Youth Justice in Canada

Youth or juvenile crime is a controversial issue in Canadian politics. While the fact that youth crime is quite common in Canada is lamentable, there are disagreements concerning how to treat youths in the criminal system. The controversy centres on the best approach taken to address youth offenders and the severity of punishment that should be given. This article provides a historical overview of Canadian approaches to youth justice. It outlines several stages of Canadian legislation, including the 1908 Juvenile Delinquents Act, the 1982 Young Offenders Act, and the 2003 Youth Criminal Justice Act.

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The Juvenile Delinquents Act (1908-1984)

From “little adults” to child-centred legislation

Overview of the Juvenile Delinquents Act

The 1908 Juvenile Delinquents Act (JDA) represented a major philosophical change concerning juvenile delinquent treatment. Before 1908, children in conflict with the law were treated similar to adult criminals, often receiving harsh sentences for relatively minor crimes. Furthermore, despite provisions in the 1892 Canada Criminal Code, they were frequently detained with adults while awaiting trial and sentenced to adult prisons.

In contrast, the JDA took a social welfare approach to youth crime. The different focus is immediately apparent in section 38 of the Act, which states: “the care and custody and discipline of a juvenile delinquent shall approximate as nearly as may be that which should be given by its parents, and that as far as practicable, every juvenile delinquent shall be treated, not as a criminal, but as a misdirected and misguided child” (Source: The Young Offenders Act: A Revolution in Canadian Juvenile Justice, p. 132). The Act’s main features included the following:

• Establishing a separate justice system for youth, with separate courts;
• Granting youth court judges a “parens patriae” or pseudo-parental role. In sentencing, judges focused on rehabilitation, not on dispensing punishment based on the seriousness of the offence;
• Establishing that seven would remain the minimum age under which a child could be charged with a criminal offence, while children under 12 could only be committed to an institution if no other option was available;
• Establishing a Juvenile Court Committee, consisting of probation officers and volunteers, to assist the judge in sentencing recommendations;
• Increasing sentencing options for judges; and
• Encouraging parental involvement in the process.

Under the JDA, children in trouble with the law were not charged with breaking a specific statute. Instead, they were charged with delinquency. Judges had enormous discretion in sentencing juvenile delinquents. A child could be placed in foster care, pay a fine, or be institutionalized until the age of 21.

Debates on the Juvenile Delinquents Act

The JDA’s rehabilitation focus had a positive impact on many children who went through the juvenile court system. Nonetheless, over time several flaws in the Act became apparent. For example, the discretion given to judges led to significant variations in sentencing for similar offences. A provision allowing provinces to set the maximum legal age for defining a youth led to variations in sentencing. Quebec and Manitoba set the maximum age at 18, which meant that a Quebec or Manitoba youth who committed a crime on or after his/her eighteenth birthday would be tried as an adult. British Columbia and Newfoundland set the age at 17, while 16 was the maximum age in Prince Edward Island, Nova Scotia, New Brunswick, Ontario, and Saskatchewan. Therefore, a 17-year-old Quebec youth found guilty of an offence would receive a much lighter sentence than a 17-year-old youth convicted of the same crime in Ontario, since the latter would automatically have been transferred to adult court.

In addition, the authority given to staff working in institutions that dealt with juvenile delinquents had the potential for abuse. Over time, rising youth crime rates weakened public support for a social welfare approach to juvenile delinquency. Public sentiment grew for legislation that took a more punitive approach to youth crime.

The passage of the 1960 Canadian Bill of Rights (and subsequently the 1982 Charter of Rights and Freedoms) raised concerns that the Juvenile Delinquents Act did not take the legal rights of children into account. For instance, the laws of evidence were not followed, so a judge might convict a youth he knew to be innocent on the grounds that it was in the youth’s best interest to be sentenced to a training program. Judges also had the power to hand out indeterminate sentences, meaning a youth could be forced to return to court at any time until s/he reached the age of 21. Furthermore, the definition of a delinquent act was quite broad. Issues such as these led to calls for changes to youth justice legislation in Canada.

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The Young Offenders Act (1984-2003)

A legalistic approach to youth crime

Overview of the Youth Offenders Act

In 1982, Parliament passed the Young Offenders Act (YOA). Effective beginning in 1984, the Young Offenders Act replaced the most recent version of the Juvenile Delinquents Act. The Young Offenders Act’s purpose was to shift from a social welfare approach to making youth take responsibility for their actions. It also addressed concerns that the paternalistic treatment of children under the JDA did not conform to Canadian human rights legislation.

