chapter eleven

Question 1

chapter 11: perpetuating science

Answer 1

This chapter is about social injustice and how the youth justice system ­perpetuates injustice for Aboriginal youth and girls in the correctional ­system. On reading this chapter, students will:

Know how and why correctional programs fail girls and Aboriginal youth.

Appreciate why equal treatment perpetuates social injustice.

Learn different ways of thinking about correctional programming for girls and Aboriginal youth.

Develop a more critical understanding of the “What Works” approach to programming.

Know some examples of correctional programs designed specifically for girls and Aboriginal youth.

Question 2

Section 3(1)(b) of the Youth Criminal Justice Act establishes that the youth criminal justice system must be …

Answer 2

Section 3(1)(b) of the Youth Criminal Justice Act establishes that the youth criminal justice system must be separate from the adult system, and while accountability is an integral part of this system, section 3(1)(b)(ii) makes accountability contingent on “the greater dependency of young persons and their reduced level of maturity.” In other words, youth are not adults, and so they must be treated differently from adults in criminal justice matters. This is a fundamental principle of juvenile justice, which implicitly acknowledges that justice would not be served if youth received the same justice as adults.

Question 3

Section 3(1) (c)(iv) acknowledges that there are important socio-historical, cultural, gender, and other differences among young Canadians and instructs that, within the youth justice system, all measures taken should “respect gender, ethnic, cultural and linguistic differences and respond to the needs of Aboriginal young ­persons and of young persons with special requirements.”

Answer 3

The precursor of the YCJA, the Young Offenders Act, did not acknowledge that in some ways the needs of Aboriginal youth, girls, and other minority youth differed from the needs of Euro-Canadian boys, the dominant group in the juvenile justice system.

Question 4

In order for special requirements/needs to be met, they must first be identified and addressed at all levels of the justice system.

what is an example of special needs group that are overrepresented in the youth justice system?

Answer 4

Youth with fetal alcohol spectrum disorder is an example of a special needs group overrepresented in the youth justice system that requires special attention for the system to be able to respond appropriately, effectively, and fairly to their needs (see Box 11.1

Youth with learning ­disabilities are another special needs group (as discussed in Chapter 10). Black youth are also overrepresented at all stages of the system, but it is difficult to know details or specifics because there are no official statistics available for this group.

Question 5

There are organizations, such as the African Canadian Youth Justice Program, that are working with youth in the courts and that also offer specialized programming in some youth institutions

Answer 5

Nonetheless, the UN CRC has chastised Canada for failing to address the overrepresentation of African-Canadian youth in the youth justice system (see International Box 12.1). The YCJA, through section 38(2)(d), also recognizes that the special circumstances of Aboriginal youth should be taken into consideration in decision-making about custody sentences, yet here too, the UN CRC is critical of Canada’s record (see Box 11.4).

Question 6

As we saw in earlier chapters, theories of youth crime and delinquency developed with boys in mind failed to explain girls’ offences.

this is the same of what

Answer 6

The same is true of law, the administration of justice, and correctional programming. To the extent that these things are not developed with girls or Aboriginal or other minority youth in mind, justice is not served for many of these youth. For them, in particular, youth justice is an injustice. This does not mean that the youth justice system has a positive impact on all boys, but rather that we need to critically examine how the system affects girls and Aboriginal youth precisely because of their status in Canadian society. Professor Patricia Monture-OKanee, in her submission to the Royal Commission on Aboriginal Peoples, argued that the oppression of youth of all races will continue until the ­contradictions of colonialism, racism, and sexism are exposed (1993, p. 118).

Question 7

As we have seen in earlier chapters, there are issues associated with race, ethnic, cultural, linguistic and special needs differences at all stages of the youth justice system, this chapter focuses on correctional programming and its impact on Aboriginal youth and girls. It discusses how corrections under the YOA failed and how the YCJA fails to meet the needs of youth from these groups and how we might rethink correctional responses to Aboriginal youth and girls. Examples of programs designed specifically for these groups are presented.

Question 8

(aboriginal young offenders)

> correctional issues

One of the first comprehensive analyses of Aboriginal peoples and the justice system came from a public inquiry undertaken by the Manitoba provincial government. In their report on the results of this inquiry, Associate Chief Justice A.C. Hamilton and Associate Chief Judge C.M. Sinclair identified two correctional problems:

Answer 8

1) the overuse of custody for Aboriginal youth and (2) inappropriate programming. They stated that “the present system of dealing with Aboriginal young offenders, by removing them from their communities, warehousing them and then returning them to their communities, is both ineffective and inconsistent with the principles of the YOA”

The 1996 Royal Commission on Aboriginal Peoples added to this list of correctional issues the problem of detaining Aboriginal youth separately from adults in remote locations. These issues remain today, and the Manitoba government is only now addressing some of the ­recommendations from this initial report.

Question 9

• overuse of custody

Answer 9

Overuse of custody has been an issue for 20 years now, and, as we saw in Chapter 10, custody admissions are continuing to increase for Aboriginal youth.

In the absence of government action to address issues of colonialism, poverty, and marginalization, a rapidly growing Aboriginal youth ­population will ensure that the Aboriginal population in youth institutions will ­continue to increase.

Question 10

overuse of custody takes four forms:

1) Aboriginal youth are disproportionately held in remand and disproportionately sentenced to custody, their custody sentences are longer, and they are disproportionately held in secure custody

Answer 10

High rates of ­pretrial detention are due in part to the criteria used by judges in determining whether to grant bail. These criteria include whether the youth has a job or is going to school, has family stability, and has parent(s) or guardians who are employed. Also of concern is whether drug or alcohol problems have been experienced by the youth or her or his family. Viewing statistics on these criteria suggest that Aboriginal youth will be disadvantaged in the application of bail criteria. A Statistics Canada survey (2008) of Aboriginal children and families reports that compared with non-Aboriginal ­children living in poverty (18 percent), 49 percent of off-reserve Aboriginal children and 32 percent of Métis children are living in poverty. In large cities, the rates are even higher: 57 percent of First Nations, 42 percent of Métis, and 45 percent of Inuit children are living in poverty. Aboriginal children are almost three times more likely to be living with a lone parent, grandparent, or other relative than are non-Aboriginal children. School dropout rates are higher for Aboriginal youth (23 percent, compared with 9 percent), and rates of unemployment for Aboriginal youth aged 15 to 24 are twice as high as for non-Aboriginal youth. Rates of violent victimization (excluding spousal violence) are almost double for Aboriginal youth aged 15 to 24 than non-Aboriginal youth (425 per 1000, compared with 268 per 1000) (Public Safety Canada, 2012, pp. 1–4).

