CC200 Youth Justice Creating a Juvenile Justice System: Then and Now

1
CC200Youth JusticeCreating a Juvenile Justice
System Then and Now

• Chapter Two

2
Introduction

• We tend to link the juvenile justice system with
  understandings of crime prevention and crime
  control.
• However, the creators of the system had other
  objectives in mind.
• According to some, the jjs was created in
  response to problems generated by the newly
  emerging capitalist system that undermined
  traditional family supports.

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• The resulting problems included growing numbers
  of young people on the streets and higher levels
  of street crime committed by young people.
• Other scholars argue that the juvenile justice
  system was a creation of Victorian reformers, or
  child-savers.

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• These group argued that delinquency was the
  end-result of bad environments and that the state
  should act like a parent to save children from
  these environments.
• This meant that the state should go so far as to
  remove children from their parents homes and
  institutionalize them.

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• The child-savers were motivated by humanitarian
  concerns and a desire to save children from
  harmful family influences while protecting them
  from the full force of criminal law and the
  negative influence of adult criminal offenders.

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Juvenile Delinquents Act

• The Canadian juvenile justice system was
  officially created in 1908 through the passage of
  the Juvenile Delinquents Act.
• This legislation did not occur in isolation but
  was, in fact, the culmination of a number of
  pieces of legislation and welfare reforms.

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• The JDA created a welfare-based juvenile justice
  system (one based on the philosophy of
  rehabilitation) and was based on the principle of
  parens patriae.
• Parens patriae can be translated as parents of
  the country and has its historical roots in
  medieval England.

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• It began as the Kings right to control property
  of orphaned heirs for the purpose of protection.
• By the 18th century, parens patriae had expanded
  to include a best interest principle as a means
  of actively promoting the best interests or
  well-being of a child or young person.

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• By the 19th century, the doctrine had expanded
  beyond the monarch to the state and to children
  without property who were orphaned or neglected
  by parents or guardians.
• This doctrine formed the foundation of the new
  Juvenile Delinquents Act of 1908.

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• The JDA defined delinquency as the violation by
  persons under the age of 16 (this age varied by
  province) of any federal, provincial, or
  municipal law for which a fine or imprisonment
  was the penalty, or the commission of any other
  act that would make a young person liable to be
  committed to an industrial school or reformatory.

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• The JDA gave the courts considerable powers.
• Cases were to be handled summarily.
• If an offence was indictable, it was up to the
  court to decide if the youth would be tried in an
  adult court.
• Indictable offence CCC refers to offences that
  are of a serious nature the minimum sentence is
  always two years or more.

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• More like hearings than trials, juvenile cases
  were conducted privately and notices of
  delinquency hearings were sent to parents or
  guardians.
• Separate detention and jail facilities were
  mandated for delinquents.
• The JDA also allowed for a wide range of
  dispositions (sentences).

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• Probation was a core element of the juvenile
  court, with probation officers playing a key
  role.
• The court could place a child in the custody of a
  probation officer as a form of sentence.

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• The JDA required probation officers to conduct
  investigations for the court, to assist and
  direct the court, and to represent the interests
  of the child in court.
• The probation officer was also responsible for
  supervising children sentenced to a period of
  probation.

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• Once adjudicated as delinquent, children remained
  wards of the court until the court released them
  or until they reached the age of 21.
• Under the JDA, the provinces were allowed to set
  the maximum age under which a young person could
  be adjudicated as delinquent.

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• Because the juvenile justice system required
  probation officers, separate courts, separate
  judges, and separate detention facilities, its
  implementation was costly.
• As a result, provinces were allowed significant
  leeway the time allowed to implement of these
  policies.

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• This meant that there was a great deal of time
  between the time the first court was set up
  (Manitoba in1909) and the last (Northwest
  Territories in 1979)
• NFL never did implement the JDA, but established
  instead, a juvenile court through provincial
  legislation.

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Opposition to the JDA

• The JDA faced opposition.
• Those opposing the act did so on either the
  grounds that it was not punitive enough or out of
  concern about potential abuses to the rights of
  children and parents.
• Victorian reformers ignored the opposition.

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• Most were not overly concerned with protecting
  the rights of children because they were
  convinced they were acting in the best interests
  of the child and were protecting children.
• They, therefore, believed that the decisions and
  actions of anyone working in the justice system
  would also be focused on the best interests of
  the child.

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• The system itself was also considered to be
  focused on meeting the needs of children and on
  helping rather than punishing with the
  objective to treat and rehabilitate.

21
Modifying the Juvenile Justice System

• Serious challenges to the JDA began to emerge in
  the 1960s as a result of a growing international
  and national rights discourse.
• A major source of concern directed at the JDA was
  in regard to status offences.

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• Status offences behaviors only considered to be
  illegal because of the age status of the
  individual.
• Critics argued that lumping all child and youth
  offences together undermined the seriousness of
  some offences and thereby weakened the deterrent
  effect of punishment on criminal behaviors.

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• The opposite effect was considered equally
  problematic by other critics who argued that
  young people who were not breaking criminal laws
  were being punished in the same manner as those
  who did.
• They were also concerned that status offenders
  were being negatively affected by close
  associations with chronic offenders in
  institutions.

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• Another concern was the lack of set terms of
  sentences.
• Incarceration lasted as long as it took for a
  young person to be reformed or rehabilitated.
• While this served the welfare interests it did
  not satisfy those who were concerned with matters
  of due process.