The guiding principles of the Young Offenders Act included the following:

• Young people who commit offences must take responsibility for their actions; however, young people have special needs and cannot be held accountable for their illegal actions in the same way as adults;
• Society has a right to be protected from offences committed by youth; however, where possible, it is in society’s best interest to address youth crime through social and community-based solutions, rather than incarceration;
• Children have legal rights and freedoms, including those outlined in the Canadian Charter of Rights and Freedoms; and
• Parents have the right to be notified of all court proceedings affecting their child.

Comparison to the Juvenile Delinquents Act

The legalistic approach of the Young Offenders Act represented a major change in legislation dealing with the treatment of juvenile delinquents:

• Instead of being charged with delinquency, children were charged with violating a specific statute or section of the Criminal Code. The sentence should reflect the seriousness of the crime;
• The Young Offenders Act’s authority did not extend to provincial laws and statutes. In addition, it was no longer possible to transfer jurisdiction over certain cases to the provinces;
• It discontinued the practice of charging children with “status offences” that are not illegal for adults;
• It did not allow for indeterminate sentencing. Under the original 1984 Young Offenders Act, the maximum sentence for crimes that would incur a life sentence if committed by an adult was three years;
• It raised the minimum age for charging a child from seven to 12;
• It legislated the use of alternative forms of sentencing for youth, such as making restitution or performing a community service. Although judges made frequent use of alternative sentencing under the Young Offenders Act, their authority to do so was not spelled out in the legislation;
• It established the right of youth to due process, such as the right to appeal and the right to legal counsel;
• It established a policy with respect to fingerprinting and photographing youth, and the disposition of youth court records; and
• It abolished the offence of contributing to juvenile delinquency. Policy makers believed charging adults with this offence conflicted with the idea of making youth take responsibility for their actions.

When is a Young Offender an Adult? Maximum Age Limits

Under the Juvenile Delinquents Act, the maximum age at which a youth could be prosecuted as a juvenile varied from province to province, and between genders in certain cases. For example, Alberta set the maximum age at 16 for boys, and 18 for girls. The Young Offenders Act, however, legislated a uniform maximum age of 17 across Canada. The Young Offenders Act applied to all youth who committed a crime before their eighteenth birthday.

Due to disagreement between individual provinces and the federal government on what the maximum age should be, this section of the Young Offenders Act was not implemented immediately. It came into effect in April 1985, to make the Young Offenders Act comply with the equality provisions outlined in section 15 of the Charter.

The Young Offenders Act did not change the minimum age for adult court transfers. Fourteen remained the age at which youth charged with more serious offences could be transferred to adult court.

Debates on the Young Offenders Act

Over the course of its life, the Young Offenders Act became the source of much public and expert debate. Moreover, this debate tended to be grounded in very contrary views of youth justice and the effectiveness of the Act itself.

On the one hand, there was strong public sentiment that the Act was too lenient in its dealings with young offenders. This sort of criticism tended to focus on highly publicized cases, where young offenders were given limited jail sentences for very serious offences, such as murder. Calls for reform centred on raising the maximum sentence for young offenders (in the 1984 version of the Act, the maximum sentence was three years), as well as making it easier to transfer young offenders to adult court, where they could be given maximum adult sentences for their crimes. These types of criticisms and reforms tended to be grounded in a belief that youth justice should involve retribution, and that stiff punishments, such as long periods of incarceration, act as a strong deterrent to youth delinquency.

On the other hand, sentiment, often within the expert community, reflected that the Act was too harsh and even counter-productive in its dealings with young offenders. In this context, critics often pointed to the fact that youth incarceration rates in Canada were much higher than those of other countries. In 1997, the federal Standing Committee on Justice and Legal Affairs reported that Canada’s rate of youth incarceration was more than twice that of the United States, and 10 to 15 times higher (per one thousand youth population) than New Zealand, Australia, and many European countries (Source: Standing Committee on Justice and Legal Affairs, 1997). Moreover, critics suggested that these high levels of incarceration were actually counter-productive as they contributed to higher levels of youth delinquency. The general belief here is that prisons act as breeding grounds for life-long criminals, and that high-risk youths (that is, those likely to engage in criminal behaviour because of psychological, social, or economic reasons) are more likely to become repeat offenders if they experience incarceration at a young age. Calls for reform centred on providing alternatives to incarceration for many youth crimes, which would involve young people repaying victims and society for the harm done, as well as teach the offender responsibility and respect for others.

