INTERNATIONAL CHILD AND YOUTH CARE NETWORK

6 FEBRUARY 2001
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On 5 February 2001 introduced new Youth Justice legislation. This backgrounder was offered at the same time.

Canada's Draft Youth Criminal Justice Act

On May 12, 1998, the Government of Canada announced its plans for renewing the youth justice system. The Youth Justice Strategy recognizes that public protection must be the principal objective of youth justice renewal. It proposes directions for new legislation and programs that address the public’s concern about violent and repeat youth crime and the need for a system that promotes accountability, respect, responsibility and fairness. The Strategy takes a broader, integrated approach to youth justice reform that looks beyond changes to the law alone and includes prevention, alternatives to the courts and rehabilitation. All of these elements are essential to a youth justice system that effectively protects the public.

The Youth Justice Strategy focuses on three complementary areas for action: prevention to address the causes of crime and encourage community efforts to reduce crime; meaningful consequences that hold all young people accountable, help them to understand the impact of their actions and allow them to make good the harm done to the victim and the community; and rehabilitation and reintegration to ensure that youth who have committed an offence receive the treatment and programs necessary to prevent them from re-offending.

THE YOUTH CRIMINAL JUSTICE ACT

A key part of the Youth Justice Strategy is the new Youth Criminal Justice Act, which replaces the Young Offenders Act. The Act signals a new approach to youth justice and a major re-structuring of the youth justice system.

The Youth Criminal Justice Act is based on an accountability framework that promotes consequences for crime that are proportionate to the seriousness of the offence. More serious offenders could receive adult sentences or sentences of custody. Less serious offenders will be dealt with through measures outside the court process or be subject to constructive community-based sentences or alternatives. The Act emphasizes that, in all cases, youth should face consequences that promote responsibility and accountability to the victim and the community and teach good values by helping the young person understand the effect of his or her actions.

The new Youth Criminal Justice Act also offers provinces and territories flexibility in choosing options in some areas that allow them to address the unique needs, problems and differences of their systems. Provisions in the Act also recognize the important role of victims and communities in dealing with youth crime.

Key Elements of the New Law

Preamble and Declaration of Principle:
The proposed legislation contains a preamble and Declaration of Principle that make clear the purpose of the youth justice system.
The preamble of the proposed Youth Criminal Justice Act reinforces values Canadians want to see in the youth justice system ¾ accountability, respect, responsibility and fairness. The preamble underlines the responsibilities of both society and young people in relation to youth crime.
The principles say that protection of society is the primary objective of the youth justice system and is best achieved through prevention, meaningful consequences for youth crime and rehabilitation.
The principles also state clearly that young people must be held accountable for their actions and that consequences should reinforce respect for social values, encourage repair of the harm done to the victim and community and be responsive to the circumstances of individual offenders.

Sentencing:
The new legislation will state that the purpose of youth sentences is to hold young people accountable through sanction that are just, ensure meaningful consequences and promote rehabilitation and reintegration. A key principle of sentencing under the new legislation is that the sentence a youth receives should be in proportion to the seriousness of the offence. This represents a fundamental shift to a new sentencing model for youth justice.

Provisions in the new legislation will:

• allow an adult sentence for any youth 14 years old or more who is convicted of an offence punishable by more than two years in jail, if the Crown applies and the court finds it appropriate in the circumstances; 
• establish a more efficient process that gives the courts the power to impose adult sentences on conviction when certain criteria are met. This would result in a system that respects the due process rights of the accused, places less of a burden on victims and families, and would give any court hearing a case involving a youth the tools it needs to deal appropriately with the case; 
• expand the offences for which a youth who is convicted of an offence is expected to be given an adult sentence to include a pattern of convictions for serious, violent offences. At present, only 16- and 17-year-olds accused of murder, attempted murder, manslaughter and aggravated sexual assault are presumed to be subject to adult sentences; 
• extend the group of offenders who are presumed to receive an adult sentence to include 14- and 15-year-olds; 
• create an intensive custody sentence for the most high-risk youth who are repeat violent offenders or have committed murder, attempted murder, manslaughter or aggravated sexual assault. These sentences are intended for those with the most serious psychological, mental or emotional illness or disturbances. The sentence would require a plan for intensive treatment and supervision of these youth and would require a court to make all decisions to release them under controlled reintegration programs. Federal funding will be made available to support the provinces in establishing and operating this new sentence; 
• permit victim impact statements to be introduced in youth court; 
• allow a judge to decide on the admissibility of statements made by a youth to a person in authority, such as a police officer. This would reduce the legal and administrative difficulties that currently exist in youth justice legislation as well as the number of statements that are ruled inadmissible simply because of a legal technicality; and 
• encourage community-based sentences, where appropriate, such as compensation or restitution to the victim, community service or probation. Amendments to the Young Offenders Act, made in 1994, which increased youth sentence lengths for first degree murder (10 years) and second degree murder (7 years), will be maintained.

Other provisions in the bill would permit harsher penalties for adults who wilfully fail to comply with an undertaking made to the court to supervise youth who have been denied bail and placed in their care, by permitting prosecution as either a summary or indictable offence. This measure responds to a proposal made by Chuck Cadman, M.P. (Surrey North).

