What Did Quebec Not Want? Opposition to the Adoption of the Youth Criminal Justice Act in Quebec

By Trepanier, Jean | Canadian Journal of Criminology and Criminal Justice, April 2004 | Go to article overview

What Did Quebec Not Want? Opposition to the Adoption of the Youth Criminal Justice Act in Quebec

Trepanier, Jean, Canadian Journal of Criminology and Criminal Justice

Although we do not hear it as often as we did in the 1960s and the 1970s, the question "What does Quebec want?" has been part of the Canadian political landscape for several decades. In relation to the debates that preceded the adoption of the Youth Criminal Justice Act (YCJA) in the 1990s, one might suggest that a more appropriate formulation might be "What did Quebec not want?" the answer being "The Youth Criminal Justice Act." It seems that its predecessor, the Young Offenders Act (YOA), was as much appreciated in Quebec as it was discredited in other parts of the country. How can this be understood?

The review of the YOA lasted nearly a decade, starting some time after the federal election of 1993 and ending with the adoption of the YCJA by Parliament in 2002. In the meantime, significant amendments were brought to the YOA in 1995; reports were made by the Federal-Provincial-Territorial Task Force (1996) and a parliamentary committee (Canada, House of Commons 1997); a document stating the federal Justice Minister's intentions was published (Canada, Department of Justice 1998); and the government's bill had to be introduced three times in Parliament (Bills C-68 in March 1999, C-3 in October 1999, and C-7 in February 2001). This review gave rise to considerable debates. Opposition to the government's proposals came from various circles in Canada, including such national organizations as the Canadian Criminal Justice Association (1998). Yet the strongest opposition came from Quebec, where a coalition was formed with a number of organizations and individuals involved in professional work with youth justice and young offenders, mostly in Quebec. Other bodies, such as the Bar of Quebec, opted to express their views without being part of the coalition. These organizations and individuals acted separately and independently from political actors, who were quite active on their own side. The Bloc Qu6b6cois expressed in Parliament views that were supported in Quebec. The National Assembly (Quebec's provincial legislature) also expressed its opposition to changing the law. One may wonder why such a consensus existed in Quebec in favour of the YOA, while some circles elsewhere in Canada vilified this same Act in a way that was referred to as "YOA bashing."

Public policies are not designed ex nihilo. The perception that policy changes are needed arises from perceived inadequacies in, lack of and limits on existing policies. One analyses these policies and builds upon them in an incremental manner to bring whatever corrections and improvements appear necessary. That is true not only for minor policy adjustments, but for major shifts as well. Current policies and practices provide a starting point from which one works; they influence one's frame of reference; the criticisms that are addressed to them stimulate reflection, either in their favour or in favour of changes. They contribute to shaping the views of those significant actors who make decisions about them, first and foremost politicians and civil servants. So do these actors' cultural and professional environments, as well as their political pressures and interests.

In Canada, policies concerning young offenders may vary considerably between provinces. Administration of justice and responsibility for youth justice resources fall within provincial jurisdiction. As a result, the implementation of federal youth justice legislation may look very different from one province to another. Despite a uniform federal legislation, policies and practices that aim at youth crime are not the same throughout Canada. Nor is the cultural and political environment in which they take root. Thus, the basis from which people assess and perceive the need for, and direction of, policy change may vary between regions. Therefore, I will first present some contextual elements that may help us to better understand why the need for a review of the YOA was not felt in Quebec as it was in the rest of Canada; then I will outline the main grounds on which the YCJA was opposed.

The debates that surrounded the review of the YOA did not involve the whole population. They took place primarily among professional, political, and media elite members. Public opinion was often referred to and invoked by some people, but it was never seriously measured. It is well known that ordinary public-opinion polls are not a sound means to capture what people really think about criminal justice. Therefore, the positions that will be evoked below are those that were expressed by those who took part in public debates. They can be found in various types of documents (government and parliamentary documents, briefs, and so on). The emphasis is placed on those that were taken by professionals who are close to youth justice in Quebec and who reacted to the review of the YOA. The author is one of them. Therefore, this article may convey something of an "insider's view". yet the intention has been to look back and reflect on this recent past from some distance. As the limits imposed on a journal article do not leave enough room for a detailed analysis of these positions, this presentation will be restricted to the trends emerging from them, without the numerous references that could have been made to either specific documents or to literature that could be relevant.

Contextual elements

The contextual elements that might help one to understand the opposition to the orientations taken in the YCJA might include some policy elements (support for rehabilitation, belief that real problems had nothing to do with the act but rather with its implementation, and the setting of the age of criminal majority at 18); a cultural element (the degree of Americanization of perceptions); and a political element (political opportunism).

Support For rehabilitation

>From the moment they were created in the nineteenth century, reform schools in Quebec set the reform of delinquent youths as their main goal: the intention was to change the behaviour of these young people through helping interventions, not to punish them (M6nard 2003; Strimelle 1998). However, these institutions had only limited means to pursue their goal. In the 1950s, a pioneer institution for boys known as Boscoville provided a major impetus towards rehabilitation. It designed and systematized interventions inspired by European psychological and education theories. It became clear very quickly that such programs had to be supported by qualified staff. Programs of "psychoeducation" were created at the Universite de Montreal in the 1960s, and later in other Quebec universities. Thus, special university training became available for those who wished to work as educators (a title that is still used for all staff working with youths in institution units) at Boscoville or other juvenile institutions. At the same time, criminology and social work graduates were hired in community services (such as probation) and, to a lesser extent, in institutions. Today, all staff in such services as probation are university trained; the same applies to a majority of educators who work in institutions. These environments are staffed with members of "helping professions," whose ethos is centred on education, help, and rehabilitation rather than punishment, denunciation, and deterrence. They have always been separate from organizations that provide services for adult offenders. Today, provincial correctional services for adult offenders are part of the Solicitor-General's department. Young offenders services are integrated in the "Centres Jeunesse," along with the various services that deal with children in need of care and protection. The Youth Protection Director, whose primary responsibility lies with youth protection, assumes the role of "provincial director" as defined in the federal act. There is a higher degree of integration between young offenders and youth protection services than in some of the other provinces. These services are considered as part of social services and fall under the responsibility of the Minister of Health and Social Services. This structural affiliation with social services has been there for decades and is another indication of a deep-rooted pro-rehabilitation orientation. However entrenched it may be in social services environments, this orientation is also shared by other groups in society. The report of the Jasmin Task Force, which was written following numerous meetings with various youth justice actors (judges, lawyers, police officers, educators, probation officers, youths, their parents, and so on), reflected these actors' views when insisting that youth justice interventions had to aim at educating and rehabilitating youths and ensuring their integration in society (Quebec, Groupe de travail 1995: 16-17, 233). The position taken by the Quebec Bar in the debates on the review of the YOA is another example of that wider commitment to rehabilitation (see, for example, Barreau du Quebec 2001: 9).

