OPINION
New Canadian youth crime law tries to strike
balance
between tough and fair
Sweeping revisions to the youth justice system, passed
14 months ago but put on hold to give police, lawyers and judges a
chance to school themselves on the new regime, are finally about to take
effect.
The Youth Criminal Justice Act is the federal
government's latest attempt to resolve the longstanding debate over the
best way to deal with adolescent offenders – get tough with them or try
to rehabilitate them. The law, which comes into force Tuesday, is
designed to strike a delicate balance. It makes it easier to impose adult-style sentences on
youths as young as 14 for offences such as murder, manslaughter and
aggravated sexual assault. But it also provides for out-of-court settlements,
probation, community service and other non-jail solutions for things
like shoplifting, theft, property damage, breaking and entering and drug
offences.
"It's a very complicated piece of legislation," said
Nick Bala, an expert in youth law at Queen's University. "It's not surprising many people don't have a good
understanding of it. It's been a struggle even for professionals to
figure out what it means."
The task hasn't been made easier by the fact the two
biggest provinces – Quebec and Ontario – fiercely resisted the reforms
for dramatically different reasons.
Quebec, which has the lowest youth crime and youth
incarceration rates in the country, views the federal law as overly
harsh, an infringement of provincial jurisdiction and a threat to the
legal rights of young people. It has gone to court to challenge the
law's constitutionality.
Ontario, by contrast, sees the new law as too mild –
"weak-kneed and woefully inadequate," in the words of former attorney
general David Young, who wanted tougher, mandatory jail sentences for
many offences.
Despite more than a year of consultation, the province
has been reluctant to sign on to federal efforts to develop
community-based rehabilitation programs to ensure the smooth operation
of the new system. Many professionals in the field fear the political
posturing will undermine implementation of the law and create a
patchwork of conflicting jurisdictions across the country.
"There's a tendency for some provincial politicians to
want to blame the federal government for youth crime," said Bala.
"Ottawa can't solve all the problems. It's also up to the provinces, to
schools, to families. We have to be realistic about what any legislation
is actually going to do."
The present confrontation is reminiscent of the furore
over the Young Offenders Act, the much-maligned predecessor to the new
law enacted in 1984. The YOA, in its original form, was often slammed
for letting violent offenders off too easily. It was amended repeatedly, in response to pressure
from police, victims rights groups and the provinces, to provide for
lengthier sentences. But the constant controversy only seemed to fix in
the public mind the belief that Ottawa was too soft on young thugs.
"It really fostered and cultivated this notion that if
you want to do something about youth crime, you just have to get the
penalties high enough," said Catherine Latimer, head of the youth
justice section at the federal Justice Department. "There's no evidence
to support that. That's why we went with a bold new approach."
Part of the problem is that the public rarely pays
attention to youth crime, except for the most violent, headline-grabbing
incidents. Among the most horrific examples in recent years were
those of 14-year-old Reena Virk, who died after being viciously swarmed
by fellow teens in Victoria, and 15-year-old Matti Baranovski, kicked to
death in a Toronto park in an attempted robbery.
Far more common, however, are the property crimes and
simple assaults – often no more than pushing and shoving – that clog
youth court dockets. In two notorious examples that arose in Ontario under
the old regime, a high school student was charged for hitting a teacher
with a water balloon and five others for firing spitballs at a
classmate.
The new law requires police and Crown attorneys
dealing with first-time, non-violent offenders to consider informal
measures, such as a warning, rather than laying charges and going to
court. For those cases that do get to court, judges will be
obliged to consider all measures short of incarceration – for example,
fines, community service, probation or orders to pay restitution to
victims.
At the other end of the judicial spectrum, the
provinces will be empowered to lower the age at which adult sentences
are imposed for serious violent offences to 14 from 16. The trials, however, will be held in youth court
rather than raised to adult court – a procedural change aimed at
eliminating delays and producing speedier verdicts.
There is also provision for better treatment of
violent offenders with serious psychological problems. They could be
held up to six years at a special facility, followed by up to four years
of continued treatment after release.
The overall result is expected to be more time in
custody for the worst offenders but lighter sentences for the vast
majority of the 100,000 youths a year who face criminal charges. The law, in fact, explicitly states that one of its
major goals is to reduce the number of young people in jail.
"One of the things Canadians may be surprised to learn
is that we have the highest youth incarceration rate among western
countries," said Latimer. "It's 10 times higher than European rates, 15
times higher than Australia and New Zealand. It's even higher than the
United States, even though the U.S. has a much more serious youth crime
problem."
Some critics remain skeptical
Vic Toews, a former Manitoba attorney general and now
justice critic for the Canadian Alliance, believes the Liberal
government could have gone further in toughening sentences for violent
and repeat offenders.
And while he has no quarrel in principle with non-jail
alternatives for less serious offenders, Toews fears the system may be
open to abuse. "What we are doing is breeding a disrespect for the law
in ignoring the so-called minor offences, usually relating to property
or break-and-enters. "This legislation will reduce the statistics of
crime, but only because there will be fewer crimes reported and
prosecuted. The criminal activity will continue."
3 April 2003
http://www.mytelus.com/news/article.do?pageID=canada_home&articleID=1301359
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