The International Cooperation Group

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THE EVOLUTION OF JUVENILE JUSTICE IN CANADA

3 THE ACT OF 1984

In early 1981, Bill C-61, the Young Offenders Act, was introduced in Parliament. The Bill, unlike the 1908 Juvenile Deliquents Act, which received less than one hour's discussion in the House of Commons, was the subject of extensive study and debate in Parliament. More than 40 interest groups made representations to the parliamentary subcommittee studying the Bill. Although critical of particular aspects of the Bill, these groups generally supported it. The philosophical direction of the proposed legislation, in sharp contrast to the failed 1970 Young Offenders Act, was hardly debated at all. The legal rights orientation of the Bill went virtually unchallenged ; what was really at issue in this regard was not the rights in themselves but nuances of their implications. The two dominant political parties of the time (the Liberal Party and the Conservative Party) seemed to agree on the fundamental direction of juvenile justice reform, while a third party (the New Democratic Party) criticised certain aspects of the Bill but remained relatively quiet in its criticism of the legislation's philosophical direction.

In 1982, the federal government enacted the Canadian Charter of Rights and Freedoms, which has become a fundamental part of the country's Constitution. The Charter protects, among other things, legal rights such as the right to life, liberty and security of the person. The integration in the Constitution of the Charter of Rights and Freedoms provided a strong impetus to federal reform efforts. Many of the provisions of the Juvenile Delinquents Act appeared to ignore the legal rights guaranteed in the Charter. Further, the provincial disparities invited challenge under section 15 of the Charter, which guarantees equality rights. Thus, in 1982, with the support of all political parties, the Young Offenders Act received parliamentary approval. The Young Offenders Act came into force on 2 April 1984, replacing the 1908 Juvenile Delinquents Act.

The Young Offenders Act of 1984 was designed to remedy many of the shortcomings in the treatment of juvenile delinquents ; in particular, it addressed the issue of offenders' rights. The Act continued to make a distinction between youth and adult crime, and to provide for a substantially different and much more benign approach to dealing with youth. At the same time, it attempted to make young people more accountable for their actions. The legislation ended the paternalistic handling of delinquents by providing young people the same basic rights and freedoms before the law as those enjoyed by adults, such as the right to legal counsel and the right to appeal a conviction. It also set out a new range of penalties that included the options of financial restitution or compensatory work for the victim. One of the more significant changes, in keeping with the Act's benevolent approach, was the provision raising the minimum age for prosecution to 12 years and setting a new, Canada-wide maximum age of 17. The uniform maximum age provision of the Act came into force on 1 April 1985.

The Act initially stipulated that detention could not exceed two years, except where the crime would ordinarily incur a life sentence, in which case the maximum period of commitment could not exceed three years. Although the Act permits transfer to adult court in certain situations, its intent was that most cases be tried in youth court. There have been a number of amendments to the Act since it came into force. For example, there were amendments to the transfer process, amendments increasing the penalty for first-degree murder to 10 years, and amendments increasing the penalty for second-degree murder to 7 years.

Despite the considerable amount of criticism it has received, the Young Offenders Act was clearly an improvement over the Juvenile Deliquents Act since it represented a balance of the due process rights of young people, the protection of society and the special needs of young offenders. While many Canadians thought the Act was too lenient on young offenders, children's advocates were concerned about the overuse of incarceration as a method for dealing with troubled youths. A further criticism was that the principles enumerated in the Young Offenders Act lacked any indication of priority or order of importance.

In July 1995, the House of Commons Standing Committee on Justice and Legal Affairs initiated a broad review of the Young Offenders Act. In order to properly assess the situation, a wide range of groups were consulted, including criminal justice professionals, children's services organisations, victims, parents, young offenders, educators, advocacy groups and social-policy analysts. In its report entitled Renewing Youth Justice, the federal committee formulated in April 1997 14 suggestions for change, such as providing youth courts the jurisdiction to deal with 10 and 11 year-olds in certain circumstances, to allow judges the discretion to permit publication of young offenders' names, and replacing the Act's declaration of principles with a statement of purpose and an enunciation of guiding principles for its implementation.

On 12 May 1998, the federal government released its response to the 1997 Renewing Youth Justice report in a document entitled A Strategy for the Renewal of Youth Justice. This document addressed each of the recommendations made by the 1997 report and outlined how the government intended to reform juvenile justice. The strategy focused on three areas : youth crime prevention, providing young people with meaningful consequences for their actions, and the rehabilitation and reintegration of young offenders.