That is not to say that those who work in these services have ignored the questions raised in the 1970s by Martinson and others about the ability of rehabilitation programs to prevent recidivism. On the contrary, some institutions even sponsored evaluative research on their own programs (see, for example, LeBlanc 1983). However, more recent research has been viewed as providing support for the impact of some well-designed rehabilitation programs (see, for example, Coalition pour la justice des mineurs 1999: 23-25; LeBlanc 2003). And it must be stressed that, irrespective of their impact on recidivism, rehabilitation programs have been prized for better responding to the psychosocial and educational needs of young people, as well as for having a more humane character that provides more than mere detentions or, much worse, boot camps and similar programs. This is inherent in the professional ethos of those who work in services for both young offenders and children at risk.

In so far as the law itself is concerned, support for an educative or rehabilitative approach may have contributed to a positive appraisal of a key provision of the YOA, the Declaration of Principle (s. 3). This section was blamed by opponents of the act for not establishing a hierarchy among principles, thereby not providing sufficient guidance to youth court judges who could interpret it the way they wished. On the contrary, supporters of the act viewed this as an advantage. Because of the wide diversity of situations that were brought to the attention of the courts, it was felt that a fair amount of flexibility was necessary to apply principles to individual situations. Youth crime is a very complex phenomenon that may require very diverse responses, particularly if the needs of young offenders are to be taken into account with a view to educating or rehabilitating them. A declaration of principle should not remove much-needed discretion. This is but one illustration of the fact that some provisions of the act could be assessed quite differently, and that the extent to which one endorsed an educative or rehabilitative approach could bear on one's assessment.

It comes as no surprise that the Federal-Provincial-Territorial Task Force on Youth Justice report (1996) concludes that important differences exist between Quebec and the rest of Canada:

   Quebec's approach to youth justice appears to be more in keeping
   with what is found in western European countries: the over-arching
   goal is the rehabilitation of young offenders within a framework
   that respects the rights of young persons ... Quebec's approach to
   youth justice cannot be simply transplanted to the rest of the
   country. Quebec's approach serves as an important reminder,
   however, that the apparent "need" to reform the Act is as much or
   more a function of values, attitudes and perceptions as it is of
   real (or objectifiable) needs. (4)

Preparation for the YOA

The YOA made it possible for courts and youth services to be inspired by a rehabilitation model that was tempered by other considerations such as the rights of young people that included limits to the power to intervene. This was certainly amongst the reasons for the support that the YOA enjoyed in Quebec, in those very years it was discredited elsewhere. Other factors contributed to this support, including the fact that some of the most significant legislative changes brought by the YOA were already implemented in Quebec by the time the act came into force. Formal diversion had been put into operation on a full-scale basis since 1979 and required only some adjustments to adapt to the new law. The protection of legal rights of accused young persons had been provided largely through legal aid services that had been set up at the beginning of the 1970s, and the implementation of the Youth Protection Act in 1979 with its emphasis on children's rights had already contributed to a culture promoting these rights. Furthermore, making the age of criminal majority uniform at 18 in Canada did not have any impact on Quebec, which had opted for that age four decades before. Thus, when the YOA came into force, the ground was ready and the changes provoked only very minor waves, if any, compared with some other provinces. Support for the YOA was present right at the beginning and it did not decline over time. In 1995, after their consultation with numerous professional circles, the members of the Jasmin Task Force concluded that they had been struck by the consensus they had observed that the YOA was a good law (Quebec, Groupe de travail ... 1995: 5). Significant problems existed, but they had to do with the implementation of the act rather than the act itself. Solutions to problems such as delays in judicial and social interventions, insufficient involvement of parents or victims, and other lacunae identified by the Task Force required changes in attitudes and practices, not in the law.

The age of criminal majority

Amongst the factors alluded to above, one deserves some explanation: the age of criminal majority, i.e., the age from which a young person is dealt with by an adult criminal court rather than a youth court. Under the Juvenile Delinquents Act, this age was set at 16, with the possibility for a province to have it raised to 17 or 18 by the federal government. When it was introduced in Parliament, the Young Offenders Bill proposed only a symbolic change: the age would be set at 18, with the possibility for a province to have it lowered to 17 or 16. In practice, this meant maintaining the status quo. However, before the bill was adopted in 1982, the enactment of the Canadian Charter of Rights and Freedoms made it perilous to retain a variable age limit: the age had to be uniform throughout Canada. At the time, only Quebec and Manitoba had 18 as an age limit. British Columbia and Newfoundland were at 17 and the rest of Canada was at 16. The battle for the choice of the uniform age of criminal majority was probably the most significant to take place in the course of the adoption of the bill. The tendency was for each province to prefer retaining its own age limit and extend it to the rest of Canada. The federal government finally opted for 18 and the age became uniform in 1985: all youths accused of committing an offence while being 16 or 17 would no longer be considered as adults. This meant considerable changes. The 16- and 17-year-old group accounts for over half of the youths who come before youth courts today. (1) It includes also many of the youths considered the most problematic. Converting this important group of former adults into young offenders involved major transformations not only in judicial services but also in various community and custodial resources. If one wanted to do more than pay lip service to the new act, much more was needed than just moving these "new youths" into facilities separate from those reserved for adults. Really implementing the act and its philosophy meant that stronger emphasis on rehabilitation had to characterize the interventions aimed at these youths than had been the case when they were dealt with as adults. This entailed developing new programs, hiring new staff, training existing staff--with all the resistance this could imply--and establishing new traditions of intervention. Even in a province where the political will existed to go ahead with the changes, this implied long-term efforts and transformations. But the political will was far from being present everywhere. Ontario can be viewed as a province where changes were limited to a strict minimum: 16- and 17-year-olds were dealt with separately from younger offenders, under a regime that retained its affinities with the adult system. In that sense, one might argue that a province like Ontario did not give the YOA a fair try.

