that contributes to the welfare model. Determinism is the idea that behaviour is pre-determined people could not have chosen any differently. It suggests we act in certain ways because of our distinctive involvements with society that shape our behaviour. The conduct of adults was seen as quite fixed and unchanging; they were already through the course of childhood and, therefore, their behaviours were unlikely to be changed through the justice system. At best, the threat of punishment might make deter a criminal from future criminal acts.

Within the JDA, this approach was viewed as quite the opposite, suggesting that, if a child is delinquent, the child is not at fault. He or she had no other choice but to behave in specific ways because of the way in which he or she was raised. On the other hand, the

ideology that youth are immature suggests that they were not seen as fixed completely in their ways. With early intervention, young people could be molded into desirable citizens

(Bernard, 1992). This ideal suggests that, because of the environmental determinism of behaviour, delinquent children need to be helped or saved and not punished. The non- punitive approach is described as a means to an end by Trepanier (1999: 50), and he quotes J. J. Kelso as saying:

The child safeguarded and protected means much to the community in the prevention of crime, and the peaceful evolution of industrial citizenship. “Crime renders property and human life unsafe, it is one of the heaviest items of taxation, and can only be eradicated or limited by a complete and thorough system of child protection.

Kelso means that the welfare model of the JDA uses the reform of youth as a way to prevent further crime, and by stopping crime at its base, a more crime-free society can be created to benefit everyone. Kelso also notes the practicality of producing law-abiding citizens because juvenile justice will save tax-payers money, deter other youth from offending, and protect victims.

Sangster (2002) also suggests the philosophy behind the act follows a doli incapax

(incapable of criminal intention) model, meaning youth should be rescued from crime because they are incapable of crime. They are incapable of crime because their inexperience causes them to “not know any better”. Youth lacked the adult capacity for free and rational choice-making. Delinquent behaviour was viewed in the welfare model as deeply connected to external factors, such as genetics, family life, and social life

(Trepanier, 1999). All of these factors worked together to influence young and impressionable youth, constructing an environment that is hostile and impacting youth behaviour. The Child Savers who pushed for the implementation of the JDA were also

called the reformers as Trepanier (1999) notes from Platt (1969), and they were determined to take children off the streets.

Anna Leslie examines Stanley Cohen’s comparison of doing good versus doing justice, suggesting the JDA was mainly based on a philosophy of doing good, although this goal was not its exclusive focus. Describing Cohen’s model of doing good and demonstrating its relationship to the JDA, Leslie argues that doing good reflects the focus of the Act, which is to rehabilitate rather than punish. The Act, thereby, also incorporates a medical model of rehabilitation, treating the youth as though they need to be healed.

The JDA was intended to use an inclusion model, which incorporates ideas such as

“integration, tolerance, absorption, incorporation, and keeping individuals in the community” (Leslie, 1996). There are however, aspects of the doing good model that do not appear to correspond with the main philosophical goal of the JDA. For example,

Cohen claims this model included leaving behind stigmatization and segregation from the community, which are two criticisms against the JDA that will be looked at later in this chapter.

The absence of due process of any kind of rights-based protection for juvenile delinquents is another main feature of the philosophy underlying the Act that is commonly analyzed by researchers. Without a legal framework of constitutional rights and freedoms, there was little to protect young people from being taken advantage of by those who enforced the law—and youth were especially vulnerable to mistreatment.

Youth were treated as incompetent in decision making and incapable of distinguishing between right and wrong behaviour. In terms of corrections, this view implied that juveniles did not respond to specific punitive consequences for bad actions. Consequently,

they were given indeterminate sentences, which would be completed once they had matured to the point where they were capable of making adult decisions. Their future was handed over to the judgment of legal workers and child welfare workers. Courts had the ability to decide the treatment plan for a youth, whether that meant delaying the hearing indefinitely, committing the child to care of a probation officer or volunteer group, imposing a fine, keeping the youth at home with outside supervision, or handing the youth over to foster care or an institutional training school (Sangster, 2002).

Along with indeterminate sentences, the JDA was implemented in a non-uniform way across the country. Given the constitutional separation of powers, instead of having a single, federal justice system for youth, provincial laws were used to administer the Act.

Children in rural parts of Canada were disadvantaged in comparison to children in cites, since services, such as probation, mental health facilities, and other social services were not available (Sangster, 2002). This problem remains an issue in today’s youth justice system, as we will look at further in the thesis. Inconsistent availability of programs and professionals can be seen as an even larger problem during the time of the JDA because of the increased lack of regulation surrounding processes used for youth welfare and the question of age used among the different provinces. The JDA did not define a specific age of delinquency and there was room for provincial variations; for example, the age of delinquent girls may be defined differently than for boys. This type of irregular system made it difficult to assess the progress of the JDA as a whole because each province had such varying responses to the legislation.

Another feature of the JDA, which relates to its dual focus on criminal and deviant youth, is the wide definition of “delinquency.” Since youth were viewed as a

vulnerable population and unable to help themselves from avoiding criminal involvement if predetermined to do so, special laws for controlling behaviours of juveniles were created. The JDA was applied to a wide range of behaviours. As Davis-Barron observes, the Act was designed to include

any child who violates any provision of The Criminal Code…or of any Dominion or provincial statue, or of any by-law or ordinance of any municipality, for which violation punishment by fine or imprisonment may be awarded; or, who is liable by reason of any other act to be committed to an industrial school or juvenile reformatory under the provisions of any Dominion or provincial statue. (Davis-Barron, 2009: 41)

Many of the by-laws or provincial statutes were status offences, and they differed from province to province. Being a separate population from adults, youth could be charged for actions not defined as criminal if committed by adults. Status offences can include, but were not limited to, truancy, sexual behaviours, running away from home, and swearing.

These were deviant behaviours, not criminal but seen as undesirable, of which youth needed to be cured and deterred from continuing these types of conduct. Youth were subject to this very broad and undefined group of prohibited acts because such behaviours were viewed as changeable in youth but more appropriate for adults who have been practicing this type of behavior for longer periods of time. Although it seems unfair, status offences were part of the “saving” approach and welfare orientation of the JDA.

Status offences continue to exist, for example in laws prohibiting alcohol and drugs to minors or restricting driving licenses. Including status offences within the definition of delinquency under the JDA, however, was assumed to be an act of benevolence, focusing on the needs of the offender rather than the seriousness of the specific offence and working toward providing a better adult life for youth.

Under the JDA, offences were not always taken at face value. They were examined to see what went wrong with the youth in order to bring about the undesirable behaviours being exhibited, whether this cause was neglect from parents, poverty, or many other possible reasons (Trepanier, 1999). This approach reflects the medical model of delinquency; the bad behaviour is a symptom of an underlying problem and the root of the problem is being sought to stop the problem and prevent it from occurring in others

(Doob and Cesaroni 2004). J. J. Kelso maintained that legislation for youth should center itself around removing the causes of delinquency and not simply dealing with the visible layer of the problem. Under the medical model of “helping” and “curing” youth, rather than a system punishment and responsibility, the court acted as a clinic for young people, where they were assessed and their needs were addressed (Hudson, Hornick, and Burrows

1988). Youth were prescribed with a “cure” for their offence to ensure their well-being and to effect a change in their future.

The indeterminate sentence of the welfare model is also reflective of the medical model because it reflects the unpredictability of youth and how they will react to treatment. Medicalization is what happens when a typically non-medical phenomenon is dealt with as a medical problem like a disorder or sickness (Conrad, 1992). According to

Conrad, when medicalization is used as it was under the JDA, the problem becomes overly individualized. Instead of being examined as a problem in society as a whole, people are handled on an individual basis and the causes of ailments are sought within that one person. Conrad comments on Foucault’s medical gaze, which is also discussed in relation to the medicalization of youth crime (1992). The state, like a doctor, becomes

required to intervene and keep a constant watch over the “patients” for improvement or worsening of condition.

THE JUVENILE DELINQUENTS ACT IN OPERATION

The Juvenile Delinquents Act was the first legislative act in Canada designed to create a separate system of justice for youth. It continued in force in Canada through many decades. Gradually, a number of criticisms of the Act emerged, reflecting changed ideas and changed times. When reflecting back on this Act, many critiques become apparent in relation to the Acts that followed the JDA and through comparison of the welfare, justice, and rehabilitative models. The JDA worked toward achieving rehabilitation goals that would create a better, more crime-free society. Rather than punishing youth for their actions, they were supposed to be molded into proper citizens and “saved” by the state.

Limitations of the Juvenile Delinquents Act include the common criticism that the

Act was unclear and left consequences of youth actions indeterminate and informal.

Parents themselves could not always prevent their children from falling victim to the widely used term “delinquency.” The imprecise boundaries and arbitrary application of the JDA left youth in a very vulnerable and helpless position in society. Although the goal was to help youth reform and become better citizens as adults, this goal was not achieved through the institutionalization of youth in reformatories that were opened across the country. Taking youth away from the community in cases of minor and non- violent offences, and not providing them with an age-appropriate structure to help create success and progress, are harmful practices for young people that leave them with no

skills or knowledge of how to improve and, instead, treat them as specimens to be examined for subjective progress.

