If you have issues viewing or accessing this file contact us at NCJRS.gov. Department of Justice Ministere de la Justice '1+1 Canada Canada WORKING DOCUMENT STATE RESPONSES TO YOUTH CRIME: A CONSIDERATION OF PRINCIPLES Nicholas Bala, B.A., LL.M. Queen; s University . Joseph P. HOrllicl{,Ph.D. Canadian Research Institute for Law' and the Family M.L. (Marnie) McCaIl,LL.B., M.A. Margaret .E.Clarke, M.D., FRCP(C) \ , SU,nnyl1ill Pediatric Clinic ( y: May 1994 WD1994-1e UNEDITED. , Researeh and Statistic.s Directorate I Direction generate de la recherche et de la statistique Corporate Management, Policy .and ProgramsSectorl Secteur,. de".Ja gestion,politiques et programmes ministeriels .~:.;1· ,~ WORKING DOCUMENT STATE RESPONSES TO YOUTH CRIME: A CONSIDERATION OF PRINCIPLES Nicholas Bala, B.A., LL.M. Queen's University Joseph P. Hornick, Ph.D. Canadian Research Institute for Law and the Family M.L. (Marnie) McCall, LL.B., M.A. Margaret E. Clarke, M.D., FRCP(C) SunnyhiII Pediatric Clinic May 1994 WD1994-1e UNEDITED The present study was organized by the Canadian Research Institute for Law and the Family and funded by the Research Section, Department of Justice Canada. The views expressed herein are solely those of the authors and do not necessarily represent the views of the Institute or the Department of Justice Canada. I I I I I I I 149538 I U.S. Department of Justice Nationallnsiltute of Justice I This document has been reproduced exactly as received from the person or organization originating it. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of th9 National Institute of Justice. Permission to reproduce this copyrighted material has been I granted by Department of Justice Canada to the National Criminal Justice Reference Service (NCJRS). I Further reproduction outside of the NCJRS system requires permission of the copyright owner. I I I I I I I I TABLE OF CONTENTS ACKNOWLEDGEMENTS. .. ix mTRODUCTION ........................................... xi 1.0 A CONTEXT FOR CONSIDERING PRINCIPLES ................. 1 1.1 Constitutional Context of Juvenile Justice in Canada . .. 1 1.2 The Relevance of Principles . .. 2 1. 3 The Nature and Causes of Crime Committed by Youth .... " . , . .. 4 2.0 PRINCIPLES GOVERNING STATE INTERVENTION IN THE LIVES OF CHll-DREN AND ADOLESCENTS . .. 7 2.1 Principles of State Intervention: The United Nations Convention on the Rights of the Child . 7 2.2 Childhood, Adolescence and Adulthood. .. 12 2.2.1 Moral Development ............................ 14 2.2.2 Legal Status of Children, Parents and the State, ........ , . .. 20 2.3 The Basis for State Intervention ........................ '.' 24 2.3.1 Defining Crime . .. 24 2.3.2 Objectives of State Intervention ..................... 26 2.3.3 Types of State Sanctions. .. 27 2.4 Sentencing of Young Offenders:, Modjfying the Adult Model ....... 30 2.4.1 Retribution (or Accountability) . .. 30 2.4.2 Deterrence - Specific and General . .. 31 2.4.3 Incapacitation ...................... '. .. .. 34 2.4.4 Rehabilitation ...... .. 35 2.5 The Limits of State Intervention ........................ 40 2.6 Principles that Govern Intervention: Due Process for Juveniles ..... 42 2.7 Balancing Principles and Objectives 47 111 I I 3.0 TRANSFORMATION OF YOUTH JUSTICE IN CANADA .......... 49 3.1 Tr~ating Adolescents Like Adults: The Nineteenth Century and Earlier . 49 3.2 The Juvenile Court Model: 1908-1984 .................... 50 I 3.3 The Process of Reform: Enacting The Young Offenders Act 54 I 4.0 PRINCIPLES IN PRACTICE: CANADA'S YOUNG OFFENDERS ACT 59 4.1 The Youth Court Process 59 I 4.2 The Declaration of Principle ...................... '. .. 61 4.2.1 Accountability - Subsection 3(1)(a) .................. 63 I 4.2.2 Protection of Society - Subsection 3(1)(b) .............. 63 4.2.3 Special Needs of Youth - Subsection 3(1)(c) . .. 63 4.2.4 Altemative Measures and No Measures - Subsection 3(1)(d) . .. 64 I 4.2.5 Rights of Young Persons - Subsections 3(1)(e) and (g) ...... 65 4.2.6 Least Possible Interference - Subsection 3(1)(f) . .... 65 4.2.7 Parental Involvement - Subsection 3(1)(h) .............. 66 I 4.3 The Declaration of Principle: An Assessment. .. 66 I 4.4 Age Jurisdiction .. .. .. 71 I 4.5 Administrative Structures. .. 74 4.6 Altemative Measures .......... .. 77 I 4.7 Due Process Rights: Access to Counsel and Police Interrogation . .. 82 I 4.8 Pre-trial Protection For Youth .......................... 88 4.9 Disposition...................................... 91 I 4.10 Transfer to the Adult System ........................... 101 I 4.11 Publicity and Privacy . .. 104 I I I IV I I ,I I 5.0 RESPONDING TO YOUTH CRIME: TOWARDS NEW SOLUTIONS 107 I 5.1 Demand for New Approaches . " 107 5.2 New Approaches ............................... , .. 110 I 5.2.1 Victims' Rights ................ .. 110 5.2.2 "Getting Tough" with Young Offenders ............... 111 5.2.3 Crime Prevention . '.' . .. 113 I 5.2.4 Community Responsibility ....................... 