Question 11

Furthermore, Yessine and Bonta’s (2009) longitudinal research on the offence trajectories of a sample of young offenders on probation in Manitoba found that

Answer 11

Furthermore, Yessine and Bonta’s (2009) longitudinal research on the offence trajectories of a sample of young offenders on probation in Manitoba found that predictors of a chronic high-offending trajectory were different for Aboriginal than for non-Aboriginal offenders. A greater proportion of Aboriginal youth probationers from the high-offending trajectory group had unfavourable and unconstructive ties with their peers, volatile family environments, and substance abuse problems than did non-Aboriginal probationers (p. 452). All of these factors are directly linked to colonialism and the economic and social marginality of Aboriginal peoples in Canadian society. For this reason, Hamilton and Sinclair (1991) argued that decision-making based on such criteria constitutes discrimination against Aboriginal youth. In 1996, section 718.2(e) of the Criminal Code was introduced, directing judges to consider alternatives to prison for Aboriginal offenders. This section states that

. . . all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Question 12

What is interesting about this section of the Criminal Code is that it applies only to adults.

Answer 12

In spite of numerous revisions to the YCJA and specific submissions recommending that such a provision be included in the YCJA, by the summer of 2001, no such clause had appeared in the YCJA—only a promise by the Justice Minister to introduce amendments (Roach & Rudin, 2001, pp. 381–383). This meant that Aboriginal youth would not receive the same standard of fairness from the courts as Aboriginal adults unless they were charged with a serious or presumptive offence and subject to an adult sentence. A last-minute amendment by the Senate in January 2002 to section 38 of the YCJA (requiring that all available sanctions other than custody should be considered for all young persons) added the requirement that “particular attention” be directed “to the circumstances of Aboriginal young persons” [s. 38(2)(d)].

Question 13

This is not to say that racism in Canadian society and in the justice system is not an issue that affects Aboriginal peoples and other visible minorities.

Answer 13

Indeed, Aboriginal youth do talk about their experiences of racism, both covert and overt, in the justice system on the part of criminal justice professionals, about being made to feel “dirty” and suspect because they are Aboriginal (Latimer & Foss, 2004, p. 15). But rather than addressing racism per se, these policies and strategies are an attempt to stop the devastating impact of colonialism. A standard “joke” among some First Nations leaders in response to academic descriptions of “post-colonial” society is, “What, it’s gone?”

Question 14

It is too soon to know how these legislative provisions will play out in sentencing Aboriginal youth, but the Centre for Justice Statistics is working to encourage courts to report statistics for Aboriginal youth so that we would be able to evaluate how these provisions are playing out in the courts.

Answer 14

s of 2014, the courts have not cooperated and we still have no information on Aboriginal youth in the courts. Furthermore, as we will see in the section on girls in the justice system later in this chapter, a lesson to be learned from an analysis of the history of juvenile justice reform in Canada is that we should be cautious about judging legislation at face value—“rhetoric is not always reality” (Sangster, 2002, p. 178) and that changing legislation does not necessarily change outcomes. Chartrand (2005) reports on a case in Saskatchewan (R. v. M.B.) that began on a promising note but reverted to old practices. The case involved an Aboriginal youth convicted of two armed robberies. Defence counsel and the Crown recommended a two-year custodial sentence, but the judge in the case (Justice Mary Ellen Turpel-Lafond) suspected that the youth had fetal alcohol spectrum disorder and ordered an assessment that confirmed her suspicion.

Question 15

• lack of facilities and programming

A lack of young offender facilities and programs in Aboriginal communities has also been cited as a reason for the overuse of custody for Aboriginal youth

Answer 15

In 2001, one-quarter (23 percent) of the Aboriginal youth in custody came from reserves, half (53 percent) came from cities, and the remainder lived in smaller towns. Girls are more likely to be from reserves than are boys (Bittle et al., 2002, pp. 9–10).

Question 16

Generally smaller rural and isolated communities simply do not have the resources for community options to custody.

Answer 16

Some communities do provide options, such as the Wet’suwet’en Nation’s Unlocking Aboriginal Justice program in northwestern British Columbia

In other communities, youth are sent into custody simply because there are no alcohol and drug treatment programs, or because the ­communities cannot offer an intensive support and supervision program

Question 17

In addition, because Aboriginal youth are often sent from their communities to serve custody sentences, successful community reintegration when they are released is undermined because a lack of such programs for aftercare in their home communities increases the risk of the youth reoffending.

Answer 17

reintegration: a correctional concept referring to policies and programs designed to introduce offenders back into their communities as productive, participating, law-abiding members

Question 18

Another barrier to reintegration for some Aboriginal youth is that F

Answer 18

Another barrier to reintegration for some Aboriginal youth is that First Nations communities have the right to use a Band Council Resolution to ban people from the community, and they sometimes use this right to ban youth convicted of crimes because of concern for the victims of these crimes.

The youth are then often forced to move to cities, and all too often begin a downward spiral, back into a life of crime (Nuffield, 2003, pp. 18–19, 24). When Aboriginal youth are allowed to return to their communities after serving their sentences, they usually do so as “­outsiders”; this alienation from their culture can contribute to an escalation of legal ­problems (Fisher & Janetti, 1996, p. 248). Hamilton and Sinclair (1991) summed up the problem: (see textbook)

Question 19

New issues are being identified as a result of rapidly expanding Aboriginal populations in urban areas, especially in cities in the Prairie provinces, and particularly in their downtown core areas.

Answer 19

. In Winnipeg for example, 85 percent of Aboriginal peoples who move to Winnipeg, move into the inner city, and half the Aboriginal population in Winnipeg is under the age of 25 (Brown, Higgitt, Wingert, Miller & Morrissette, 2005, p. 83).