This criticism of the JDA was especially pertinent for females who became involved with the JDA. Girls were given different standards by which to abide and were often found delinquent for sexual activity that could include possessing contraceptives as well as status offences, such as staying out late with a boyfriend, giving sexual favours to boys, or becoming pregnant. Joan Sangster (2002) describes how girls were often the most oppressed and disadvantaged because of the patriarchal nature of the JDA, which encouraged girls to have a certain set of feminine values. Girls were in the protection of the state longer than boys because their issues were seen as a sign of “serious internal social maladjustment.” A girl needed to be shaped into a woman who could run a household and value motherhood. Boys’ issues were viewed as external and simply a sign of immaturity or were often deemed the fault of their mother who could not raise her son properly. Girls were merely “reduced to their sexuality” through the JDA (Sangster

2002). Sangster gives an example of virginity and how it is not possible to return it the way it was for a stolen chocolate bar. There were very different standards for boys and girl and the sexist values that were present disadvantaged girls the most, leaving them the most vulnerable to the abuses of the JDA. In 1924 when the JDA was amended, adding the vague notion of “sexual immortality” to the definition of delinquency, it was presented in a gender neutral way, but the Act was criticized as another way in which the

JDA demonized young women and further control how they could behave in society.

Despite the apparently neutral language, the Act was mostly enforced on young women

(Sangster 2002).

The JDA was also not taken seriously as a legal doctrine but, was viewed as a welfare Act that included social workers, counselors and rehabilitative teachers. Because of this focus, judges, police, and lawyers were not included in aspects of the JDA.

Looking back from the present, the equivalent of assuming that youth ere not fully responsible for their criminal acts suggested also that they were not subjects for whom what we now consider individual rights, including legal ones, were applicable. With few rights, youth could be locked away or treated unjustly without consequence.

The philosophy of determinism and the medical model used in the JDA do not place responsibility on youth to make an effort in the interests of their own improvement.

In later Acts, youth are made aware of consequences of their chosen actions. By asserting that youth are mere products of the environment, youth lose control over themselves and become labeled as irrational beings. Given the freedom to chose whether to conform to the rules of society or not allows youth to prepare for life as a determinate adult in the world. Delinquency is not a disease or an inevitable fate caused by environmental factors.

Philosophically, it makes more sense to deem youth to be autonomous beings at a vulnerable phase of development. It is unreasonable to expect that treating youth as an indeterminate being until age 21, as was the case under the JDA, can in some way prepare them for life as a determinate, rational, thinking adults. The logic used for this argument under the JDA does not make sense in explaining why youth are in need of welfare.

It seems that, because of the saving approach of the JDA, the Act was regarded optimistically in the early stages. It was believed to take care of the homeless, criminal, and troubled youth of society. Institutionalization was thought to provide an alternative

“home” in which, through the discipline and modeling of staff members, wayward youth

would be re-socialized into the appropriate norms of Canadian society. The Act appeared on the surface level to solve many problems of the time. Troubled children were removed from the streets and the public eye, and petty criminals were institutionalized. But a major flaw in the JDA is that these measures amounted to only a superficial curing of the problem; they do not dig deeper to rehabilitate the individual offender in the true sense of actually making a difference in her or his life.

The JDA can be viewed as a beginning for youth justice in Canada, with many aspects of it marked by the circumstances of its birth in Victorian-era Canada. It was developed in a way that was consistent with the sociological context of the time in which it was implemented, a time when men and women were seen as vastly different and youth were denied the basic rights of the legal system. Canadian society was experiencing a time of dysfunction and change at that point in history, and the JDA was an attempt to deal with an aspect of society that appeared to be out of control at the time. Youth disorder was only the visible sign of the fundamental social change that industrializing

Canada was undergoing.

CHAPTER 3: Young Offenders Act, 1984

CONTEXT OF THE YOUNG OFFENDERS ACT

Owen Carrigan (1998) discusses change in the way youth crime and crime in general was conceptualized after World War II. It was a time of cultural revolution, which challenged the current JDA and pushed its limits of effectiveness in solving issues of youth crime. The cultural revolution featured new outlooks and perspectives on life and how it ought to be lived. Those who had lived through the war and the depression of the 1930s were accustomed to a life of delayed gratification and hardships; they begin to seek a life of immediate pleasure for themselves and for their children. This meant less work and more attention toward possession of material objects (1998). Many women at this time were housewives who had been moved back into the home after the war to care for their husbands and children, which often presented them with an unsatisfying lifestyle especially because woman had experienced the masculine role of working outside the home during the war. Also, at this time, the enrollment in universities began to increase and students were liberated through higher education with freedom from a life of manual labour such as factory work or farming.

Student rebellion started in universities where classrooms lacked individuality and freedom for students to choose their own unique future paths. This change led to youth separating themselves from the older generation and rebelling against any kind of authority. It was the intention of a significant portion of youth at the time to desert the traditional values, morals, and behaviours of the pre-war era. Youth were changing their style of dress to more casual styles and leaving behind conventional manners. Rebellion

by students and of other groups of all ages who wished to oppose to the norms of society, led to widespread social fear about the breakdown of society, which became associated with fear of crime. At this time after the war, Carrigan (1998) notes positive and negative outcomes resulted from the cultural revolution: positive results were the newfound idealism, individuality, and a more tolerant society. Negative results were categorized as acceptance of slang, the newfound insignificance of self presentation, and emphasis on personal gratification instead of a group and family oriented effort.

Another important contributor to the diminishment of the JDA was the rights movement, which included rights for youth. At this time, youth were beginning to be viewed as rational beings like adults. Society began to focus on equality of rights for women, children, and minorities, and new found attention was drawn to personal responsibility rather than pre-determined behaviours.

The Juvenile Delinquents Act was in effect for 76 years until it was replaced by the Young Offenders Act in 1984. According to Davis-Barron, this longevity came about because the JDA was perceived as worked toward “saving” children, which was falsely confused with a rehabilitative and truly correctional legislation. The JDA was represented in a way that appeared to be helpful to the young people of society and went unquestioned because of the assumption that a welfare model of justice was fitting for youth. It was the first Act to separate children from adults; there was no previous legislation with which to compare it, leaving it overlooked. It was commonly perceived as a welfare program for youth that excluded a judicial system as a necessary part of the justice system applicable for youth. It was because of this exclusion that the JDA was

viewed as largely separate from criminal law and was therefore brushed off by the courts and legal professionals, as largely a provincial and welfare matter.

The idea of reforming children instead of mixing them in with adult criminals to be punished appears to be a solution that works superficially, but looking deeper into the actions and outcomes that occurred because of the JDA, it becomes clearer that good intentions do not always result in the desired results. Reform schools and asylums for youth were made to keep youth out of jail, but they often resulted in the same punitive effects—youth being removed from the community and housed with other troubled youth.

Incarceration often created damaging stigmas for youth to carry throughout their lives.

The definition of what it meant to be juvenile delinquent according to the JDA, which included a wide range of status offences, was unspecific, broad, and arbitrary, leaving room for much discretion in the application of the Act. The vague definition caught a wide variety of youthful behaviour in the net of delinquency. The revision of the JDA in 1924 changed delinquent to include “sexual immortality or any similar form of vice,” making the definition even more broad and leaving youth more susceptible to being categorized as delinquent (Davis-Barron, 2009). In its focus on what the state saw as “helping” young people and saving them from a life of criminal involvement, the strategies and tactics of the JDA were damaging for young people in society. The philosophy of the JDA raises questions and criticisms relating to vague terms such as the

“best interest” of the child and the notion of the state performing in the role of absent parent.

There is not one best interest that fits the needs of all misguided children. There are unique cases for which it is difficult to define “best interest”. Furthermore, other

concerns about the JDA include questions such as, what is the ideal parent and who decides this role? To act as a good parent is a vague and unattainable goal for the state; parents come in all types, as do children, and different children respond in unique ways to punishment and reform. The most recent legislative Act works toward acknowledging the different levels of accountability and looks at the remorse youth can have for their actions at different stages of rehabilitation.

By the 1960s, the Juvenile Delinquents Act was under attack in many different ways. Criticisms of the existing state of juvenile justice forms an important part of the context within which juvenile justice in Canada underwent a fundamental change with the enactment of the Young Offenders Act (YOA) that was both philosophical and practical.

One type of academic explanation for legislative change is that change is cyclical. For example, change can be seen as a periodic swing between more liberal and more conservative conceptions of justice. Tanner (2001: 223) distinguishes between a conservative, crime control perspective on the criminal justice system and a liberal rights perspective. The crime control model focuses on ensuring “that criminals are punished in proportion to the severity of the crime…. It Emphasizes community protection, which is to be achieved by long custodial sentences that, it is believed, both incapacitate and deter.”

In contrast, the liberal rights model emphasizes “that due-process considerations govern the application and administration of these legal principles.” Changes in the Justice system reflect the greater or less importance of one or the other model, depending on social situations and contexts.

