The Youth Criminal Justice Act

Introduction

On February 4, 2002, the House of Commons passed Bill C-7, the Youth Criminal Justice Act (YCJA). The new law replaces the Young Offenders Act (YOA), and is in force as of April 1, 2003, following a period of preparation for its implementation. The YCJA builds on the strengths of the YOA and introduces significant reforms that address its weaknesses. The YCJA provides the legislative framework for a fairer and more effective youth justice system.

The introduction of the bill followed an extensive period of review and consultation, much of which is reflected in the following reports:

A Review of the Young Offenders Act and the Youth Justice System in Canada, report of the Federal-Provincial-Territorial Task Force on Youth Justice (1996)
Renewing Youth Justice, report of the House of Commons Standing Committee on Justice and Human Rights (1997)
A Strategy for the Renewal of Youth Justice, Department of Justice Canada (1998)

In March of 1999, Bill C-68, the first version of the YCJA, was introduced. Parliament prorogued in June and the bill was reintroduced as Bill C-3, in October 1999. The bill proceeded through second reading and the Standing Committee on Justice and Human Rights held hearings on the bill. Prior to third reading, the federal election was called for November 27, 2000 and the bill was delayed. Bill C-7 was introduced in February 2001 and includes over 160 amendments that respond to suggestions and concerns raised in relation to C-3.

The purpose of this document is to explain the background to the YCJA, and provide a summary of its main provisions and the rationale behind them. Since the focus is on the changes, provisions of the YOA that are retained in the YCJA are not summarized.

The Need for New Youth Justice Legislation

There have been many concerns in Canada about the Young Offenders Act and the youth justice system. Some of these concerns have been based on misperceptions about youth crime, the legislation and how the system operates. Some concerns have been based on a misunderstanding of the limits of legislation and unreasonable expectations about what legislation can accomplish.

It is sometimes argued that new legislation is not needed, that the YOA is not flawed and that if problems exist, they are the result of inappropriate implementation. This position fails to take account of 17 years of experience that indicate that the YOA does not provide clear legislative direction to guide appropriate implementation in several areas. The absence of clear legislative direction is an important factor, although not the only factor, that has contributed to the problems in the youth justice system.

Significant problems in the youth justice system include:

The system lacks a clear and coherent youth justice philosophy.
Incarceration is overused - Canada has the highest youth incarceration rate in the Western world, including the United States.
The courts are over-used for minor cases that can be dealt with better outside the courts.
Sentencing decisions by the courts have resulted in disparities and unfairness in youth sentencing.
The YOA does not ensure effective reintegration of a young person after being released from custody.
The process for transfer to the adult system has resulted in unfairness, complexity and delay.
The system does not make a clear distinction between serious violent offences and less serious offences.
The system does not give sufficient recognition to the concerns and interests of victims.

The YCJA addresses these problems. However, there are limitations as to what can be accomplished through legislative change alone. That is why the new legislation should be seen as only part of the Government's much broader approach to youth crime and the reform of Canada's youth justice system. Major non-legislative factors in this broader approach include: significantly increased federal funding to the provinces and territories, crime prevention efforts, effective programs, innovative approaches, research, public education partnerships with other sectors (such as education, child welfare and mental health), improvements to aboriginal communities, and appropriate implementation by provinces and territories.

Preamble and Declaration of Principle

One of the problems with the YOA has been the lack of clarity in the fundamental principles of the legislation. The Declaration of Principle is the primary source of principles to guide decision-making under the Act. It contains broad statements that reflect various themes, including the importance of accountability, the protection of society, the special needs of young persons and the rights of young persons. However, the principles do not provide real guidance to decision-makers under the Act because they lack coherence, are conflicting and are not ranked in terms of priority. Where principles are in conflict, there is no indication as to which one takes precedence.

The Youth Criminal Justice Act contains both a preamble and a declaration of principles to clarify the principles and objectives of the youth justice system.

The Preamble, while not legally enforceable, contains significant statements from Parliament about the values on which the legislation is based. These statements can be used to help interpret the legislation and include the following:

Society has a responsibility to address the developmental challenges and needs of young persons.
Communities and families should work in partnership with others to prevent youth crime by addressing its underlying causes, responding to the needs of young persons and providing guidance and support.
Accurate information about youth crime, the youth justice system and effective measures should be publicly available.
Young persons have rights and freedoms, including those set out in the United Nations Convention on the Rights of the Child.
The youth justice system should take account of the interests of victims and ensure accountability through meaningful consequences and rehabilitation and reintegration.
The youth justice system should reserve its most serious interventions for the most serious crimes and reduce the over-reliance on incarceration.

The Declaration of Principle sets out the policy framework for the interpretation of the legislation. Unlike the YOA, the YCJA provides guidance on the priority that is to be given to key principles. For example, the new legislation makes clear that the nature of the system's response to an offence should reflect the needs and individual circumstances of a young person. However, the needs or social welfare problems of a young person should not result in longer or more severe penalties than what is fair and proportionate to the seriousness of the offence committed.

