chapter nine

Question 1

chapter nine: going to court

Answer 1

After reading this chapter about youth courts and YCJA provisions for sentencing, the student will:

Have a statistical profile of the youth court population and its changes through the Juvenile Delinquents Act (JDA), the Young Offenders Act (YOA), and the Youth Criminal Justice Act (YCJA).

Know pretrial provisions, procedures, and decision-making, as well as issues associated with bail, detention, and remand.

Appreciate the questions and issues associated with adult sanctions for youth.

Know the role of legal professionals in youth court and how it has changed over time.

Identify rights provisions under the YCJA and the issues that surround them.

Understand sentencing principles and provisions in youth court, how they have changed from the JDA to the YOA and YCJA, and how they compare with those for adult sentencing.

Know how Bill C-10 amendments to the YCJA have changed detention and sentencing principles and provisions.

Question 2

(introduction)

Answer 2

In Canada, more is known about the youth court than any other aspect of youth justice.

Because of the creation of the youth court branch of the Canadian Centre for Justice Statistics, information has been readily available for discussion and analysis since the inception of the YOA.

Question 3

why is all of the information not comparable over time>

Answer 3

Not all of this information is comparable over time because of the time delay in introducing 16- to 17-year-old youth to the system, because not all provinces initially participated in sending their court statistics to Ottawa, and because of the introduction of the YCJA and important procedural and substantive changes over time.

Nonetheless, researchers were able to identify trends in the application of YOA principles; subsequent debate contributed, first, to YOA reforms and, second, to its eventual replacement with the YCJA. Statistics are available for the first 10 years of YCJA operation, and we now have some clear evidence of its impact. We also now have a substantial body of case law from youth court that, along with Supreme Court decisions, has contributed to recent YCJA reforms.

Question 4

( the court)

> a profile

• read textbook for statistical datas

Answer 4

In 2003–2004, the first year of the YCJA, the youth court processed 70,465 cases and 191,302 charges—a 17 percent decrease in cases from the previous year and a 33 percent decrease from 1991–1992 (Thomas, 2005, pp. 1, 16). Three years later (2006–2007), court cases had declined by another 26 percent

Question 5

why did we see a decrease in court cases by 2006 - 2007?

Answer 5

This decrease is primarily attributable to the YCJA because, as we saw in the last chapter, police charges also decreased dramatically during that period, and caseloads are directly impacted by changing police practices. Nonetheless, not all of the decline is attributable to changing legislation because these declines began long before the new legislation.

Question 6

where did most of the caseload growth came from?

Answer 6

Most of the caseload growth through the YOA years came from increases in administrative and YOA offence cases; failure to appear cases increased by 10% and YOA cases increased by 33 percent

Question 7

administrative offences is in what catgeory of offences going to courd

Answer 7

Nonetheless, administrative offences are still the third largest category of offences going to court; including YCJA offences, they accounted for almost one-fifth (19.3 percent) of the court caseload in 2011–2012, an increased proportion from 2006–2007 (

Question 8

A large part of the long-range court caseload decrease is attributable to a steady decline in cases coming before the court for what crime?

Answer 8

A large part of the long-range court caseload decrease is attributable to a steady decline in cases coming before the court for property crimes

Question 9

why was there a decline in property cases ?

Answer 9

This decrease is attributable to more use of extrajudicial measures for minor property offences. Similarly, the effect of extrajudicial measures is also apparent with violent offence cases.

Question 10

in 2011-2012 what was the most common youth court cases?

Answer 10

property offences

Of these offences, the most common was theft (13.6 percent of the total number of court cases). Violent cases made up 27 percent of the cases, the most frequent being common assault, at 8.4 percent of all cases. Combined administrative and YOA/YCJA offences accounted for almost 20 percent of the total number of court cases that year

Question 11

which gender made up for the greatest proportion of youth going to court?

