In Alberta, the percentage of alleged young offenders sentenced to secure or open custody or placed in jail while awaiting trial has dropped about 24% since the new law replaced the old Young Offenders Act.

Police and prosecutors report that officers are laying fewer charges under the new Youth Criminal Justice Act (YCJA), while many of those who are charged never get to court.

More teenagers are being cautioned, given reprimands or diverted to rehabilitation programs and other destinations outside of jail.

"There simply are far fewer young offenders going into custody," said Paul Culver, chief Crown prosecutor in Toronto. "I've heard a lot of grumbling from the police and a lot of grumbling from some of the prosecutors that this whole regime sort of coddles the kids. I prefer to wait for six months to see what the overall impact is." Meanwhile, he said, rehabilitation programs and probation officers are becoming overloaded, so "we're losing our capacity to monitor the young offenders as they fulfill their diversion program."

"There have been some pretty dramatic changes," said Nick Bala, a Queen's University law professor and one of the country's leading experts on the act.

"We have seen the police really taking this provision to heart and we are seeing less charges right across Canada ... We're certainly seeing decisions from judges who are indicating that in the past this case would have ended in custody, but they're not going to put them in custody."

Although it was years in the making and replaced a widely disliked young offender statute, the new law received virtually no public attention when it was implemented a few months ago.

With a major shift away from punishment and toward rehabilitation and treating root causes, its reception has been mixed.

Some critics complain the legislation is too soft, while others call it a much-needed response to some of the highest youth imprisonment rates in the world. Even supporters say there is a serious shortage of the rehabilitation programs envisioned by the act.

Regardless of the law's merits, though, its impact seems to have been felt almost immediately.

In one recent Saskatchewan decision under the new law, a youth who robbed a store at knifepoint was sentenced to spend time at an uncle's home in a remote community, away from the gangland influences he faced in the city, after the Crown and defence had jointly recommended a two-year jail term.

The new law lays out a multi-stage process that at every step leans away from simple punishment.

Even if they conclude a crime was committed, police are required to consider alternatives to laying a charge, such as taking no further action, giving the suspect a caution or referring them to a program to help address the problems that got them in trouble.

If a charge is laid, the Crown is then encouraged to consider diverting the youth away from the courts, by a caution or an "extra-judicial sanction."

In those cases where the prosecutor takes the accused to court, the judge is supposed to consider every option available before resorting to a jail term, and impose the "least-restrictive" sentence that is still appropriate to the crime.

In the Saskatoon case of a 16-year-old who had pleaded guilty to helping hold up two convenience stores with a knife, the Crown and defence agreed on a two-year jail term. But Judge Mary Ellen Turpel-Lafond refused to accept the deal. Noting that the youth suffered from fetal alcohol syndrome, had had a chaotic childhood and been lured into a gang by his older cousin, she decided instead that he should be put under the supervision of an uncle, who is also a probation officer, in a community far away from the city and its bad influences.

"These are exceptional circumstances and the YCJA requires us to approach matters in a new light," Judge Turpel-Lafond said.

A Winnipeg teenager convicted of almost beating to death a man who had confronted him on a city sidewalk was sentenced under the new act to deferred custody and supervision, a sort of probation that required him to live with his mother. The judge cited his remorse, the fact he had no history of violence and psychological problems related to his father's death.

In Vancouver, the number of young offender cases sent to the Crown for prosecution has "diminished significantly," under the new law, said Inspector John De Haas, who is in charge of the police force's youth services unit.

Despite a lack of resources to properly carry out their new responsibilities, Vancouver officers generally support the act's philosophy, he said.

"There is certainly, I think, an understanding by our members that incarceration [of youth] and the court system is something we shouldn't rely on if we can avoid it."

Alberta, despite its usually hard-nosed approach to law and order, is in line with many parts of the new legislation, said Angelle Meunier, a spokeswoman for the Justice Department. It already had about 100 of the citizen-dominated "youth-justice committees" set out in the law to consider the fate of many young offenders, she noted.

In the one area where the YCJA is tougher than the Young Offenders Act, it allows for youth as young as 14 to be made subject to adult sentences when they are charged with the most serious offences, such as murder. But in response to a Quebec court ruling, the federal government took out a provision that would have put the onus on the defence to prove why such youths shouldn't face adult sentencing.

Mr. Culver said Ontario prosecutors have abandoned some applications to have youth facing serious charges handled as adults, convinced that under the new law they would still not receive tougher punishment.

Meanwhile, some police called to cases of property damage or shoplifting are simply sending teenagers home to their parents, convinced they would face nothing more serious anyway, he said.

In bullying and schoolyard violence cases involving, for instance, a knife being pulled on a student, a charge will be laid because of school zero-tolerance policies. But "not much happens after that," Mr. Culver said.

Bob Eaton, a young offender probation officer and a leader with the Ontario Public Service Employees Union, said that even under the old act, more than 90% of offenders avoided jail time. Those who did end up in secure custody were the most dangerous miscreants, he argues.

"We've raised the bar so high for what it takes to get into custody that it's ridiculous," Mr. Eaton said.

Prof. Bala said there are a myriad of reasons why the legislation is a positive development. Canada had one of the highest rates of incarcerating youth in the world, jail time often tends to harden young people who break the law, and youth generally do not respond the way adults do to deterrents such as a potential prison term, he said.

The new act's provisions also see cases resolved much more quickly, providing more effective accountability, he said.

By Tom Blackwell
21 July 2003

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