T his presents unique problems for youth and young adult who are trying to reintegrate after release from institutions.

Question 20

Focus group discussions with urban youth and young men identified the following as issues relevant to ­reintegration:

Answer 20

Overcoming their reputation in the neighbourhood—people saw them as “pretty bad.”

Avoiding contact with others as a condition of release meant they often had to forgo social support networks or risk breach charges.

Racism combined with their criminal records and lack of education made finding employment particularly difficult.

Most available work is minimum wage that is insufficient to live on (Brown et al., 2005, pp. 94–96).4

Question 21

> rethinking correctional responses to aboriginal youth

• equality and social justice

Answer 21

At the core of the correctional system’s failure with respect to the treatment of many Aboriginal youth is a justice system whose philosophies and practices serve as a reflection of the wider Eurocentric society.

eurocentric: beliefs, attitudes, theories, philosophies and practices that are specific to the european experience, thinking and worldviews

Question 22

Central to Canadian thinking about what is fair and just is the liberal notion of equality—the belief that everyone should be treated equally and that to do otherwise is to discriminate.

Answer 22

These arguments were heard in the House of Commons regarding Criminal Code section 718.2(e). Both Reform (now Conservative) members and the Bloc Québécois argued that Aboriginal offenders should be treated the same as non-Aboriginal offenders, that to do ­otherwise is reverse discrimination

r

Question 23

equality and reverse discrimination

Answer 23

equality: a liberal-based philosphy or belief that all is, or should be the same

reverse discrimination: occurs when policies designed to end discrimination against one group inadvertently create discrimination against another group

Question 24

Herein lies the problem with correctional responses to female and Aboriginal young offenders.

Answer 24

. To the extent that Canada fails to specifically acknowledge—through its laws and their administration, and through correctional policies and ­practices—that the life experiences of minorities differ from those of the dominant group, then social injustice is perpetuated, particularly when peoples are oppressed, ­marginalized, and dispossessed. In the case of Aboriginal youth, injustice is also perpetuated when Canadian laws, social policy, and practices fail to recognize fundamental ­cultural ­differences that separate Aboriginal young offenders from the principles that form the basis of Canada’s justice system.

Question 25

• role of culture

This is not to suggest that Aboriginal culture is unified or monolithic. Aboriginal societies are culturally diverse in a variety of ways.

Answer 25

Nonetheless, certain common aspects of Aboriginal culture and their clashes with the dominant Euro-Canadian legal system have been identified by a number of scholars and reports

The most important commonality is Native spirituality—this lies at the heart of cultural differences that differentiate Aboriginal societies from non-Native society.

Question 26

Four particular aspects of Aboriginal cultural difference are of significance in justice administration and correctional programming:

Answer 26

: a principle of not burdening others with one’s problems, an orientation to the present and future rather than to the past,

a focus on the collective rather than the individual,

and an emphasis on the healing principle

and reconciliation rather than on punishment.al

Question 27

healing principle and reconciliation

Answer 27

healing principle: a principle of justice based on the philosphy that crime is an injury requiring the healing of severed relations among the offender, the victim, their families, and the community

reconciliation: an important component of the mediation/healing process, based on the belief that a productive response to crime is to encourage all affected parties to participate in conflict resolution

Question 28

Throughout the 1990s, various alternative justice initiatives took place in a number of Aboriginal communities that provided more culturally relevant and more effective mechanisms for crime prevention and that also furthered Aboriginal self-government

Chartrand (2005), based on Clairmont and Linden’s work in Aboriginal communities (1998), listed three principles common to those initiatives that are still in practice.

Answer 28

First is the principle of holistic understanding, which is based on the belief that all things are connected. From this perspective, it makes no sense to focus only on a criminal act and adjudge an appropriate response to this act—healing must focus on the individual, not the act.

A second principle is based on the belief that everyone (not just the victim and the offender) has a right and obligation to voice their views on the matter—­inclusive decision-making. Consensus must be reached by all decision-makers. Crime as a ­sickness is the third area of commonality. This view is that crime is not something inherently “bad” but rather is more like a “sickness” that needs to be healed. Furthermore, the individual is viewed as being separate from the illness. Discussions and decisions are not about punishment in proportion to an offence but rather about how the sickness can be cured (Chartrand, 2005, pp. 323–324).

As we saw in Chapter 10, therapy and counselling are common ingredients of correctional programming. They involve talking about one’s problems and, in ­particular, dwelling on one’s past experience and the behaviour that led to criminal charges and sanctions. According to Ross (1992) and others, these activities are ­culturally ­unacceptable to some Aboriginal peoples. The two points of cultural difference—not wanting to burden others and an ­orientation to the present and future—are suggestive of reasons why Eurocentric programming may be unsuccessful with many Aboriginal offenders. The other two points of difference—a focus on the collective and an emphasis on healing—suggest ways in which ­correctional programming might be made more positive for some Aboriginal youth.

Question 29

> changing directions in correctional responses for aboriginal youth

• recommendations

Hamilton and Sinclair (1991), as part of the Manitoba Aboriginal Justice Committee, argued 25 years ago that correctional responses to Aboriginal youth need to be more consistent with Aboriginal cultural values.

Answer 29

To accomplish this,

. . . young offenders should be left in their home communities, except in the most extreme situations. Efforts should be directed to determining the reason for their unacceptable conduct, and at helping the youth and the parents to deal with the reason for the offence and to avoid any repetition of it. The main objective should be to restore harmony in the community . . . (p. 566)6

Question 30

For those youth who may require more structure, Hamilton and Sinclair ­recommended

Answer 30

For those youth who may require more structure, Hamilton and Sinclair ­recommended open-custody homes, which would allow them to find or keep employment and continue their schooling. They also recommended the ­establishment of wilderness camps— particularly in Aboriginal communities—that would provide various programs such as education, recreation, counselling, and instruction in Aboriginal culture and life skills.

Work programming in these camps would be designed to provide skills training useful for future employment (Hamilton & Sinclair, 1991, p. 569).