However, the change in the age limit had to be followed by another transformation: the perception in the population that a 16- or 17-year-old is a "young offender" and not an "adult offender" had to gradually adapt to the legal change. Whatever the law said, a 17-year-old robber could still be an adult criminal according to the perceptions many people held of young and adult offenders. Similarly, the social representation of what a youth court is and what it does had to move from that of a court designed for children and young adolescents to that of a court that could deal with people that were still viewed as young adults. Changes in social perceptions do take time. In the meantime, people may react strongly when, for example, they hear about a 17-year-old charged with a serious offence in a youth court: Shouldn't that "criminal" be judged by an adult court rather than by a juvenile court? Until social perceptions have time to adapt to legal changes, people may react by feeling that there is something wrong with the law and criticize it. Their reactions are very likely to be echoed in the media since reporters themselves come from the same milieus and are influenced by the same perceptions. Therefore, one may understand that, in that period of time, public debates may lead to such demands as transferring more youths into the adult system and modelling the youth system more along the lines of the adult system in order to make it look more acceptable to deal with those young offenders who are still perceived as adults. Public debates take place in the sphere of perceptions.

By the time the age of 18 became uniform for all of Canada, the age of criminal majority had already been set at 18 for over four decades in Quebec. Social perceptions of what a young offender and a youth court are had had plenty of time to adapt to the law. So had the courts and resources required to deal with young offenders of all age groups. Traditions of intervention that were aimed at the 16- and 17-year-olds as well as at younger offenders had long been established. The YOA did not change anything in that respect. Therefore, it was not likely to generate the kind of criticism that undermined its credibility in other provinces that had to adapt to a new legal reality.

Americanization of perceptions

Public perceptions of crime and the ways in which it is and should be dealt with are largely built on images that are conveyed by the media. One may hypothesize that the growing penetration of American media in Canada may have some influence over the construction of the image of crime and society's reaction in this country. With cable television, Canadians have ever-increasing access to American channels. This phenomenon is particularly acute in English-speaking Canada. For example, a survey carried out in Montreal in the spring of 1998 (the year the Justice Minister made public her review policy) revealed that anglophones devoted 22% of viewing time to U.S. channels, whereas this proportion was only 4% amongst francophones (Sondages BBM 1998). Could it be, then, that the perceptions of English-speaking Canadians about the volume and seriousness of crime in Canada, as well as what may be perceived as appropriate solutions, might be more influenced by the contents of American media than the perceptions of French-speaking Canadians? Are not those who watch American television more likely to imagine the Canadian situation unconsciously through what American media report about the United States, as if what is said about the United States applies to Canada as well? Could this not contribute to differences in perceptions between Quebec and the rest of Canada as to what kind of youth justice would be desirable?

This hypothesis would be consistent with the fact that many changes that were brought to youth justice policies in the 1990s in the United States go in the same direction--though often further--as those that were debated and introduced in Canada: facilitated transfers to the adult system; increased responsibilities for prosecutors in decisions to send youths to the adult system, in order to reduce the influence of youth court judges who are perceived as too soft on crime; emphasis on incarcerating those found guilty of violent offences; weakening of the barriers ensuring the confidentiality of information about individual youths; greater emphasis on policies based on deterrence and denunciation, as opposed to rehabilitation. If changes varied between individual states both in degree and nature, they went in the same direction and were often adopted following politicized debates (Torbet, Gable, Hurst, Montgomery, Szymanski, and Thomas 1996; Feld 2000). Thus one may wonder if closer contact with U.S. media did not contribute to making English-speaking Canadians more amenable to American perceptions than was the case for francophones, with the ensuing consequences as to preferred policies.

Policies or politics?

The United States is not the only country where debates on youth justice were politicized in the last decade. Britain and France may be quoted as other examples. So can Canada. Whereas the adoption of the YOA at the beginning of the 1980s had seen mainly policy debates, its review in the 1990s had become a political issue, with the oversimplifications and appeals to emotions that go hand in hand with the politicization of criminal justice issues. A turning point can be seen in the 1993 federal election campaign. At the time, the YOA was the subject of frequent criticism in the media, essentially outside Quebec. In Western Canada, the Reform Party, a newborn right-wing party, had been campaigning for toughening legislation on young offenders. For fear of losing votes to the Reform Party, both Liberals and Conservatives announced their intention to change the YOA. The move appeared as sheer political opportunism. (2) Once elected, the Liberal government enacted changes in two phases. First, amendments were brought to the YOA in 1995, "following commitments that [had been] made during the election campaign," according to Mr Allan Rock, then minister of justice. (3) These included, amongst other provisions, the introduction of presumptions of transfers to adult courts for 16- and 17-year-old youths who were charged with very serious offences. (4) The second phase consisted of a full review of the act.

In Quebec, no policy need seemed to justify this review. (5) Following its inquiry, the Jasmin Task Force had concluded that there was a consensus that the YOA was a good act and that no significant change was required. However, important lacunae could be observed in its implementation, as mentioned above, and these were provincial responsibility. The appropriate policy process should have been for the federal government to bring these lacunae to the attention of the provinces and prompt them to make the necessary improvements. This policy process, however, could prove to be politically damaging outside Quebec: in the minds of many people, the YOA was perceived as the problem, and an approach whereby the federal government would prompt the provinces to do a better job in implementing it would lead to accusations by opponents of the act (including parliamentary opposition) that the government was trying to dodge "real" issues and escape its responsibilities. The political solution was to give way to critics of the act and change it. Whatever policy merits the YOA could have were outweighed by its political failings. In Quebec, changing an act that was perceived as good policy for political expediency contributed to discrediting the review process, thus strengthening the opposition against it. This is not to suggest that the political nature of the review passed unnoticed in the rest of Canada: far from it. However, it is understandable that people who opposed the YOA and were in favour of the review felt more inclined to support the government's approach, and were less sensitive to the underlying political motives than those who opposed the review.

