Pivot Legal Society - Equality Lifts Everyone


Harper's crime bill equals more kids behind bars

The impacts of adult sentencing reforms, including mandatory minimum sentences for a number of drug offences, have garnered a lot of attention as Bill C-10, also known as the “Omnibus Crime Bill” makes its way through parliament, but also buried in the bill are significant changes to Canada’s Youth Criminal Justice Act (YCJA).

The current YCJA is only nine years old. It was introduced to address what were considered to be significant flaws in the application of the Young Offenders Act (“YOA”) which preceded it. Some of the major issues the YCJA was meant to address included lack of consistency in treatment of young offenders, concerns about the youth justice system's efficacy in promoting rehabilitation and the perceived failure to address the root causes of criminal justice system involvement among the most vulnerable young people.   After many years of study and research into best practices, the YCJA was enacted and laid out a Declaration of Principles for Canada’s youth justice system:

"The youth criminal justice system is to prevent crime by addressing the circumstances underlying a young person's offending behaviour, rehabilitate young persons who commit offences and reintegrate them back into society, and ensure that a young person is subject to meaningful consequences for his or her offences, in order to promote the long-term protection of the public."

When the YCJA was introduced in 2003, Canada had the highest rate of youth incarceration in the developed world. Since the introduction of the YCJA, Canada has lowered youth incarceration rates but, despite what is being implied by the language of the changes to the Youth Criminal Justice Act, that we are soft on young offenders. Canada still has relatively high rates of youth incarceration compared to other Western Countries.

The overall spirit of the proposed changes to the YCJA  is about “holding youth accountable”. A major philosophical shift includes the additions of “individual deterrence" and "denunciation of unlawful conduct” as sentencing principles. These principals are not currently part of youth sentencing principals, but are similar to the principles laid for for the adult criminal justice system. These changes to the sentencing principles undermine the concept of “diminished blameworthiness” among minors. Along with these rhetorical and philosophical changes, there are also a number of more concrete and technical changes being proposed. In particular, amendments to the YCJA include:

  • An expansion of the case law definition of what constitutes a serious offence and a broadening of the definition of violent offence to include reckless behaviour endangering public safety.
  • An amendment the rules for pre-sentencing detention (also called “pre-trial detention”) to facilitate the detention of young persons accused of crimes against property punishable by a maximum term of five years or more and those with a history of outstanding charges or findings of guilt.
  •  Authorization for the court to impose a prison sentence on a young person who has previously been subject to a number of extrajudicial sanctions and a requirement for police to keep a record of any extrajudicial measures imposed on young persons so that their criminal histories can be documented and used in the event of future offences. In essence, treating diversion from the criminal proccess like a conviction.
  • A directive that requires Crown to consider the possibility of seeking an adult sentence for young offenders 14 to 17 years of age convicted of murder, attempted murder, manslaughter or aggravated sexual assault. 
  • A restriction on the factors the youth court is to consider (including background) when making a decision whether or not to impose adult sentences.
  • A broadening of the circumstances where the publication ban on the names of young offenders convicted of violent offences can be lifted by allowing the ban to be lifted in some cases involving youth sentences.

There is one amendment that child and youth rights organization see as a positive step forward. The YCJA will now explicitly state that people under 18 cannot be placed in adult correctional facilities under any circumstances. However, taken as a whole,  it is reasonable to assume that when these changes come into force, more youth will be sent to youth correctional facilities, more youth will receive adult sentences and more youth with no longer be protected by a publication ban.

Organizations like the Canadian Coalition for the Rights of Children are asking that the changes to the Youth Criminal Justice Act be extracted from Bill C-10 so that they can be subject to further discussion, and that any changes be grounded in evidence-based research on working with troubled youth. In particular, the CCRC is asking the government to use existing research and expertise to answer four key questions before making any changes to the YCJA:

·       Will putting more young people in jail for longer times increase public safety?

·       What deters young people from criminal activity and increases public safety?

·       Does broadcasting their names help young people become responsible adults?

·       What actions will reduce violence against young people and violence by young people?

The federal government is asking youth to make responsible choices or face the consequences. Doing the right thing requires thinking about the long-term consequences of our action, controlling impulses and listening to the input of people with more experience and expertise on an issue.   Putting the breaks on changes to the Youth Criminal Justice Act is a perfect opportunity for the federal government to model responsible decision-making by taking a long-term view, seeking out reliable information and slowing down in order to make a responsible choice.