Background of Youth Criminal Justice In Canada
Canadian Children's Rights Council editor's note:
The use of the such descriptions or analysis using such terms as "Paternalism" below are, in our view, typical of the radical feminist prospective and political position within Canada's Department of Justice. We don't view it as factual or an appropriate use of the term. It is our opinion that Government of Canada employees are indoctrinated with an obscure sense of feminist political correctness which has even been challenged by members of the UN Committee on the Rights of the Child.
The approach taken of restorative justice is meant to not punish the criminal, but rather to change criminal behaviour and actions. Sending youth to jail has resulted in forcing them into criminal gangs in order to survive in jail and, in effect, is sending them to "schools of criminality" to be educated in more criminal behaviour and to network with even worse youth criminals.
The information below is from the Department of Justice Canada
Rights for Young Accused and Limits of the Criminal Law Power In Responding to Delinquency in Canada
- Issues for a new approach
- Evolution from Paternalism in Youth Justice
- Applying the Criminal Law to Youth: Overreaching
- Additional Rights for Young Accused
There are many different ways of responding to the complex problems of delinquency. State interventions associated with delinquency may have their basis in child welfare, child protection, mental health, physical health, education, criminal law, or family law. Addressing the myriad of problems faced by a delinquent can be best achieved through a multi-disciplinary approach that responds to the needs of the individual youth. While the criminal law power is often invoked ostensibly to address the needs of youth, its primary purpose is quite different. If rights of young people are to be fully respected, there should be limits on the use of the criminal law to address the needs of youth.
Most countries, including Canada, hold young people of a certain age responsible and accountable for criminal behaviour. The criminal law power is the state's authority for this type of intervention. It is, however, one of the state's most coercive powers. It allows for behaviour to be defined as criminal and for the establishment of procedures and mechanisms that can deprive an individual of liberties in response to wrongdoing.
Issues for a new
Canada is embarking on a new approach to combating youth crime and a new legislative framework for youth justice. Bill C-7, the proposed Youth Criminal Justice Act, received Royal Assent in February 2002, and will come into force in April 2003. In the development of the new legislation, the federal government, which is mandated with the responsibility for the criminal law power, looked long and hard at how this power should be applied to youth. In taking a critical look at the existing youth justice system under the YOA with a view to reforms, it faced two perplexing questions:
- Why does Canada, a normally fair and tolerant society, incarcerate its youth at higher rates than any other Western country?
- Why does Canada not ensure that fundamental principles limiting and safeguarding the use of the criminal law, like proportionality, restraint and rights, are equally or even more vigilantly applied in relation to youth?
Both inappropriate paternalistic and punitive orientations seem to contribute to high youth incarceration rates and the overreaching of the criminal law into the lives of Canadian youth. Despite evidence suggesting that deterrence does not work and that community-based sentences are as or more effective than custodial ones, some mistakenly believe that tougher measures are needed to correct youth crime. On the other hand, others believe it is necessary to incarcerate youth for longer periods than warranted by the seriousness of the offence in order to treat a youth's problems. Even though, the child-welfare rooted Juvenile Delinquents Act of 1908 was replaced in 1984 with the more rights-oriented Young Offenders Act, some sectors still see the criminal law as a tool to paternalistic ends. Using coercive authorities, like the criminal law power, under the guise of "doing what is best to help the youth" can result in unquestioned breaches of protections that would normally shield an accused.
from Paternalism in Youth Justice
Canada's first youth justice legislation, the Juvenile Delinquent's Act of 1908, was founded on a "child welfare" model and the parens patriae authority. Committing offences was seen as evidence of the condition of delinquency that could be treated by the state through a deprivation of liberties and programs until it was cured. Interventions were of indeterminant length and the state stood in the position of the parent. This model was the subject of challenge by scholars, government studies and a series of judicial decisions. The notion that providing care and custody to needy children trumped rights and protections against the use of the criminal law power began to erode in many countries starting in the 1960s. Francis Allen writing in 1964 stated:
Whatever one's motivations, however, elevated one's objectives, if the measures taken result in the compulsory loss of a child's liberty, the involuntary separation of a child from his family, or even the supervision of the child's activities by a probation worker, the impact on the affected individuals is essentially a punitive one.
