Why Did the Government Introduce New Youth Justice Legislation?
The youth justice system under the Young Offenders Act (YOA) was not working as well as it should for Canadians. Too many young people were charged and often incarcerated with questionable results. Procedural protections for young people were not adequate and too many youth ended up serving custodial sentences with adults. The overarching principles were unclear and conflicting; disparities and unfairness in youth sentencing exist. Interventions are not appropriately targeted to the seriousness of offences. They were not adequately meaningful for individual offenders and victims, and do not adequately support rehabilitation and reintegration.
The Youth Criminal Justice Act (YCJA) came into force on April 1, 2003 and addresses these fundamental flaws in the following ways:
- Targeting Responses of the Youth Justice System to the Seriousness of the Offence
Canada's failure to target the most serious interventions to the most serious crimes has resulted in one of the highest youth incarceration rates in the world. The YCJA provides a statutory framework through principles, presumptions, new sentencing and front-end options so that serious, violent offences are treated seriously, and so that constructive measures are available for the vast majority of less serious offences.
The presumption in favour of an adult sentence for the offences of murder, attempted murder, manslaughter and aggravated sexual assault has been expanded to include repeat serious violent offences. While under the YOA, an adult sentence could be applied to youth 14 and older, the presumptions now apply to them as well unless a province or territory opts for a higher age. Privacy protections do not apply to youth receiving adult sentences. In addition, where a youth is convicted of one of the most serious (presumptive) offences and receives a youth sentence rather than an adult sentence, the privacy protections would not apply unless the judge ruled otherwise.
At the same time, enhanced options for police and Crown discretion at the front end, together with statutory presumptions about when the formal court process and custody are not to be used, will lead to meaningful, effective and faster resolutions of the majority of less serious offending behaviour.
The overall result of this targeted youth justice system should be fewer young people being put through the formal justice system and receiving custody sentences for less serious offences, and an overall reduction in Canada's youth custody rates.
- Clarifying the Principles of the Youth Justice System
The YCJA sets out the purpose of the youth justice system through its principles. Unlike the YOA, the principles of the YCJA provide clear direction, establish structure for the application of principles and thereby resolve inconsistencies. These principles reinforce that the criminal justice system for youth is different than the one for adults. The objectives of the youth criminal justice system are to prevent crime, ensure meaningful consequences for offending behaviour, and rehabilitate and reintegrate the young person. In these ways, the youth justice system can contribute to the protection of societ
- Ensuring Fairness and Proportionality in Sentencing
The sentencing principles in the YCJA provide a clear, consistent and coherent code for youth sentences. They are intended to reduce disparity and reflect a fundamentally fairer approach to sentencing. Unlike the YOA, the YCJA states that the purpose of sentencing is to hold a young person accountable for the offence committed by imposing meaningful consequences and promoting the rehabilitation and reintegration of the young person.
To reverse the current unfairness, the YCJA provides that the punishment imposed on a young person must not be greater than what would be appropriate for an adult in similar circumstances. Also, given the significant disparity between what similarly situated youth receive for similar offences, principles of proportionality among youth sentences are included in this legislation.
Proportionality sets the framework or limits within which the needs of the young person committing the offence are to be addressed through the criminal justice system in order to achieve rehabilitation and reintegration.
- Respecting and Protecting Rights
The YOA did not adequately respect the rights of young people. It provided that a youth could be transferred to an adult court before conviction and lose age-appropriate due process protections, including privacy protections, on the basis of an unproven charge. Transfer proceedings lasted as long as two years, impeding access to a speedy trial. Once transferred into the adult stream, youth as young as 14 could be required to serve their sentences in adult provincial or federal correctional facilities at the discretion of the judge.
The YCJA addresses these shortcomings by providing that all proceedings against a youth must take place in the youth court where age-appropriate due process protections apply. The hearing on the appropriateness of an adult sentence will only occur after a finding of guilt and all the evidence about the offence has been heard. The youth justice procedure for the most serious offences will be speedier, retain age-appropriate due process protections and be more respectful of the presumption of innocence. It also includes a presumption that, if under 18, a youth will serve an adult sentence in a youth facility. This is more consistent with the spirit of the United Nations Convention on the Rights of the Child, which is expressly referenced in the preamble of the new legislation.
- Enabling Meaningful Consequences Aimed at Rehabilitation
While youth may know that their behaviour is wrong, they may not fully understand the nature and consequences of their acts for themselves and others. Further, some young people lack the structure, guidance and support in their communities needed to change behaviour patterns and overcome damaging influences.
Many of the provisions in the YCJA allow for individualized interventions that instruct the youth. Police, Crown prosecutors and judges are given statutory authority to warn and caution young people that their behaviour is unacceptable and that more serious consequences may follow if they repeat the behaviour. "Conferencing" is encouraged at many stages of the process, which could allow the young person to be a participant in a process with victims, family members and others to learn about the consequences of his or her behaviour and to develop ways to make amends.
The range of sentencing options has been expanded. In addition to sentences that allow the young person to attempt to repair some of the harm caused through restitution, compensation, community service orders, there are also new sentences that provide for close supervision and support in the community. Changing behaviour in the community is key to addressing youth crime. These sentences include attendance orders, intensive support and supervision orders, and deferred custody and supervision orders.
The YCJA also provides a new sentence for the most violent and troubled youth stressing rehabilitation and support. It is a serious commitment to the protection of society by making every effort to stop the recurrence of the most violent youth conduct.
- Supporting Reintegration after Custody
A major flaw of the YOA was that it did not provide sufficient provisions for a safe, graduated reintegration into the community. The YCJA includes provisions to assist the young person's reintegration into the community, which protects the public by guarding against further crime. It provides that periods of incarceration will be followed by periods of supervision in the community through custody and supervision orders. To ensure "truth in sentencing" and clarity for the young person, at the time of imposing the sentence, the judge will state in open court the portion of time that is to be served in custody, and the portion to be served in the community. Breaching conditions of community supervision could result in the youth being returned to custody.
Studies demonstrate that treatment is more effective if delivered in the community instead of in custody. The reintegration provisions encourage continuity between the custody and community portions of the sentence through increased reintegration planning, which takes into account the youth's needs throughout the whole sentence and through reintegration leaves (for specific purposes) of up to 30 days.
- Encouraging an Inclusive Approach to Youth Crime
The youth justice system under the YOA was criticized for not appropriately involving victims, parents, family, community, and representatives from other disciplines. Youth crime is often a complex phenomenon. Involving others can improve understanding and provide support for the victims, youth, families and communities in responding constructively and meaningfully to the offending behaviour.
The YCJA specifically encourages "conferences" at many stages of the proceedings, including those involving the police, sentencing judges, and provincial directors. Some conferences may involve bringing together professionals such as child care workers, school psychologists or others who are already involved with the youth to seek advice and verify continuity of services. Others may be in the nature of sentencing circles or family group conferences involving victims, offenders, and their families.
The legislation also expands the possible mandates of Youth Justice Committees. These are committees of citizens who can assist in any aspect of the administration of the Act or in any program or services for young people. They can encourage community members and agencies to take an active role in supporting constructive resolutions for the victims, families, youth and others implicated by