Thomas J. Bernard believes that the YOA was considered necessary because of the cycle of juvenile justice. Bernard explains that youth justice works in a circular

fashion and changes because of societal impact. The cycle relates to Doob and Cesaroni who assert that most members of the public do not realize that crime rates and legislation currently implemented are not correlated. Shifts in legislation take place because of pressure from society linked to fear of increasing crime despite actual statistics, which indicate that reported crime rates are not rising (Doob and Cesaroni, 2004). The idea of cyclical change is discussed later in the thesis, but it is useful to provide a brief overview here. The cycle swings into motion from a “crisis stage,” the point that justice officials and the general public are made to think that youth crime is significantly on the rise, a perception that usually occurs through media reports that magnify rare cases. The purported rise in crime is blamed on an overly lenient system, which causes the system to undergo change and become tougher. This means the responses for less serious crimes are also toughened and this movement continues until there are few lenient treatments and more punishment. In the common perception of rising crime, it seems there is only a choice between harshly punishing or doing nothing at all. This is what Bernard calls

“forced choice.” Reform occurs when a middle ground is created between the extreme and no punishment, and then the cycle will start over again (Bernard, 1992). Placing the

YOA in Bernard’s cycle, the origins of the new Act fits into the crisis stage where the public began to feel threatened by rising youth crime and began to demand a tough and punitive system be implemented.

For the first time, in 1962 the JDA began to be scrutinized because of a perceived increase in youth crime. The post-WWII cultural revolution had led to increased panic about youth and their new trends in behaviour. By the 1960s, drug use among university aged adults and the younger generation had become a major social concern. The cultural

rebellion against society was also associated with promiscuity, rape, assault, vandalism and other reckless criminal offences (Carrigan, 1998). Sangster (2002) points out that many teenaged girls became “call girls” to make money to pay for their education.

Dissatisfaction with the JDA caused a major review of the legislation by the federal government, something not done since the implementation (Davis-Barron, 2009).

A committee was established to examine the present legislation and give suggestions as to what kind of juvenile legislative reform should take place. In a report on the JDA, many points were raised as suggestions for new directions for youth legislation in Canada

(Davis-Barron, 2009). The report produced 100 points from which I single out a few below that represent criticisms of the JDA; points that also become reflected in the philosophy of the new YOA and show the context in which in was implemented. The following points outline the philosophical ideals present in the YOA:

 For the commission of a Criminal Code offence (the young person could not be committed to a training school or removed from the parental home for the commission of a lesser offence)  There should be a crown Attorney or similar officer in attendance in proceedings in the juvenile court.  Where a child is to be questioned by the police—and particularly if the child is invited to make a statement that may be used against the child—a responsible adult who is concerned with protecting the child’s interest should be present. Davis-Barron (2009)

We can see from this excerpt of the report released in 1965 that a new-found focus on youths’ rights and a formal process of law were creating an environment for an Act modeled around a justice rather than a welfare model. One of the chief criticisms of the

JDA was the merging of both criminal acts and status offences. Status offences that, in the JDA, criminalized non-criminal behaviour for youth cast a wide net of youth

misbehavior bringing large number of non-criminals under the control of the state. The punishment did not fit the crime or, rather, the minor offence

The lack of due process for youth under the JDA also raised concerns, especially among liberal-minded Canadians. There was no certainty of the length of time for which youth could be held in custody. Even if they committed an offence equal or lesser to an adult, they could be held as a delinquent as long as the state saw necessary. Because of the medical model used in the JDA, youth were being “treated” and therefore the

“treatment” was indefinite, often leading to an unfair amount of time away from home for minor offences (Tanner 1988 p. 201). Lengthy incarceration was especially a problem for young women who were dominated and controlled by the state; often they suffered the most under the JDA. The trade-off for reduced responsibility under the JDA was a reduction in civil rights. With no rights, they could not control the discriminating treatment plans that were imposed on them. As criticism of the JDA developed, it became apparent that a vulnerable population required corresponding legal protections.

Treatment under the JDA regularly included being taken out of the community and incarcerated in the declared interest of rehabilitation or being housed with other youth accused of delinquency. Conrad (1992) provides an explanation for why the medical model underlying treatment is ineffective. By looking at each person as unique and having their own set of problems, collective problems of society become overlooked.

Justice entails striking a balance between individual needs and relating those needs back to a broader societal context, but through medicalization, the latter does not occur. People with a problem learn to abide by a dominant figure who “knows best” and come to believe their issue is distinctive. For example a young girl who is prostituting could be led

to believe she is internally deficient and requires serious help, without ever questioning factors that are beyond her control. This type of thinking overlooks more macro elements, such as a society being dominated by patriarchal values and social inequality (1992).

Hudson, Hornick, and Burrows (1988) assert that the reason for dissatisfaction with the JDA began with the development of the baby boom generation into adolescence.

With an increase in the youthful population there was a corresponding increase in youth crime. In addition, many youths were becoming repeat offenders, showing that the JDA was failing at deterrence, which was alleged to be one of the primary objectives of the

Act. Tanner (1996, p.200) concludes that conservatives in Canada regarded the JDA as soft on crime. The JDA, then, was critiqued from both liberal and conservative points of view, although on different grounds.

The perceived notion that youth were neither being cured nor redirected away from an adult life of crime was grounds for devising a different type of justice system for youth, suggesting the need for a system to punish and limit crime in a different way. The welfare system did not work to inform youths of the consequences for their actions, or clearly outline how the JDA was expected to worked. Therefore youth were unaware of the many ways in which they could be deemed delinquent. Also, because youth could be seen as delinquent for non-criminal actions and for simply being a product of their situation, it made it confusing and difficult to deter youth from delinquent behaviours and circumstances.

Under the JDA, youth were not being directly punished for their actions because there were no set consequences for distinct actions of which youth were made aware.

The welfare model saw youth as a vulnerable population requiring help, but did not

consider the possibility that youth, through guidance, have the potential to help themselves and make decisions. Although the parens patriae philosophy the JDA was meant to aid the youth in becoming a responsible person who can contribute to society, many saw the JDA as abusive and unsatisfactory (Leslie, 1996).

The blanket definition of juvenile delinquency in the JDA left youth with a vague concept of right and wrong. Tanner (2008) states that uncertainty is present in the term

“committing delinquency” as used in the JDA, rather than the act of committed a specific offence. The ambiguity of regulations within the JDA was also a major concern when it came to provincial guidelines. Provinces had individual maximum ages for juveniles and even varied across genders.

Obvious inconsistencies and inequalities in the JDA contrasted sharply with the culture of equality and rights that was erupting in social protest movements. In Canada, the culmination of the rights movement was the inclusion in the newly-repatriated

Canadian Constitution of a Charter of Rights and Freedoms. Under the Charter youth have legal rights to protect them from being taken advantage of in the criminal system, contrary to the neglect of these rights under the JDA. Section 15 of the Equality Rights section of the Charter states that:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnical origin, colour, religion, sex, age or mental or physical disability. (Constitution Act, 1982)

As clearly stated in this section, age was no longer a way to disadvantage or discriminate against youth. Status offences, which are offences specific to youth because of their age, could no longer be punished as though they were criminal offences. The clause forbidding discrimination on account of age was especially important in that the 31

Charter established a number of important legal rights. Youth, like adults are given rights for their own protection. As stated in the Charter of Rights and Freedoms in the legal rights section below (not a full excerpt), these legal rights are applicable to all citizens regardless of age:

s.8 Everyone has the right to be secure against unreasonable search or seizure. s.9 Everyone has the right not to arbitrarily detained or imprisoned. s.10 Everyone has the right on arrest or detention a) to be informed promptly of the reason therefor; b) to retain and instruct counsel without delay and to be informed of that right; and c) To have the validity of the detention determined…and to be released if it is not lawful. (Constitution Act, 1982)

One of the most significant provisions of the Charter states the right of an individual to counsel. Young people have a right to be represented by a lawyer. The Canadian Charter had major impact on the justice model used in the YOA and required a youth Act where crime control and equality become the main objectives. The old JDA could not stand the challenge that the Charter represented and it had to be overhauled. The direction of the overhaul reflected the debate about justice and rights that had culminated in the Canadian

Charter of Rights and Freedoms.

PHILOSOPHY OF THE YOUNG OFFENDERS ACT

The philosophy of the Young Offenders Act is based on the Justice Model. The

Justice Model supported the ideal that policies and legislation should be based on a sense of justice and fair punishment, not welfare for citizens. The Justice Model addressed the problems that occur when individual welfare is placed before societal needs. This model works toward treating youth in a formal and uniform manner and also having them treated with dignity because of the rights they possess and share with adults. This model

obliged youth to take responsibility for their actions and, consequently, more youth may be brought into the system to be held formally accountable (Leslie, 1996). It was believed that A more just society is implemented when there is a set of formal rules that apply to everyone and people recognize specific consequences of their actions. By implying the free will of people, including youth, the YOA allows offenders to be treated as responsible beings, with certain exceptions related to their maturity.

The justice model works to make crime unappealing to people. If people decide that criminal actions are more rewarding than not participating in crime, they will continue to engage in crime. Therefore, with the justice model, crime is made to be unattractive because citizens are aware of the consequential punishment (Tanner, 2001).