Thus, the context in which the review of the YOA was launched was conducive to a particular assessment if one looked at it from Quebec. The YOA had a good reputation and was perceived as conducive to the educative and rehabilitative approaches that were privileged in the province. Its implementation in the 1980s had not raised particular problems, since it involved far fewer changes than in most other provinces. American media may have had less influence on the population's perceptions about the extent and nature of the "crime problem" and the ways to deal with it. And the political motives that were leading to unwanted policies further contributed to the opposition to these policies. The basis from which the desirability for change was judged was different. How would this translate in the positions that would be taken in the debates?

Criticisms directed towards the YCJA

The criticisms could be grouped under two main themes: (1) a new act was unnecessary, and (2) a new act would make the situation worse rather than better.

A new act was unnecessary

Passing new legislation was viewed as unnecessary for two main reasons: it was not justified by an increase in youth crime, whatever public perceptions might be; and major goals of the review could be reached under the YOA.

Youth crime and public confidence

Tougher policies on crime are very often justified on the basis of an alleged increase in crime and the ensuing lack of public confidence in current policies to deal with it. As the review process went on, it became clear that official statistics would not support claims of rising youth crime. Following years of increased crime rates, global youth crime statistics displayed a constant decrease beginning in 1992. Violent offences initiated their trend downwards in 1995, and it was demonstrated that previous increases were in the least serious category of violent offences, not in the more serious ones. (6) Carrington's conclusion from his analysis of trends of youth crime statistics over two decades was that "there is no basis in fact for public concern about increased levels of youth crime or the supposed failure of the YOA to control youth crime" (Carrington 1999: 25).

However, public perception may not be consistent with facts. For example, it has been demonstrated that Canadians tend to overestimate the frequency and seriousness of violent crime and the probability of being victimized by an unknown person (Hung and Bowles 1995: 2). A Canadian survey suggests a similar conclusion about youth crime: 82% of respondents believed youth crime to be on the increase despite official statistics. (7) Other studies show how ignorant the public is about the way youth courts operate, including underestimating the maximum penalties established in the law as well as the use of custodial measures by the courts (Sprott 1996; Doob, Sprott, Marinos and Varma 1998). The relationship between such perceptions and the desire for tougher laws may not necessarily be simple. Yet one may understand that surveys of a public opinion that is largely ignorant may bring out criticisms concerning the law and its implementation: people declare their lack of satisfaction towards a situation that they imagine but which does not correspond to reality. Hence, the danger of adjusting criminal justice policies to public demands. Mr Chretien had acknowledged this in his 1982 white paper The Criminal Law in Canadian Society when he was minister of justice. Rather than put criminal law in line with public opinion surveys, he had concluded that efforts should be made to offer Canadians a more realistic picture of the problems so that "a more effective, responsive and practical approach can be developed to adapting the criminal law to the complexity and reality of the situation" (Canada, Department of Justice 1982: 17).

It is precisely for not following that advice that Mr Chretien's government was criticized when reviewing the YOA. Justice Minister Anne McLellan made it clear that the 1995 amendments had been adopted because they "responded to public concerns that the Act was too lenient" (Canada, Department of Justice 1998: 11). In the list of concerns she invoked to justify the review of the YOA, "Lack of public confidence" came first, including public belief that the YOA and youth court judges are too lenient and that youth courts may not be able to provide meaningful penalties proportionate to the seriousness of offences; yet she acknowledged at the same time that criticism of sentencing practices was out of line with actual practices, thus implying that it was unjustified (Canada, Department of Justice 1998: 6). For its opponents, the review of the YOA was not a proper solution for restoring long-term public confidence. It did not address the real problem, which was one of perception. Even under a new law, people would still be ignorant of crime statistics and youth court practices. Media reporting of serious crimes committed by young people would still foster the perception that youth crime is a serious problem--still perceived to be on the increase--and that youth justice is unable to deal with it. Criticism and demands for new tough measures would again be expressed. This process would be an endless one. Furthermore, by legislating in order to respond to unjustified public demands, the government and Parliament would confirm the public's erroneous perceptions, somehow giving them their seal of approval. Thus, changing the law was not only unnecessary, it could also prove damaging. The need was for the government to show leadership and inform the population, not to bow to unjustified demands of an uninformed public. It is essential for a democratic government to listen to what citizens have to say. That being done, elected politicians must analyse the problems and the solutions evoked by their constituents and judge critically whether these problems and solutions must be taken as such or redefined. Redefining them may involve political risks. Refusing to do so indicates lack of leadership. When it chose to follow public opinion for political reasons rather than confront it, the government set a course that further discredited the legitimacy of its approach in the eyes of those who opposed it on policy grounds.

Goals that can be reached under the YOA

A proper legal framework must be in place for youth justice to meet its goals. One of the questions that was at the heart of the debates surrounding the review of the YOA was, Did this act provided adequate legal support or was a new law necessary? The perception in Quebec was that the YOA was adequate, whereas many people thought otherwise in the rest of Canada. One of the most important concerns that the federal government wanted to address was the reduction in the use of both judicial interventions and custodial measures (Canada, Department of Justice 1998: 8, 19-24). The development of alternative measures with consequential reduction in court procedures has been one of the priorities of youth justice policies in Quebec since 1979. The result is quite clear: Quebec has had the lowest rate of cases brought to youth courts in Canada. In 2001-2002, the rate was 184 cases per 10,000 youths in the population, whereas it was 347 for the whole of Canada (including Quebec). During the preceding decade (from 1992-1993 to 2001-2002), Quebec's rate was constantly the lowest in Canada (with the exception of 2000-2001, when Prince Edward Island reached an exceptionally low rate). The conclusion that was drawn in Quebec was that diversion could work very well under the YOA. Perhaps the federal government could use financial or other incentives to bring reluctant provinces to set up alternative measures programs as Quebec had done, but the evidence was there that a new law was not necessary to have significant numbers of cases dealt with out of court.

The situation was similar for the use of custodial measures. Since many youths avoid court interventions in Quebec because of diversion programs, the sifting process certainly results in keeping out of court a fair number of the less serious cases that end up in court in other provinces. One might assume that this would result in a higher proportion of serious cases in the youth court population in Quebec than in other provinces, which should in turn result in a higher proportion of court cases where custody would be ordered. Yet this does not happen. In 2001-2002, closed custody was ordered in 14% of court cases in Quebec, as opposed to 15% for the whole of Canada; for open custody, the proportions were 10% for Quebec and 14 % for Canada (Thomas 2003: 16). In other words, even after filtering out its less serious cases, Quebec still has a lower proportion of charged youths ending up in custody than the Canadian average. Then it comes as no surprise that Quebec is the province that has the lowest rate of youths in custody per 1,000 youths in the general population; in 2000-2001, this rate was 4.11 for Quebec and 8.49 for the whole of Canada.8 The conclusion that emerges from these data is that it was entirely possible under the YOA to have a policy of restraint in the use of custody. The Quebec experience contradicted the argument that federal law had to be changed to reach that goal.