The Declaration provides that:

The objectives of the youth justice system are to prevent crime; rehabilitate and reintegrate young persons into society; and ensure meaningful consequences for offences. In these ways, the system can contribute to the long-term protection of society.
The youth justice system must reflect the fact that young persons lack the maturity of adults. The youth system is different from the adult system in many respects, including: measures of accountability are consistent with young persons' reduced level of maturity; procedural protections are enhanced; rehabilitation and reintegration are given special emphasis; and the importance of timely intervention is recognized.
Young persons are to be held accountable through interventions that are fair and in proportion to the seriousness of the offence.
Within the limits of fair and proportionate accountability, interventions should reinforce respect for societal values, encourage the repair of harm done, be meaningful to the young person, respect gender, ethnic, cultural and linguistic differences and respond to the needs of Aboriginal young persons and of young persons with special requirements.
Youth justice proceedings require special guarantees to protect the rights of young people; courtesy, compassion and respect for victims; the opportunity for victims to be informed and to participate; and that parents be informed and encouraged to participate in addressing the young person's offending behaviour.

In addition to the Preamble and the Declaration of Principle, the YCJA includes other more specific principles to guide decisions at key points in the youth justice process: Extrajudicial Measures, Youth Sentencing, and Custody and Supervision. These additional principles are discussed below.

Extrajudicial Measures

Experience in Canada and other countries has shown that measures outside the court process can provide effective responses to less serious youth crime. One of the key objectives of the Youth Criminal Justice Act is to increase the use of effective and timely non-court responses to less serious offences by youth. These extrajudicial measures provide meaningful consequences, such as requiring the young person to repair the harm done to the victim. They also allow early intervention with young people and provide the opportunity for the broader community to play an important role in developing community-based responses to youth crime. Increasing the use of non-court responses not only improves the response to less serious youth crime, it also enables the courts to focus on more serious cases.

More cases could be dealt with effectively outside the court process. Most cases in youth court are non-violent. Minor assault makes up nearly half of the violent offences. More than forty percent of the cases in youth court fall into four categories of less serious offences: theft under $5000 (e.g., shoplifting); possession of stolen property; failure to appear; and failure to comply with a disposition (e.g., breach of a condition of probation).

Youth Justice Act - Parent Information

Contrary to popular opinion the Youth Justice Act is a real criminal statute which holds young persons criminally responsible for their actions.

The consequences of a finding of guilt under the Youth Justice Act can be very serious and long lasting. Records are not erased at age 18.

Parents of children charged under the Act need to resist the temptation to bare their souls to the police.

Notwithstanding a parent's anger towards a child involved in criminal activity, a parent needs to be available to the young person for assistance at all stages of questioning, arrest, confession (if any), release from custody, and Court.

Many young persons sign away their right to consultation with parents prior to and during a police interview.

Contrary to popular opinion, young persons and their parents do not generally understand their rights and should contact a lawyer to discuss the issues and their legal rights.

The Youth Criminal Justice Act contains many provisions to increase the appropriate use of extrajudicial measures for less serious offences, including the following principles:

extrajudicial measures should be used in all cases where they would be adequate to hold the young person accountable.
extrajudicial measures are presumed to be adequate to hold first-time, non-violent offenders accountable.
extrajudicial measures may be used if the young person has previously been dealt with by extrajudicial measures or has been found guilty of an offence.

The YCJA also sets out clear objectives to guide the use of extrajudicial measures, including: repairing the harm caused to the victim and the community; providing an opportunity for victims to participate in decisions; ensuring that the measures are proportionate to the seriousness of the offence; and encouraging the involvement of families, victims and other members of the community.

The YCJA requires police officers to consider the use of extrajudicial measures before deciding to charge a young person. Police and prosecutors are specifically authorized to use various types of extrajudicial measures:

Taking no further action
Warnings are informal warnings by police officers.
Police cautions are more formal warnings by the police. The YCJA authorizes provinces to establish police cautioning programs. Based on the experience in some jurisdictions, it is expected that police cautions will be in the form of a letter from the police to the young person and the parents or they may involve a process in which the young person and the parents are requested to appear at a police station to talk to a senior police officer.
Crown cautions are similar to police cautions but prosecutors give the caution after the police refer the case to them. In one province where they are currently being used, the caution is in the form of a letter to the young person and the parents.
Referrals are referrals of young persons by police officers to community programs or agencies that may help them not to commit offences. The referral may be to a wide range of community resources, including recreation programs and counseling agencies.
Extrajudicial sanctions, the most formal type of extrajudicial measure, are what are known as alternative measures under the YOA. Unlike the other types of extrajudicial measures, they may be used only if the young person admits responsibility for the offence. The Attorney General of the province must determine that there is sufficient evidence to proceed with a prosecution of the offence. The sanctions must be part of an extrajudicial sanctions program designated by the Attorney General. The young person agrees to be subject to the sanction. If the young person fails to comply with the terms and conditions of the sanction, the case may proceed through the court process. Under the YCJA, an extrajudicial sanction could be used only if the young person cannot be adequately dealt with by a warning, caution or referral.