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• Related issues were inconsistencies in the
  application of the law.
• Sentence lengths varied according to individual
  characteristics and circumstances rather than the
  nature of their behavior.
• Maximum ages for delinquency varied across the
  country.

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• And treatment provisions were not consistent from
  one jurisdiction to another.
• In addition, concerns were raised about the role
  of social workers in the system and the amount of
  discretionary power they were able to exercise.
• Since social workers were not part of the
  juvenile justice system, they were not
  accountable to the courts for their decisions.

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• On the other side, there was the ever-present
  argument that the Juvenile Delinquents Act failed
  to provide public protection from the criminal
  behavior of children and youth.
• Reform attempts of the act began in 1965 and by
  1977 a new Young Offenders Act had been drafted.
• In April of 1984 the Juvenile Delinquents Act was
  formally replaced by the Young Offenders Act.

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Principles of Juvenile Justice under the YOA

• The YOA created a very different juvenile justice
  system from the JDA.
• The JDA referred to delinquents as misdirected
  and misguided children in need of aid,
  encouragement, help, and assistance the YOA
  referred to young people as persons in a state
  of dependency how have special needs and
  require guidance and assistance, as well as
  supervision, discipline, and control.

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• The YOA included new principles to the juvenile
  justice system that provided emphasis on youth
  responsibility,
• protection of society, special needs, alternative
  measures, and legal rights and freedoms

30
Accountability

• A principle of juvenile justice was created that
  young people who commit criminal offences would
  have to assume responsibility for their behavior.
• However, the YOA recognized that young people
  have limited accountability compared to adults.

31
Protection of Society

• The protection of society was included in the
  original act and was revisited in the 1995
  amendment.
• This amendment underscored its importance as a
  guiding principle in juvenile justice by stating
  that it is a primary objective of the criminal
  law.

32
Special Needs

• Section 3(1)(c)(C.1) outlined more specifically
  the rationale for a youth justice system.
• Because of their immaturity and dependency
  relative to adults, young people are said to have
  special needs.
• The term special needs is not defined in
  legislation and, based on case law, seems to be
  interpreted as the psychological and social needs
  of the child.

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• These needs include a safe and secure home
  environment and parents or guardians who are
  willing and able to provide for the childs
  psychological and physiological needs.

34
Alternative Measures

• Section 3(1)(d) expressed the principle of
  diversion that where the protection of society
  is not compromised, measures other than formal
  court processing, with its potentially negative
  effects, should be considered.
• In most provinces only first time offenders and
  young persons guilty of minor offences were to be
  processed through alternative measures.

35
Rights of Young Persons

• It is in s.3(1)(e) and (g) that one finds the
  major difference between the YOA and the JDA.
• In addition to rights and freedoms guaranteed
  through the Canadian Charter of Rights and
  Freedoms and the Canadian Bill of Rights, the YOA
  established that young people would have special
  guarantees.

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• These special guarantees included the right to
  legal representation and the right to be informed
  as to their rights and freedoms under the act.
• Some rules pertained to statements made to
  persons of authority and to the admissibility
  of statements made to these people.
• Interesting to note that parents were not
  considered persons of authority and so
  statements made to them in confidence by their
  children were admissible in court.

37
Minimal Interference with Freedom

• Section 3(1)(f) applied to every aspect of youth
  justice and affected every young offender except
  where there were concerns regarding the
  protection of society.
• This principle encouraged the use of alternative
  measures, but also encouraged police to divert
  youth from the system altogether.

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• This principle also influenced bail hearings and
  sentencing.
• It encouraged the court to apply sentences more
  lenient than custody and discouraged the court
  from effecting transfers to the adult system.

39
Parental Responsibility

• Section 3(1)(h) marked another significant
  difference from the JDA.
• The YOA did not consider parental responsibility
  but instead addressed parental involvement with
  youth and the justice proceedings.

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• Parents or guardians were required to be notified
  of their childs arrest or of youth court
  proceedings and they could be ordered to attend
  court.
• Other sections of the YOA allowed parents to make
  statements regarding dispositions and transfers.

41
Modifications to the YOA

• Most resistance to the YOA emerged after its
  enactment.
• The debate over the YOA was reminiscent of the
  debates provoked by the creation of the juvenile
  justice system 100 years earlier.
• Groups expressed concerns over the rights of
  children and the differences in the
  implementation of principles found within the act.

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• Other groups argued that the act was not punitive
  enough.
• This resulted in three major sets of revisions to
  the act, all of which moved the justice system
  away from the welfare model and towards a crime
  control model.
• Bill C-37 was an amendment of note and came into
  force on December 1, 1995.

43

• The major changes to the YOA under this amendment
  included
• Sentences for ten years for youth convicted of
  first-degree murder or seven years for
  second-degree murder.
• Automatic transfer to adult court for 16 and 17
  year olds charged with serious personal injury
  offences unless able to satisfy a judge that the
  two objectives public protection and
  rehabilitation could be achieved better through
  the youth court.

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• And, an emphasis that rehabilitation for youth
  charged with minor offences is best achieved in
  the community.
• Still, law-and-order groups were not satisfied.
• After seven years, three drafts, and more than
  160 amendments, the Youth Criminal Justice Act
  came into force in April 2003.