Answer 11

Boys make up the greatest proportion of youth going to court, but their numbers are declining compared with girls. In 2003–2004, approximately 80 percent of youth court cases involved male youth, but by 2011–2012, their numbers had dropped to three-quarters (77 percent). Girls’ proportionate representation increased from 18 percent in 1992–1993 to 27 percent in 2006–2007 and had declined to 23 ­percent by 2011–2012 (Thomas, 2005, p. 4; Thomas, 2008, p. 4; Dauvergne, 2013, p. 7).

Question 12

around what age have been more common in youth court?

Answer 12

Older youth (16 to 17) have always been more common in youth court than those aged 12 to 15. In 2003–2004, 58 percent of the caseload were 16 to 17, and in 2011–2012 these older youth accounted for 61 percent (Dauvergne, 2013, p. 7; Thomas, 2005, p. 4). It would appear that as charges get more serious, the youth court population gets older. However, this pattern is only true for boys. Girls have always been charged and sent to court at younger ages than boys. In 2006–2007, 53 percent of the girls in court were under 16, and 15-year-old girls made up the largest category, at 23 percent (Thomas, 2008, p. 4). In 2011–2012, the number of girls in court aged 16 to 17 was only slightly greater than that of those aged 12 to 15 (Dauvergne, 2013, p. 7).

Question 13

The increase in girls going to court is largely accounted for what offences?

Answer 13

The increase in girls going to court is largely accounted for by administrative and violence offence charges. Over the YOA years, the number of girls in court for failure to comply charges increased as a proportion of all girls’ charges, from 6.1 percent in 1985–1986 to 27.3 percent in 1995–1996

Over that same period, girls’ violent charges increased from 18 to 22 ­percent (Sudworth & deSouza, 2001, pp. 5–6). In the early years of the YCJA, YOA/YCJA offence charges accounted for one-third of girls’ cases, and by 2006–2007, girls accounted for one-third of the total failure to appear cases and almost one-quarter of the violent cases (24 percent), while 24 percent of their cases were for administrative offences (Thomas, 2008, p. 4). In 2008–2009, administrative and YCJA offences accounted for 28 percent of all girls’ cases in court; violent offences accounted for another 28 ­percent. In 2011–2012, fraud, disturbing the peace, and failure to appear were the most common girls’ cases in court

Question 14

repeat offenders were more involved in what crime?

Answer 14

property crime

Question 15

what gender in court were repeat offenders

Answer 15

boys

Question 16

youth court fast facts

Answer 16

see tectbook

Question 17

> pretrial detention

Answer 17

Both the YCJA and Criminal Code provisions regarding judicial interim release apply to young offenders.

Question 18

what is interim release? (bail)

Answer 18

provisions that allow an arrested person to be released into the community, under specific conditions, while waiting for a court appearance; commonly reffered to as bail

Question 19

bail for YCJA

Answer 19

The YCJA requires that young people held in detention prior to trial be detained separately from adults [s. 30(3)], unless no youth facility is available or it would be unsafe to do so [s. 30(3)(a) and (b)]. This does not apply to youth who are between 18 and 20; the YCJA allows for them to be held in adult provincial facilities [s. 30(4) and (5)].

Question 20

The judicial interim release provisions of the Criminal Code [s. 515] require that

Answer 20

The judicial interim release provisions of the Criminal Code [s. 515] require that a young person be brought before a youth court judge or justice of the peace within 24 hours.

Question 21

in practice, what does this look like?

Answer 21

In practice, most detained youth have their first court appearance within 72 hours of arrest (Department of Justice, 2008, p. 23). At this hearing, the prosecutor must show why the accused should be held in custody. The Criminal Code provides two reasons for pretrial detention: primary grounds and secondary grounds.

