Transcript Youth Justice Reform - Bureau international des droits des

Canada’s Juvenile Justice Law
& Children’s Rights
Prof. Nicholas Bala
Faculty of Law, Queen’s University
Paper on website of IBCR
Making Children’s Rights Work:
National & International Perspectives
7/18/2015
International Bureau for Children’s Rights
Montreal, November 19, 2004
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Presentation
History
Youth Criminal Justice Act
– Major provisions
– Impact (Ontario & B.C)
YCJA & the Convention
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History: Juvenile Justice in Canada
1908-1984: Juvenile Delinquents Act
– Child welfare philosophy
– Variation in application
– Lack of legal rights & institutional abuse
1984- 2003: Young Offenders Act
– Due process & legal rights
– Determinate sentences & variation
– High use of courts & custody (outside Quebec)
2003, April 1: Youth Criminal Justice Act
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Youth Justice Reform
Perception of rise in youth crime in 1990’s
Demands for ‘get tough’ approach from
conservative federal & provincial
politicians, except in Quebec
But also concern that in Canada very high
rate of use of court & custody for the nonviolent 80% of offenders.
– expensive
– often ineffective in rehabilitating
– may corrupt less serious offenders
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Federal - Provincial Issues
Prior to enactment Federal - Provincial
negotiations – to gain support
– Provincial flexibility on implementation
– federal $ for training & pilot programs
Ontario advocated many “get tough”
measures that were not accepted and was
slow to develop plans to implement
Quebec opposed accountability emphasis &
lack of best interests concerns – challenge in
courts
Age remained 12 to 18th birthday
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Diversion :Extrajudicial Measures
Background: Outside Quebec under YOA
Canada had very high rate of use of court for
adolescent offenders. Court is:
– Slow & expensive
– frustrating for victims & parents
– may not meaningfully engage youth
YCJA encourages use of extrajudicial
measures:
– police & Crown cautioning
– Referrals to community agenies
– Community based extrajudicial sanction programs
NO legal right to extrajudicial measures-> use
depends on provincial policies and programs
-> more in Quebec
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Conferences
Increasing use of conferencing in Canada
Extrajudicial sanction or to provide advice to court for
sentence
Develop a plan that may include:
– Restitution, apology
– counselling
Typically involves
– Youth
– Parents
– Victims
– Agencies
– Possibly Police
Victim involvement cannot be compelled to attend
Need training for staff and support for victims
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Legal Rights
Youths have special legal rights upon arrest.
Youths continue to have right to legal counsel
paid by government
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Pre-trial Detention:
Background under YOA
Issues:
High number of youth detained- 60% of
custodial admissions under YOA
Use of detention to address social welfare
needs
Lack of alternatives to detention
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Pre-trial Detention: ss. 28-32
Detention is not to be used as a substitute for
child protection, mental health or other social
measures
Presumption against detention if the young
person could not be sentenced to custody if
convicted [i.e. one of s. 39(1) conditions to be
satisfied.]
Duty of judge to inquire about availability of a
“responsible person.”
What about community based ‘bail
supervision’ programs?
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Sentencing Principles :YCJA
Structuring of judicial discretion to
reduce disparities & reduce use of custody
Sentence is to be proportionate to the offence,
and promote rehabilitation.
Lesser accountability than for adults
Rehabilitative & social objectives cannot justify
more onerous sentence than offence warrants
New community based sentence options, but
mainly up to province to implement.
If services not available, judge cannot order
province to provide needed services.
Restrictions on custody to violent offenders &
those with history of non-violent offences
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Sentencing: Community based
All community based sentences from
YOA are in YCJA - discharge, probation,
fines, community service etc
Also in YCJA – new provisions
– intensive support & supervision
only if province agrees
– attendance centre
only if province agrees
– deferred custody & supervision
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Custody and supervision order
Major change : custody orders include a period
of supervision in the community.
Most offences: period of supervision is one half
of the length of the custody period (2/3:1/3)
Judge decides custody level
Province to decide what facility within level
supervision terms usually to be set by provincial
director
supervision & support in the community very
important for rehabilitation
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Restrictions on Custody: s. 39
youth committed a “violent offence”; or
youth failed to comply with non-custodial
sentences [ie two breaches]; or
youth has committed:
– offence for which an adult would be liable
to a sentence of more than 2 years ,and
– has a “pattern of findings of guilt”, or
“in exceptional cases” where the young
person has committed an indictable offence
and the aggravating circumstances
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Adult Sentencing
Decision about adult sentence only after trial
If 14 or older & presumptive offence -> onus on youth to show
that youth sentence adequate to hold youth “accountable”:
– murder, attempted murder, manslaughter
– aggravated sexual assault
– 3rd “serious violent offence”
Quebec Court of Appeal rules violation of Charter and
Convention to place onus on youth
Part of adult sentence may be youth custody
If adult sentence, early parole eligibility if life sentence for murder
(5yrs - 10 yrs instead of 10 yrs - 25 yrs for adult)
intensive rehabilitative custody & supervision possible alternative
youth sentence for these offences, but no involuntary treatment
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Confidentiality & Non-Disclosure
As under YOA, generally no identifying
publicity for young offenders under YCJA
Complex & detailed provisions on
confidentiality and records [ s. 114 -129]
Restrictions on disclosure of records as
under YOA, allowing sharing with schools and
community agencies if :
– safety concerns, or
– needed to supervise youth on bail or probation, or
– facilitate rehabilitation
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Impact of Y.C.J.A.: 1/04/03 to 31/03/04
Diversion by police & prosecutors
– Ontario: youth charges 13% ↓
– British Columbia : 29% ↓in police referrals to
court.
Pre-trial detention
– Ontario decline in detention population 11%
– British Columbia decline was 10%.
Youth Custody populations
– Ontario: secure custody down 37%
& open custody down 40%.
– British Columbia: average custody population
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down 50% in 4 years
YCJA: New Principles & Provisions
More coherent and consistent set of principles
– focus on proportionality, but limited accountability
– diversion from courts & reducing custody use
– using criminal justice for child welfare
Greater accountability for serious violent offender than
under YOA, but largely unconstitutional
Ultimate effect of YJCA will depend on provincial
implementation policies and resources decisions
Potential concerns in some provinces
– Lack of policies on diversion & conferencing may be narrow
– Lack of community services and support
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YCJA & U.N. Convention
Some important ways Y.C.J.A. consistent CRC
–
–
–
–
Protection of legal rights
Minimum Age of 12 years & to 18th birthday
Diversion is encouraged
Community-based sentences are encouraged
But also important ways Y.C.J.A. is not consistent
with CRC
– Best interests not a factor in youth sentencing &
accountability is predominant
– Canada’s reservation on Art. 37(c) – adult sentencing,
mitigated by Que CA Reference, relying on CRC
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