Question 31

For serious offenders who may require secure custody and some form of institutional programming, the following ­recommendations were proposed:

Answer 31

1) A focus on dispute resolution, healing wounds, and restoring social harmony (Dickson-Gilmore, 1992);

2) An emphasis on spiritual ceremonies to assist in healing processes;

3) A recognition that people must be viewed as “participants in a large web of relationships” rather than as isolated individuals (Ross, 1994, p. 262);

4) A central place for community Elders as both teachers and healers; and

5) The hiring of facility or program staff who can speak Aboriginal languages (Hamilton & Sinclair, 1991, pp. 588–589).

Question 32

McGinness, McDermott, and Murphy (2010), in a review of Aboriginal youth ­justice system programming in Canada, the United States, New Zealand, and Australia, offer the following as “good practice measures: maximum access to and utilization of alcohol and substance abuse programs; avoidance of incarceration where ever ­possible; emphasis on prevention and early intervention; provision of culturally relevant ­programs; and, a high level of participation by the Aboriginal community in formulating and implementing responses to Aboriginal youth crime”

Answer 32

Furthermore, in thinking of more productive responses they advocate a “whole-of-community ­collaboration” and “justice reinvestment.” The idea of “whole-of-­community” refers to multi-agency engagement in formulating and implementing new programs, services, and initiatives that includes not only multiple levels of government, but also schools, local law enforcement, community organizations, local/community groups, parents, and youth. Justice reinvestment is a new approach developed in the United States and adopted in Australia that basically involves policies that redirect funds currently spent on incarceration to prevention and community initiatives in targeted high-risk communities and neighbourhoods (pp. 69–72).

Question 33

• actions

Where there is a general acceptance that programming for Aboriginal youth must be culturally relevant if it is to be useful and effective rather than counterproductive, policymakers have two choices:

Answer 33

to create separate programming for Aboriginal youth within the existing system or to develop mechanisms that will allow the development of youth programming as part of a separate Aboriginal justice system. Governments are divided on this question.

Question 34

The federal position, which was first presented by then–Justice Minister Kim Campbell, rejected the notion of a separate Aboriginal justice system in favour of an incorporation of Aboriginal values into the broader legal system.

Answer 34

. The Liberal ­government under Jean Chrétien recommended that Aboriginal peoples play a more central role in sentencing Aboriginal offenders and in developing alternatives to prison (Goff, 1997, p. 84). To this end, the federal government set up, through the Justice Department, an Aboriginal Justice Strategy program that provided funding, cost-shared with provincial and territorial governments, to support and further develop community-based justice programs in Aboriginal communities.

Question 35

> aboriginal justice and programs

Answer 35

Aboriginal “justice” now varies across the country and ranges from separate and ­semi-independent systems of decision-making in reserve communities to specialized programs and services offered in the core areas of major cities.

Question 36

• aboriginal justice systems

Answer 36

> cultural rediscovery programs

> education and skills training through mentoring

> community healing

Question 37

The Elsipogtog Restorative Justice Program

Answer 37

The Elsipogtog Restorative Justice Program has developed community-based, culturally appropriate programs that include a pre- and post-charge diversion system, mediation and group conferencing programs, and sentencing circles.

sentencing circles: often used in aboriginal communities; judges sit with community members to decide on an appropriate sentence for an individual case

This program is designed to allow the community to “decide what [is] best for itself in terms of resolving wrongdoing . . . by striving to resolve the effects of an offender’s behaviour” (Reid, 2005, p. 104). It has accomplished this through developing partnerships with Crown prosecutors, police, judges, and other service providers. For example, the police are encouraged to refer youth to the Elsipogtog diversion program before making decisions on whether to charge.

Question 38

cultural rediscovery programs

Answer 38

Rediscovery camp programs for Aboriginal youth have been developed in British Columbia. Fashioned along the lines of the Outward Bound philosophy, they are intended to reconnect Aboriginal youth with the land and their cultural roots. Sometimes used to introduce youth to traditional hunting and fishing, these programs usually involve the teaching of traditional skills, dances, legends, and songs, as well as the provision of environmental education (Fisher & Janetti, 1996, pp. 251–252). As a measure of the programs’ success, the Rediscovery International Foundation was established in 1985; its purpose is to expand the programs to Aboriginal ­communities around the world (Henley, 1989). Nunavut has developed a correctional program that allows youth in custody to go on escorted hunting day trips (Weber, 2005). And yes, everyone—youths and guards—carry hunting rifles on these trips.

Question 39

education and skills training through mentoring

Answer 39

Mentoring has shown some ­success as a programming style for Aboriginal youth, both in institutions and in the community (Latimer & Foss, 2004). An example of such a program is the Manitoba Aboriginal Youth Career Awareness Committee (MAYCAC). This committee was formed in 1987 by a group of Aboriginal professionals with a vision to provide Aboriginal mentors to Aboriginal youth. It has since expanded to involve a number of different types of activities, including an internship program focused on Aboriginal and Black youth in inner-city high schools and a community- and custody-based program that works with youth gang members. The core of the work involves assembling volunteers to work as mentors and role models on a one-to-one basis with youth. In 2003, MAYCAC listed 650 volunteers in their role model profile (Green & Healey, 2003, pp. 195–197).

Question 40

community healing

Answer 40

oss (1994) compared three programs in Manitoba that have taken different approaches to community involvement in healing processes. The Hollow Water Reserve has chosen to modify the existing Western justice system in developing its Community Holistic Healing Program. This program for sex offenders is staffed by a team made up of volunteers from the community and RCMP officers.

The process begins with disclosure of the abuse to the community team. Criminal charges are laid, but the offender has the option of participating in the healing ­program or proceeding with the charge in a court of law. In either case, the charge goes to court. However, if the offender agrees to participate in the healing ­program, the community team will, at sentencing, present to the judge a report detailing the person’s progress in the healing program. The community team is in principle opposed to recommendations for prison sentences.

Question 41

(girls and corrections)

> correctional issues

Answer 41

• overuse of custody
• inappropriate programming and facilities
• paternalism and the “feminine”

Question 42

• overuse of custody

Answer 42

Reformers, who were aware of injustices perpetrated on girls in Canadian society through criminalization for their poverty and attempts to resist violence in the home and survival on the streets, hailed the YOA as a positive step for girls because it eliminated the “status offence”

Their hopes were quickly dashed, though, as we saw in earlier chapters—justice professionals found new ways of criminalizing the same girls for the same “offences.”

