1. 1 CRJS 4476 Lecture #3 1. 1. Course Administration in-class presentations in-class presentations reserve readings reserve readings job alert job alert

2. 2 1. The Young Offenders Act background: background: - up to mid-19th century, even very young children treated as adults by the courts: children treated as adults by the courts: - between 1801 and 1836, 103 children sentenced to death in London, England, sentenced to death in London, England, mostly for the crime of theft mostly for the crime of theft - children also executed in Canada in the early period of Upper and Lower Canada early period of Upper and Lower Canada - little separation between the treatment of child and adult offenders, as childhood itself quite adult offenders, as childhood itself quite short (note recent UN discussion about this short (note recent UN discussion about this issue with Moslem countries) issue with Moslem countries)

3. 3 background: background: - by mid-19th century, with the influence of the ‘child-saver’ movement in the of the ‘child-saver’ movement in the United States and England, an easing of United States and England, an easing of attitude toward youth attitude toward youth - under British common law, children under 7 believed to be incapable of mens rea 7 believed to be incapable of mens rea - between 7 and 14 the principle of doli incapax applied, requiring Crown to doli incapax applied, requiring Crown to establish capacity establish capacity - 14 and over tried as adults before the court court

4. 4 - children incarcerated in same local facilities as adults, also in Kingston facilities as adults, also in Kingston Penitentiary from its opening in 1835 until Penitentiary from its opening in 1835 until 1888 1888 - 1848 Brown Commission documented excessive use of corporal punishment in excessive use of corporal punishment in relation to young offenders, maltreatment, relation to young offenders, maltreatment, neglect, led to recommendation that ‘houses neglect, led to recommendation that ‘houses of refuge, for the reform of youth’ be of refuge, for the reform of youth’ be constructed constructed - a perception of the need to remove some youth to an institutional environment, a youth to an institutional environment, a ‘superior environment’ to their own homes ‘superior environment’ to their own homes

5. 5 background (continued) background (continued) - 1857 - An Act for the More Speedy Trial and Punishment of Juvenile Offenders Punishment of Juvenile Offenders - 1857 - An Act for Establishing Prisons for Young Offenders Young Offenders - 1859 - two youth facilities opened, one in Lower Canada, one at Penetanguishene for Lower Canada, one at Penetanguishene for terms typically running 2 - 5 years terms typically running 2 - 5 years - 1875 - age of young offenders extended from 14 to 16 14 to 16 - 1880 - implementation of ‘status offences’

6. 6 background (continued) background (continued) - 1880’s - creation of ‘industrial schools’ and the growth of the ‘family model’ of youth the growth of the ‘family model’ of youth corrections corrections - use of indeterminate sentences - 1888 - An Act for the Protection and Reformation of Neglected Children (Child Protection of Neglected Children (Child Protection Act) passed in Ontario Act) passed in Ontario - also provided for the creation of separate - also provided for the creation of separate magistrates courts to deal with young magistrates courts to deal with young offenders offenders - 1890 - formation of Toronto Children’s Aid Society by J.J. Kelso Society by J.J. Kelso

7. 7 background (continued) background (continued) - 1894 - separate trial for young offenders made mandatory mandatory - growth of child welfare bureaucracy as an alternative to the criminal justice system alternative to the criminal justice system - 1904 - Ontario reformatory for Boys at Penatanguishene closed Penatanguishene closed

8. 8 background (continued) background (continued) - 1908 - Juvenile Delinquents Act passed. authored largely by W.L. Scott of Ottawa CAS largely by W.L. Scott of Ottawa CAS - fundamental principles of JDA: 1. children are children even when they break the law break the law 2. juvenile delinquents can be reformed by probation officers probation officers 3. adults should be held criminally liable for bringing about delinquency in children for bringing about delinquency in children

9. 9 background (continued) background (continued) - JDA created the federal offence of being a - JDA created the federal offence of being a ‘juvenile delinquent” who shall be: ‘juvenile delinquent” who shall be: any child who violates any provision of the Criminal Code, any (federal) or provincial statute, or of any by-law or ordinance of any municipality, for which violation punishment by a fine or imprisonment may be awarded; or, who is liable by reasons of any other act to be committed to an industrial school or juvenile reformatory under the provisions of any (federal) or provincial statute

10. 10 background (continued) background (continued) - in short, you could qualify as a juvenile delinquent without committing a criminal delinquent without committing a criminal offence - not charged with specific crimes, rather offence - not charged with specific crimes, rather accused of ‘delinquency’ accused of ‘delinquency’ - did not plead guilty/not guilty - instead, denied or agreed to accusation or agreed to accusation - the concept of parens patriae - JDA provided for fines, placement in foster home, commitment to care of CAS, or confinement, or, commitment to care of CAS, or confinement, or, preferably, probation preferably, probation

