1. CC200 Youth Justice Creating a Juvenile Justice System: Then and Now Chapter Two

2. Introduction We tend to link the juvenile justice system with understandings of crime prevention and crime control. However, the creators of the system had other objectives in mind. According to some, the jjs was created in response to problems generated by the newly emerging capitalist system that undermined traditional family supports.

3. The resulting problems included growing numbers of young people on the streets and higher levels of street crime committed by young people. Other scholars argue that the juvenile justice system was a creation of Victorian reformers, or ‘child-savers’.

4. These group argued that delinquency was the end-result of bad environments and that the state should act like a parent to ‘save’ children from these environments. This meant that the state should go so far as to remove children from their parent’s homes and institutionalize them.

5. The child-savers were motivated by humanitarian concerns and a desire to save children from harmful family influences while protecting them from the full force of criminal law and the negative influence of adult criminal offenders.

6. Juvenile Delinquents Act The Canadian juvenile justice system was officially created in 1908 through the passage of the Juvenile Delinquents Act. This legislation did not occur in isolation but was, in fact, the culmination of a number of pieces of legislation and welfare reforms.

7. The JDA created a welfare-based juvenile justice system (one based on the philosophy of rehabilitation) and was based on the principle of parens patriae. Parens patriae can be translated as “parents of the country” and has its historical roots in medieval England.

8. It began as the King’s right to control property of orphaned heirs for the purpose of protection. By the 18 th century, parens patriae had expanded to include a ‘best interest’ principle as a means of actively promoting the best interests or well-being of a child or young person.

9. By the 19 th century, the doctrine had expanded beyond the monarch to the state and to children without property who were orphaned or neglected by parents or guardians. This doctrine formed the foundation of the new Juvenile Delinquents Act of 1908.

10. The JDA defined delinquency as the violation by persons under the age of 16 (this age varied by province) of any federal, provincial, or municipal law for which a fine or imprisonment was the penalty, or the commission of any other act that would make a young person liable to be committed to an industrial school or reformatory.

11. The JDA gave the courts considerable powers. Cases were to be handled summarily. If an offence was indictable, it was up to the court to decide if the youth would be tried in an adult court. Indictable offence – CCC refers to offences that are of a serious nature; the minimum sentence is always two years or more.

12. More like hearings than trials, juvenile cases were conducted privately and notices of delinquency hearings were sent to parents or guardians. Separate detention and jail facilities were mandated for delinquents. The JDA also allowed for a wide range of dispositions (sentences).

13. Probation was a core element of the juvenile court, with probation officers playing a key role. The court could place a child in the custody of a probation officer as a form of sentence.

14. The JDA required probation officers to conduct investigations for the court, to assist and direct the court, and to represent the interests of the child in court. The probation officer was also responsible for supervising children sentenced to a period of probation.

15. Once adjudicated as delinquent, children remained wards of the court until the court released them or until they reached the age of 21. Under the JDA, the provinces were allowed to set the maximum age under which a young person could be adjudicated as delinquent.

16. Because the juvenile justice system required probation officers, separate courts, separate judges, and separate detention facilities, its implementation was costly. As a result, provinces were allowed significant leeway the time allowed to implement of these policies.

17. This meant that there was a great deal of time between the time the first court was set up (Manitoba in1909) and the last (Northwest Territories in 1979) NFL never did implement the JDA, but established instead, a juvenile court through provincial legislation.

18. Opposition to the JDA The JDA faced opposition. Those opposing the act did so on either the grounds that it was not punitive enough or out of concern about potential abuses to the rights of children and parents. Victorian reformers ignored the opposition.

19. Most were not overly concerned with protecting the rights of children because they were convinced they were acting in the best interests of the child and were protecting children. They, therefore, believed that the decisions and actions of anyone working in the justice system would also be focused on the best interests of the child.

20. The system itself was also considered to be focused on meeting the needs of children and on ‘helping’ rather than punishing with the objective to treat and rehabilitate.

21. Modifying the Juvenile Justice System Serious challenges to the JDA began to emerge in the 1960s as a result of a growing international and national rights discourse. A major source of concern directed at the JDA was in regard to status offences.

22. Status offences – behaviors only considered to be illegal because of the age status of the individual. Critics argued that lumping all child and youth offences together undermined the seriousness of some offences and thereby weakened the deterrent effect of punishment on criminal behaviors.

23. The opposite effect was considered equally problematic by other critics who argued that young people who were not breaking criminal laws were being punished in the same manner as those who did. They were also concerned that status offenders were being negatively affected by close associations with chronic offenders in institutions.

24. Another concern was the lack of set terms of sentences. Incarceration lasted as long as it took for a young person to be ‘reformed’ or rehabilitated. While this served the welfare interests it did not satisfy those who were concerned with matters of due process.