Question 43

Under the YOA, “slapping a mother,” which under the Juvenile Delinquents Act (JDA) was “incorrigibility,” became “assault”; struggling with the police to avoid apprehension became “assaulting police officers”; street survival skills became “soliciting for the purposes of prostitution” and “robbing” schoolmates of lunch money.

Answer 43

Now, as we have seen in earlier chapters, all of these criminal, rather than status, offences brought more girls into the formal justice system, and rates of violent crime—mostly minor—have increased for girls both in police statistics and in going to court through the YOA and the YCJA. Interestingly, there are only two offences where girls’ charges consistently outnumber or are about equal to boys’, namely, assaulting a police officer and prostitution. In 2010, for youth aged 12 to 14, 81 girls were charged for assaulting a police officer and 1 for prostitution compared with 88 and 1, respectively, for boys. For youth aged 15 to 17, boys’ charges consistently outnumber girls’ (Statistics Canada, March 2012).

Question 44

Girls also accounted for an increasing proportion of sentenced admissions to custody through these years.

Answer 44

rom statistics reviewed in earlier chapters, we know that girls are more likely than boys to be confined for less serious offences and to be confined at younger ages. There is also evidence from the YOA years that girls were more likely than boys to be sentenced to custody for violating release conditions (bail violations and failure to comply) and “other” administrative offences.

Question 45

In addition, girls were spending significantly more time in custody for these types of offences (breaches of court orders) than for other offences.

Answer 45

Even more striking is that a one-year follow-up of the same girls revealed that two-thirds had been returned to custody within three months of their release, 80 percent had been charged with non-violent offences, and almost 80 percent of these offence charges (78.3 percent) were for ­administrative offences

Question 46

These increases began under the YOA because of the creation in 1986 of the new offence of failure to comply with a disposition, and Sprott (2012) argues that this offence, along with the criminal code charge of breach of conditions (bail) became the new “status offences.”

Answer 46

The patterns created by the YOA have not changed with the YCJA. Under the YCJA, sentenced admissions to custody increased for girls, from 18 percent in 2003–2004 to 22 percent in 2010–2011 (Mahoney, 2011, p. 33; Munch, 2012, p. 6). Mahoney (2011) reports that girls are still more likely to be serving custody for YCJA and administrative offences than for violent and property offences (p. 32). Furthermore, since the YCJA, the overall number of conditions and number of conditions subject to monitoring that are attached to probation/bail release have increased, even more so for girls. More conditions attached to release increases the formal surveillance of youth and consequently the number of youth charged with YCJA and administrative offences, particularly girls (pp. 310, 323–324). Hence, increasing admissions to custody for girls are likely explained by the fact that girls are more likely to be charged with “new status” and failure to comply offences and more likely to go to court, to be found guilty, and to receive a custody sentence for these offences than are boys (Sprott & Doob, 2010, p. 430).

Not only are girls disproportionately processed and in custody for these new “status” and “survival” offences, but there are also a disproportionate number of First Nations girls and young women of colour in the justice system

Question 47

• inappropriate programming and facilities

Answer 47

Once in the system, similar to Aboriginal youth, girls find themselves being ­processed through a youth justice system that is designed to address the needs of Euro-Canadian boys

As with women in the adult system, girls are considered “too few to count” to warrant facilities and programs that are appropriate for girls.

Question 48

The Federal–Provincial–Territorial Task Force on Youth Justice (1996) stated the following in its recommendations for reforming the YOA:

Answer 48

. . . to some extent, young female offenders suffer from the greater degree of social conformity of their female peers—if they offend, their minority representation in the youth justice system inhibits the development of specialized programs, especially in respect of custody and alternatives of custody. . . . [S]imply put, there are numerous financial and practical obstacles to developing specialized programs, precisely because of small numbers. For example, it would be impractical, or prohibitively expensive, to develop a specialized alternative program for females in a small or mid-sized town.

Question 49

the problem is that tjere is only one system for youth

Answer 49

“The girls wake up at the crack of dawn, clean house, eat, sit, eat, sit, eat, shower and sleep”

. Others have described girls’ recreational activities as “watching the boys play sports.”

Question 50

• patternalism and the “feminine”

Answer 50

The tendency to use custody as a response to non-criminal behaviour is generally understood to stem from a paternalistic desire to protect girls for “their own good,” and from widely shared, sometimes misogynist notions about “bad” girls in relation to femininity—how it is used against them and how alternative forms of femininity also lead to negative attributions.

These views are reflected in the common complaint heard from many professionals working in the corrections side of the justice system that “girls are difficult to work with”

Question 51

Corrado et al. (2000) found paternalism to be alive and well among probation officers who commonly offer a paternalistic rationale for charging a young woman with breaching her probation.

The same paternalism was also often found in judges’ sentencing decisions.

Judges have also sentenced girls because of their motherhood or impending motherhood.

Answer 51

see textbook for example

Question 52

> rethinking correctional responses to girls

Answer 52

• constitutiional and legislated rights
• poverty and marginalization
• abuse and sexual exploitation
• too few to count
• positive directions in programming for girls

Question 53

> constitutional and legislated rights

Answer 53

In itself, protecting girls from victimization on the streets sounds like a worthy goal, but acting on that sympathy raises questions about the constitutional and legislated rights of girls in Canadian society and the YCJA (the dilemma raised by Justice Sharon McCully in Voices Box 11.6).

Question 54

There are a number of ways in which girls’ rights are violated in justice decision-making processes.

Answer 54

he YOA, for example, promoted “minimal interference” with the rights and freedoms of youth, thereby implying that probation and custody should be the last options, rather than the first as is the case for many girls in the system.