11. 11 background (continued) background (continued) - by 1960’s, clear that JDA no longer served purpose of addressing issues of juvenile crime purpose of addressing issues of juvenile crime - notably: 1. fines too small (max $25) 2. no uniform upper age limit 3. proceedings too informal, too much discretion, inconsistency discretion, inconsistency 4. language of JDA stigmatizing 5. denial of due process rights to accused 6. no discernible national strategy 7. failure to provide clear definition of “delinquency” “delinquency”

12. 12 background (continued) background (continued) - 1984 - Young Offenders Act - shift from ‘social welfare approach’ to ‘offence- oriented approach’ oriented approach’

13. 13 2. The Trial Process about 100 - 120,000 cases a year involving YO’s about 100 - 120,000 cases a year involving YO’s processed through the Youth Court system processed through the Youth Court system an increasing trend in court cases (for the most an increasing trend in court cases (for the most part) since 1986, though much of the growth in part) since 1986, though much of the growth in the area of ‘administrative offences’ - failures the area of ‘administrative offences’ - failures to comply with disposition, failures to appear, to comply with disposition, failures to appear, escape from custody, unlawfully at large, escape from custody, unlawfully at large, breach of probation, etc. breach of probation, etc.

14. 14 almost half of youth court cases are for property almost half of youth court cases are for property crimes, in particular theft under, mischief) crimes, in particular theft under, mischief) about 80% of youth court cases are males 16 - 17; about 80% of youth court cases are males 16 - 17; females appearing generally slightly younger than females appearing generally slightly younger than males males repeat offenders make a sizeable proportion of the repeat offenders make a sizeable proportion of the court workload (41% are repeats; about a quarter court workload (41% are repeats; about a quarter of these with three or more priors) of these with three or more priors) older youth general up for more serious offences older youth general up for more serious offences

15. 15 pre-trial detention pre-trial detention - both YOA and CC provisions regarding bail apply to YO’s apply to YO’s - must be held separately from adults, parents must be notified, must be brought for must be notified, must be brought for appearance within 24 hours, onus on prosecution appearance within 24 hours, onus on prosecution to demonstrate need to detain to demonstrate need to detain - youth charged with another offence while out on bail have reverse onus provisions apply bail have reverse onus provisions apply - both primary and secondary grounds apply with respect to detention prior to trial with respect to detention prior to trial

16. 16 - detention facilities, group homes, sometimes open/closed facilities serve as pre-trial facilities open/closed facilities serve as pre-trial facilities - big increase since YOA in number held pre-trial, up 33% since 1986 up 33% since 1986 - generally same conditions, practices used with adults apply to bail: sureties, undertaking to adults apply to bail: sureties, undertaking to appear recognizance consent by prosecutor, appear recognizance consent by prosecutor, deposit of cash or some other valuable, with deposit of cash or some other valuable, with a wide variety of imposed conditions a wide variety of imposed conditions

17. 17 not the issue of ‘net widening’ here with not the issue of ‘net widening’ here with pre-trial detention among YO’s - largely non- pre-trial detention among YO’s - largely non- violent offences, high probability of failures to violent offences, high probability of failures to comply, returns to custody, discriminatory against comply, returns to custody, discriminatory against homeless, poor kids homeless, poor kids note: issue with YO’s and prostitution-related note: issue with YO’s and prostitution-related charges - is pretrial detention the way to handle charges - is pretrial detention the way to handle this? the case of the revolving door! this? the case of the revolving door!

18. 18 transfer to adult court: transfer to adult court: - note that, in fact. YOA allows transfer to adult court even to the age of 14 for very adult court even to the age of 14 for very serious indictable offences serious indictable offences - applications made by Crown or by offender - again: note considerations re: transfer decisions, especially access to treatment & rehabilitation especially access to treatment & rehabilitation - note too: reverse onus provisions for 16, 17 year olds regarding serious indictables and year olds regarding serious indictables and transfer to adult court transfer to adult court - Beaulieu (1994) - does the transfer violate the right to be presumed innocent until proven right to be presumed innocent until proven guilty? guilty?

19. 19 Court Proceedings Court Proceedings - most YO’s plead guilty (as do adults) - no preliminary hearing and, except in murder cases, no jury trial cases, no jury trial - right to legal representation (private, legal aid, duty counsel, court appointed/funded) duty counsel, court appointed/funded) - note differential outcomes depending on legal representation - what, really, is the role of the representation - what, really, is the role of the lawyer, in particular the duty counsel? lawyer, in particular the duty counsel? - lost in the process? to what extent is the youth court ‘fair’ to youth? court ‘fair’ to youth?