Question 22

what is pretrial detention (remand)

Answer 22

the court-ordered holding of an accused person in a prison or detention facility prior to a court appearance or trial, or while awaiting sentence; sometimes also referred to as remand

Question 23

The Criminal Code provides two reasons for pretrial detention: primary grounds and secondary grounds.

what does this mean

Answer 23

Primary grounds are invoked when the court is convinced that custody is necessary to ensure that the youth will appear in court.

Secondary grounds are invoked when the court believes that custody is necessary for public protection

Question 24

the criminal code also allows tertiary grounds for detention. what does this mean?

Answer 24

According to a Department of Justice discussion paper on the use of pretrial detention for young offenders, the Criminal Code also allows tertiary grounds for detention. This refers to situations where the judge may consider that “. . . detention is necessary in order to maintain confidence in the administration of justice. . . .” Case law under the YCJA has indicated that the tertiary grounds should be rarely used

Question 25

an important pretrial change created by the YCJA is that section 29(1) specifically what

Answer 25

An important pretrial change created by the YCJA is that section 29(1) specifically prohibits placing a young offender in pretrial detention “as a substitute for appropriate child protection, mental health or other social measures” (see Box 9.3)

Question 26

the YCJA also carried a presumption that detention is not necessary under- certain conditions

Answer 26

When considering secondary grounds for detention (that is, whether detention is necessary for the protection of society [s. 515(10)(b) of the Criminal Code], section 29(2) of the YCJA required the court to presume that pretrial detention was not necessary if, on a conviction, the young person would not be ­sentenced to custody because of YCJA restrictions on committal to custody [s. 39(1)(a), (2)(c)], as discussed later in the chapter

Question 27

section 29(2) came to be seen as problematic.. why?

Answer 27

Section 29(2) came to be seen as ­problematic in that the Nunn Commission (2006) report and some courts interpreted it as an absolute proscription against using detention if sentencing criteria in section 39 were not met. Other courts disagreed and argued that the implied prohibition could be challenged (is rebuttable) (Department of Justice, 2008, p. 31). Bill C-10 resolved this dilemma by rewriting section 29(2) to say that “A youth justice court judge or a justice may order that a young person be detained in custody . . .”

Question 28

the YOA introduced what as an option to detention for the courts

what did YCJA also do

Answer 28

The YOA introduced the “responsible person” as an option to detention for the courts, and the YCJA [(s. 31(2)] kept the concept and turned it into an obligation of the court.

Before the court can detain a young person, it is mandatory that the court investigate as to the availability of a responsible person.

The court may decide to release a young offender if it is satisfied that a responsible person is willing to assume responsibility and control of the youth.

This responsible person, who could be a parent, some other adult relative, or a family friend, makes an application for release and is examined by the court to determine if he or she is a suitable alternative to custody for the young person.

A youth may also be released if a responsible person agrees to forfeit money or some security if the young offender violates the conditions of release. The YCJA also allows an accused youth to refuse this type of release.

Question 29

Overall, under the YOA, this method of release was highly underutilized

Answer 29

Doob’s cross-country survey of youth court judges (2001) found that the “responsible person” option was not raised in almost one-quarter of detention cases overall and that there was considerable variation across the country. British Columbia judges were most likely to investigate this option, and Ontario judges were least likely to do so. Varma’s observations of pretrial detention hearings under the YOA (2002) found that not one of 118 bail hearings in Ontario involved a discussion of the “responsible person” option. The main reason offered by judges was that these youth were already “. . . out of the control of their parents and/or child protection agencies.”(p. 159).

Question 30

when the court decides to release a youth, the Criminal Code presumption is that

Answer 30

When the court decides to release a youth, the Criminal Code presumption [s. 515(1)] is that it will do so without conditions

Nonetheless, section 515 of the Criminal Code does allow for release with conditions: bail in the form of money or property or agreements to appear in court, report to the police, or other requirements. The court may also impose specific ­conditions for youth, which may include such things as a curfew, a specified place of residence, requirements to attend school, and a list of persons with whom the youth is not to associate.