Tanner also points out that there must be something that makes the YOA different form the criminal adult system, which is also based on the justice model, otherwise there would be no need for a separate system. Tanner asserts that this difference lies in the severity of the adult system in comparison to the youth system. The youth justice system uses the justice model to a lesser extent, and maintains the notion that young people are more changeable than adults and are not destined for a life a crime. This ideal is in line with the ideals included in the JDA and discussed above. The YOA further notes that youth are less responsible because of their immaturity, their vulnerability to peer pressure, and the lack of learned control from their experiences.

The YOA excludes from the criminal justice system youth who are only neglected or abused and focuses solely on criminal acts as defined in the Criminal Code. This is a notable change from the JDA where all crime, cases of abuse, or status offences were categorized as “delinquent”. Issues of neglect and status offences are both defined by

provincial and municipal statutes and are adjudicated within them. The clearly defined criminal actions and set of judicial procedures found in the YOA allow for young people to recognize when they are acting criminally and know that punishment will follow. This way, there should be no situation in which youth is surprised about the consequences of their actions and also find themselves in situations where they are deemed delinquent for no fault of their own, such as being homeless. This is a major feature that distinguishes the YOA from the JDA, in which consequences to criminal actions and even actions themselves were vague and left open to the discretion of police, judges, welfare workers, and probation officers.

Cohen’s doing justice model of social control may be applied to the YOA. Doing justice differs remarkably from Cohen’s doing good model used in the Juvenile

Delinquents Act. His model of doing justice advocates that there is moral value in knowing correctness in the law and through punishment, a greater good is created for society as a whole (Cohen, 1985). Cohen asserts that doing justice includes ideals such as protection from abuse and fair treatment. Having the responsibility for our own decisions and actions, and being punished for wrong-doings, demonstrate to the offender that the collective good of society is more important than an individual’s right to self- assertion. This notion reflects the liberal social contract theory derived from Rousseau and Locke (Leslie 1996).

Jean Jacques Rousseau suggests that the family is the first form of a political society and children are typically governed by their families until old enough to be deemed a part of society in their own right (Rousseau, 1968). In this first “mock” society, children are held responsible for actions and must conform to the regulations and

expectations set up by their parents. Hilail Gilin (1983) describes Rousseau’s theory of

“full” society as men coming together and making sacrifices in exchange for the survival and united power of the whole group. In a society, instead of a parent, the leader of the sovereign body exercises authority in society. Everyone must conform to the obligations of the state in order to enjoy the rights and freedoms that go along with living in an organized society. Social contract theory is reflected in Canadian criminal law and the

YOA because youth are required to conform to a certain set of laws in order to keep their freedoms. Failing to conform makes them subject to punishment and a loss of freedoms.

Rousseau compares justice to effectiveness in a society, when people follow the rules and give up their complete freedom to work as a group they will flourish. When people do not abide by these obligations toward the whole (society), it destroys the structure of society and they will be made to suffer for this.

The liberal model of justice includes both the principles of due process and the exercise of fair and just punishment. In this view, there are two main philosophies of juvenile justice that are prevalent in the YOA: the justice or due process model and the crime control model. The crime control model works toward protecting citizens in the society. It emphasizes protection of the community and safety of those citizens who do obey the law rather than focusing in the treatment or right of the offender (Tanner 2001).

Although the offender under the YOA was punished and treated for their criminal activity, they were not viewed as a product of society, as in the JDA. The focus in the YOA became the need for protection for citizens who are law abiding rather than the well-being of offenders.

The YOA is criminal law but also is designed to realize the special needs of young people while holding them accountable for their actions. Hudson argues that there is not one specific philosophy behind the YOA because there are too many unique cases that fall under the category of youth offending. This point demonstrates just how complex the field of youth justice is; youth are individuals and different levels of growth. Hudson does, however, point out the importance in the YOA of attention to the special needs and limitations of youth and the fine line between due process and treatment (Hudson, 1988).

Tanner (2001) assesses Thomas Bernard’s Cycles of Juvenile Justice, and applies his model of change in juvenile justice to begin a discussion about the phase of the cycle during the transition to the YOA. The table below demonstrates the cycle Bernard uses in his explanation:

FIGURE 1 BERNARD’S CYCLE OF JUVENILE JUSTICE (1992: 3)

Bernard suggests that, since the beginning of a separate juvenile justice system, legislation has gone back and forth between a punitive approach and rehabilitation approach. Tanner described Bernard as suggesting a shift toward harsher penalties for youth offenders during the implementation of the YOA and reverting back to the punitive phase of the cycle (Tanner 2001). This can be seen by looking at Stage 3 of the cycle,

(bottom left of Figure 1). At this stage, the public and law enforcement officials begin to see crime as increasing because of the rehabilitative philosophy and supposedly lenient treatment, and they seek to enforce tougher penalties for crime (Bernard, 1992).

If the YOA is seen as legislation that combined a justice model with elements of crime control, it does not fit so neatly in the cyclical theory. The following excerpt from the YOA (Section 3.1 of the Act) succinctly outlines the main purposes of the Act and how it was intended to control youth offenders:

3 (1) It is hereby recognized and declared that: Crime prevention is essential to the long-term protection of society and requires addressing the underlying causes of crime by young persons and developing multi-disciplinary approaches to identifying and effectively responding to children and young persons at risk of committing offending behaviour in the future; a.1) while young persons should not in all instances be held accountable in the same manner or suffer at the same consequences for their behaviour as adults, young persons should nonetheless bear responsibility for their contraventions. (Young Offenders Act)

The philosophy behind the YOA emphasizes individual responsibility but also pays attention to the immaturity of youth. Consequently, Canada continued to use a separate system for youth rather than have everyone included in the adult system. While the

Section addresses the importance of protecting society, it is meant to address “the underlying causes of crime” and reflects a “multi-disciplinary” approach, which implies that it will be more complex than only the imposition of punishment.

SPECIFIC DETAILS OF THE ACT

The Young Offenders Act was criticized from quite different perspectives.

Conservatives argued that the Act was insufficiently punitive and therefore contributed to the increase in youth crime. Liberals said the Act was going too far in the direction of punishment rather than rehabilitation. Instead of attention to individual needs, mass laws and regulations have been applied to a very diverse group of youth with specific needs.

The YOA replaced the JDA in 1984 and was intended to respond to the criticisms of the preceding JDA. The YOA applied to all provinces in Canada without variation, a

major change from the JDA. There are, however, differences among extrajudicial measures across the provinces and territories and this will be discussed in more detail further on in the thesis.

The ages of youths included in the YOA are significantly changed from the JDA, at both ends. The age of criminal responsibility was raised to twelve and the age of adult responsibility was raised to 18, at which point people become adults in Canada for the purpose of criminal prosecution. This definition of young offender raises the question, what happens to children under 12 who commit crimes? Data provided in A Profile of

Youth Justice in Canada from Statistics Canada (1998) point out that children under the age of 12 are not simply free from the law, as often perceived by the public and implied by the media. They are governed by child welfare and mental health legislation. These agencies become involved in cases where young children can no longer be controlled by their families or have been involved in serious offences. Children younger than twelve do receive access to required help services to solve their early problems (Statistics Canada).

The YOA uses custodial and alternative measures to respond to youth crime to ensure that crime is dealt with and prevented. Alternative measures can be used for minor offences as a way for the youth to take responsibility for their actions, while avoiding the formal judicial system. These alternative measures can include, but are not limited to apologies, community service, and paying back money for damages. Limited accountability is another feature of the YOA, meaning that although young people are held responsible for their actions, it is not to the same standard as adults. This can be seen practically by looking at the maximum sentences and the alternative measures available to youth. Youth can receive fines limited to $1000 and serve a maximum of five years in

prison (unless moved to adult court). When the YOA was first enacted, the longest period of incarceration was three years.

Specials needs of youth are addressed by the YOA, taking into consideration that youth are at a crucial time in their lives and require extra support, supervision, discipline, and control (Leslie, 1996). The special needs of youth are reflected in the ban on youth offenders’ names being published and the provision excluding the public from attending

Youth Court hearings. Because of the special needs of youth, the judge pay more attention to the family situation and individual needs of the youth involved (Leslie, 1996).

The principle of minimal interference in the YOA works toward avoiding major and life changing consequences for youth. Minimal interference can be seen in using alternative measures and keeping youth in their community with family supervision.

Parental Involvement was another new feature in the YOA, a drastic change from the JDA where the state took over as parent of the delinquent youth. Within the YOA parents were encouraged to be involved with the procedures during the case, decisions about alternative measures, and for the care and supervision of the youth. Parents played a role in the YOA proceedings and if a responsible parent was not available or willing to manage the offending youth, an outside person was to be appointed (Doyle, Farrell,

Sheppard, 2006).

Dissatisfaction with the Young Offenders Act began as soon as it was promulgated, especially from conservative critics. The perception that youth crime was rising and that the YOA was inadequately punitive is reflected in the three amendments made throughout the course of the YOA. First in 1986, only two years after the Act was implemented, changes were made to the legislation ensuring that youth who did not abide

by their probation orders could be charged and permission was given to publish the names of potentially dangerous youth at large (Bala 2003). In 1992 and again in 1995, more amendments were made to toughen the Act and increase custodial time for youth.