A 1965 Canadian Department of Justice Advisory Committee Report criticized the Juvenile Delinquents Act. Specifically, it: found the concept of "delinquency" to be too sweeping; opposed "non-offence" categories for delinquency, such as incorrigibility; opposed the broad discretion of youth court judges; and called for the recognition and protection of children's legal rights.
Rights for young people facing the criminal law power were clearly recognized by the Supreme Court of the United States in the 1966 decision in Re Gault. Canada's 1984 Young Offenders Act provided legislative protections for the rights of young accused. In his analysis of the legislation, R.G. Fox states,
"the fundamental break with the past is the clear direction that rehabilitative goals must give way to due process values and that chancery modes and parens patriae can no longer be involved to justify unfettered discretionary power over juveniles. Young persons caught up in the criminal law system are now entitled to a defined set of procedural rights." 
International human rights instruments raise a particular concern about the risks of longer periods of incarceration for treatment purposes. Rule 19.1 of the Beijing Rules, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, provides:
The placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum necessary period. Commentary: The many adverse influences on an individual that seem unavoidable within any institutional setting evidently cannot be outbalanced by treatment efforts. This is especially the case for juveniles who are vulnerable to negative influences. Moreover, the negative effects, not only of loss of liberty but also of separation from the usual social environment, are certainly more acute for juveniles than for adults because of their early stage of development.
The direction of some of the criticisms from some practitioners and child-serving organizations of the new Youth Criminal Justice Act, together with the length and frequency of sentences, suggests that the legislative direction may not have been fully embraced in practice. For the eight most common offences for youth, it has been shown that youth frequently are sentenced to longer periods of custody when compared with adults. Provisions in the new Bill calling for youth sentences that are proportionate to the seriousness of the offences are strongly opposed by some child-serving organizations because it would lead to shorter sentences. They argue that the length of the criminal intervention should be based on how long it would take to treat the youth's problems and should not be limited by the seriousness of the offence.
In Canada, child welfare, child protection and health, which are the domain of provincial legislation, are the appropriate vehicles if the needs of the youth are the only issue and the reason for state intervention. Issues seem to arise where a youth with needs has also broken the law. It would appear that a practice may have evolved whereby the criminal law authority is being used as a means to obtain control over a youth for longer periods for "treatment" purposes than may have been warranted by the seriousness of the offence. Accordingly, young people may be receiving more serious "penalties" or deprivations of liberties because they are needy than other young people who may have committed the same offence.
The new Youth Criminal Justice Act seeks to remedy this abusive use of the criminal law power by ensuring that the outer limit of the state's intervention based on that authority is a fair and proportionate response to the seriousness of the offence committed. Within the limits of the proportionality framework, the measures applied to a young person should take account of particular needs in order to promote rehabilitation and reintegration. In fact, the new legislation includes a new therapeutically-oriented sentence, the intensive rehabilitative custody and supervision sentence, which is intended to treat the most violent offenders within the limits of a proportional sentence. This limit on the use of the criminal law power does not preclude child welfare or health officials from addressing the needs of the young person with their legislative authorities that are intended for those purposes. It merely clarifies the primary purpose of the criminal law authority so that appropriate safeguards are in place.
Applying the Criminal Law to Youth: Overreaching
When Canada began its renewal of the youth justice system, about 125,000 youth were being charged with criminal offences each year . If these charges were being spread evenly over the population of young people, one in twenty youth would be charged with an offence per year. This much higher than the charge rates of other countries and would suggest that the criminal law was being applied too readily to youth. Further, about 25,000 sentences to custody were meted out per year  resulting in an incarceration rate that was likely the highest among Western countries and incommensurate with the seriousness of Canada's youth crime problem. Canada was imposing custody on youth, its most serious deprivation of liberties, at four times the rate it was being applied to adults. Restraint in the use of the criminal law against youth was not reflected in the practice of the youth justice system.
