In passing the Youth Criminal Justice Act (YCJA), Parliament addressed fundamental issues of youth justice policy that have been the subject of controversy for decades. Parliament's response to some of these issues was to make no change in the law. For example, despite considerable pressure to "get tough" from some political parties and provincial governments, the minimum age of criminal responsibility was not lowered to 10 and remains 12; the age at which a person is considered an adult under criminal law was not lowered to 16 and remains 18; the maximum lengths of youth sentences were not increased; and the proposal of automatic adult sentences for some offences was rejected. Parliament made significant legislative changes in addressing other fundamental matters that, in its view, had not been adequately addressed in the Young Offenders Act (YOA). It rejected the position, expressed particularly by witnesses from Quebec, that the YOA was not flawed and that any difficulties were the result of inappropriate implementation. The YCJA contains new policy directions in several areas, including the philosophical underpinnings of the youth justice system; the use of the court versus less formal responses to youth crime; conferencing; restrictions on pre-trial detention; sentencing principles; sentencing options; elimination of transfer of cases to the adult court; and custody and the reintegration of youth into society.
This article will briefly explain some of the act's key provisions and policy directions and contrast them with the approach under the YOA. (1) Early indications are that two of the major objectives of the act--reduction in the use of the youth court and reduction in custody--are being achieved but it will take more time and information to determine whether these apparent early trends are real and long-lasting. The article will also discuss some of the implementation issues that can have a significant impact on how the youth justice system operates under the act. The use of new federal funding that has been made available to the provinces and the re-allocation of existing funding are obviously important issues that can affect the availability of programs and the effective implementation of the act. However, the focus of this article with respect to implementation will be on some of the equally significant policy, practice, and interpretation issues that often receive less attention.
Youth justice philosophy
The Declaration of Principle of the YOA contained general principles that lacked clarity and coherence and failed to provide sufficient guidance to decision makers. This problem was particularly significant under the YOA because the Declaration was the primary source of principles to guide all decisions under the YOA. One result was that decision makers--police, prosecutors, judges, and provincial governments--could justify almost any decision under one or more of the principles. The absence of clear legislative direction in the general principles was an important factor, although not the only factor, that contributed to the youth justice system's problems that were of concern to Parliament. These problems included the high rate of incarceration, over-use of courts for minor cases, and sentencing disparities.
The new act's youth justice philosophy is contained in a Preamble, a Declaration of Principle, and specific principles at key decision points in the youth justice process. Main components of the philosophy can be summarized as follows:
The theme of exercising restraint in the use of the youth justice system is reflected throughout the act. The Preamble states that the youth justice system should reserve its most serious interventions for the most serious crimes. Restraint is to be exercised not only in sentencing but also in deciding whether to use the formal court process at all, as well as in the measures that may be used outside the formal court process. …