Juvenile Justice Grom Its Origins in the Common Law About 1300 to the Present Day

SENTENCING AND TEE PREVENTlON OF YOUTH CRIME: A MULTI- DISCIPLINARY, MULTI-I1YSTITUTIONA.L APPROACH A thesis submitted to the Faculty of Graduate Studies in partial llfillment of the requirements for the degree of Doctor of Jurisprudence Graduate Programme in Law York University Toronto, Ontario July 1999 National Library Biblioth&quenationale 1*1 of Canada du Canada Acquisitions and Acquisitions et Bibliographic Sewices services bibliographiques 395 Wellington Street 395, rue WeUingtarr OrtawaON KIAW OttawaON KlAONO Canada Canada The author has granted a non- L'auteur a accorde une Licence non exclusive licence dowing the exclusive pennettant a la National Library of Canada to Bibliotheque nationale du Canada de reproduce, loan, distriiute or sell reproduire, preter, distn'buer ou copies of this thesis in microform, vendre des copies de cette these sous paper or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format eIectronique. The author retains ownership of the L'auteur conserve la propriete du copyright in this thesis. Neither the droit d'auteur qui protege cette these. thesis nor substantial extracts &om it Ni la these ni des extraits substantiels may be printed or otherwise de celleci ne doivent &re imprimes reproduced without the author's ou autrement reproduits sans son permission. autorisation- Sentencing and the Prevention of Youth Crime: A Multi-Disciplinary, Multi-Institutional Approach by Sanjeev Anand a dissertation submitted to the Faculty of Graduate Studies of York University in partial fuffiliment of the requirements for the degree of Permission has been granted to the LIBRARY OF YORK UNIVERSITY to lend or sell copies of this dissertation, to the NATIONAL LIBRARY OF CANADA to microfilm this dissertation and to tend or set[ copies of the film, and to UNlVERSrrY MICROFILMS to pub:&h dn abstract of this dissertation- The author reserves other publication rights. and neither the dissertation nor extensive extracts from it may be printed or otherwise reproduced without the author's written permission- ABSTRACT This dissertation argues that effective youth crime prevention requires the reform of government youth justice policy. In order to detezmine which policies need reforming, what form they should take, and how they should be imp1emented, an interdisciplinary approach is taken. Chaptr One is a literature review of the material available on young offender sentencing and crime prevention. This review provides the reader with a context for the thesis and allows himher to appreciate not only what has been done in the field but specifically what contriiution this dissertation makes to the subject area- Chapter Two presents an historical account of changes in juvenile justice Grom its origins in the common law about 1300 to the present day. This historical analysis reveals a number of facts pertinent to modem day reformers, such as which forces have repeatedly influenced reform and are therefore likely to do so again, and which factors have become more prominent in the reform process of late. Chapter Three reviews the latest research findings concerning youth crime prevention programs and philosophies that operate in or focus on the criminal justice system, the community, the family, the school, and the labor market. This knowledge is then used to assess the wisdom of the recent government initiatives in the youth crime prevention area and to ascertain what steps need to be taken to increase youth crime prevention effectiveness and knowledge. An important part of this chapter deals with an empirical analysis of different sentencing policies for young offenders. In Chapter Four, one of the key topics addressed is the appropriate sentencing policy for young offenders and how it can be implemented. Through an analysis of the statutory provisions and caselaw under Canada's cuuent juvenile justice legislative regime, the appropriateness of applying certain sentencing principles to youths is re- assessed with a view to determining whether any of them can be supported by the legislationrsstatutory fhmework, Finally, this dissertation ends with a summary of specific government recommendations dealing with young offender sentencing and youth crime prevention. The proposals made deal with both legislative and broader youth justice policy reform because truly effective youth crime prevention cannot be achieved through an exclusive focus on youth crime prevention prognuns within the criminal justice system and legislative amendment. The key recommendations made in this dissertation address the fact that current government youth justice policy is not based on empirical evidence. Instead, Canadian juvenile justice policy is largely shaped by interest group lobbying and public opinion, much of