Conferences

In many parts of Canada, there is an increasing use of conferences to assist in the making of decisions regarding young persons who are involved in the youth justice system. In general, "conference" refers to various types of processes in which affected or interested parties come together to formulate plans to address the circumstances and needs involved in youth justice cases.

Conferences are not referred to in the YOA. They generally operate in an informal manner. They can take the form of family group conferencing, youth justice committees, community accountability panels, sentencing circles, and inter-agency case conferences. Conferences provide an opportunity for a wider range of perspectives on a case, more creative solutions, better coordination of services, and increased involvement of the victim and other community members in the youth justice system.

The YCJA authorizes and encourages the convening of conferences to assist decision-makers in the youth justice system. Under the proposed legislation, a conference is defined as a group of people brought together to give advice to a police officer, judge, justice of the peace, prosecutor, provincial director or youth worker who is required to make a decision under the Act. A conference could give advice on decisions such as:

appropriate extrajudicial measures;
conditions for release from pre-trial detention;
appropriate sentences; and
plans for reintegrating the young person back into his or her community after being in custody.

A conference could be composed of a variety of people depending on the situation. It could include, for example, the parents of the young person, the victim, others who are familiar with the young person and his or her neighbourhood, community agencies or professionals with a particular expertise that is needed for a decision. A conference could be a restorative mechanism that is focused on developing proposals for repairing the harm done to the victim of the young person's offence. It could also be a professional case conference in which professionals discuss how the young person's needs may best be met and how services in the community can be coordinated to assist the young person.

Pre-trial Detention

Most of the provisions of the YOA related to pre-trial detention would remain the same under the YCJA, including the application of the provisions of the Criminal Code. However, in response to concerns that pre-trial detention is over-used under the YOA, the YCJA includes the following changes:

Pre-trial detention is not to be used as a substitute for child protection, mental health or other social measures.
If the young person could not be sentenced to custody if convicted, the judge is required to presume that pre-trial detention of the young person is not necessary for the protection or safety of the public.
If a young person would otherwise be detained, the judge is required to inquire as to whether a responsible adult is available who would be willing to take care of the young person as an alternative to pre-trial detention.

Youth Sentences

1. Purpose and Principles of Sentencing

One of the concerns about the Young Offenders Act has been that it does not provide clear guidance to judges on sentencing. It does not provide a specific purpose of sentencing. Its principles are general, inconsistent with each other, and not ranked in terms of priority. The result is an absence of clear legislative direction to judges and others in the youth justice system.

A related concern about the experience under the YOA is the very high use of custody as a sentence, particularly for less serious and non-violent offences and for young persons who are not serious repeat offenders:

The youth incarceration rate is higher in Canada than other Western countries, including the United States.
The youth incarceration rate is higher than the adult incarceration rate in Canada.
Provinces vary considerably in their youth incarceration rates.
For eight of the nine most common offences in youth court, youth receive longer periods of custody than adults who receive custody for the same offence; in addition, youth spend more time in custody than adults with similar sentences due to the adult conditional release provisions.
About 80% of custodial sentences are for non-violent offences.
Almost half of the cases resulting in a custodial sentence fall into four categories of less serious offences: theft under $5000 (e.g., shoplifting); possession of stolen property; failure to appear; and failure to comply with a disposition (e.g., breach of a condition of probation).
Almost half of young persons whose most serious offence was failure to comply with a disposition (e.g., breach of a condition of probation) were sentenced to custody.
Many first offenders found guilty of minor theft are sentenced to custody. For example, 8% of such offenders in Ontario and over 7% in Quebec were sentenced to custody.

Specific sentencing principles emphasize that the sentence must:

not be more severe than what an adult would receive for the same offence;
be similar to youth sentences in similar cases;
be proportionate to the seriousness of the offence and the degree of responsibility of the young person;
within the limits of proportionality,
1. be the least restrictive alternative;
2. be the sentencing option that is most likely to rehabilitate and reintegrate the young person; and
3. promote in the young person a sense of responsibility and an acknowledgement of the harm done by the offence.

Custody is reserved primarily for violent offenders and serious repeat offenders. A young person cannot be committed to custody unless:

the young person has committed a violent offence;
the young person has failed to comply with non-custodial sentences;
the young person has committed a serious indictable offence and has a history that indicates a pattern of offences; or
in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that it would be impossible to impose a sentence other than custody that would be consistent with the purpose and principles of sentencing. If a judge relies on this provision, the judge must give reasons as to why the case, in his or her opinion, is exceptional.

Before imposing a custodial sentence, the court must also have considered all reasonable alternatives to custody and must have determined that there is no reasonable alternative that would be capable of holding the young person accountable in accordance with the purpose and principles of sentencing discussed above. This means, for example, that although a young person has failed to comply with previous non-custodial sentences, he or she may receive another non-custodial sentence if the court determines that it would be adequate to hold the young person accountable.

Although the court must consider alternatives to custody for all offenders, the court must give particular attention to the circumstances of Aboriginal offenders.