We have seen that for at least some probation officers and judges, protection has been used as a justification for infringement of young female offenders’ rights. Nonetheless, the emphasis in the YCJA on extrajudicial measures, restrictions on the use of the justice system to address child welfare matters, and restrictions on the use of custody, combined with a stated principle that decision-making should consider gender, has the potential to reduce the overuse of custody (and probation) for girls—but we have seen that it has not. Furthermore, restrictions regarding welfare matters already existed under the YOA and paternalism was used then in decision-making for girls; hence, these attitudes are deeply ingrained in our society. There is still a ­considerable amount of discretion allowable for judges to invoke a variety of principles in justifying their decisions. Without legislative change or considerable changes in attitudes and/or court challenges to set precedent, there may be little change in the near future.

Question 55

Girls can also be apprehended for their own protection through child welfare legislation and other child-protection laws.

Answer 55

All provinces and territories have child and family services legislation, and while such legislation varies considerably in details and procedures, almost all provinces and territories allow police and social workers to apprehend and detain children “in need of protection.” Examples of such children are those who are being sexually abused or sexually exploited, or those who are involved in prostitution or use alcohol or drugs. A court order is not required, nor are warrants for searches. Apprehended children normally cannot be held in detention or facilities designed for young offenders (Busby, 2003, pp. 105–106). Nonetheless, we have also seen that confrontations with staff in child care facilities too often lead to police interventions and violence charges—a gateway to jail.

Question 56

In spite of these powers, some provinces have attempted to enact additional legislation that focuses exclusively on prostitution and protecting girls from their own actions.

Answer 56

Saskatchewan and Ontario have tried unsuccessfully to pass legislation, while Alberta and British Columbia have been successful in passing the Protection of Children Involved in Prostitution Act (PCIP, 1998, amended 2002) and the Secure Care Act (2002), respectively. Alberta’s PCIP is worthy of focus because it has been challenged in court. PCIP allows police and social workers to apprehend anyone under 18 who is involved in prostitution, with or without a warrant in “emergency situations.” Children may be held for up to 5 days and two additional periods of 21 days each with a court order, for a total of 47 days. During this time, they are subjected to a battery of assessments and tests, including tests for drug use, sexually transmitted diseases, HIV, and pregnancy.

Question 57

Under the Alberta PCIP, if youth are confined without a warrant, there must be a court hearing, during which social workers are required to justify the ­apprehension and detention.

Answer 57

The youth is entitled to legal representation at the hearing. Most have been released after the initial apprehension, but many have been apprehended repeatedly, including one girl who was apprehended 17 times. The policy is intended to apply “equally” to boys and girls, but in the first year of operation, it had been used 343 times against 66 girls, but only twice against boys. Almost all of the girls are apprehended on an “emergency” basis, meaning that no warrant is issued for their apprehension (Bell, 2001; Busby, 2003, pp. 106–107)

These laws define prostitution as sexual abuse, so proponents argue that they are designed to protect children and youth from “pimps and johns,” not to punish them.

Question 58

While there is little objection to providing the assistance that children and youth need to get them off the streets, the fact that the act permits confinement of girls and medical testing for their own protection constitutes violations of their rights, regardless of the use of tricky legal terminology to circumvent this conclusion.

Answer 58

Some argue that the act puts girls at further risk of violence and criminalization: Girls who had been “apprehended for their own protection” reported severe beatings once they were back on the street. The girls also reported that PCIP forces their activities underground to avoid police apprehension, and that they believe they are safer out in the open on the streets:

Question 59

> poverty and marginalization

Answer 59

It is now generally recognized that one of the most important programming needs for girls is to receive the skills training necessary for economic survival and ­independence.

Question 60

Girls are far more likely to be cross-over kids and enter the justice system from the child welfare system and as a result of new “status offences.”

Answer 60

A survey of a sample of institutionalized girls from across Canada indicated that almost all of the girls had initially encountered the youth justice system on charges related to prostitution and running away—both child welfare matters (Totten, 2002). Programs related to ­economic independence need to be considered as essential for such girls.

Question 61

Vocational programs are generally less successful than work programs in reducing delinquency.

Answer 61

This is likely because vocational programs do not offer what many youth want and need most—real employment experience. The programming challenge for female youth is to provide non-traditional vocational and employment programs and to convince staff and potential employers that girls are as capable as boys when it comes to performing non-traditional jobs. In the survey of girls in Nova Scotia institutions cited earlier, respondents reported being offered vocational programming in a number of areas, including baby-sitting, woodworking, computer use, hospitality management, cooking, and driver’s education. Although the report that resulted from the survey recommended that girls be offered male programming such as work and life skills training, as well as some academic programs accessible only to male youth, no consideration was given to non-traditional vocational programming (Nova Scotia Department of Community Services, 1993).

Question 62

> abuse and sexual exploitation

Answer 62

Programming for girls needs to reflect a recognition that many young female offenders have been victims of abuse at the hands of those in positions of trust—­parents, ­relatives, friends, neighbours, and boyfriends

Contrary to what some ­probation officers might think, girls do not get together and conspire to make up abuse stories

Question 63

. We have seen throughout this textbook, from a variety of sources, that most girls “in trouble” and “in the system” have lived lives of violence and abuse.

Answer 63

The Nova Scotia survey indicated that 63 percent of the girls in custody had been abused; one-third reported sexual abuse and another one-third physical abuse

Unfortunately, these findings are fairly typical. In the British Columbia survey, 67 percent of the girls had been physically abused and 52 percent had been sexually abused (Corrado et al., 2000, p. 199). This is not to deny that boys have also experienced abuse, or that some boys not need similarly focused programs. The problem lies in the failure to provide girls with programming that recognizes these issues as central in their lives. More specifically, for girls, the effectiveness of any programming—­particularly that which stresses economic independence—may depend on programs that address abuse issues.

Question 64

Foster care is often used as a means of getting children out of unsafe homes. All too often, though, children have been abused and/or neglected in these placements.

Answer 64

tten’s (2002) interviews with a sample of institutionalized girls indicated that all of the participants experienced an escalation of violence while in child welfare facilities and while in custody.

Although group homes seem to be less problematic than foster homes and are ­generally viewed as more desirable than institutional sentences, it is not clear that they are a positive experience for girls.

Question 65

Many family therapy and counselling models are based on the notion that keeping families intact is all-important.

