|
|
YCJA > The Youth Criminal Justice Act: Summary and Background The Youth Criminal Justice Act: Summary and BackgroundIntroductionOn 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:
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 LegislationThere 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 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 PrincipleOne 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:
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:
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 MeasuresExperience 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). (See Table 1) Table 1: Majority of cases (principal charge) in youth court (Canada, 1998-9)
Provinces vary considerably in their use of the youth court. For example, Quebec brings into court 20 youth for every 1000 youth in the population (or about one case for every 50 youth) and Ontario brings into court 45 youth for every 1000 youth in the population (or about one case for every 22 youth). (See Figure 1) Provinces that bring cases into court at a relatively high rate do not appear to have more serious cases in court compared to other provinces. Figure 1: Rate (per 1,000 youths 12 to 17) of bringing cases into youth court
Ottawa: Canadian Centre for Justice Statistics. It also appears that measures outside the court process have been successful in terms of compliance by young persons. Nearly all of the young persons who participate in alternative measures programs under the Young Offenders Act successfully complete the required measure. Youth court judges in every region of the country believe that a significant proportion of cases coming to court could be dealt with adequately outside of the youth court. A recent national survey of youth court judges found that 54% of judges believed that half or more of the cases coming before them could have been dealt with as adequately or more adequately outside of the youth court. Even in Quebec, which has the lowest number of cases brought to court, 27% of judges indicated that half or more than half of the cases they were hearing could be dealt with adequately outside of the youth court. The Young Offenders Act permits the use of alternative measures. However, it provides little guidance as to the appropriate use of alternative measures, the types of alternatives and what their objectives should be. Seventeen years of experience under the YOA suggest that much greater use could be made of responses outside the youth court process and that stronger legislative direction is needed. The Youth Criminal Justice Act contains many provisions to increase the appropriate use of extrajudicial measures for less serious offences, including the following principles:
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:
ConferencesIn 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:
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 DetentionMost 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:
Youth Sentences1. Purpose and Principles of SentencingOne 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:
Figure 2: The overall rate (per 100,000 youth age 12 to 17) of youth court judges
imposing custody in Canada and the US (1997)
Figure 3: Rate (per 1,000 youths 12 to 17) sentenced to custody (1998-99)
Table 2: Majority of cases sentenced to custody (Canada 1998-99)
Table 3: Administration of justice offences: percent sentenced to custody (Canada 1998-9)
Table 4: Effect of criminal record (1996-97) Proportion receiving custody for a minor theft
Source: Statistics Canada (1998). Youth Court Statistics 1996-97. Ottawa: Canadian The Youth Criminal Justice Act includes a specific purpose and set of principles to guide judges in deciding on a fair and appropriate youth sentence. Under the YCJA, the purpose of youth sentences is to hold young persons accountable through just sanctions that ensure meaningful consequences for them and promote their rehabilitation and reintegration into society. Specific sentencing principles emphasize that the sentence must:
Custody is reserved primarily for violent offenders and serious repeat offenders. A young person cannot be committed to custody unless:
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. 2. Sentencing OptionsIn general, the sentencing options that are available to the court under the YOA are retained in the YCJA. However, the YCJA contains significant improvements regarding custody orders, non-custodial sentencing options, and sentencing for serious violent offenders. Custody orders under the YOA do not include a period of community supervision after release of the young person from custody. This has been seen as a significant weakness of the YOA because it does not ensure appropriate supervision and support for the young person during the transition from custody back to his or her community. The YCJA replaces the usual custody order with an order of custody and supervision. This new sentence requires that the custodial portion be followed by a period of supervision and support in the community. The addition of other new sentences in the YCJA provides youth court judges with more options to deal with the full range of youth crime. These include:
The Department of Justice Canada has set aside special funding for the provinces and territories to ensure that this sentencing option can be made available throughout the country. Adult SentencesFor nearly 100 years, under both the Juvenile Delinquents Act and the Young Offenders Act, the law has allowed young persons who are 14 years of age or older to be transferred to the adult court under certain circumstances. If the young person is convicted in adult court, the court can impose an adult sentence. The Youth Criminal Justice Act does not lower the age at which a young person may be subject to an adult sentence. Under the YOA, if a 16 or 17-year-old is charged with murder, attempted murder, manslaughter or aggravated sexual assault, it is presumed that he or she will be transferred to the adult court and, if convicted, will receive an adult sentence. The presumption does not mean that there will be an automatic adult sentence. It means that the young person must persuade the court that he or she should remain in the youth court. Experience under the YOA has shown that:
Table 5: Types of cases that are transferred (Canada: 1996-97 to 1998-99)
Table 6: Provincial Variation in the use of Transfers (1996-97 TO 1998-99)
The YCJA contains some important changes regarding adult sentencing:
