Youth Criminal Justice Act - Background

BACKGROUND
1908-1984 Juvenile Delinquents Act

The Juvenile Delinquents Act was considered to be "social welfare legislation" and applied to youth ages 7-16 (or 18 depending on the jurisdiction). An offence was considered a "delinquency" and the person was considered "in a condition of delinquency" and therefore requiring help and guidance and proper supervision" (section 3 Juvenile Delinquents Act).

The Constitution Act of 1867

• The Constitution Act of 1867 was previously known as the British North America Act (BNA Act)
• The name of the British North America Act was changed with the repatriation of the constitution from England in 1982
• The Canadian Charter of Rights and Freedoms also became part of the constitution of Canada, effective April 17, 1982
• Under The Constitution Act of 1867 the Government of Canada, the provinces and the territories have the power to pass legislation under sections 91 and 92
• Subs. 91(27) gives the federal government legislative authority over criminal law, including criminal law procedure.
• Subs. 92(14) gives the provinces/territories legislative authority over the administration of justice

1982 The Canadian Charter of Rights and Freedoms

The Charter became part of the Constitution of Canada in 1982 and the way police carried out their duties changed. Prior to the Charter, the Canadian Bill of Rights applied to many of the rights protected by the Charter, but the Bill of Rights only had the status of a "statute of Canada". Therefore the Government of Canada could affect those rights through other federal statutes. The Charter raised the protection of rights to a constitutional level and this led to a sharper focus and adherence to these rights.

1984-2003 Young Offenders Act

The Youth Offenders Act introduced a more "legalistic" model for youth justice and moved away from the "social welfare" approach. Youth were now to be "held accountable" and "bear responsibility for their contraventions".

The Youth Offenders Act recognized that young persons were not adults and that they should not "be held accountable in the same manner or suffer the same consequences … as adults".

There were a number of amendments to the Youth Offenders Act, the most notable being in 1992 and 1995.
With the amendments in 1995 the Minister of Justice asked the House of Commons Standing Committee on Justice and Human Rights to review the Youth Offenders Act. This review took place and simultaneously a Federal/Provincial/Territorial Task Force studied the Youth Offenders Act and delivered their report to the House of Commons Standing Committee of Justice and Legal Affairs in 1996. The Standing Committee on Justice and Legal Affairs in turn reported to Parliament in April of 1997. (The Standing Committee of Justice and Human Rights Legal became the Standing Committee on Justice and Legal Affairs.)

The Minister of Justice responded to this Report with the release of "The Strategy for the Renewal of Youth Justice" in May 1998. The principles set out in the Strategy form the basis for the many changes introduced in the Youth Criminal Justice Act.

April 1, 2003 - Youth Criminal Justice Act

The Government of Canada recognized that too many young persons are sent to court, with the result that too many of those young persons are placed in custody. The Youth Criminal Justice Act contains a Preamble and Principles that place an emphasis on keeping youth out of court and out of custody. There are Principles stated at the beginning of the Act as well as set out in other Parts of the Act. These Principles are to be read together; therefore, the Principles set out in section 3 are to be read in conjunction with the other Principles set out in ss. 4, 38 and 83. The Youth Criminal Justice Act, through the Principles, provides clear guidance to all decision makers, including police.

The Principles are not to be “skipped over”. They are an essential part of the Act and must be understood. Courts will turn to the Principles when interpreting sections of the Act to help determine legislative purpose.

The issue of youth sentences is often controversial, in part due to a perception that sentences are too lenient. This perception is sometimes expressed as: “youth get away with murder”. What is usually meant by this comment is that the penalties are not long enough. To put this issue in context it must be remembered that there is the possibility of “adult sentences” for young persons. To go a step further, an adult sentence is presumed for the offences of murder, manslaughter, attempted murder, aggravated sexual assault and a third serious violent offence (SVO) - see the definition of “presumptive offence (b)” - committed by a 14-17 year old.
Section 61 of the Youth Criminal Justice Act gives jurisdictions some flexibility on the age for the application of this presumption.

Part of the emphasis on keeping youth out of court is the recognition of, and a building upon, many of the good police practices that already exist across Canada. There are many examples of community partnerships involving police that provide options to the formal court process. Under the Young Offenders Act the only non-court legislated option was Alternative Measures. Sections 4-12 of the Youth Criminal Justice Act introduce new legislative options and require police to consider these options before taking more formal action. The Youth Criminal Justice Act introduces new terms for non-court options: Extrajudicial Measures and Extrajudicial Sanctions (the replacement for Alternative Measures).

Section 6 of the Youth Criminal Justice Act requires police to consider the following Extrajudicial Measures: taking no further action, giving a warning, administering a caution (if there is a program established in accordance with s. 7), or making a referral, with the consent of the young person, before considering either Extrajudicial Sanctions or commencing a formal proceeding.

Canadian statistics make a clear statement of the overuse of both court and custody.

The Parliament of Canada, through the Youth Criminal Justice Act, has made a clear policy and legislative statement about how to approach youth justice and in particular how to handle the first response to youth crime. It is now a requirement to consider community options before laying a charge. It is necessary for police to review sections 4-12 carefully to understand this new approach to youth justice.

The Youth Criminal Justice Act represents a new approach to youth justice and provides police with an opportunity to be creative and to work more closely with communities.