A quest to restore public confidence in youth justice

It is a difficult time to be Minister of Justice. The Canadian justice system is under attack from all sides, and any moves to change it are met with criticism from both the Left and Right. The Hon. Minister Anne McLellan is doing her best to chart a clear path through the fray.

On May 12, 1998, the federal government’s proposed strategy for “youth justice renewal” was announced, provoking an immediate flurry of controversy. Critics decried it as too harsh or too soft, tinkering rather than fixing, and lacking in a firm commitment of resources for those who are neither violent nor repeat offenders.

The Young Offenders Act first came into force in 1984. Amendments were introduced in 1986, 1992 and 1995. Since then, two reports have been filed with the federal government: the Federal-Provincial-Territorial Task Force on Youth Justice Report (1996) and the Standing Committee on Justice and Legal Affairs Youth Justice Review Report (1997). Based on these recommendations, the new youth justice strategy was developed to “put public protection first, foster values such as accountability and responsibility, and make it clear that criminal behavior will lead to meaningful consequences.”

The new strategy’s key components are:

1. A new youth criminal justice act to replace the Young Offenders Act. Replacement rather than amendment was chosen, says the Minister, to send a “clear signal to all Canadians that a new legal framework is in place.”
2. A stronger prevention component linked to other federal government initiatives aimed at children and youth. No new dollar figures have been suggested at this point. Instead, the Ministry points to existing initiatives such as the $32 million per year Crime Prevention Initiative; the National Children’s Agenda; and the government’s response to the report of the Royal Commission on Aboriginal Peoples.
3. A commitment to more public participation and information.

Of particular interest to lawyers are the following elements proposed for inclusion in the new youth justice legislation:

1. A clearer statement of principles and objectives, highlighting the primacy of public protection.
2. New provisions targeted at violent and repeat offenders:
   1. Adult Sentences: a new presumptive category for repeat young offenders who have a pattern of convictions for serious violent offenses, adding to the current categories of murder, attempted murder, manslaughter and aggravated sexual assault; and a lowering of the age limit to 14 years of age for young offenders who are subject to adult sentences unless a judge can be convinced that public protection and rehabilitation can be achieved by youth court sentences.
   2. Transfer Process: the decision to apply adult sentences to a young offender will take place after the trial has occurred and the young offender has been found guilty. This replaces the current process which requires that a transfer hearing take place before the trial. Under the new process, the Crown will indicate intention to seek adult sentences prior to trial.
   3. Special Sentencing Option: for most violent, high risk young offenders, judges will have the power to impose a sentence which includes a combination of long periods of supervised control and intensive rehabilitation programs.
3. More emphasis on community-based sentencing options such as restitution, community service orders or personal services to victims, for young offenders who do not commit serious, violent crimes or are still at a point where custody and close contact with other, more experienced offenders would do more harm than good.
4. Support for community flexibility in dealing with minor youth offending, through alternatives such as police cautioning, diversion programs and family group conferences.
5. Publication of the names of all young offenders who are found guilty and qualify for an adult sentence.
6. Support for additional or alternative ways to involve victims in legal proceedings if they wish.
7. A requirement that young offenders or their parents will pay for their legal counsel in cases where they are fully capable of paying.
8. A reduction in the complexity involved in determining whether voluntary statements made by young offenders can be admitted as evidence.

Leandre Rupert-Bailey, Chair of the BC Branch Young Offenders Section in Victoria agrees with the stronger emphasis on prevention and rehabilitation, but objects to the overall tone of the new strategy. “Most kids who come before the system are charged with very minor offenses, and most never come back. The attention to the serious offenders is out of proportion to the facts. The real problem is that we need resources to help the large percentage of kids who could be taken out of the system, or who just need more support in their lives.”

Ms. Rupert-Bailey points to a current crisis in the Victoria youth justice system as a perfect example of how the system fails to help: “We have young offenders picked up on first-time minor offenses, released on strict conditions that they just can’t keep without a structured home life or family support. They get jailed regularly for breaches—seven days for a first breach and two weeks to a month for a second breach. It’s a travesty.”

Minister McLellan was sympathetic to the issue: “If there are problems, I want to know about them and I am sure the BC Attorney General wants to know about them. I am more than willing to talk with the Bar, the Attorney General and the judiciary to see if there are ways we can deal with this.”

To the Minister, the point is clear: for the youth justice system to work, it must have more flexibility than it now does to distinguish between young offenders who commit minor and major offenses. “The point is to divert many more young offenders from the courts and jails, so that the people that we do see in the formal system really are the more serious and violent young offenders.”

This article was published in the June 1998 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.