The YOA attempted to balance due process and crime control features by focusing on a justice model. It was attacked on both grounds by liberals and conservatives. By the end of the 1990s, the YOA was discredited and the government began to draft a replacement

Act rather than try to patch up the YOA.

CHAPTER 4: Youth Criminal Justice Act, 2003

CONTEXT OF THE YOUTH CRIMINAL JUSTICE ACT

The Young Offenders Act had come under sustained criticism from its beginnings and changes were demanded from the early stages. The Act had undergone several changes since 1984, including three amendments before 1996, all of which were designed to increase the Act’s punitiveness. The Youth Criminal Justice Act (YCJA) was created as a way to start fresh after having realized the YOA was largely discredited from both conservative and liberal perspectives. Rather than continuing to add patches to the YOA, the YCJA was intended to generate a more precise response to youth legislation and give the appearance of a new approach, giving a new name and new regulations for youth crime in Canada.

The YOA was intended to respond to the lack of support for offenders as well as investigation into the grounds on which the crimes were committed and the background of youth. Shahid Alvi (2000) explores problems with the YOA and explains why new legislation was necessary. He asserts that while the YOA can be successful in bringing criminals to justice and providing comfort for victims and their families, it does not effectively decrease the incidence of crime in society. He supports his claims with reference to B. D. Maclean’s argument against crime as an “event” that simply occurs at a point in society. Crime does not happen because of a single decision by a person.

Maclean explains crime as a social process that is bound up in many events, experiences, and people. Crime is a result of the society we live in and how everything in our society shapes us; it is not the result of a single criminals or even a single criminal group.

By applying the “event” approach in the YOA, Alvi argues, individuals were being blamed for violating law and doing wrong, when they really were just one part of a very complex social process—perhaps the last phase of that process. Alvi’s suggestions for youth legislation include a method that involves society as a whole and the view that crime should not be brushed off with a simplistic response such as incarceration. The issue of crime is much more complex than how it is treated under the YOA because it involves many more people and institutions in its causation and should similarly include the wider social context in its response. His argument assumes youth are not capable of committing crime on their own and do not possess the abilities alone to become criminally involved; it takes other people, institutions, and experiences for the event of the crime to occur.

Alvi’s argument leads into the discussion of why deterrence should not be a primary focus of the juvenile justice system the way it was under the YOA. The YOA was criticized, from one perspective, for attempting to provide simple answers to very complex social issues. Justice deterrence programs, the most popular being Scared

Straight, which was implemented in Canada in 1979. Scared Straight eventually became a commonly used name for a variety of justice deterrence programs, which were thought at first to be successful and cheap methods of ensuring youth saw the harsh realties of becoming an adult offender (Petrosino, Turpin-Petrosino, Finckenauer (2000 ). The idea behind Scared Straight was for youth to have some experience of the horrors of becoming a lifer by exposing them to a quick, shock incarceration. It seems that this approach of allowing youth to become aware of their potential future would effectively deter most young people from a life of crime, but these types of approaches did more harm than

good for youth who were already involved with criminal behaviour. Finckenauer’s experiments using control groups and actual scared straight groups and many other experiments of the same kind led to the conclusion that deterrence methods of this kind encourage youth to further pursue crime and therefore they should be discontinued.

Tanner argues that the occurrence of the effect opposite to what was intended came about because this type of environment romanticizes the life of a criminal and reflects an environment of alienated people, an atmosphere where troubled youth feel they could be welcome (Tanner, 2001). Petrosino et al. (2000) say that Scared Straight creates a

“delinquency fulfilling prophecy.” which is a challenge for youth that at an immature stage they might feel pressured to take on this lifestyle and prove they are capable of surviving within it.

Finckenauer’s experiments indicate that youth offending is a much deeper issue than something that can be solved with a lecture from a lifer or a brief period of harsh incarceration. It is not as simple as youth requiring motivation to change their behaviour.

Many more factors are involved, which weaken deterrence as an effective goal of the youth justice system. Focus must be placed on the offender and a much more complicated solution to the problem of youth offending is necessary.

Another primary contextual foundation for the YCJA identified by Bala et al.

(2009) was the public panic and anxiety that revolved around a few specific cases of violent youth crime, which were magnified in the public eye during the YOA. The outrage from the public about youth involved in crime during the decades prior to the

YCJA can be explained because of the sociological context of the time, noting that it was another time of major changes in society. It was a time described by Bala of shifting in

adult sensitivity to the issue of youth rebellion, specifically because of a change in interaction that sprouted amongst all ages and generations (not only youth) and a change in the way we relate to one another in private and public. Nicholas Bala describes the public anxiety about youth crime as increasing because of a shift be sees in youth culture occurring particularly in the beginning of the 1990s and continuing throughout the decade.

Bala et al. (2009) notes that youth at this time were not conforming to authority and adults expectations or giving respect as easily as in previous generations, a change that stemmed from a newfound culture of dress, slang, and behavioural norms. The new style of youth culture began to pervade society as a while. It became mainstream to use improper language, dress more freely, and discuss sexual matters more openly. This type of conduct was testing social boundaries that had been constructed and viewed as rebellious in previous generations.

During the years of the YOA, Canadian society was experiencing a moral panic surrounding young offenders. Stanley Cohen (1972: 1) describes the phenomenon of moral panic as:

A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests: its nature is to be stylized and stereotypical in fashion by the mass media…sometimes the object of panic is quite novel and at other times it is something which has been in existence long enough, but suddenly appears in the limelight.”

In industrialized societies, we receive vast amounts of information from across the nation and abroad, most being delivered to us second hand. The way in which the media presents a story can greatly impact the way in which the public perceives it, either as serious or insignificant. Because we are constantly able to access information and share news, moral panic is easily created in industrialized societies like Canada. We cannot control how the information is presented to us, and the raw story is often clouded with 45

judgment, biases, strong language, and the point of view of the distributor. Because mass media are supposed to be presenting facts about society and the world, we take for granted that the presentation of a story is the truth, often without questioning it. This situation occurred during the years the YOA was in force. The object of panic (youth crime) was being highlighted in the news and became a popular subject. The media chose to present and sensationalize some cases of significant youth violence that were generalized into a widespread social problem, creating a panic in society based on media reports.

Cohen (1972) points out that people in societies have ideas about what they consider to be deviant and these views are significantly influenced by media. The more labels are applied to something, such as youth crime, or deviant, the more segregated and deviant a population becomes. As outsiders of society they tend to be excluded by other people and this binds the deviant group even closer together with others who also have the label of deviant. People turn to groups where they will be accepted and not further ostracized by society. The consequences are cyclical: deviance breeds deviance and feeds moral panics. During the YOA, youth were represented negatively in the media and in common perception, which separated them from society. Moral panic caused through media, instead of helping the problem, made it worse by applying the damaging label of dangerous deviant to young people. This process allows the label of “young offender” to become more deeply engrained in youth themselves, making them much more difficult for offending youth to reintegrate into society.

Bernard Schissel (1997) claimed that, at the time, Canada turned the war on crime to a war on youth and provides examples of cases and headlines which bombard media

(1997). Schissel discusses the example of the James Bulger case in which a two-year old child was kidnapped and beaten to death by two boys under thirteen years, a case that was magnified through the media for the world to see. Schissel (1997: 33) quotes Ann

Bradley as stating: “This rarest of murders has been transformed into a symbol of everything that is wrong with Britain today.” Cases which are completely abnormal are being represented to the public as norms or trends in youth that need to be controlled.

Rare cases such as the one victimizing Bulger become common knowledge in the home and create a situation where the public assumes youth are out of control and need to be detained for our own safety.

The moral panic about youth crime that occurred during the YOA was heightened by the belief that crime rates were on the increase. Statistics Canada reports that although many opinions were stated in relation to the YOA, many Canadians (including youths) did not have comprehensive knowledge of the law (Statistics Canada, 1998).

Furthermore, the general public was misinformed about crime rates. In a study conducted in 1998, using public surveys, 89% of the participants thought that youth crime was growing and 77% of the participants thought that sentencing for youth was too lenient

(Statistics Canada, 1998).

Doob and Cesaroni provide another example of public perception of youth justice versus the reality of crime rates. During surveys conducted with Ontario residents in 1997, it was reported that the legal system for youth was too lenient and they believed the government needed to toughen legislation. At the same time, many of these respondents could not state the maximum amount of time youth can be incarcerated for theft (three years) and the maximum amount of time a youth can be incarcerated for minor assault

(two years). Just over half (54%) of respondents reported believing the maximum sentence for theft was a year or less and 84% of respondents reported believing the maximum sentence for minor assault was one year or less (Doob and Cesaroni, 2004).

Many Canadian citizens do not fully understand the law before commenting on how it can be improved and agreeing to the common notion that we need to get tough on crime.

Scott McCrossin (1993) adds that the YOA was blamed for increasing the problem of youth crime when, in fact, it was simply applying common principles of youth justice that had been asserted in the JDA. Demands to open the youth courts to the public and to reveal the names of dangerous youth are opposed to basic principles of youth justice that have existed in Canadian society since the JDA. As citizens receive false representation of crime and are flooded with negative media coverage, they blame the Act itself for not fulfilling the aims of youth legislation.