Other concerns expressed by the federal Justice Minister in support of the need for legislation were shared in Quebec. One might quote, for example, the length of court delays, the role of parents and victims, or the need to ensure social reintegration after a period of custody (Canada, Department of Justice 1998: 8-9). These issues had already been addressed by the Jasmin Task Force, and the conclusion had been that solutions lay in changes of attitudes and practices that had to do with the implementation of the law (which is within provincial jurisdiction), not the law itself (Quebec, Groupe de travail ... 1995).

So the feeling in Quebec was that the main justifications invoked by the federal government in support of a new legislation were not valid: the Quebec experience had shown that they could be addressed efficiently under the YOA, or that the solutions lay elsewhere than in a new federal law.

The YCJA: For better or for worse?

Obviously Parliament should legislate to make things better, not worse. In many parts of Canada, the YCJA was welcomed as an improvement over the YOA. The assessment in Quebec was that it would make things worse. It is impossible to present in a brief article the numerous criticisms that were directed towards the proposed legislation. Its general orientation was disapproved. Its complexity was condemned; youths and their parents would understand it even less than the YOA. As a consequence, the assistance of lawyers would be all the more necessary and the latter's control over the process would increase; yet at the same time the law affirmed the right of provinces to recover the costs of legal aid services from youths or their parents, which could act as a deterrent against exercising one's right to counsel. The cascade embedded in the provisions on extrajudicial measures was disapproved, as well as the role these provisions granted to the police beyond the traditional exercise of discretion. Some clauses were interpreted as violating international instruments. The publication of names of young persons was allowed in cases where it should be prohibited. These are but a few examples of a list that would be much longer if it was meant to be complete. To be brief, the presentation may be limited to a few issues that can be grouped around two criticisms: youth justice would become too similar to adult criminal justice, and presumptions of adult sentences would be conducive to bringing into the adult system youths that do not belong in it.

A youth justice inspired by a criminal justice model

The new legislation was perceived as moving too far in the direction of a criminal justice model, so that the distinction between youth and adult criminal justice would become less of a reality. Some of the terms used in the law provide a clear indication of a major shift in philosophy. The title of the act is no longer about young offenders, but about criminal justice and youth. In the French version of the law (which is by far the most frequently used in Quebec, contrary to the rest of Canada), young persons found guilty of an offence are no longer subjected to a "mesure" ordered in a "decision"; they are imposed a "peine" that comes at the end of a "determination de la peine" process. The first version of the bill (C-68) used such wording as "peines a infliger" and "infliction de peines" (inflicting punishments); these words are used in the adult criminal justice system and they conveyed the idea that the role of youth courts is to inflict punishment on young offenders, not to educate or rehabilitate them. Pressure had to be exerted on several occasions before the Justice Department finally agreed to change "inflict" to "impose"; in itself, the resistance they offered before agreeing to such a change was viewed as an indication of how foreign to the educative and rehabilitative approach that was shaping the Quebec system was the mental framework in which they had designed the bill.

If it expressed some of the underlying philosophy of the bill, the choice of words was by no means its only sign. From now on, youth justice would react more to offences and would ascribe less weight to offenders. Of course this is a matter of degree: The YOA and its interpretation by the courts emphasized the importance of the offence, just as the YCJA takes the offender into account. Yet the new law marks a shift in the respective weights these two central factors carry. For example, whether an offence is qualified as violent or not has significant consequences on such decisions as whether or not to bring the case before the court and on the choice of sentence. (9) Holding the young person accountable for the offence becomes a key element of sentencing. Greater emphasis is placed on the principle of proportionality, which is given precedence over such goals as rehabilitation and social integration. One may agree that proportionality should set an "upper limit" that should not be exceeded in the name of rehabilitation, in order to avoid possible abuses of intervention; however this principle also involves a "lower limit" that has nothing to do with education or rehabilitation, but rather is an expression of such goals as retribution, deterrence, or denunciation that are more akin to adult than youth justice. As it was designed in the first version of the bill (C-68), the principle of "similarity" provided that "the sentence must be similar to the sentences imposed on young persons found guilty of the same offence committed in similar circumstances" (para. 37(2)(b)). That imposed similarity in sentencing on the basis of the sole offence and left no room for the offender. The fact that criticisms led the government to amend this principle in the course of the debates does not preclude one from seeing that the framework that had inspired the design of the bill borrowed much more from a criminal justice model than had ever been done before for youth justice in Canada.

It may also be noted that adult sentencing principles are likely to further creep through the back door by way of the application of the principle that a youth sentence "must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances" (para. 38(2)(a)). Particularly in a regime where sentencing means punishment, fairness requires that youths should not be punished more than adults. Yet one must be aware that this principle requires youth court judges to establish the limit that they must not exceed by applying adult sentencing principles. This introduction of principles applicable to adults in their analysis of youths' situations is likely to further colour their approach and bring them surreptitiously to give these principles greater weight than has been the case so far, not only to establish the "upper limit" applicable to an adult but also because they may still have them in mind when deciding on the youth's appropriate sentence. This may not be the intent of the law, but this impact on the mental process of specialized youth court judges may become reality over time, thus bringing youth court sentencing policies more in line with that of adult courts.

One last element should be evoked: the place of rehabilitation in the YCJA. Rehabilitation is part of the principles of the act, certainly more than is the case for adults. However various provisions of the act create obstacles to rehabilitation, particularly when some custodial placement is deemed necessary for that purpose. These obstacles have been criticized as likely to prevent bringing services to some youths who need them. Not that people wish to overuse placements, which could be a real danger in the name of rehabilitation. As mentioned above, Quebec is the Canadian province that has the lowest rate of young offenders in custody per 1,000 youths in the population. Furthermore, the length of custodial orders shortened considerably in Quebec while the YOA was in force: between 1985-1986 and 2000-2001, the average length of closed custody fell from 121 to 61 days (minus 50%), and that of open custody from 120 to 33 days (minus 73%). The proportion of custodial orders of less than 30 days increased while that of orders exceeding six months decreased greatly. (10) More than ever custodial placements seem to be used with parsimony. The question then arises whether placements can be further shortened and still retain some value for rehabilitation programs. Should their length still be reduced, would rehabilitation centres not turn into detention centres where youths would do their time?