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The Youth Criminal Justice Act (2003)

Contemporary reforms of youth justice in Canada

Amendments to the Young Offenders Act

Faced with increasing criticism (see previous section), the federal government attempted to restore credibility to the youth justice system by introducing several amendments:

• In 1986, it established that a young offender could be detained longer than three years if s/he committed another offence in the interim. Furthermore, that sentence could continue once s/he became an adult;
• In 1992, it extended the maximum penalty for first- or second-degree murder from three to five years. In addition, it revised the section dealing with transfers to adult court to give greater weight to the need to protect society, as opposed to the youth’s needs;
• In 1995, it extended the maximum penalty for first- or second-degree murder to 10 years. In addition, it created a presumption that youth aged 16 years and over who committed serious violent offences would be transferred to adult court. If the Crown requested a transfer, it was up to the youth or defence counsel to establish why the case should remain in youth court; and
• In 1995, it allowed victims to present victim impact statements in court.

The amendments failed to improve the Young Offenders Act’s credibility with the public. Furthermore, they didn’t deal with the high incarceration rates of young offenders in general, or the high rate of recidivism among violent youth.

Introduction of the Youth Criminal Justice Act

In 1997, the Standing Committee on Justice and Legal Affairs submitted a report to the House of Commons containing 14 recommendations for overhauling the Young Offenders Act. In its report, the Standing Committee emphasized several key reforms, including clarifying the legislation’s guiding principles to dealing with youth delinquency and justice, developing and strengthening alternatives to incarceration when dealing with youth offenders, and lowering the minimum age of criminal liability to include 10- and 11-year-old offenders.

For more information on the Standing Committee’s recommendations:

• Parliament of Canada: 13th Report of the Standing Committee on Justice and Legal Affairs

In 1998, the federal government, under Liberal Prime Minister Jean Chrétien , announced a new strategy for youth justice, based in part on the recommendations of the Standing Committee. In March 1999, the government introduced Bill C-68 in the House of Commons, the first version of the Youth Criminal Justice Act. The legislation was later re-introduced as Bill C-3 in October 1999, following Parliament’s summer recess, but only made it to second reading before Parliament was dissolved for the 2000 general election. The final version of the Act was re-introduced again in 2001 as Bill C-7 and passed in the House in February 2002. The new Act came into effect in April 2003, replacing the Young Offenders Act.

Overview of the Youth Criminal Justice Act

The new legislation attempted to balance the legalistic framework of the Young Offenders Act and the social-needs approach underlying the Juvenile Delinquents Act. This goal is apparent in the Declaration of Principle, which states: “the purpose of the youth criminal justice system is to prevent crime by addressing the circumstances underlying a young person’s offending behaviour, rehabilitate young persons who commit offences and reintegrate them back into society, and ensure that a young person is subject to meaningful consequences for his or her offences, in order to promote the long-term protection of the public.”

The Youth Criminal Justice Act differs from the Young Offenders Act in several ways:

• It contains a statement of principle that removes any uncertainty about how the Act should be interpreted, and expresses the philosophy that the needs of society and the offender are not in conflict;
• It increases the number of extrajudicial measures available such as police warnings, referral to restorative justice agencies in which the offender must face his/her victim and the victim’s family, and deferred custody orders, whereby a young person can avoid incarceration by showing good behaviour;
• It reintroduces the concept of Youth Justice Committees, last used under the JDA. Made up of groups of citizens, the committee’s purpose is to develop community-based solutions to youth offences. These can include extrajudicial measures such as restitution, arranging community support for the youth, or arranging a meeting between the victim and the young offender;
• It establishes that the court process is reserved for more serious offences. Police must consider all other options, such as a warning or making restitution, before laying charges;
• It clarifies the conditions for sentencing youth into custody; and
• It makes provisions for reintegrating youth in custody back into society. The Act introduces a graduated sentence, where youth spend two-thirds of their time in custody, and one-third in the community under supervision.