25. Related issues were inconsistencies in the application of the law. Sentence lengths varied according to individual characteristics and circumstances rather than the nature of their behavior. Maximum ages for delinquency varied across the country.

26. And treatment provisions were not consistent from one jurisdiction to another. In addition, concerns were raised about the role of social workers in the system and the amount of discretionary power they were able to exercise. Since social workers were not part of the juvenile justice system, they were not accountable to the courts for their decisions.

27. On the other side, there was the ever-present argument that the Juvenile Delinquents Act failed to provide public protection from the criminal behavior of children and youth. Reform attempts of the act began in 1965 and by 1977 a new Young Offenders Act had been drafted. In April of 1984 the Juvenile Delinquents Act was formally replaced by the Young Offenders Act.

28. Principles of Juvenile Justice under the YOA The YOA created a very different juvenile justice system from the JDA. The JDA referred to delinquents as ‘misdirected and misguided’ children in need of ‘aid, encouragement, help, and assistance’ the YOA referred to young people as persons in a ‘state of dependency’ how have ‘special needs and require guidance and assistance, as well as supervision, discipline, and control’.

29. The YOA included new principles to the juvenile justice system that provided emphasis on youth responsibility, 1.protection of society, special needs, alternative measures, and legal rights and freedoms

30. Accountability A principle of juvenile justice was created that young people who commit criminal offences would have to assume responsibility for their behavior. However, the YOA recognized that young people have limited accountability compared to adults.

31. Protection of Society The protection of society was included in the original act and was revisited in the 1995 amendment. This amendment underscored its importance as a guiding principle in juvenile justice by stating that it is a primary objective of the criminal law.

32. Special Needs Section 3(1)(c)(C.1) outlined more specifically the rationale for a youth justice system. Because of their immaturity and dependency relative to adults, young people are said to have ‘special needs’. The term ‘special needs’ is not defined in legislation and, based on case law, seems to be interpreted as the psychological and social needs of the child.

33. These needs include a safe and secure home environment and parents or guardians who are willing and able to provide for the child’s psychological and physiological needs.

34. Alternative Measures Section 3(1)(d) expressed the principle of diversion: that where the protection of society is not compromised, measures other than formal court processing, with its potentially negative effects, should be considered. In most provinces only first time offenders and young persons guilty of minor offences were to be processed through alternative measures.

35. Rights of Young Persons It is in s.3(1)(e) and (g) that one finds the major difference between the YOA and the JDA. In addition to rights and freedoms guaranteed through the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, the YOA established that young people would have special guarantees.

36. These special guarantees included the right to legal representation and the right to be informed as to their rights and freedoms under the act. Some rules pertained to statements made to ‘persons of authority’ and to the admissibility of statements made to these people. Interesting to note that parents were not considered ‘persons of authority’ and so statements made to them in confidence by their children were admissible in court.

37. Minimal Interference with Freedom Section 3(1)(f) applied to every aspect of youth justice and affected every young offender except where there were concerns regarding the protection of society. This principle encouraged the use of alternative measures, but also encouraged police to divert youth from the system altogether.

38. This principle also influenced bail hearings and sentencing. It encouraged the court to apply sentences more lenient than custody and discouraged the court from effecting transfers to the adult system.

39. Parental Responsibility Section 3(1)(h) marked another significant difference from the JDA. The YOA did not consider parental responsibility but instead addressed parental involvement with youth and the justice proceedings.

40. Parents or guardians were required to be notified of their child’s arrest or of youth court proceedings and they could be ordered to attend court. Other sections of the YOA allowed parents to make statements regarding dispositions and transfers.

41. Modifications to the YOA Most resistance to the YOA emerged after its enactment. The debate over the YOA was reminiscent of the debates provoked by the creation of the juvenile justice system 100 years earlier. Groups expressed concerns over the rights of children and the differences in the implementation of principles found within the act.

42. Other groups argued that the act was not punitive enough. This resulted in three major sets of revisions to the act, all of which moved the justice system away from the welfare model and towards a crime control model. Bill C-37 was an amendment of note and came into force on December 1, 1995.

43. The major changes to the YOA under this amendment included: Sentences for ten years for youth convicted of first-degree murder or seven years for second- degree murder. Automatic transfer to adult court for 16 and 17 year olds charged with serious “personal injury” offences unless able to satisfy a judge that the two objectives – public protection and rehabilitation – could be achieved better through the youth court.

44. And, an emphasis that rehabilitation for youth charged with minor offences is best achieved in the community. Still, law-and-order groups were not satisfied. After seven years, three drafts, and more than 160 amendments, the Youth Criminal Justice Act came into force in April 2003.