With a view to reducing the reliance on custody in Canada, clauses have been included in the YCJA not only to make it more difficult for courts to order placements but also to make these placements shorter. Youths have to spend the last third of their placement and supervision order in the community, and judges are prohibited from increasing the length of the orders to allow for more placement time. In addition, courts now have to take into account the time spent on remand in custody when deciding on a sentence. While remanded in custody, youths are not involved in rehabilitation programs: presumed innocent, they cannot be subjected to interventions that would be directed towards offences of which they have not yet been found guilty; and until sentenced, youths are very often in a state of mind that leads them to hope that they will escape custody, which mitigates against their readiness to involve themselves mentally or emotionally in a serious educative or rehabilitative process. The Supreme Court of Canada has qualified pre-sentencing detention as "dead time." (11) The expression would be all the more justified in the case of youths, who can have greater access than adults to educative or rehabilitative programs once sentenced. Time will tell to what extent youth courts will replicate--or be led by appeal courts to replicate--the practice of criminal courts to "credit" two days of incarceration for each day of remand in custody, which would have a drastic impact on the time remaining for rehabilitation programs. In addition, the more that "credit" granted by the courts exceeds one day of placement for each day of pre-sentencing detention, the more likely it becomes that some accused youths will give their counsel instruction not to object to detention pending trial, in order to reduce the overall time which they will spend in custody, if they expect that they will be sentenced to a placement. Thus, the YCJA has raised serious concerns in Quebec as to whether it will allow sufficient time for placements to involve youths in meaningful rehabilitation programs. The fear has been expressed that, for many youths, placements may become sheer detention and that, in the long term, rehabilitation centres may become largely detention centres. The YCJA would then be responsible for seriously damaging a system set up over time with great efforts to meet the needs of young people and replacing it with a far worse approach.

These same two provisions were viewed as conflicting with an educative or rehabilitative approach in other ways as well. Most people would agree about the importance of ensuring a youth's appropriate reintegration into society at the end of a placement, and most would probably confirm that not enough is being done in that respect. A compulsory period of supervision in the community can be viewed as a step in the right direction if "supervision" is translated in terms of support and assistance. However, had this provision in the YCJA been inspired by a real concern for rehabilitation, the act would not have replicated the automatism of adult criminal justice; it would not have provided for the automatic release of youths in the community after two-thirds of their sentence, irrespective of whether they are ready or not. Instead it would have allowed for decisions to be made on a case-by-case basis, in order to assess for each youth individually what is the most appropriate time to go back into the community. One is left to wonder what really inspired the government: Was it a concern for rehabilitation, or was it the desire to use automatic release policies as they exist for adults in order to reduce the number of youths in custody? The release process chosen by the government suggests that the latter was the dominant concern.

As for the provision requiring judges to take into account the time spent in pre-sentencing custody when deciding on sentence, it is likely to produce perverse effects if the courts tend to "credit" the youth with more time than has been spent in custody, as adult criminal courts do with the "two-for-one" practice. When discussing the case with her/ his client, counsel will explain the foreseeable consequences of being remanded in custody or in the community, including that a remand in custody would allow the youth to accumulate "credits" that would contribute to shorten an eventual placement by a number of days or weeks, which would exceed the time actually spent in custody. One may easily imagine that some youths will give counsel the mandate not to object to the prosecutor's request for a remand in custody in order to "do less time" overall. The fear has been expressed that, in such circumstances, some defence lawyers might not only advise their young clients to agree to a period of remand in custody, but they might also try to delay procedures so that their clients remain longer in custody pending trial, thus accumulating more time that may "count double." Some lawyers see no ethical problem in acting that way as they view their role in terms of getting the "best deal" for their clients. In addition to reducing the time that may be left for rehabilitation programs as mentioned above, such a practice would teach youths that they can use strategies to manipulate the course of justice and be assisted by their lawyer in doing so. People do not worry about such strategies when they are used in the adult system, which has no educative responsibility towards offenders. However, youths are still in the process of being educated. As the Jasmin Task Force insisted, those who play a role in the youth justice system should never forget that they are adults who have some educative responsibility towards youths with whom they work. If a court experience is to be meaningful to young persons, if it is meant to help them integrate social values that will prompt them to respect the law, then justice actors must ensure that their interventions be credible and coherent, and that they inspire respect in youths. Young people's allegiance for social norms may be influenced by the behaviour of those whose role it is to represent the law. If adults fail to fulfil that role and teach young offenders that justice is there to be manipulated, youth justice will fail to meet its educative responsibility. Obviously the intention of the federal government was not to induce such a failure. However, the price to pay for bringing youth justice closer to an adult criminal justice model is that practices that exist in the adult system will be imported into the youth system,no matter how counterproductive they may be in a system that should be adapted to what young people are.

These are but a few examples of the criticisms that were addressed to the federal government for drawing too much inspiration from adult justice in designing its youth justice policies. Another type of criticism had to do with the way adult sentences could be imposed on young offenders.

Presuming the appropriateness of adult sentences

One of the most controversial elements of the review of the YOA was the introduction of presumptions of transfer to adult courts in 1995. Henceforth, youth justice was presumed inadequate to deal with cases of very serious offences committed at the ages of 16 and 17. The reaction was hostile in Quebec. Such presumptions seemed dictated by political expediency rather than policy needs. Existing research at the time showed that making transfers to the adult system easier had no positive effect on youth crime (Singer and McDowall 1988; Jensen and Metsger 1994). From a policy point of view, the presumptions were consistent with goals such as denunciation or general deterrence, even though they appeared inefficient to reach them. They conflicted with a rehabilitation approach, where a transfer cannot be justified on the grounds of a single offence, however serious it may be. For transfers to be justified in a rehabilitation context, the failure to involve the young person in rehabilitation programs must be established, which usually occurs after a number of findings of guilt and unsuccessful attempts to deal with the young person's behaviour. The analysis made by the Jasmin Task Force reflects how views from Quebec were in direct contradiction with the presumptions (Quebec, Groupe de travail ... 1995: 123-124).