Critics of the YOA assert that the minimum age of 12 is too old and that maximum sentences are too short, which explains why crime has not decreased (Tanner,

2001). Moral panic increases and demands for a lower minimum age increases when cases such as the Bulger case are popularized, The public assumes that young people are

“getting away with crime.” Tanner also comment on what is called the “Fagan Factor”; which is a theory of the YOA that assumes, since capable children under the age of 12 cannot be charged, that evil adults will use them to commit offence, therefore saving themselves from prosecution. The few cases where under-age children were lured into crime involved somewhat older adolescents (Tanner, 2001). As a result of the many misconception that developed through the course of the ever-changing YOA, better public comprehension of the Act became a goal of the YCJA.

Another criticism of the YOA is discussed by Peterson-Badali and Koegl (1998).

Although the Act states that youth are direct participators in their legal processes, youth often do not fully understand the procedures. Peterson-Badali and Koegl deny the common misconception that the YOA is too lenient and therefore youth can “beat the system.” Their research demonstrates that many youth do not have knowledge of the system that would be necessary for them to manipulate it. Not being aware of the Act can be harmful for youth because it hinders their ability to make decisions about what is in their best interest. Section 3. (1) (e) states:

(e) young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to decisions that affect them, and young persons should have special guarantees of their rights and freedoms. (Young Offenders Act)

Peterson-Badali and Koegl (1998) show that this provision is not always met largely because both legal professionals and youth overestimate their understanding of the system. Peterson-Badali and Koegl (1998) conducted a study where they gathered 730 participants from Canadian cites, ages 10-17. Some were involved with the YOA and others were not. They discovered that, most commonly, youth were unaware of information such as age boundaries, court room procedures, court records, age of applicable transfer to adult court, and the roles of legal professionals. One example from their study shows that only 15% of the participants knew that 14 was the minimum age for transfer to adult court, and fewer than half knew the minimum age (12) where a youth could be charged under the YOA.

According to Bala, Carrington, and Roberts (2009), the main context for the implementation of the YCJA was embedded in the goals to reduce the use of custody for

the majority of youth cases and reserve custody for the most serious and repetitive youth criminal offenders. Bala describe incarceration of youth as being expensive, unsuccessful and inhumane for youth. The YOA was criticized for too much focus on deterrence and community protection, when most offenders, especially those convicted of property offences, require specialized attention and rehabilitation to help reintegrate them into society as productive citizens.

A shortage of provisions for youth guidance in the YOA, such as police

warnings and community responses to crime, is commonly related to the question of

why Canada was had among the highest rates of juvenile custody in the world (Bala

et al. 2009; Doob and Cesaroni 2004). This very expensive and detrimental

punishment was criticized for a number reasons. Doob and Cesaroni (2004) point out

that the type of youth justice system we have, which emphasizes deterrence, does not

directly affect the number of youth who will commit offenses. Furthermore, because

many youth have only one encounter with the law and go on to abide by the law into

adulthood, so why spend the money on institutionalizing youth who are unlikely to re-

offend and when using custody as a deterrence method does not work?

Green and Healy (2003) and Bala et al. (2009) agree that institutionalizing

youth is not only useless, but actually damages youth offenders even further. Routine

interaction in society is necessary for youth to grow socially, psychologically, and

morally. By removing them from society into a institution, their growth is disrupted in

all of these ways (Bala et al. 2009). Incarceration is a particularly unnatural form of

living, which takes a toll on an adult body and mind; because of their

underdevelopment, youth are even more susceptible to damage from being removed

from their family and community. Bala et. al also note McAra and McVie point that youth who have any involvement in the formal system are less likely to recover from their experience and more likely to become continually involved in criminal behaviour. The excessive use of custody under the YOA was making the problem worse. Green and Healy (2003) describes an anecdote from a legal professional who discusses the moment of realization that took place for him after a twelve year old girl was jailed for the weekend for stealing a chocolate bar. When leaving the jail she asked for a pen so she could write down the addresses of her new friends. It was a moment when the worker realized this young girl had just had her first encounter with the criminal subculture, and she was leaving the prison having learned a lesson, but not the intended one.

Green and Healy (2003) claim that the use of custody must be minimized because it does not work as intended, especially for youth who have grown up in marginalized circumstances. Often these youth have grown up in conditions where they see the world as working through power, both physical and emotional. They provide several examples of situations in which a power struggle is present for youth to witness, such as domestic violence, aggressive parenting styles, school bullies, and authority figures abusing power. They describe many youth who end up incarcerated as already having been through suffering and therefore incarceration does not have the desired effect (Green and Healy 2003). This type of environment found at a prison does not scare youth into repenting and it does not get at the root of their problems; it only puts them through a type of environment in which many are familiar and to

which they have grown accustomed. Green and Healy (2003: 26) summarize many of the issues many youth face that should be addressed in youth legislation:

The only consistent “help” we offer youth is incarceration. Help for your addiction problem? Could be months, be patient. A special education program tailored for you because you’re fourteen and only have grade three? Sorry don’t have one. Special programs to account for brains that are damaged, often before birth? Sorry, no can do. Help you get a job? Sorry, not our problem. No food in your house? Tell your parents about money management. Scared of the neighbourhood you live in? We’ve all got problems kid. But if these problems get too much for you, we do have jail cells waiting….

Another common criticism of the YOA concerned the need for quick intervention and for procedural speed for youth justice.. The YCJA was intended to remedy this criticism and ensure youth are dealt with in a timely fashion. Quick handling is especially important for youth because of their development level. In their article, “Working in the Trenches with the YCJA,” Harris, Weagant, Cole and

Weinper (2004), note that a delay in rehabilitative or court procedures for youth causes the youth to feel separated from the offence.

Without the event fresh in the mind, youth tend to value the lesson less and distance themselves from their past actions. A lengthy time between the original arrest and confrontation about the crime committed, and the rehabilitative or court intervention also causes parents to become distanced from the crime. Parents are less likely to come to court after much time has passed and, therefore, their important guidance is not given to youth. Delays can also cause guilt, frustration, and the inability to carry on with life regularly until the court date has been set, all while crucial details of the crime may become blurry or altered in the youths mind. The

YOA was responsible for these flaws by implementing too close a parallel between

the adult system and the youth system without recognizing the immaturity that hinders youth in these formal processes.

Baron and Hartnagel (1996) examine opinions of how to treat youth under the

YOA. They point out that a study by Schwartz, Guo, and Kerbs, which focused on the public’s perception of youth crime, showed that when looking at the possibility of applying adult sentencing to youth, people who had children of their own were less likely to agree with punitive sentencing. This finding demonstrates that parents, through experience, come to realize firsthand the immaturity of young people and the difficulties that adult sentences could pose for their own children. Schwartz et al. also report from their study that those participants with less education, those over 50 years of age, and those who felt they could be victimized favoured punitive sentencing for youth. In their own research, Baron and Hartnagel (1996) used a telephone survey with 499 completed interviews from randomly selected participants in the Winnipeg area. They examine questions from a conservative versus liberal standpoint to see how participants’ values affect their perceptions of youth justice. They note that conservative views defend the assertion that criminals decide to break the law and therefore should be punished for their actions, and punishment also works to deter other potential criminals. The Liberal standpoint, which tended to reflect the views of younger participants, was more open to social programming as the best way to deal with criminals and crime prevention.

Overall in Canadian society in the 1990s and early twenty-first century, conservative and neo-liberal ideas fund common ground on policies of deficit reduction, declining public spending on social programs, and downloading expenses

to lower levels of government. The YCJA can be understood as attempting to balance

many objectives including fiscal restraint, deterrence of serious offenders, and

responding to concerns of the public.

PHILOSOPHY OF THE YOUTH CRIMINAL JUSTICE ACT

The YCJA intends to regain the publics’ trust in the youth legal system and minimize unnecessary incarceration of youths. Diversion is a philosophical ideal of the

Youth Criminal Justice Act in Canada, along with a shift from incarceration to extrajudicial measures as the primary method for solving problems with youth. The

YCJA is concerned with shifting the rehabilitative focus for youth to more intimate processes in their own communities and taking many matters out of the formal justice system. Under the YCJA incarceration and other serious means of secure custody are said to be more damaging to young people than previously considered under the preceding youth legislative Acts. Youth are less capable of coping with punitive sentences that take them away from familiar surroundings and regular daily life. The YCJA aims to avoid punitive sentencing for youth who have committed minor offences and for youth who come into contact with the law for the first time. As noted, adolescence is a crucial growth point for youth and they are developmentally different from adults. Diversion from courts can also save money for the government. Mary Vandergoot (2006) quotes the

Law Reform Commission of Canada stating:

But criminal law is not the only means of bolstering values. Nor is it necessarily always the best means. The fact is, criminal law is a blunt and costly instrument—blunt because it cannot have the human sensitivity of institutions like family, the school, the church, or the community, and costly since it imposes suffering, loss of liberty, and great expense.

The Commission neatly sums up the philosophy of the YCJA and provides an explanation of why the new ideals are essential to Canadian society. The cost effective ways of managing youth crime is to avoid the formal court system and, instead, use organizations where youth are kept in their communities to participate in volunteering, apology writing, or therapy. Vandergoot refers to cost, not in financial terms, but as the negative and often irreversible consequences of institutionalizing. However, the financial cost of institutionalizing youth is also a burden, especially when funds could be used for more productive programming with better long-term effects.