Answer 65

This view is especially problematic with respect to both boys and girls who have been physically and sexually abused by family members. In such cases, family therapy is not a positive approach to take unless the young person is provided with programs and services that allow her or him to live separately from the family

Question 66

> too few to count

Answer 66

The “too few to count” argument also needs to be considered in relation to the number of Aboriginal and Black young women in the justice system. Because minority girls’ gender experiences, as well as their experiences with dominant institutions, are ­different from those of white girls, programs also need to be rooted in specific ­cultures (Chesney-Lind, 2001, p. 44).

Question 67

An important question arising from the small numbers of girls in corrections is whether to provide separate programming for girls or to include girls in programming designed for boys.

Answer 67

As suggested earlier, the federal government position is that considerable resources would be required to provide separate facilities and separate programs for girls, and provinces seem only too eager to agree with this opinion. Nonetheless, Hamilton and Sinclair (1991) maintain that designing programming and facilities for young offenders on the basis of economic factors is “abhorrent”; in their view, “Young people should not be mistreated by the justice system because of a lack of resources” (p. 567). A national survey of institutionalized girls indicated that they too see this as problematic and that it is a source of injustice. One young woman summarized the problem when she poignantly stated,

Question 68

> positive directions in programming for girls

Answer 68

With respect to gender-appropriate, culturally sensitive programming, ­particularly in a climate where governments are unwilling to provide separate facilities for girls, a critical question is whether to provide coeducational programming or separate ­programming for boys and girls. There are strong arguments for both positions.

Question 69

Past experience indicates that the institutional experience and its programming have ­benefited boys more than it has girls, which lends strong support to the argument for programming designed specifically for girls

Answer 69

On the other hand, some take the ­position that coeducational programming better reflects everyday life, brings a “degree of normalcy” to institutional life, and improves social skills (Nova Scotia Department of Community Services, 1993, p. 12). The comments of one girl in Totten’s study gives cause for reflection on the benefits of exposure to “everyday life” in a coed youth facility:

Question 70

A middle-of-the-road position might be to assess all programs in terms of their gender-appropriate nature and to offer some programs only for girls.

Answer 70

One institution in Nova Scotia offers a program called So He Says He Loves You. This eight-week program addresses abuse survival and victimization and is restricted to girls, although a similar coed program is also offered. Other specific-needs programs might address such topics as pregnancy, parenting, and date rape.

Question 71

A related issue is whether the staff in female institutions should include men.

Answer 71

According to the Nova Scotia report on female offenders, there should be male staff in female institutions because “it is unhealthy . . . to foster a perception amongst the female residents that men are present only when physical containment or discipline is necessary” (Nova Scotia Department of Community Services, 1993, p. 18). The report further recommends a partner approach, whereby male staff would be paired with female work partners. It also recommends that female young offenders be given the right to request female doctors, psychologists, or psychiatrists (p. 19). On the other hand, Faith (1993) points out that women and girls who have been physically and sexually abused do not feel comfortable with men who have ­institutionalized power over them. Rather, they are more likely to benefit from other women who have shared experiences and have “subsequently learned to forgive, honour and love themselves” (Faith, 1993, p. 164). The girls themselves seem to agree:

Question 72

Research results tend to support girls’ views of the efficacy of all-female staff and counsellors

Answer 72

Professionals, both male and female, who work with girls in mixed gender settings are the ones most likely to express the negative and destructive attitudes we saw earlier in Voices Box 11.5. They tend to focus on boys’ concerns and progress and report that “girls are more difficult to work with, verbally aggressive, hysterical and manipulative” (cited in Totten, 2004, p. 3). In contrast, women who work only with girls focus more on girls’ needs and concerns, such as sexual health, parenting, and sexual abuse. Young women report feeling safer and more willing to engage in therapeutic programming with women staff (Bloom, 2003; Bloom & Covington, 2001; Totten, 2004, p. 3).

Question 73

Totten (2004), based on a review of programming and interviews with ­incarcerated girls across Canada, offers the following as essential components of gender-responsive programs and services for girls:

Answer 73

1) A safe, supportive, nurturing female-centred environment, including a positive gender-responsive work environment;

2) Staff that reflect the gender, race, and sexual orientation of the institutionalized girls;

3) Program approaches based on girl-centred theories that focus on girls’ strengths and assets, with building skills as an objective;

4) Opportunities to develop skills in a range of educational and vocational areas;

5) Therapeutic models that address issues such as healing from abuse, family ­relationships, eating disorders, assertiveness skills, parenting education, and child development;

6) Education and counselling on issues related to health, such as pregnancy, stress management, HIV/AIDS, STDs, and mental health;

7) An overall emphasis and focus on empowerment, self-respect, and positive ­self-perception; and

8) Women role models and mentors that reflect the racial and ethnic backgrounds of the girls.

Question 74

Chesney-Lind (2001) agrees with the need for gender-responsive programs for girls, but cautions against the standard “issue-specific” approach to programming, anger management, drug abuse, and so forth, and suggests that girls’ programming should be multifaceted, work to empower girls, and advocate for change that will benefit them.

Answer 74

Hence, programs need to not only work on girls’ “strengths, skills and creativities to develop their voices and their abilities to assert themselves, but also [work at] identifying and challenging barriers that girls, particularly marginalized girls, face in our society” (p. 44). On the other hand, Hubbard and Matthews (2008) and Matthews and Hubbard (2008) are skeptical of the ability to actually implement gender-responsive programming because it is a model that is antithetical to the dominant What Works model for effective programming.

Question 75

(“what works” doesn’t work?)

Answer 75

What Matthews and Hubbard (2008) are suggesting is that gender-responsive (GR) programming is difficult to implement in its own right because of the dominance of the “What Works” (WW) approach, exemplified by Box 10.7, in the field of ­programming.

gender responsive (GR) programming: refers to programs based on a feminist model of empowerment rather crime-prevention risk-assesment tools, and that the needs of girls rather than individual criminogenic factors

Question 76

The WW model

This model is evidence-based, and what programs are considered effective is determined by research evaluations of the ability of specific programs to reduce recidivism.