The YCJA changed transfers to adult courts into sentences imposed by youth courts. But not only did it maintain the presumptions, it also extended them to new groups of offenders, including adolescents as young as 14 and 15. This was much more than a mere technicality of onus of evidence. It meant that, in the eyes of Parliament, the normal sentence to impose on a 14-year-old found guilty of a very serious offence was an adult sentence. The fact that part of the sentence would be spent in a youth facility did not resolve the problem. Positive work that would be done in the youth system would later be undone during the last part of the sentence in a prison or a penitentiary environment. This could occur as soon as the young person turns 18, since the pressure exerted by waiting lists at admission is likely to lead some centres to make room for youths who are not handicapped by the expectation of staying in an adult facility: if places are scarce, youth centres are likely to give priority to those youths with whom they can work without the prospect of seeing their efforts ruined by later detention in adult quarters. This extension of the presumption to youths aged 14 and 15 met with indignation in Quebec. The federal government decided to transfer the problem to the provinces, enabling them to raise to 16 the age from which the presumption would apply. This was not viewed as satisfactory: the policy was bad, and the federal government should not have washed its hands by leaving it to the provinces to get rid of it. Furthermore, a provincial order in council was much easier to change than a law and thus provided a much weaker barrier against the temptation to give way to public emotion and change the rules if a horrible case becomes highly publicized. In the end, the Quebec Court of Appeal confirmed that the opposition to the presumption was justified when it declared its unconstitutionality on the ground that it violates section 7 of the Canadian Charter of Rights and Freedoms. (12) Technically, this decision applies only in Quebec. The presumption is still legally valid in the rest of Canada. The federal government has decided not to appeal. One would expect it to propose amendments to the act as a consequence of this decision. In the meantime one must not exclude the possibility that other appeal courts might hear similar cases. Public debates may not be over yet and they may continue to divide Canada.


Youth justice differs significantly between provinces. Yet people tend to be rather unaware of these differences, and this is true even for most of those who work in the system. For many in Quebec, the debates on the review of the YOA were the occasion to realize the depth of the gap that separates them from the rest of Canada. Several factors contributed to the support of the YOA in Quebec: a deep-rooted rehabilitation approach in the services for young offenders, with staff trained accordingly; diversion programs that were already in existence prior to the YOA; legal aid services and an acknowledgement of children's rights in provincial legislation, which had already contributed to creating a culture of protecting the rights of young people; an earlier transformation of perceptions of 16- and 17-year-old youths as young offenders; a possibly lesser Americanization of perceptions than in English Canada; and a perception that the review of the act responded to political rather than policy needs. These contextual factors are likely to have contributed to building a starting point in Quebec that was different from that which existed in other regions of Canada and that led actors to see the YOA and its review differently. The crisis in public confidence for youth justice was viewed as a result of a lack of leadership from the government that ought to inform the population rather than confirm its erroneous perceptions. Such goals as reducing court referrals or the use of custody could be met under the YOA, as Quebec had demonstrated. The YCJA was seen as tending to transform youth justice according to a criminal justice model where the offence had a more central place and where the attempt to aim at such goals as education and rehabilitation would find more obstacles on their way, which conflicted with what Quebec had built over the years. Presumptions of adult sentences were viewed as bad policy and their extension to younger offenders as even worse policy. The feeling in Quebec was that the YOA had never been fully accepted--nor implemented--in significant parts of Canada, particularly for 16- and 17-year-old youths, and that its review was a way to step back and somehow reintroduce what many still viewed as the appropriate course for these offenders: that is, a criminal justice approach. Viewed from Quebec, this was a step backwards.

Debates about the YCJA have temporarily calmed down. They will no doubt emerge again, especially if the federal government proposes amendments consequential to the decision of the Quebec Court of Appeal. Once again, people's perceptions of proposed policies will be influenced by existing policies and practices in their milieu. Political interests will no doubt influence debates. Some would join with Feld (2000) in the concluding remark of his study of policies for transfer from the youth to the adult system: "It remains to be seen whether legislators can resist demagogic impulses and enact responsible youth crime policies" (129). May we hope that policy issues will not be blurred too much by political interests?


(1.) In 2001-2002, 54% of cases heard by youth courts in Canada involved youths aged 16 and 17 at time of offence (Thomas 2003: 14).

(2.) This should be viewed in a context where the leader of the Liberal Party, Mr Chretien, had made promises to be tough on crime if elected. Longer sentences for young murderers, easier transfers to adult courts, and the publication of names of some young offenders were part of that agenda. Echoing these promises in an editorial entitled "Cowboy Chretien," the Toronto Star had denounced them as "all the get-tough-on-criminals elements you'd expect from a vote-hungry politician... Indeed, just when the federal government--through the Commons justice committee--has made a major breakthrough by pledging to remedy the social causes of crime, Chr6tien would have us believe the old chestnut that jails and tough sanctions make us safer. This cynical exercise shows that Chretien is not above playing on the fears of the populace." (Toronto Star, April 26, 1993: A20.)

(3.) The passage is quoted from a letter dated 2 June 1994, from Mr Rock to the chairman of the Standing Committee on Justice and Legal Affairs of the House of Commons, Mr Warren Allmand. The letter is reproduced in Canada, House of Commons (1997: 77).

(4.) The 1995 amendments covered other issues that cannot be described in any details due to limited space. Fuller accounts can be found in various texts, including McGuire (1997).

(5.) See my discussion below under "A new act was unnecessary."

(6.) For a view of statistics as they appeared in the first year of parliamentary debates, see Tremblay (1999). The trends are confirmed in more recent statistical presentations: see Thomas (2003) and Wallace (2003). For a more in-depth analysis of official statistics, see Carrington (1999). The analysis of violent offences can be found in Doob and Sprott (1998).

(7.) Environics Survey of 1998, quoted by Stevenson, Tufts, Hendrick, and Kowalski (1998: 11).

(8.) Data obtained from Statistics Canada. This phenomenon had already been seen earlier in the 1990s: see Doob and Sprott (1998) and Quebec, Groupe de travail ... (1995: 142).