Under the YCJA, considerable money is saved that otherwise would be spent on institutionalizing youth and paying justice officials. Extrajudicial types of services commonly use volunteers or workers who work with fewer resources than police, lawyers, judges, and other legal professionals. In this case, fiscal conservatism and liberal rehabilitation have common ground. Any expenses saved through less incarceration becomes a motive supporting minimizing incarceration rates while alternative measures becomes a liberal alternative as the rehabilitative response to youth crime. If there is no quick or easy way to deter youth from becoming involved in crime, and if the development of criminal activity is complex, there is a need for complex solutions.

The general principle of the YCJA is that most serious punishment should be reserved for the most serious cases. The YCJA works toward stopping an over-reliance on incarceration that was used in the former YOA. The YCJA aims to involve family, community, and special programs into the process of youth justice. Other forms of rehabilitation for youth are viewed as more successful in allowing youth to recognize their wrong-doings and prevent them from re-offending. Section 3(c)(iii) of the YCJA

Declaration of Principle states that youth sentencing must “be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration” (Youth Criminal Justice

Act)

This excerpt indicates that the YCJA does not aim for a “one size fits all” approach to youth criminal justice. It works to recognize that youth are individual and require unique approaches to rehabilitation, though not undermining the relationship between individual problems and the bigger societal picture. It works against applying an approach that includes standardized expectations and regulations intended for all youth offenders, which was used in the YOA. Meaningful rehabilitation and the amount of rehabilitation required for individual youths varies greatly from case to case. For some cases giving youth a stern lecture about why his or her actions were wrong could be enough to deter them from further crime; for other youth more serious consequences may be needed to prevent further crime and relay the significance of their actions.

The philosophy underlying the YCJA works toward giving youth a chance in society without being labeled an offender immediately as was done in the YOA, any youth with involvement with the YOA was viewed as a young offender even if not convicted (Davis-Barron, 2009). The name itself, the Youth Criminal Justice Act, makes it apparent that it is a criminal justice act that tries to avoid the premature labeling as

“offenders” of youth who become involved with the law. This system works toward assessing the offender and recognizes that there are underlying problems that can lead youth to act inappropriately. Often this does not mean they are destined for a life a crime

or need to be locked up to protect the rest of society. The YCJA can be described as a rational and deeper approach to the issue of youth crime in Canadian society. Although often misconceived as too lenient on youth and allowing youth to “get away with” crime—YCJA has been dubbed “You cannot jail anyone”—it is important to recognize that the YCJA is helping youth to be more functional members of society and giving long-term aid.

Relativity to offence or proportionate sentencing is another important ideal when looking at the philosophy of the YCJA. This goal is meant to make all sentences relative to the crime committed, asserting that there will be great variation and discrepancy in what types of sentences youth receive. It means that the nature of the punishment comes as a result to the crime performed (Doyle, Farrell, Shepard, 2006). It becomes clear that the objective of the YCJA is not to punish and further control youth, rather it is to teach and place emphasis on youth being at a critical learning point and in need of special attention. The YCJA takes a step back to examine crucial underlying problems such as, school, family, and developmental issues, rather than looking at the crimes at face value.

This ideal relates back to the JDA and the rehabilitative approach where youth were viewed as products of an environment and worthy of guidance into a proper way of life, but the YCJA uses this approach to a lesser extent compared to the JDA where complete control over the future of the youth was seized. In ways the philosophy of the JDA and

YCJA can be compared and looked at as the YCJA advancing upon the JDA, while leaving behind many traces of the YOA.

This approach to youth justice can be viewed as collaborative because it works to include many people in the process of youth rehabilitation because of the vast variety of

people who are concerned with the process of crime for youth and who can influence a youths’ way of thinking. This group includes the family, community members, volunteers, judges, police, and therapists. Similar to the philosophy underlying the JDA, the YCJA indicates the strong desire and willingness to change the actions of and mold youth into a better citizen for the future. This type of dedication toward change is being reinforced in the YCJA but in a way that allows the offender to speak-out and make choices. The primary difference between the JDA and the YCJA is that the state does not attempt to act as a parent to offender youth. Many opinions and approaches are used to re-direct troubled youth. Unlike the JDA, courts and legal professionals are not given as much discretion when it comes to deciding the outcome of a case because this is a clear criminal code that leaves the custody as a last resort and a Charter that protects the rights of youth, an ideal that was fundamental to the YOA.

Close analysis into the reason for offending is another underlying philosophy of the YCJA. Society has the responsibility to protect its youth and address the original problems that cause a youth to come in contact with the law. This can be seen in the

YCJA Declaration of Principle Section 3, which states the intention of the YCJA and its philosophy:

3.(a)(i) The youth criminal justice system is intended to prevent crime by addressing the circumstances underlying a young person’s offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society.

This passage demonstrates the focus of the YCJA on the young person and their success. The Act seeks to help youth offenders with their recovering from the primary causes of misbehavior, and it avoids merely punishing youth for their behaviour.

According to Davis-Barron’s (2009) analysis of Section 3.(a)(i), this principle works 58

toward the long-term protection of society by using strategies that change the young offender’s behaviour and thinking, working with their current relations with the community. This is the type of rehabilitation is used under the YCJA instead of removing the young offender from society and isolating them with other troubled youth and their issues.

The approach of the YCJA works at finding the root of the issue instead of masking the issue with punishment. Factors such as poverty can often leads to drug and alcohol abuse, along with problems of irregular parenting styles, lack of permanent residence (Bala, 2003), lack of parental guidance, low attendance in school, and learning issues; all of these have an impact on generating problems for youth. There are many interrelated factors and reasons that can essentially lead youth to resort to crime. The

YCJA is using diversion as a way to investigate further into the reasoning behind young people becoming involved with the law. It can be concluded that youth are better off being left outside the formal court system, unless absolutely necessary (Doob, 2001).

Vandergoot (2006) notes that probation is the basic form of sentence in the YCJA, a solution that reflects the main philosophical ideals of the YCJA: it keeps youth in their communities while ensuring they are staying social, going to school, and monitors their activity more closely. The importance of treatment is especially important when it is noted that youth with mental disabilities are over-represented in the justice system of

Canada, the United States, United Kingdom, and Australia (Vandergoot, 2006). Attention needs to be given to youth, and the social process of how young criminals develop. Youth are vulnerable and often victims themselves of their environments.

SPECIFIC DETAILS OF THE YOUTH CRIMINAL JUSTICE ACT

The YCJA is responsible for a major decrease in the number of Canadian youths who are criminally charged, although this is not to say that the overall number of youths involved with illegal activity has decreased. It does show that alternative measures are now the primary technique used when dealing with youth (Bala et al. 2009). A chart created by Statistics Canada shows that in 1991, approximately 6500 youths were charged in Canada while, in 2007, that number had dropped to approximately 3500 youths. Doob and Cesaroni (2004) stress that the frequency of youth crime in a society does not have a significant relationship with the type of crime control model or justice system in place. It does seem, however, through research, that Canadians tend to think there is a strong connection between the two factors.

Section 4 of the Declaration of Principle states in reference to extrajudicial measures under the YCJA:

(a) extrajudicial measures are often the most appropriate and effective way to address youth crime; (b) extrajudicial measures allow for effective and timely interventions focused on correcting offending behaviour; (c) extrajudicial measures are presumed to be adequate to hold a young person accountable for his or her offending behaviour if the young person has committed a non-violent offence and has not previously been found guilty of an offence; and (d) extrajudicial measures should be used if they are adequate to hold a young person accountable for his or her offending behaviour and, if the use of extrajudicial measures is consistent with the principles set out in this section, nothing in this Act precludes their use in respect of a young person who (i) has previously been dealt with by the use of extrajudicial measures, or (ii) has previously been found guilty of an offence. (Youth Criminal Justice Act)

This section from the declaration of principle is at the foundation of the YCJA and where it aims to take youth legislation. In order to prevent crime, youth need specialized attention to help them and figure out why the youth is offending. Extrajudicial measures are used to prevent the use of custody for most cases and to rehabilitate youth, giving them a better chance at a crime-free life.

The two most predominant criticisms of the YOA (over-reliance of custody and assumed lenience towards offenders, causing moral panic ) seem to be an opposite ends of the spectrum and have branched into many more detailed critiques of aspects of the

YOA. This development can be seen in the Minister of Justice’s released report in 1998.

Minister of Justice Anne McClellan released the report in 1998, A Strategy for the

Renewal of Youth Justice, which presented to the public features of the new YCJA. The report can be evaluated as a way to ease public pressure for change. Two factors were part of this approach. The first was to replace the existing YOA with a new piece of legislation, and the second was to a focus on “prevention outside of the youth justice system by linking it with other federal government initiatives aimed at children and youth”

(Doob and Cesaroni, 2004).

Rehabilitative and community services for children were being promoted for youth justice from the beginning of the new Act. The collaborative piece of legislation works to ensure youth are receiving the best treatment and services, whether they become involved in the formal court system or are being diverted to other community resources.