Certainly the Law Reform Commission of Canada's 1976 Report, Our Criminal Law, argued for a restrained use of the criminal law power. It states:
The fact is, criminal law is a blunt and costly instrument so criminal law must be an instrument of last resort. It must be used as little as possible. Society's ultimate weapon must stay sheathed as long as possible. The watchword is restraint - restraint applying to the scope of criminal law, to the meaning of criminal guilt, to the use of the criminal trial and to the criminal sentence. 
In August of 1982, the government of Canada issued a statement on purpose and principles of the criminal law in Canada. It includes:
The purpose of the criminal law is to contribute to the maintenance of a just, peaceful and safe society through the establishment of a system of prohibitions, sanctions and procedures to deal fairly and appropriately with culpable conduct that causes or threatens serious harm to individuals or society.
The purpose of the criminal law should be achieved through means consonant with the rights set forth in the Canadian Charter of Rights and Freedoms, and in accordance with the following principles:
(a) the criminal law should be employed to deal only with that conduct for which other means of social control are inadequate or inappropriate and in a manner which interferes with individual rights and freedoms only to the extent necessary for the attainment of its purpose; 
Are these not the same principles that should be applied when the criminal law is invoked against young people? International human rights instruments clearly call for a restrained use of the criminal law power against youth. The United Nations Rules for the Protection of Juveniles Deprived of their Liberty provides that, "(d)eprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases".
In comparison to other countries, Canada overuses the youth justice system. A recent poll of youth court judges confirmed that, in the view of many, cases were ending up in youth court that did not need to be there. More restraint in the use of the criminal law against youth needed to be built into the system so that serious offences were treated seriously but faster, often more effective and less formal mechanisms would be applied to the majority of less serious misconduct by youth.
Canada's new Youth Criminal Justice Act is a values-based framework that encourages using the criminal law power with restraint and linking the seriousness of the response to the seriousness of the offence. It requires police officers to consider whether a range of extrajudicial measures might be adequate to hold a youth accountable before proceeding with judicial options. Presumptions are included in the new legislation that non-court measures are appropriate for all first-time, non-violent offenders. Enhanced options and discretion for both the police and Crown at the front-end of the youth justice system, together with statutory presumptions about when the formal court process is to be used, is expected to lead to fewer young people being put through the youth criminal justice system.
For those youth who face the formal youth justice system, the new legislation includes sentencing principles that provide a clear, consistent and coherent code for youth sentences. They are intended to reduce disparity and reflect a fundamentally fairer approach to sentencing. The new legislation states that the purpose of sentencing is to hold a young person accountable for the offence committed by imposing meaningful consequences and promoting the rehabilitation and reintegration of the young person. Given the currently disproportionately high sentences imposed on youth, the new law provides that the punishment imposed on a young person must not be greater than what would be appropriate for an adult in similar circumstances. Also, given the significant disparity between what similarly situated youth receive for similar offences, principles of proportionality among youth sentences are included in the new legislation.
Proportionality sets the framework or limits within which the needs of the young person committing the offence are to be addressed through the criminal justice system in order to achieve rehabilitation and reintegration.
Rights for Young Accused
Not only does the new YCJA attempt to clarify the scope of the criminal law as it applies to youth and limit its use, it recognizes the needs for enhanced rights for young people facing the state's criminal law power. The preamble includes an express reference to the United Nations Convention on the Rights of the Child as well as to the application of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. Further, the statement of principles in the new legislation recognizes that in youth justice proceedings, young persons have rights and freedoms in their own right and special guarantees of those rights and freedoms. This includes provisions relating to independent, state-sponsored counsel, communicating rights in language that the young person can understand, special protections around the admissibility of confessions and privacy rights.