which is uninformed. In fact, this dissertation reveals that, to date, relatively little is known about which prognuns truly work at preventing youth crime. As a result, effective youth clime prevention programs and policies have not been implemented. ACKNOWLEDGEMENTS Although the credit for writing a dissertation is attri'buted to a single person, the reality is that its production is a collaborative effort involving many individuals. Indeed, several people have contributed in various ways to the work contained in the pages that follow. First, I would like to thank the members of my supervisory cornmittee. Anyone familiar with the reputations and records of Professors Alan Young, Douglas Hay, and Jamie Cameron of Osgoode Hall Law School know that that they are scholars of the highest caIiia. But as many graduate students can attest, great scholars do not always make great supervisors. What made the members of my supervisory committee so special was not simply their expertise, but their patience, humanity, and commitment to teaching. All three of them found time in their busy schedules to consult with me on the progress of my thesis and, when I had questions or concerns, they were quick to respond in a timely and thorough fashion. In particular, I wish to thank my supervisor Professor Alan Young for being a caring and helpfd mentor. Individuals other than those in my supervisory committee also had a significant impact on this dissertation. Specifically, I would like to thank Professor Jim Robb of the University of Alberta's Faculty of Law, Professor Sherifa Elkhadem of Osgoode Hal; Law School, Professor Susan Houston of York University's Department of History, Dean Kent Roach of the University of Saskatchewan's College of Law, AUison Cunningham of the London Family Court Clinic, and Jack Watson, Q.C., Appellate Counsel with the Alberta Department of Justice. I would also like to express my sincere gratitude to the selection committees for the Harley D. Hallett Graduate Scholarship, the Dean's Academic Excellence Scholarship, and the Osgoode Society Book Prize in Legal History. My family has been invaluable to me throughout the writing process. I would like to thank my sister, Anjy for her many counselling sessions and my father, Virinder, for his unwavering confidence in my abilities. But in the moments when I needed courage, my thoughts turned to my mother, Savinder. When I began my doctoral work, my mother was finishing her chemotherapy. I Ialways remember the bouts of extreme nausea, hair loss, and fatigue that she endured during her cancer treatments. It is her bravery and resolve that inspired me in my moments of greatest doubt. The person who most influenced this dissertation, however, has not yet been mentioned. Were it not for my wife, Nicholette, this thesis would never have been written. She unselfishly agreed to sell our house and move fiom the green pastures of Edmonton to the concrete jungles of Toronto so that I could pursue my dream of obtaining a doctorate in law. When we arrived in Toronto, Nicholette provided the financial and emotional support needed for me to accomplish this goal. Moreover, her editorial assistance enhanced the thesis immeasurably. But more important than her support and assistance was the example she set. It was her tireless pursuit of excellence in her own work that encouraged me day in and day out to explore the bounds of my own possibilities. For these things and for her love, I am eternally gratefbl. TABLE OF CONTENTS I ODUCTON.......................................................................................... -24 II .THE DOCTRINE OF DOLInVCXP". ............................................................. -26 III. ESTABLISHMENT OF A SEPARATE CANADIAN JUVENILE JUSTICE SYSTEM, THE JDA.. ............................................................................................... 31 A . Segregation of Adult and Juvenile Prikoners ................................................ 31 B . Critique of the Refonnuto ry.. ........................................................................ 39 C. Final Road to the JDA .................... ...... ........................................................ 43 0. Crilique of the Child-Savers.......................................*................................. 57 N .CHANGING OF THE GUARD,THE POA ....................................................... 59 A . Report of the Department of Jllsce Committee on Juvenile Delinquency -59 B. BillC-I92 ...................................................................................................... 67 C. Final Road to the YOA................... ,,., ..,,,,. ...................................... ..... ......... 73 V .RECENT DEVELOPMENTS AND REFORMS ..............................................

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