A teen driver high on pot hits another car, killing its driver. Shocking as the case may be, experts say it should not push Canada into instituting mandatory sentences for young people, RICHARD BLACKWELL writes.

Adult crime, adult time? Nova Scotia case fuels debate

It was a youth crime that shocked an entire community. On Oct. 14, 2004, a Toyota Camry driven by teaching assistant Theresa McEvoy was broadsided at a Halifax intersection by a Chrysler LeBaron driven by a 16-year-old youth, instantly killing a 52-year-old mother of three.

What was so galling to the people of Halifax was not just that the young man, Archibald Billard, had stolen the car and was so high on marijuana that he did not know how fast he was going. It was also the fact that two days before the crash, he had been released from jail even though he was facing charges stemming from a high-speed police chase two weeks earlier and other alleged offences.

Mr. Billard eventually was given an adult sentence of 5½ years in custody after pleading guilty to criminal negligence causing death. But his case is the subject of an ongoing public inquiry that is focusing a bright light on the Youth Criminal Justice Act, the federal law that makes it difficult to keep young offenders in jail unless they commit serious, violent crimes.

The law came into effect on April 1, 2003. It replaced the Young Offenders Act, considered by many to be deeply flawed because it put so many young people in prison, where they often evolved into hardened criminals. The new act adopted the philosophy of the United Nations Convention on the Rights of the Child, which supports a separate justice system for young people, with an emphasis on rehabilitation.

Criminologists and prosecutors say the new act is doing what it was designed to do: jailing young people only for serious violent offences, or in a limited number of other exceptional circumstances. But some also say it is too restrictive, making it tough to keep people such as Mr. Billard off the street. Data released last week suggest the new law really is keeping young people out of jail. Statistics Canada said that in 2003-2004, its first year, about 17,100 people aged 12 to 17 were put into custody, down from 22,700 the previous year. But Justice Minister Vic Toews, who wants to revamp the act, declared that the numbers do not prove anything. "Simply because few people are being incarcerated does not mean that the system is working," he said in Ottawa.

The Conservative federal government has vowed to make sure young people are "accountable and responsible" for their actions, and promised during the election campaign this winter to bring in mandatory adult sentencing for violent or repeat offences. But the timetable for amendments is up in the air, and will depend on other cabinet priorities, said Mr. Toews's spokesman, Mike Storeshaw. Mr. Toews also will be constrained by provincial court decisions -- the latest a week ago from the Ontario Court of Appeal -- that say it is unconstitutional to give an adult sentence automatically to a young person. Those who deal directly with young offenders are debating about what can be changed to make the youth law more effective without thwarting its objectives.

One issue that has arisen frequently at the inquiry in Halifax is whether the social-service infrastructure is sufficient to deal with the wayward youth who are not in jail because of the act. Crown attorney William Fergusson of Windsor, N.S., told the inquiry that by creating the YCJA, the federal government essentially shifted the burden of treating and assessing young offenders to the provinces, which must finance the programs.

In jail, many offenders receive treatment fairly quickly because it is a "controlled environment," Mr. Fergusson said. "If you don't keep them inside, then they're out on the street, and the street problems normally are the provincial problems," he told inquiry commissioner Merlin Nunn, a retired justice of the Nova Scotia Supreme Court.

Another key concern, according to Halifax senior Crown attorney Gary Holt, is the narrow range of behaviours that allow the courts to keep a young person behind bars. Late in 2005, the Supreme Court of Canada made it clear that only truly violent offences can result in incarceration for young people. In a pair of decisions, the top court threw out six-month jail sentences that had been imposed on two young men in Alberta. One had pleaded guilty to arson and possession of a weapon, and the other had pleaded guilty to dangerous driving. The lower courts said they were essentially violent offences, but the Supreme Court disagreed. "In the context of the YJCA," Mr. Justice Michel Bastarache wrote for eight of the nine judges, "the term 'violent offence' should be narrowly construed." Still, Mr. Holt said, from the perspective of a prosecutor, some "fine tuning" to the act is needed to allow incarceration for non-violent behaviour that is potentially dangerous. For instance, it makes eminent sense to jail a young person who insists on driving dangerously without a license, he said.

Judges need more flexibility and discretion than the act allows, Mr. Holt added. But equally important, he said, any changes should be crafted to ensure that the overall objective of the law -- to keep as many young people out of jail as possible -- is maintained. Despite the problems that have been underlined by the Halifax case, the act has been a success over all, said Nicholas Bala, a law professor at Queen's University in Kingston. "We were sending too many people into custody and it was often not just ineffective, but actually counterproductive." Under the YCJA, fewer young people are in the courts and in jail, but the youth-crime rate has not increased, he noted. That suggests worries about dangerous young people at large are generally unfounded.

Certainly, sending more young people to adult jail is not the way to make the streets safe, Prof. Bala said. "If you want to look at a place that sends a lot of young people to adult jails, look in the United States. They have a much more serious youth-crime problem [and] they send many, many more young people into adult jails. It's not the way to have safer communities." Susan Reid, director of the Centre for Research on Youth at Risk at St. Thomas University in Fredericton, said the passing of the YCJA was an important recognition that few violent crimes are committed by young people, and that for more minor offences, jail time makes no sense. The problem, she said, is that the cost savings from keeping young people out of jail -- as much as $35,000 a person a year -- have not been reinvested in community programs for youth. "Where's that money gone? Surely to goodness you'd see some of that money filtered into some planning for alternatives to custody, and I'm just not seeing a lot of that happening," she said.

She called it disheartening to hear Ottawa talk of mandatory adult sentencing of some young people just because of "a few isolated cases where something horrible happens." It would be a mistake, and contrary to the UN convention, she said, to revert to the view that "adult crime should draw adult time." Over all, Prof. Bala said, it is not the YCJA, or any rejigged youth-justice law, that will make Canadian communities safe. Community policing and social programs to deal with youth problems stemming from learning disabilities and fetal alcohol syndrome are much more important, he said. And nothing will ever eliminate youth crime, he added. "A certain level of adolescent offending is a part of social life. Adolescence is a time of making mistakes [and] errors in judgment. "We want to do everything we can to limit that, but people shouldn't imagine [that] if we only had a better piece of legislation . . . we wouldn't have youth crime."

When it comes to creating a safe society, "the youth justice system has a relatively small role to play. It's education, health, mental health and social services. Those are [what] get you a safer society, not the youth-justice system."

Richard Blackwell
1 April 2006

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