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THE EVOLUTION OF JUVENILE JUSTICE IN CANADA

2 THE ACT OF 1908

Reformers persuaded the federal government to enact the Juvenile Delinquents Act[9] in 1908, the spirit of which was to make the treatment of accused delinquents more of a social welfare exercise than a judicial process. The Juvenile Delinquents Act was philosophically grounded in the doctrine of parens patriae, which held that the state could intervene as a "kindly parent" in situations where a family could not provide for the needs of its children. The juvenile justice system was now governed by the overarching principle of the best interests of the child ; consequently, due process rights were minimised in the interests of an informal process and the promotion of the welfare of children.

The Juvenile Delinquents Act stated that "every juvenile delinquent shall be treated, not as a criminal, but as a misdirected and misguided child". In keeping with this approach, the Act provided for separate courts and that all cases involving children be brought before juvenile court. The Act, however, also provided that children over the age of 14 and accused of an indictable offence, such as murder or treason, be transferred to ordinary courts. Transfers were at the discretion of a juvenile court judge. Young persons detained pending a hearing had to be placed in detention homes or shelters exclusively for juveniles. Proceedings were also to be private, and neither the names of the accused nor their parents could be published. The Act provided greater sentencing options and placed restrictions on the punishment of young children. With the exception of juveniles transferred to adult courts, no convicted youth could be put in custody in any place "in which adults are or may be imprisoned".

The Juvenile Delinquents Act was a significant piece of legislation that set the tone for the Canadian justice system's approach for nearly 75 years. The juvenile justice system created by the Juvenile Delinquents Act was an enormous improvement over the previous treatment of children and adolescents. Nonetheless, the Juvenile Delinquents Act was still considered an imperfect solution and was often criticised.

In the 1960s, the federal Department of Justice reassessed its long-range plan for the development of federal correctional services, and a committee was set up to study the matter. As part of its mandate, the committee released a report entitled Juvenile Delinquency in Canada, in 1965. The report drew attention to the many shortcomings of the system by pointing out the lack of uniformity across Canada in terms of types or sizes of institutions, the number and qualifications of staff and the policies to be administered in the operation of training schools. Committee members noted that, within the provinces, seldom did any one government department have charge of children's services, that many centres had inadequate facilities and that some of these were poorly located. The report placed even more emphasis than the Juvenile Delinquents Act did on the non-judicial treatment of delinquents, called for stricter limitations on the exercise of court powers, and recommended the use of more sentencing options. Moreover, the report called for more standardisation of services and programs, equal application of the Juvenile Delinquents Act across Canada, better training for judges and other court officials, and mandatory pre-sentence reports. It also recommended that the court be obliged to inform the accused of his or her rights to retain counsel, that provisions be made for more formal procedures and protection of the accused's rights, and that broader rights of appeal be instituted.

The 1965 report was the beginning of a lengthy period of debate and gradual reform. Some provinces, most notably Quebec, took steps to change their juvenile justice system by, for example, ensuring that young persons had access to lawyers and establishing a formal system of juvenile diversion. Other provinces lagged behind.

In 1970, the federal government introduced Bill C-192, the Young Offenders Act. While this bill restricted the jurisdiction of the proposed Act to federal criminal offences in order to appease provincial concerns, it nonetheless generally adhered to the approach and substantive proposals recommended by the 1965 committee. As a result of resistance from the provinces and opposition parties in Parliament, as well as opposition by interest groups (it was criticised as too legalistic and punitive and as a "Criminal Code for children" by welfare and treatment interest groups), the Bill could not be adopted before the end of the session of Parliament in 1972.

In response to the failure of Bill C-192, the federal Solicitor General in 1973 established a committee to review developments that had taken place in the field. That committee released its report, entitled Young Persons in Conflict with the Law, in 1975. The report included 108 recommendations concerning various issues such as recognising the right of a young person to have legal representation or assistance from a responsible person, setting the minimum age at 14 years and affording more protection to young persons in relation to statements made to authorities.