A youth who does not follow the direction of the person into whose custody she or he has been released (/YCJA offences), or who fails to comply with the conditions of release—Criminal Code offence breach of (bail) ­conditions [s. 145(3)]—may be charged and returned to court to face these additional charges (Hak, 1996, pp. 57–58). Varma (2002) and Moyer (2006) found that the vast majority of released youth had imposed conditions.

Question 31

why was pretrial detention a concern in the case of “Johnny” (see Case Study boxes)

Answer 31

Pretrial detention was a concern in the case of “Johnny” (see Case Study boxes) largely because, in spite of appearing before court after having accumulated 30 charges, he had not been held in pretrial detention. Two days after his release by the court, while driving a stolen car and being chased by police, the vehicle Johnny was driving collided with Theresa McEvoy’s vehicle, resulting in her death. The Nunn Commission of Inquiry made 34 recommendations in its final report. Six of these were recommendations for changes to the YCJA, five of which were relevant to pretrial detention. One of Justice D. Merlin Nunn’s concerns was that applying section 29(2) was too complex because it required reference to other sections of the YCJA [s. 39 (1) (a) to (c)], as well as to Section 515 of the Criminal Code

He recommended (Recommendation 23) that

The Province [Nova Scotia] should advocate that the federal government amend and simplify the statutory provisions relating to the pre-trial detention of young persons so that section 29 will stand on its own without interaction with other statutes or other provisions of the YCJA. (Nunn, 2006, p. 289)1

As we see in Box 9.3, this is partially what Bill C-10 did with section 29(2) of the YCJA; wrote in section 515(10) of the Criminal Code. Section 29(2)(b) and (c)(i) refer to primary grounds for detention; section 29 2(b) and (c)(ii) to secondary grounds; and (b) and section (c)(iii) refers to tertiary grounds.

Question 32

> profile (also re read textbook for statistical examples)

Answer 32

The number of young persons held in pretrial detention increased substantially under the YOA.

Question 33

The YCJA does appear to have had an impact on admissions to remand in terms of what?

Answer 33

The YCJA does appear to have had an impact on admissions to remand in terms of seriousness of offence. In 2002–2003, 33 percent of remand admissions were related to property offences and 31 percent were violent offence charges. By 2005, the federal Department of Justice was reporting that fewer youth with minor offence charges and breach of probation charges were being detained (2005, pp. 3–4). In 2010–2011, 62 percent of admissions were for non-violent offences, and the most common type of offences leading to remand admission were administrative—40 ­percent of admissions involved offences other than property or violent (Calverley, Cotter & Halla, 2010, p. 20; Porter & Calverley, 2011, p. 20; Reitano, 2004, pp. 2–3).

Question 34

YCJA pretrial detention legistlation (see box 9.3)

Answer 34

Section 29 of the YCJA lays out the requirements and presumption underlying the use of pretrial ­detention:
29. (1) A youth justice court judge or justice shall not detain a young person in custody prior to being sentenced as a substitute for appropriate child ­protection, mental health or other social measures.
(2) A youth justice court judge or a justice may order that a young person be detained in custody
only if

*** see textbook

Question 35

the majority of youth admitted to pretrial detention are what years of age?

Answer 35

The majority of youth admitted to pretrial detention are 16 and 17 years of age, but among 14- and 15-year-olds, more girls are detained than boys

Question 36

girls are detained more often for what kind of offences?

Answer 36

Girls are also detained more often for minor offences. Similarly, Aboriginal youth are far more likely to be held in detention than non-Aboriginal youth, and they are more likely to be held for minor offences, especially Aboriginal girls

In 2008–2009, Aboriginal youth accounted for 6 percent of the youth ­population and 27 percent of admissions to detention. Aboriginal girls are more likely to be detained than boys. Thirty-four percent of girls admitted to remand in 2008–2009 were Aboriginal. Between 2004 and 2009, the proportion of Aboriginal youth held in remand has steadily increased; admissions of Aboriginal girls increased by 26 percent. Aboriginal youth are also detained longer than non-Aboriginal youth.