20. 20 Court sentencing Court sentencing - key use of PDR reports and submissions by Crown, defence counsel, also use of victim- Crown, defence counsel, also use of victim- impact statements impact statements - types of dispositions: absolute discharge fineCSOprobation treatment order conditional discharge custody

21. 21 was the YOA too lenient? was the YOA too lenient? - actually, an increase (41%) in custody dispositions under the YOA dispositions under the YOA - more cases processed through the courts under the YOA the YOA - actually, in some cases, longer sentences for YO’s compared to adults for some crimes YO’s compared to adults for some crimes - fewer due process rights

22. 22 Principal Charge in Majority of Cases in Youth Court (Canada, 1998-99) Total Number of Cases Percent Theft under $5,00015,80115% Possession of stolen property5,2085% Failure to appear11,59711% Failure to comply with a disposition13,07212% Subtotal45,67843% Other thefts4,9755% Mischief/damage5,3365% Break and enter12,25111% Minor assault10,54510% Total: Sum of eight offences78,78574% All cases106,665100%

23. 23 YCJA introduced with the explicit purpose of YCJA introduced with the explicit purpose of addressing identified faults with the YOA, in addressing identified faults with the YOA, in particular with the goal of balancing accountability particular with the goal of balancing accountability with rehabilitation (the ‘justice’ model) with rehabilitation (the ‘justice’ model) - actually, an increase (41%) in custody dispositions under the YOA dispositions under the YOA - more cases processed through the courts under the YOA the YOA - actually, in some cases, longer sentences for YO’s compared to adults for some crimes YO’s compared to adults for some crimes - fewer due process rights

24. 24 The system lacked a clear and coherent youth justice philosophy. Canada has the highest youth incarceration rate in the Western world, including the United States. The courts are over-used for minor cases that can be better dealt with outside the courts. Sentencing decisions by the courts resulted in disparities and unfairness in youth sentencing.

25. 25 The YOA did not ensure effective reintegration of a young person after being released from custody. The process for transfer to the adult system resulted in unfairness, complexity and delay. The system did not make a clear distinction between serious violent offences and less serious offences. The system did not give sufficient recognition to the concerns and interests of victims.

26. 26 increased federal funding to the provinces and territories; crime prevention efforts; effective programs; innovative approaches; research; public education; partnerships with other sectors, such as education, child welfare and mental health; improvements to aboriginal communities; and appropriate implementation by provinces and territories.

27. 27 Society has a responsibility to address the developmental challenges and needs of young persons. Communities and families should work in partnership with others to prevent youth crime by addressing its underlying causes, responding to the needs of young persons and providing guidance and support. Accurate information about youth crime, the youth justice system and effective measures should be publicly available. Young persons have rights and freedoms, including those set out in the United Nations Convention on the Rights of the Child.

28. 28 The youth justice system should take account of the interests of victims and ensure accountability through meaningful consequences and rehabilitation and reintegration. The youth justice system should reserve its most serious interventions for the most serious crimes and reduce the over- reliance on incarceration.

29. 29 Extrajudicial Measures The police officer has reasonable grounds to believe a young person has committed an offence. Step 1 The police officer must first consider whether to take one of the following steps: Take no further action. Warn the young person. Caution the young person. Refer the young person to a community program or agency of assistance. If option applied, end of the matter.

30. 30 Step 2 If none of the previous options was adequate to hold young person accountable, the police officer should next consider using an Extrajudicial Sanction. If sanction applied, end of the matter.

31. 31 Step 3 If Extrajudicial Measures are not adequate to deal with the incident the police officer has two choices: Choice 1 The police officer may charge the young person. Young person is charged. Note: Extrajudicial measures may also be considered after charges have been laid Charges may then be withdrawn, stayed, or proceeded with, depending on the circumstances.

32. 32 Choice 2 The police officer may refer the matter to a Crown Prosecutor. The Crown Prosecutor has four options: The Crown Prosecutor may: Option 1 Caution the young person. Option 2 Use an extrajudicial sanction or, Option 3 Follow a pre-charge screening program in place in the jurisdiction.. If the Crown Prosecutor selects one of these 3 options this is the end of the matter.

33. 33 Option 4 If an extrajudicial measures should not adequate to deal with the matter, the Crown Prosecutor may lay a charge.

34. 34 Step 4 Young person is charged. Note: Extrajudicial Measures may also be considered after charges have been laid. Charges may then be withdrawn, stayed, or proceeded with depending on the circumstances. End of Extrajudicial Measures