Two particularly noteworthy advances in protecting the rights of young people in the new legislation include, greater presumptions about being held separate and apart from adults and the abolition of the waiver of trials to adult courts.
Similar to other countries, Canada's current youth justice legislation contains a "safety valve" so that serious youth cases can be transferred into the adult system and subjected to adult trial processes and adult sentences. Concerns were expressed about whether the possibility of waiver to adult courts adequately protected the rights of young people. Currently, a youth could be transferred to an adult court before conviction and lose age-appropriate due process protections, including privacy protections, on the basis of an unproven charge. Also, the transfer proceedings have lasted as long as two years, which impedes access to a speedy trial. Once transferred into the adult stream, youth as young as fourteen could be required to serve their sentences in adult provincial or federal correctional facilities at the discretion of the judge.
While Canada has a reservation in relation to the provision of the United Nations Convention on the Rights of the Child requiring that the youth be held separate and apart from adults, this is intended to be exercised only on an exceptional basis. The new law provides presumptions that young people will be held separate and apart from adults unless a court rules otherwise based on the best interests of the youth. Given the vast geography of our country, it still might be more beneficial for a youth to be kept in his or her own remote locale and detained with possibly an older sibling than transported thousands of miles to a facility where they could be detained with other youth. The new presumptions, however, provide much stronger protections for youth from the risks of being exposed to adult offenders.
The new Youth Criminal Justice Act does away with the possibility of transferring a youth into the adult judicial system. The fact that a young person may be charged with a serious offence does not mean that they suddenly have enhanced capacity so that they no longer need age-appropriate due process protections, such as special access to independent counsel and privacy protections. The new legislation provides that all proceedings against a youth take place in the youth court where age-appropriate due process protections apply. The hearing on the appropriateness of an adult sentence will only occur after a finding of guilt and all the evidence about the offence has been heard. The youth justice procedure for the most serious offences will be speedier, retain age-appropriate due process protections and be more respectful of the presumption of innocence.
Canada's Renewal of Youth Justice and its proposed Youth Criminal Justice Act place limits on the use of criminal law power in dealing with delinquency. While it has a clear role in holding young people to account for criminal behaviour, that role has been overplayed resulting in far too many Canadian youth being brought into the youth justice system and into custody. The rights of young people facing the state's criminal law power have been enhanced under the new legislative framework. Through its new legislative direction for youth justice, Canada expects to see a more restrained and fairer use of the criminal law power against youth that fully respects and enhances the rights of young people facing the criminal law power of the state.
 Speech delivered by the Parliamentary Secretary to the Minister of Justice at the 2001 World Congress on Family Law and the Rights of Children and Youth, 19-22 September 2001, Bath, UK
 Fox, R.G. "The Treatment of Juveniles in Canadian Law". Perspectives in Criminal Law. ed. Doob, Anthony N. and Edward L. Greenspan. Auroara: Canada Law Book Inc, 1985. p 160.
 Canadian Department of Justice. Committee on Juvenile Delinquency. Juvenile Delinquency in Canada. Ottawa: Queen's Printer, 1965. 377 p.
Fox, R.G. pg. 166
 United Nations Standard Minimum Rules for the Administration of Juvenile Justice. G.A. res. 40/33, 1985.
Canadian Centre for Justice Statistics. Sentencing of Young Offenders in Canada, 1998/99. Ottawa: Minister of Industry, 2000. 13 p.
 Canadian Centre for Justice Statistics. Canadian Crime Statistics, 1996. Ottawa: Minister of Industry, 1997. 22 p
 Canadian Centre for Justice Statistics. Youth Court Survey, 1995-96. Ottawa: Minster of Industry, 1997. 16 p.
 Law Reform Commission of Canada. Our Criminal Law. Ottawa: Minister of Supply and Services, 1979. 42 p.
 Department of Justice Canada. The Criminal Law in Canadian Society. Ottawa: Government of Canada, 1982. 123 p.