Answer 76

As discussed in Chapter 10, preventing crime or reducing recidivism depends on the ability to “get the right person in the right program.” Hence, the WW approach to programming not only is based on programs to meet youths’ needs, but also relies on assessment tools to identify these needs. The needs themselves have been identified through theory and research, discussed in Chapters 6 and 7, that identified the correlates of delinquency (family, school, peers), sometimes referred to as “pathways” to delinquency or factors that put youth “at risk” for delinquency. A variety of assessment tools have been designed to identify the “risk” factors in any particular youth’s life and thereby point the way to effective programming to prevent crime or reduce recidivism.

Question 77

In this “What Works,” evidence-based model, correlates of delinquency are seen as criminological needs and they are largely accepted as being the same for all youth regardless of race/ethnicity, culture, class, or gender. In other words, these needs are seen to vary at the individual level only, not at the group level.

Answer 77

Other social and ­psychological needs, things such as food, shelter, and help with mental health and depression, are recognized as general needs, but these are not relevant to crime prevention and, therefore, not the focus of programming. The programs themselves, as can be seen in Box 10.7 in Chapter 10, tend to be structured, goal-­oriented approaches focused on skills development, and they rely heavily on ­cognitive ­behavioural models (Hubbard & Matthews, 2008, pp. 230–233). Herein lies the key to understanding why correctional programming has failed girls in particular and perhaps also minority youth. Quite simply, GR programming does not fit well with the dominant WW paradigm, and without a recognition of the lack of fit, attempts at GR programming will be difficult.

Question 78

GR programming is based not on crime prevention but on a feminist model of empowerment.

Answer 78

It thus focuses on oppressive societal structures rather than on individual criminogenic factors. In the GR model, the “risk” focus of WW is problematic because, for the most part, girls are seen as more high need than high risk—­delinquent careers are less likely, and they get out of criminal activities sooner than boys. This means that assessment tools for individualized planning need to be based more on the social histories and experiences of girls, rather than “criminogenic needs.” And, as Chesney-Lind (2001) suggests above, programs must address the entire package of needs for girls and not just those associated with delinquency. Most importantly, GR programming cannot simply adopt programs from the “What Works” list and provide them for groups of girls.

Question 79

Matthews and Hubbard (2008) maintain that the most important component in effective programming for girls, more important than the programs themselves, is program delivery. Any program offered for girls, they argue, must be “trauma informed” and “relational.” Trauma-informed programs are based on a recognition of the impact of abuse on the lives of girls, and relational approaches recognize that the key to girls’ healthy development is positive interpersonal relations. They propose five essential elements to effective programming for girls:

Answer 79

see textbook for more detaailed

1) A comprehensive individualized assessment process based on tools appropriate for girls.

2) Build a helping alliance

3) Use gender-responsive cognitive-behavioral approaches

4) Promoting healthy-connections and outcomes

5) Recognize within differences

Question 80

> changing directions in correctional responses for girls

New initiatives for girls are developing and being implemented, ranging from prison and/or detention design, to community-based programs, to preventive programs aimed at individual girls, to training programs for staff. Chesney-Lind, Morash, and Stevens (2008) report that there are now a few gender-specific programs and that for the most part they address pieces of the problem, some better than others. None do it all, which would entail offering services to meet girls’ needs that “start in the street and end in the job force” (p. 183). And as Barron (2001) maintains in referring to the justice system, “rather than focusing on individual factors ‘as an asset for community adjustment,’ it would be more meaningful to assess what factors in the community need adjusting” (p. 39).

Answer 80

• gender-specific prison/ detention facilities
• independent living
• earlscourt girls connection
• mentoring and “walk and talk”
• participatoru staff development

Question 81

Gender-Specific Prison/Detention Facilities

Answer 81

While it seems like a contradiction to speak of prisons for girls in the context of appropriate gender-specific programming and of not wanting to advocate prisons for girls, courts will continue to sentence girls to prison terms, so alternative prison models need to be considered. For example, since the mid-1990s, the Department of Youth Services (DYS) in Massachusetts has been housing girls in a 19th-century facility built for boys. Responding to research indicating that girls do not do well in detention and educational models designed for boys, the DYS attempted to deliver gender-specific programming, counselling, job training, physical recreation, trauma work, and parenting skills. However, it became apparent that the institutional environment was not conducive to such programming—taking a boys’ institution and “painting it pink” did not make the system work better for girls.

see textbook for more

Question 82

independent living

Answer 82

Supportive Housing for Young Mothers is a new program in Halifax that provides safe, stable, long-term housing with support services for young single mothers aged 16 to 19. More specifically, the program is targeted at young women who would otherwise be on the streets or in shelters with their babies. The project is designed to assist young mothers to “organize themselves, learn how to cope with having a baby, and get themselves situated in a community . . . where they can get involved and make friends and have resources for them and their children. It helps them grow up and learn how to be an adult with a child.” The facility is designed to provide eight to ten apartment living spaces (Lambie, January 18, 2006).

Question 83

earlscourt girls connection

Answer 83

The Toronto-area program Earlscourt Girls Connection is for families and girls under age 12 who display aggressive or problem behaviour. The program involves 22 ­sessions of three components: anger-management and skill-building sessions for girls, anger-­management and skill-building sessions for parents, and a group for girls and their mothers. The overall orientation of the program is advocacy, tutoring, family ­counselling, and individual befriending on a case-by-case basis (Walsh, Peppler & Levine, 2002).

Question 84

mentoring and “walk and talk”

Answer 84

As with Aboriginal youth programs, mentoring programs are something to which youth, including girls, respond, particularly when the programs involve matching youth with volunteers who are seen by youth as “someone who cares” rather than “someone who is paid to do a job.” Mentoring is seen as particularly appropriate for girls because it is a “relationally-oriented” program. Often, as with the MAYCAC program in Manitoba, the programs are partnered with universities, and university students work with youth as mentors. MAYCAC is partnered with the University of Manitoba.

Question 85

> participatory staff development

Answer 85

Participatory staff development involves gender-sensitive training for staff. This ­program focuses on the process of developing training programs that are inclusive, and is primarily concerned with the needs of both workers and youth. Informed by ­theoretical and empirical knowledge about gender, culture, and normative and ­atypical adolescent behaviour, researchers, line staff, and youth workers work together to develop gender-sensitivity training modules for institutional staff and youth workers (Artz, Nicholson & Rodriguez, 2005, pp. 304–305).