115 I 5.3 An Agenda for Refonn . .. 117 5.4 Conclusion..................................... 123 I 125 I BIBLIOGRAPHY I :1 '1 :1 ,I ~I I '.'.1[ ;1 v ;1' , 'J I :1 LIST OF TABLES I Table 1 Acquisition of Morality: A Developmentfd Socialization Model ...... 17 I LIST OF FIGURES I I Figure 1 Young Offender Case Process Model . .. 60 I I I I I I I I I I I I vii I I I ACKNO"VLEDGEMENTS I The authors would like to acknowledge the assistance and cooperation of a number of people who contributed to the preparation of this report. First, we would like to thank I the project manager, Naomi Lee, and Bruno Marceau at the Department of Justice Canada for their guidance and comments throughout the project. We would like to express our appreciation to Justice John D. Bracco for reviewing the final draft. We would also like to thank the staff at the Canadian Research Institute for Law and the Family for their hard work and support. Special thanks go to Joanne Paetsch who was project administrator and copy editor, and Beryl Parkinson who formatted the final manuscript. This project was funded by the Department of Justice Canada. The Canadian Research Institute for Law and the Family is supported by a grant from the Alberta Law Foundation. ix I I INTRODUCTION I Currently, in Canada, there is a great deal of interest and controversy on how society should respond to children and youth who violate the criminal law. Concerns have been raised on a broad range of specific problems as well as more fundamental philosophical I issues related to young people and crime. While the high level of pu.b1ic and media interest is a relatively recent phenomenon, Canadians have struggled with the issues of crime committed by youth for more than a century, There have been significant changes in how I we deal with juveniles who commit crimes, in terms of the evolution of governing legal principles, reforms to specific statutory provisions and administrative policies .. I This report is intended to facilitate informed discussion and debate about state intervention in the lives of young persons who violate the law by identifying and analyzing I the principles that guide and constrain that intervention. I Objectives To assess the adequacy of past and current efforts to deal with youth crime, and I before considering the possibilities for future reforms, it is important to understand the fundamental principles that guide a state's response to youth crime. Such an understanding provides a rationale for state intervention, as well as an explanation of some of the limits I placed on state action. The objective of this report is to provide the basis for understanding these basic principles and their relevance to some of the current controversies relating to the youth justice system in Canada. While many of the present controversies are discussed, I there is no definitive analysis of any of the specific issues raised. Rather, the focus is on the fundamental principles that underlie the youth justice system. Organization Chapter 1.0 sets the context for the discussion that follows. lit describes the constitutional framework that shapes the responses to youth crime in Canada and identifies the relevance of fundamental principles for shaping that response. It concludes with a brief I discussion on the nature and causes of crime committed by youth. Chapter 2.0 discusses the fundamental principles that structure state intervention in I the lives of its citizens generally, and particularly those that have guided the responses to crimes committed by children and adolescents in Canada. The principles are analyzed; their implications for public policy are outlined; and within their context, the legal status of I children, adolescents and adults, and the special responsibilities 'of parents are discussed. Following a discussion on the definition of crime, the chapter ends with a review of the I general objectives of sentencing, with particular emphasis on how they apply to juveniles. I Xl I I I Chapter 3.0 discusses the history of Canadian legislative response to youth who commit crime. It describes how changing perceptions of the importance of different principles transformed societal responses to youth who committed crimes in the past I century, with particular emphasis on the Juvenile Delinquents Act (JDA) I and the Young Qffenders Act (YOA).2 I Chapter 4.0 offers an analysis of the principles stated in the YOA and considers some additional principles implicit in the Act. There is also a discussion of some of the current controversies surrounding the YOA. The discussion of specific issues is intended to I illustrate the relevance of different principles for particular issues and does not provide a complete treatment of any of the issues raised. I Chapter 5.0 discusses some newly emerging approaches to respond to the problem of youth 'crime, and briefly considers possible future directions for juvenile justice in Canada.