The report was designed to provide the framework of the philosophical goals of the

YCJA. Davis-Barron (2009) offers a list of new ideals that were present in the report including improved declaration of principle that included the role of victims, a section on

diversion, new sentencing and the principles that go along with them, and a provision that discussed adult sentences for youth beginning at age 14.

Evidently, the purpose of the creation of the YCJA was to fix criticisms that had occurred under the YOA and ease the irrational fears of the public. The way in which the

Bill was presented allowed it to appear highly structured and serious about youth control.

In actuality, it uses a different approach that embodies less traditional forms of punishment, although in the report it seems to be presented in a misleading manner, which places emphasis on “cracking down on crime”. Through my research, it appears that the primary goal, however, is to get serious about the issue of youth crime, but by using different philosophical ideals than those favoured by the public. Below is an excerpt from the thirteen points that were released from the Department of Justice:

 Allow for adult sentence for any youth 14 years old or more who is convicted of an offence punishable by more than two years in jail, if the crown applies and the court finds it appropriate in the circumstances.  Expand the offences for which a young person convicted of an offence would be presumed to receive an adult sentence to include a new category of serious violent offences.  Allow the Crown greater discretion in seeking adult sentences and publication of offenders’ names.  Create a special sentence for serious violent offenders who suffer from mental illness.  Give courts more discretion to receive as evidence voluntary statement by youth to police.  Permit tougher penalties for adults who willfully fail to comply with an undertaking made to the court to properly supervise youth who have been denied bail and placed in their care. (Department of Justice Canada)

These points released to the public in regards to the proposed YCJA create an illusion of the Act being designed to be punitive and harsh, when in fact it was quite the contrary. It was designed to focus on the root of the problem and teach memorable

lessons to youth about how and why their actions affect the victim, themselves, and society as a whole. Although it may not be a traditional approach, it appears to offer a more effective approach. The presentation of the YCJA is an example of societal and public pressures that were allowed to influence the legislative Act. The issue of public anxiety about the issue of youth crime was allowing the new Act to be presented in a way that highlights features that do not necessarily define the central ideas of the YCJA.

It is fair to state that three key reasons for the implementation of the YCJA exist.

The first is to reduce the use of courts and custody for the majority of adolescent offenders, which saves money and also keeps youth integrated in their communities.

Under the YCJA, offenders who have not committed serious or multiple crimes will be given non-custodial sentences. The second is to focus special attention on the small number of serious and violent cases, and treat these matters differently from other offences with significant periods of incarceration and after-release supervision. The third is to ease public anxiety about youth crime (Bala et al. 2009). The YCJA works to protect youth from harmful environments within which they learn and become adults.

The Act remains sensitive to their needs, as stated in section 35 of the YCJA:

35. In addition to any order that it is authorized to make, a youth justice court may, at any stage of proceedings against a young person, refer the young person to a child welfare agency for assessment to determine whether the young person is in need of child welfare services.

The YCJA is also concerned with protection of the public from crimes of violence.

The definition of violent action under the YCJA is an act that “causes bodily harm, or if it is reasonably foreseeable that it may cause bodily harm” (Vandergoot, 2006). One way is to make it easier to transfer case from Youth Court to adult court. Although adult sentencing is a provision of the YCJA, it is noted that this sentencing is not at all common:

“fewer than one-tenth of one percent of youth court cases in Canada end up in adult court”

(Doob and Cesaroni 2004: 171)

The YCJA is striving to meet the needs of individuals and give youth a voice to express why and how they became involved and how they feel their situation could be overcome. It also places emphasis on the notion that youth develop at vastly different rates and therefore cannot be expected to conform to a single set of guidelines that do not work well with their own beliefs. At least they should be given an opportunity to provide input into how they feel they could contribute to their justice procedures. They learn to become responsible through being treated as autonomous beings and through the use of a bottom-up approach to individual situations. Rather than putting youth into a process, they can become part of the process and monitor their own improvement.

Chapter 5: Conclusion

There are overarching similarities present within the three Acts, including recognizing that youth must be treated as a separate part of the population in a protected

Youth Court and are different from adults because of their relatively immature development. Consequently, Youth should have diminished responsibility placed upon them when involved in the justice system. What distinguish the Acts is how the diminished responsibility should be defined and the type of approach that should be used when sentencing youth offenders. Under the YOA and the YCJA, the age of partial responsibility to classify people into definite groups of child, youth, and adult remained consistent. The age of a youthful offender was raised to twelve from seven, and the age of full adult responsibility increased to eighteen from sixteen under the YOA in most jurisdictions. Diminished responsibility for youth was also associated with generally lower sentences for crimes than would be the case for adult offenders. The exception was the JDA which, under an assumption of helping youth in the place of their parents, relatively long custodial sentences were often imposed.

The cyclical theory of Juvenile Justice examined by Bernard (1992) explains youth justice as undergoing a periodic change between a welfare and a rehabilitative approach and a harsher and punitive approach, brought about when a sense of moral panic arises in society. We can see from the description of the JDA and YOA that trends in the juvenile justice models do seem to follow the contrast that Bernard (1992) describes. The

JDA, created around the welfare model, was criticized for medicalizing youths’ behaviour and being unfair to youth, while also lacking concrete consequences for actions.

Negative public perceptions of crime began to increase during the mid-1900s, leading to the implementation of the custody-based and justice models of the YOA. Under the

YCJA, we see that there evolves a balance between the two ends of the spectrum. The present Act incorporates aspects of both the JDA and YCJA. It includes equal rights for youth while also emphasizing the rehabilitation and training style approach to youth justice as a solution to ending the cycle of juvenile justice.

The three main philosophies that are evident in the Acts are the welfare (JDA), justice (YOA), and rehabilitative model (YCJA). It becomes clear that the main distinction that separates the welfare model used in the JDA from the other underlying philosophies was the enactment of the Canadian Charter of Rights and Freedoms, which underscores the justice (equal rights) and rehabilitative (equal protections) models. Under the justice model (YOA), youth justice is most concerned with equality, due process for youth, and responsibility. While these goals are also very important under the YCJA, extra-judicial measures and rehabilitation are added to the primary emphasis on justice.

Through writing this thesis I was able to identify my own assumptions and stereotypical beliefs I had come to accept about youth legislation in Canada. I had always thought that incarceration was the most effective way to go about dealing with youth crime, an idea that likely derives from the way in which youth crime is presented in the media as dangerous and prevalent. Media coverage of rare stories suggest that crime is the fault of the offenders and that youth have the ability to make good or bad decisions, just like anyone else. I overlooked the expense it takes to incarcerate a youth and the difficulties it poses on a young person who is forced to leave family and community.

Society as a whole is involved when it comes to youth crime. Institutions, parenting, schooling, poverty, and mental disability all play a major role when it comes to young offenders. Society and the people who interact with youth must recognize the vulnerability of young people and work to keep them out of institutions and discover the social causes behind their behaviour, while incorporating the youth into this process.

Youth legislation in Canada has undergone over 100 years of change and continues to be improved. Although not everyone can be pleased with the procedures, and victims often feel cheated by the lack of incarceration, in the long term, extrajudicial measures seem most effective at scouting out the underlying issue of youth offending.

This is demonstrated by failed attempts with Scared Straight deterrence programs and the role that incarceration plays in desensitizing youth to the dangers of criminal subculture.

This thesis argues that many youth who end up in Youth Court have been raised in a marginalized environment and may only grow more criminal from finding a group of people in prison with whom they can relate.

It is important to recognize that youth legislation is dealing with the most susceptible and exploitable part of our population. Youth who are diverted from the formal system and rehabilitated with community work, apologies, or other extrajudicial agreements are often able to feel remorse through contact with the victim, counseling, and demonstrating their abilities to apologize within their own community. Through the

YCJA, as youth are diverted from a life of crime, I see youth legislation improving and the potential for a more positive public perception about juvenile justice.

There are, however, remaining questions to be answered for the future of youth justice. The age of criminal responsibility is a continuous issue for youth justice. Youth

mature at different rates and also respond to rehabilitation and punishment in diverse ways. This leaves the difficult question of deciding when the appropriate age to categorize children as youth, and youths as adults. This type of specific age limits will always leave groups of slowly maturing youth at disadvantage, while allowing others to have their true level of responsibility of their actions go underestimated. It is possible now for youth to be tried and sentenced as adults under the YCJA. It is possible that a similar procedure could be added to the YCJA to transfer children under twelve to Youth

Court if, in individual cases, they are deemed to be sufficiently mature to meet the requirements of diminished (youth) responsibility.

Finally, The YCJA was passed by a Liberal government in Canada. The present

Conservative government has made law and order an important part of its appeal to

Canadian voters. With its emphasis on expanding minimum penalties and plans for new prison construction, it is reasonable to ask whether the Conservatives may seek to reverse the rehabilitative trend of the YCJA. This change would likely be reflected in more sentences of imprisonment and longer custody, reversing the community rehabilitation philosophy of the current Act. Before such a change could be attempted, it would be necessary to induce another round of panic over youth crime. Such a panic could result from a sensationalizing a few, extreme cases of serious violent crime perpetrated by youth, moving the cycle of juvenile justice to the next, more punitive stage.

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