(9.) This distinction between violent and non-violent offences should be seen in the wider context of Canadian criminal justice policy, which has tended to adopt a dual-track regime for the last quarter of a century, whereby the penal system reacts more strongly to violent offences than property or other offences (Landreville 1998). This trend is not unique to Canada. For example, Bottoms noted a similar "emerging bifurcation in penal policy" in Britain nearly three decades ago; he proved right when raising the possibility that it might become a "keystone of future policy" (Bottoms 1977: 88, 91). Its introduction in young offenders legislation is yet another indication of the fact that youth justice is becoming closer to adult criminal justice.

(10.) For further details, see Tr6panier (2003: 629, 632-633).

(11.) R. v. Wust at para. 45.

(12.) Reference Re Bill C-7.


Barreau du Quebec 2001 Memoire; Loi C-7; Loi concernant le systeme de justice penale pour les adolescents, et modifiant et abrogeant certaines lois en consequence. Montreal: Barreau du Quebec.

Bottoms, Anthony E. 1977 Reflexions on the renaissance of dangerousness. Howard Journal of Penology and Crime Prevention 16: 70-95.

Canada, Department of Justice 1982 The Criminal Law in Canadian Society. Ottawa: Department of Justice.

Canada, Department of Justice 1998 A Strategy for the Renewal of Youth Justice. Ottawa: Department of Justice.

Canada, House of Commons 1997 April Standing Committee on Justice and Legal Affairs. Reviewing Youth Justice. Report 13,Shaughnessy Cohen, Chair.

Canadian Criminal Justice Association 1998 Comments of the Canadian Criminal Justice Association on Strategy for the Renewal of Youth Justice. Ottawa: Canadian Criminal Justice Association.

Carrington, Peter 1999 Trends in youth crime in Canada, 1977-1996. Canadian Journal of Criminology 41: 1-32.

Coalition pour la justice des mineurs 1999 Un systeme de justice penale pour les adolescents ou contre les adolescents? Commentaire sur le projet de loi sur le systeme de justice penale pour les adolescents. Montreal.

Doob, Anthony N. and Jane B. Sprott 1998 Is the "quality" of youth violence becoming more serious? Canadian Journal of Criminology 40: 185-193.

Doob, Anthony N., Jane B. Sprott, Voula Marinos and Kimberly N. Varma 1998 An Exploration of Toronto Residents' Views of Crime and the Criminal Justice System. Toronto: University of Toronto, Centre of Criminology.

Federal-Provincial-Territorial Task Force on Youth Justice 1996 A Review of the Young Offenders Act and the Youth Justice System in Canada. Ottawa: Department of Justice.

Feld, Barry C. 2000 Legislative exclusion of offenses from juvenile court jurisdiction: A history and critique. In Jeffrey Fagan and Franklin E. Zimring (eds.), The Changing Borders of Juvenile Justice: Transfer of Adolescents to the Criminal Court. Chicago: University of Chicago Press.

Hung, Kwing and Sharon Bowles 1995 La criminalite et les perceptions du public. Juristat 15.1

Jensen, Eric L. and Linda K. Metsger 1994 A test of the deterrent effect of legislative waiver on violent juvenile crime. Crime and Delinquency 40: 96-104.

Landreville, Pierre 1998 June Les transformations de la penalite au Canada: tendances et ambiguites. Paper presented at the Seminaire Penalite et Societe, Paris.

LeBlanc, Marc 1983 Boscoville : La reeducation evaluee. Montreal: Hurtubise HMH.

LeBlanc, Marc 2003 La readaptation des adolescents ayant des difficultes d'adaptation: recherches empiriques et interventions professionnelles. In Marc LeBlanc, Marc Ouimet and Denis Szabo (eds.), Traite de criminologie empirique, 3rd ed. Montreal: Presses de l'Universite de Montreal.

McGuire, Maureen 1997 C-19--An Act to Amend the Young Offenders Act and the Criminal Code: "Getting tougher?" Canadian Journal of Criminology 39: 185-214.

Menard, Sylvie 2003 Des enfants sous surveillance : la reeducation des jeunes delinquants au Quebec (1840-1950). Montreal: VLB Editeur.

Quebec, Groupe de travail charge d'etudier l'application de la Loi sur les jeunes contrevenants au Quebec 1995 Les jeunes contrevenants : au nom ... et au-dela de la loi. Quebec: Department of Justice and Department of Health and Social Services.

Singer, Simon I. and David McDowall 1988 Criminalizing delinquency: The deterrent effects of the New York Juvenile Offender Law. Law and Society Review 22: 521-535.

Sondages BBM 1998 Rapport special, television. Montreal, printemps 1998. Toronto: BBM Bureau of Measurement.

Sprott, Jane B. 1996 Understanding public views of youth crime and the youth justice system. Canadian Journal of Criminology 38: 271-290.

Stevenson, Kathryn, Jennifer Tufts, Dianne Hendrick, and Melanie Kowalski 1998 Un profil de la justice pour les jeunes au Canada. Ottawa: Statistics Canada.

Strimelle, Veronique 1998 La gestion de la deviance des filles et les institutions du Bon-Pasteur a Montreal (1869-1912). Ph.D. thesis, School of Criminology, Universite de Montreal.

Thomas, Jennifer 2003 Statistiques sur les tribunaux de la jeunesse, 2001-2002. Juristat 23.3.

Torbet, P., R. Gable, H. Hurst IV, I. Montgomery, L. Szymanski, and D. Thomas 1996 State Responses to Serious and Violent Crime. Pittsburgh: National Center for Juvenile Justice.

Tremblay, Sylvain 1999 Statistiques de la criminalite au Canada, 1998. Juristat 19.9.

Trepanier, Jean 2003 La justice des mineurs. In Marc LeBlanc, Marc Ouimet, and Denis Szabo (eds.), Traite de criminologie empirique, 3rd ed. Montreal: Presses de l'Universite de Montreal.

Wallace, Marnie 2003 Statistiques de la criminalite au Canada, 2002. Juristat 23.5.

Cases Cited

R. v. West, [2000] 1 S.C.R. 455

Reference Re Bill C-7 [Quebec (Ministre de la Justice) c. Canada (Ministre de la Justice)] (2003), 10 C.R. (6th) 281 (Que. C.A.)

Jean Trepanier

Ecole de criminologie et Centre international de criminologie comparee

Universite Montreal

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What Did Quebec Not Want? Opposition to the Adoption of the Youth Criminal Justice Act in Quebec


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