In addition the legislation would permit the provinces and territories to require youth or their parents to pay for their legal costs if they are fully capable of paying.

Publication and Records:
The new legislation would:

• permit publication of the names of all youth who receive an adult sentence. In addition, the names of 14- to -17-year-olds given a youth sentence for murder, attempted murder, manslaughter, aggravated sexual assault or repeat violent offences may be published. Publication would also be allowed if a youth is at large and is considered by a judge to be dangerous; 
• allow the Crown to give notice at the beginning of a trial that it will not seek an adult sentence. This means that the young person will receive a youth sentence and that his or her name will not be published; and
• treat the records of youth who receive adult sentences the same as the records of adult offenders. The new legislation would also clarify the record-keeping system for youth records and allow authorized people such as victims, police officers or school authorities to access youth records. Custody and Reintegration:

An important principle in the Youth Justice Strategy is that, while young people must be held accountable for their crimes, they are also more likely than adult offenders to be rehabilitated and become law-abiding citizens. Programs to help rehabilitate, supervise and control young people as they return to their communities protect the public because they help prevent further crimes.

The custody and reintegration provisions of the new law would:

• require, in general, that youth be held separately from adults to reduce the risk that they will be exposed to adult criminals; 
• place criteria on the use of custody so that it is used appropriately; 
• give provinces more flexibility in determining the level of security when a youth is placed in custody as well as more flexibility in moving youth who reach adult age while still in custody into adult facilities. A maximum age of 20 would be established as the limit for the youth justice system, but the legislation would permit provincial authorities to retain an offender in the youth system beyond this age if it is appropriate;
• require all periods of custody to be followed by an intensive period of supervision in the community that is equal to half the period of custody. This would allow authorities to closely monitor and control the young person and to ensure that he or she receives the necessary treatment and programs to return safely and successfully to the community; and 
• require conditions to be imposed on periods of supervision. Mandatory conditions would include keeping the peace and reporting to authorities. The judge could also impose additional conditions that would be targetted to a youth’s particular circumstances. These could include measures to establish structure in the young person’s life like attending school, finding employment or obeying a curfew, and measures to address particular problems like abstaining from alcohol and drugs, attending treatment programs or counselling and not associating with gang members. New reintegration programs are expected to be a priority area for federal funding made available to the provinces and territories to support the Youth Justice Strategy. 

MEASURES OUTSIDE THE FORMAL COURT PROCESS

Many young people are brought into the formal justice system for minor offences that, in many cases, could be more effectively dealt with in the community in less formal but meaningful ways that focus on repairing the harm done. The Youth Justice Strategy establishes a range of informal programs and alternatives for less serious offences while always reserving the formal court process for more serious offences where it is clearly appropriate.

The range of informal options would include:

• verbal warnings and cautions from police; 
• informal police diversion programs such as a referral to a "family group conference", a program that involves the youth, the youth’s family, the victim and others in addressing ways to account for the youth’s offence; and 
• formal programs requiring community service or repairing the harm done to the victim. 
• The Youth Justice Strategy would also require police to consider all options, including informal alternatives to the court process, before laying charges and allow the provinces the flexibility to require Crown counsel to screen charges before they are laid against a youth. These measures would help to ensure that the expensive and formal court process is reserved for more serious youth crimes.

There are many community-based programs for youth and children at risk already operating successfully in Canadian communities. These include: the Ottawa-Carleton Police Youth Centre, which has been credited with contributing to a significant drop in drug-related charges in the Debra-Dynes public housing community it serves; the Sparwood Youth Assistance Program, a B.C. police diversion program which, through a conferencing model that involves the youth, family and victim, has established a low re-offending rate of only nine percent; the Atoskata Victims’ Compensation Project in Regina, which provides work opportunities to youth with earnings directed to the victim; the Earlscourt Outreach Program in Toronto, which offers successful treatment and mentoring programs to children under 12; and the Child and Youth Protection Centre in Quebec City, which offers an intensive probation program for young people convicted of an offence who would otherwise have been placed in custody that has reduced the reoffending rate among this group by more than 30 per cent.

The Youth Justice Strategy seeks to expand community-based programs like these. Provincial and territorial investments in such programs will be supported by additional federal resources.

IMPLEMENTATION

Implementation of the Youth Justice Strategy involves partners at every level of government and in the community ¾ the provinces and territories; the legal profession; law enforcement; social service and child welfare officials; parents; educators; and many others. The Government of Canada will work with the provinces, territories, organizations and communities on specific measures, informing the public and developing innovative programs to support the more collaborative, community-based approach of the Strategy.

Measures the government is taking during the implementation period include: establishing a Youth Justice Reference Group to address implementation issues; consultations and training for the law enforcement community, legal professionals, child welfare and social services organizations and many others to ensure they are involved in implementing the new system and that they have the training they need to make it work; and public information and accountability measures to evaluate the new youth justice system and to ensure Canadians are informed about the Strategy, its objectives and its effectiveness. The federal government will also make additional resources available to support implementation of the Youth Justice Strategy and review its cost-sharing agreements with the provinces and territories to ensure stability and equity.