In addition, the Act makes substantive changes to the current system for sentencing youth as adults. First, youth will no longer be transferred to adult court. Instead, youth court judges have the authority to impose adult sentences. Second, the legislation lowers the age for sentencing youth as adults. Under the amended Young Offenders Act, there was a presumption that cases involving youth aged 16 or over charged with murder, attempted murder, manslaughter, or aggravated sexual assault would be transferred to adult court. The Youth Criminal Justice Act lowers the age of presumption to 14; however, individual provinces can raise the age to 15 or 16. Furthermore, in addition to the offences mentioned above, judges can hand out adult sentences to repeat serious offenders. However, the Act places more emphasis on treatment for violent young offenders than the Young Offender Act, believing that rehabilitating them is in the best interests of both the offender and society.

For more information on the provisions of the Youth Criminal Justice Act:

• Department of Justice Canada: Youth Criminal Justice Act (2001, c.1)
• Department of Justice Canada: The Youth Criminal Justice Act: Summary and Background

Debates on the Youth Criminal Justice Act

Since its introduction, the Youth Criminal Justice Act has received both praise and criticism. The Act has been successful in significantly reducing rates of incarceration among youths, especially for those who have committed less serious offences (Source: Statistics Canada, 2007). Instead, there has been an increase in the number of youths being sentenced to supervision in the community, as well as deferred custody orders, in which a young person can avoid incarceration by showing good behaviour. Moreover, there has been a greater emphasis placed on extrajudicial measures, such as referral to restorative justice agencies, where the offender must face his/her victim and the victim’s family. For some, these trends are positive, as they move away from an approach to youth justice in which imprisonment is viewed as an effective means of addressing youth delinquency, and towards one which embraces alternative forms of dealing with youths in order to teach responsibility and respect for others. However, for those that view incarceration as a just and beneficial means of punishing young offenders, such trends may be disappointing. It is important to note, however, that the Act does maintain stiff sentencing, including long-term incarceration, for youths that have committed serious offences, such as murder.

There have also been several legal debates regarding the Youth Criminal Justice Act. In 2006, the Ontario Court of Appeal struck down sections of the Act that forced some young offenders to prove that they shouldn’t receive adult sentences for their crimes. A majority of the Court concluded that placing such an onus on the offender is a violation of Section 7 of the Canadian Charter of Rights and Freedoms, which provides that persons have the right to life, liberty, and the security of the person, and may only be deprived thereof in accordance with the principles of fundamental justice. According to the majority, the principles of fundamental justice require the onus be placed on the state to prove that an adult sentence is appropriate, as opposed to the accused having to prove that one is not (as was the case with the Act).

Also in 2006, the Supreme Court of Canada ruled that “general deterrence” (deterring others from committing offences) could not be used as a principle for sentencing youths under the Act. The Governments of Alberta and Ontario had appealed two cases on the grounds that the lower courts should have considered general deterrence when handing down their sentences and, as a result, should have given stiffer prison sentences in those cases. The Supreme Court disagreed, concluding that the Act adopts a system of sentencing for youths that is different than the one for adults. Moreover, that the Act intentionally excludes general deterrence as a sentencing principle. Instead, it emphasizes rehabilitation and reintegration into society in its sentencing considerations.

For the full text of the Supreme Court of Canada’s decision:

• Lexum: R. v. B.W.P.; R. v. B.V.N. 2006 SCC 27 [2006] 1 S.C.R. 941

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Sources and Links to More Information

List of article sources and links to more on this topic

Sources Used for this Article

• “The Youth Criminal Justice Act: Summary and Background.” Department of Justice Canada. 31 January 2006. 20 June 2007. <http://www.justice.gc.ca/en/ps/yj/ycja/explan.html>
• “13th Report of the Standing Committee on Justice and Legal Affairs.” Parliament of Canada. 20 June 2007. <http://www.parl.gc.ca/35/Archives/committees352/jula/reports/13_1997-04/toc-e.html>
• “Youth Custody and Community Services.” Statistics Canada. 14 March 2007. 20 June 2007. <http://www.statcan.ca/Daily/English/070314/d070314d.htm>

Links to More Information

• A Strategy for the Renewal of Youth Justice, Department of Justice, Canada
• Youth Offender Teams and Youth Crime, Association of London Government