Custody and ReintegrationAs mentioned, a significant weakness of the YOA is that it fails to ensure effective reintegration of a young person after being released from custody. Under the YOA, a young person can be released from custody with no required supervision and support to assist the young person in making the transition back to his or her community. The YCJA includes many provisions to assist the young person's reintegration into the community. Underpinning the new legislation is the belief that young people can be rehabilitated and successfully reintegrated into the community. The focus of every custody sentence must be on reintegration and on measures aimed at assisting the young person not to re-offend. 1. Custody and Supervision in the CommunityUnder the YCJA, every period of custody is to be followed by a period of supervision in the community, as part of the sentence. This includes custody and supervision orders, intensive rehabilitative and supervision orders and youth sentences for murder. The judge, at the time of imposing one of these custody sentences, must clearly state in open court the portion of the sentence to be served in custody and the portion to be served in the community. The YCJA contains a list of mandatory conditions that apply to all young persons while under supervision in the community. Additional conditions can be imposed to support the young person and address his or her needs, as well as manage risk. If a young person breaches a condition while under supervision in the community, reviews will be held that can result in a change in conditions or in the young person being returned to custody. If the provincial director has ordered the young person to be returned to custody, the court will conduct a review. If the court is satisfied that the young person has breached a condition, the court may order the young person to serve the remainder of the community portion in custody if the breach was serious. If the breach was not serious, the court may vary the conditions or impose new conditions. It is also possible that a young person may not serve a portion of the sentence in the community following custody. Before the start of the community portion, the court can require the young person to remain in custody if the court is satisfied that there are reasonable grounds to believe that the young person will commit an offence causing death or serious harm before the end of the sentence. 2. Reintegration Plans and Reintegration LeavesWhen a young person goes into custody, the YCJA requires that a youth worker work with the young person to plan for his or her reintegration into the community. The reintegration plan sets out the most effective programs for the young person in order to maximize his or her chances for successful reintegration into the community. When the young person is serving the community supervision portion of the sentence, the youth worker will supervise the young person, and provide support and assistance to the young person in respecting conditions and implementing the reintegration plan. Under the YCJA, a young person may be authorized to have a reintegration leave for the purpose of the young person's rehabilitation and preparation for eventual reintegration back into the community. Such leaves can also be used for medical, compassionate or humanitarian reasons. Leaves are for a period of thirty days, though the provincial director on reassessment of the case can renew them. 3. Administrative Determination of Custody LevelUnder the YOA, a judge decides at the time of sentencing whether a young person is placed in the secure level or open level of custody. The judge also decides in most cases whether a young person should be transferred to a different level of custody during the course of the sentence. One of the objectives of the YCJA is to streamline processes and provide officials with the discretion they need to effectively run the part of the system that they are responsible for in a fair and accountable manner. The YCJA authorizes youth correctional officials to determine whether a young person is placed in a more open or secure custody level, both at the time of committal to custody and for any subsequent transfers. The YCJA sets out the criteria by which correctional officials are to make these decisions. The criteria include that the young person be placed in the least restrictive level of custody, taking into account the best possible match of programs to the young person's needs as well as security concerns. Young persons are entitled to an independent review of any decision that places them in the most secure custody level or that transfers them into a more secure custody level. The YCJA also gives provinces and territories the option of choosing to retain the current system under which judges, rather than correctional officials, make these decisions. 4. Separation from AdultsThe YCJA retains the general rule that a young person who is serving a youth custody sentence is to be held separate and apart from adults. The YCJA also creates a presumption that if a young person in a youth facility reaches the age of twenty, he or she should be transferred from the youth facility to an adult facility to serve the remainder of the sentence. This serves to further protect youth serving their sentences in the youth system. When a young person serving a youth sentence reaches adult age, a judge may authorize the provincial director to place the young person in a correctional facility for adults if the court considers it to be in the best interests of the young person or in the public interest. If a young person is placed in an adult facility, the adult conditional release entitlements will apply to the young person. The privacy provisions associated with a youth sentence will continue to apply. The YCJA also contains new provisions relating to placement of a young person who receives an adult sentence. Unless the judge is satisfied that it would not be in the best interests of the young person or would jeopardize the safety of others,
PublicationA cornerstone of youth justice in Canada is that, as a general rule, the identity of a young person should be protected. The rationale is that publication of the name of a young person would impede rehabilitation efforts and detrimentally affect young persons and, in the long run, compromise public safety. However, there are certain exceptions. Under the YOA, one exception is that the publication of information that identifies the young person is permitted if the young person is transferred to adult court. A result of this provision is that the identifying information can be published before a court has determined whether or not the young person is guilty of the offence. This result is considered by many to be unfair to the young person. Under the YCJA, the identifying information cannot be published until a youth court has found the young person guilty of the offence and imposed an adult sentence. The YCJA also allows publication of identifying information where a youth sentence is imposed for a presumptive offence. However, there are limitations:
VictimsThe youth justice system has been criticized by some for not adequately recognizing the interests and needs of victims. Under the YCJA, the interests and needs of victims are clearly recognized and the role of victims at different stages of the youth justice process is specified. Key provisions include:
ConclusionThe Youth Criminal Justice Act sets out a new legislative framework for Canada's youth justice system. It builds on the strengths and addresses the weaknesses of the YOA. The YCJA provides needed legislative direction to assist in achieving a fairer and more effective youth justice system. Key objectives of the YCJA include:
These objectives cannot be achieved by legislation alone. As noted earlier, the Youth Criminal Justice Act is an important part, but only a part, of the Government of Canada's broader approach to addressing youth crime and improving the youth justice system. The combination of the new legislation and important non-legislative elements - such as increased federal funding for programs, crime prevention, public and professional education, partnerships with other sectors, and appropriate implementation by provinces and territories - can achieve the objectives and thereby create a fairer and more effective youth justice system. |
Last Updated: 2006-01-31 | Important Notices |