Question 37

While the use of remand has not decreased with the YCJA and may even be increasing, the length of stays in remand has decreased. I

Answer 37

In 2002–2003, the average length of stay for youth in remand was 21 days, with one-half being released in less than one week. Seventeen percent of youth in remand were there from one to six months. Aboriginal youth stay longer in remand. In 2008–2008, the median length of stay in remand for non-Aboriginal youth was six days, while for Aboriginal youth the median stay was nine days

Question 38

how does pretrial facilities vary across the country?

Answer 38

ome youth are detained in group homes and detention facilities that offer school, recreational, and counselling programs. Some jurisdictions do not offer programs in detention facilities, while other jurisdictions do not even have detention facilities. Sometimes youth are detained in custodial facilities for young people serving sentences (Bala et al., 1994, p. 89). Morin (1990) and Hamilton and Sinclair (1991) report that youth in Aboriginal communities are often removed from their communities because of a lack of detention facilities. In some cases, youth are detained in adult facilities. In 2007, the Alberta Provincial Court allowed the transfer of a youth to an adult facility, arguing that the effect of the youth’s behaviour on “the operation of the youth facility and on his peers was not in the public interest”

Question 39

issues of widening the net

A number of issues were raised about section 29(2) of the YCJA that, depending on how they are resolved, have the potential to widen the net of youth involvement in the justice system.

Answer 39

As we saw earlier, the interpretation by some courts of section 29(2) as a prohibition against detention raised concerns for the law-and-order/crime-control lobby that our ability to hold youth in custody was too limited. (see textbook for example)

Another area of disagreement that was also addressed by the courts and the Nunn Commission concerned the absence of definitions for “violent” offence and “serious offence,” as well as a vague definition of “serious violent offence” in the YCJA. The omission of these definitions in legislation allowed considerable latitude around detention and custodial decisions for the courts, as is evidenced in case law and Supreme Court decisions. (see textbook for example)

One other pretrial issue related to net widening comes from attaching conditions to release. Despite the fact that release conditions are discouraged by the Criminal Code [s.515(1)], unless the prosecutor shows that conditions are justified, as discussed above, the vast majority of released youth have conditions imposed. Pretrial detention contributes to net widening by escalating charges for youth through Criminal Code and /YCJA charges associated with violations of release conditions.

Question 40

9.4 YCJA Offence Definitions

Answer 40

see textbook

Question 41

what were the common charges that we see involving bail violationes

Answer 41

The most common among these charges were failure to attend court, failure to attend at the police station for fingerprinting, and curfew violations.

In terms of net widening, the paramount concern is the consequence of these types of charges. In a study of youth cases where youth had been convicted of “failing to comply with a disposition,” the subsequent convictions were more likely to involve custody than if previous convictions were for a traditional offence, even one involving serious violence

Question 42

Some youth are adversely affected by the use of pretrial detention and the rules and regulations concerning bail release.

why is the use of pretrial detention problematic for homeless youth?

Answer 42

The use of pretrial detention is particularly problematic for homeless youth, for Aboriginal youth, for those whose friends or relatives are not likely to be considered responsible by the court, and for those with poor parental relationships.

Question 43

many youth end up in detention not because they committed a serious crime, but because they ..

Answer 43

(1) did not follow the direction of the court or their parents or (2) do not have parents, adults, or relatives who are willing or able to assume responsibility for them

Section 31(2) of the YCJA addresses this issue by directing the court to attempt to find a responsible person in instances where a youth would be detained in custody if no such person is ­immediately available.

Question 44

The federal Department of Justice also reports that pretrial detention is still being used in some jurisdictions to address what?

