C.19: An Act to Amend the Young Offenders Act and the Criminal Code - "Getting tougher?"(Canada)

Article excerpt

Background

The Young Offenders Act (Y.O.A.) came into force in 1984. Few, if any, statutes have received as much attention. The Y.O.A. is often at the centre of town hall debate, media scrutiny, and scholarly analysis. Critics and champions abound.

Complaints that the Act affords young persons too much leniency compete equally with complaints against the criminalization of childhood. Calls to raise the maximum sentences available to young people are as strong as the protests against the reality that, in most circumstances, young people serve more time in custody than adults for similar offences. Advocates argue with enthusiasm that the drivers, not the vehicle, are to blame for the deficiencies in the system. Others support the Act, yet advocate its extension into areas where the government social net is fraying.

Amidst the controversy surrounding the Y.O.A., criminologists and other scholars strive to define the Act. Attempts to pigeonhole the philosophy or intent of the Act have filled volumes to date. There seems to be a determination within the academic community to discover a "true philosophy" beyond the words of the statute itself; to position it on the punitive-rehabilitative scale, or find its place amongst the justice, crime control, or welfare models. Whether any analysis can express the intent of the Y.O.A. any better than as enunciated in section 3, the Declaration of Principle,(1) it is likely that these efforts will continue.

It is clear that the Act incorporates aspects of both offender and offence orientations, and elements of the justice, crime control, and welfare models. The Declaration of Principle requires a balancing, or perhaps more accurately, a merging of these ideas. S.24(1) is one of the many reminders within the Act that all models need be given attention in its administration, as it directs courts to consider the protection of society, the seriousness of the offence, and the needs of the young person in making custodial dispositions.

The history of juvenile justice in Canada assists in identifying the direction we have chosen with respect to the various models. Since before Confederation, young offenders have received special treatment within the criminal justice system. The Juvenile Delinquents Act, (J.D.A.) was introduced in 1908, and remained relatively unchanged for almost 75 years. The J.D.A. took a welfare approach to youth crime, adopting a parens patriae philosophy. Section 38 of the Act directed that, "as far as practicable every juvenile delinquent shall be treated not as a criminal, but as a misdirected child, and one needing aid, encouragement, help, and assistance." The unique features of indeterminate sentencing and status offences indicated that justice and due process objectives had little relevance, while welfare concerns were primary. In 1982, the introduction of the Young Offenders Act reflected a shift in ideology and approaches to dealing with youth crime. The welfare approach maintains a strong presence in the Y.O.A., but the justice and crime control approaches have been given greater recognition and application.

C.19: The changes

The newly enacted C.19, An Act to Amend the Young Offenders Act and Criminal Code, S.C. 1995, continues in the direction set by the Young Offenders Act, away from the welfare models of justice, toward a crime control model. The amendments as a whole send a clear message to youth courts that the justice system is not a safety net for failing educational, mental health, and child protection systems. The changes to the Act remind those involved in the youth justice system that the Young Offenders Act provides a means for dealing with youthful offenders, not a means for fixing "broken" children.

Although the replacement of the Juvenile Delinquents Act with the Young Offenders Act in 1982 was heralded as a dramatic change in principle, with the abolition of status offences and indeterminate sentences, some of the old approaches to dealing with youth crime persist. …