The First Months under the Youth Criminal Justice Act: A Survey and Analysis of Case Law

Article excerpt

Introduction

Although a common public and political criticism of Canada's youth justice system has been that juvenile offenders are treated too leniently, the federal government's enactment of the Youth Criminal Justice Act (YCJA) was not primarily motivated by a desire to respond to "get tough" critics of the old Young Offenders Act (YOA). A House of Commons report on youth crime and the youth justice system, released in 1997, one year prior to the introduction of the YCJA into Parliament, found that youths are given custodial sentences at a rate four times higher than that of adults, and that Canada's youth incarceration rate was twice that of the United States and ten to fifteen times that of many European countries, Australia, and New Zealand (Canada, House of Commons 1997: 18).

Federal government publications and the Preamble to the YCJA make clear that this legislation was enacted to achieve two main objectives. The primary objective is in regard to the treatment of the vast majority of young offenders who commit less serious offences, for whom the YCJA is intended to reduce Canada's reliance on the use of youth courts and youth custody, and to increase the use of diversionary options and of community-based sentences. The second objective of the act, as drafted, was to "toughen the response" for youths found guilty of the most grave violent offences. For these youths, the new act was intended to facilitate the process for imposing adult sentences as well as allowing for the publicizing of their identities.

The incarceration rate for young offenders was slowly but steadily dropping since the 1995 amendments to the Young Offenders Act (Johnson 2003: 10), which also emphasized the importance of using restraint in imposing custody on youths, and this drop occurred even during years in which the youth crime rate remained relatively stable (Wallace 2003: 13-14). However, it is apparent that the YCJA has directly resulted in a further, substantial reduction in the use of incarceration for young offenders. Media reports indicate that populations in youth custody facilities in Alberta, Ontario, and Newfoundland have declined by 20% to 50% in the act's first months in force and that these changes are the result of the new legislation (Blackwell 2003a;

Blackwell 2003b; Canadian Broadcasting Corporation 2003). It remains to be seen whether these initial reports will be reflected in long-term trends in the use of youth custody, especially if youth crime does not significantly decline. Most judges accept that the YCJA makes proportionate accountability the dominant sentencing principle, although they also recognize the new act's limitations on the use of custody and encouragement of community-based sentences, such as deferred custody and supervision. Further, the most important ruling pertaining to the YCJA rendered to date, the Quebec Court of Appeal decision in Reference Re Bill C-7, ruled unconstitutional the provisions of the act intended to facilitate the more punitive responses for those young people found guilty of the most serious offences, though that decision also indicated that youth courts should "balance" accountability concerns with a consideration of the needs of young offenders.

Diversion and extra-judicial measures

The YCJA explicitly recognizes a variety of measures designed to divert youths from the courts, such as encouraging police warnings, cautions and pre-court referrals to community programs of "extrajudicial measures" (Bala 2003b). The extent to which various pre-court diversionary measures are used instead of court-based responses is primarily a matter of discretion for police and prosecutors. There was quite extensive training for police and Crown prosecutors before the YCJA came into force, and it would appear that the use of non-court diversion has increased under the new act and that fewer less serious cases are being referred to the courts. …