Answer 44

The federal Department of Justice also reports that pretrial detention is still being used in some jurisdictions to address social welfare needs, in contravention of subsection 29(1) of the YCJA, for youth considered “nuisance offenders” and as a “wake-up call”

Question 45

). Some ­jurisdictions have judicial interim release programs (JIR) that can assist in reducing the use of pretrial detention and bail violation charges and that could potentially reduce regional disparities if more of these programs were adopted.

Answer 45

Moyer (2005b) found that JIR programs in Saskatoon and Regina provide supervision and monitoring to youth as well as assessments of suitability for the Crown. British Columbia has policies for pre-bail enquiries, whereby probation officers report to the court on factors relevant to a youth’s detention or release or referral to another source of support for the youth.

Question 46

> transfer to adult court - YOA

Answer 46

For those committed to youth justice reform, one of the most contentious aspects of the YOA was section 16, which allowed judges to transfer youth who were over the age of 14 at the time of the offence to adult court for trial if they had been charged with a serious indictable offence.

Question 47

was transfer automatic initially? amd transfer were made by ___?

Answer 47

Transfer was not automatic initially, and applications for transfer were made by the Crown or the young person. When the YOA was first implemented, the decision to transfer required the court to strike a balance between “the interest of society” and “the needs of the young person.”

One of the most important factors used by the courts in making these decisions was the availability of appropriate treatment and correctional resources in the youth system, compared with the adult system. If the court decided that the protection of society and the rehabilitation of the young person could not be reconciled, the YOA allowed for the youth to be transferred to the adult system for trial.

Question 48

what was a major concern at transfer hearings?

Answer 48

A major concern at transfer hearings therefore was whether the young person was likely to be rehabilitated within the duration of the sentence allowed in the youth court. Initially, the maximum sentence in youth court for first-degree murder was three years.

In adult court, the only choice for young offenders was a life ­sentence with a minimum of 25 years before eligibility for parole. Hence, while the adult system might be seen to better allow sufficient time for rehabilitation, in reality, judges and juries were reluctant to sentence youth in the same manner they would adults because of the discrepancy between the two systems in sentence length.

Question 49

Amendments in 1992 considerably reduced the discrepancy by allowing the youth court to impose a murder sentence of five years less a day and for those transferred to and convicted in adult court; a life sentence meant eligibility for parole after five to ten years.

what was also the second set of amendments?

Answer 49

A second set of amendments, in 1995, further lengthened youth court sentences and shortened youth sentences in adult court, thereby bringing the two even closer together. Changes included increasing youth court sentences for first- and second-degree murder to ten years and seven years, respectively; for youth transferred to adult court for first- and second-degree murder they included increasing eligibility for parole to ten and seven years, respectively. And young offenders charged with murder who were to be tried in youth court were given the choice of trial by judge and jury or trial by judge alone. Most importantly, these revisions mandated that 16- and 17-year-old youth charged with murder, attempted murder, manslaughter, aggravated sexual assault, or aggravated assault were to be automatically transferred to and tried in adult court unless an application was granted for the young person’s case to be heard in youth court [s. 16(1.01)]. These changes set the stage for the ­current sentencing provisions under the YCJA, but a number of issues remained that are still problematic with the YCJA.

Question 50

9.5 first degree murder under the YOA

Answer 50

(in youth court)

• Ten-year sentence of six years’ custody and four years’ conditional ­supervision in the community.
• Custody term served in youth facility. Transfer to adult provincial facility possible at age 18

(in adult court)

• mandatory life sentence with parole eligibility after ten years.
• sentence served in youth facility, provincial adult facility, federal ­penitentiary, or a combination of the three.

Question 51

9.6 first-degree murder under the YCJA in youth court

Answer 51

see textbook

Question 52

> transfer issues

The automatic transfer of 16- and 17-year-old youth to the adult system created what system?

Answer 52

The automatic transfer of 16- and 17-year-old youth to the adult system created a reverse-onus situation

The onus was on a 16- or 17-year-old offender to demonstrate to a judge why she or he should be tried in youth court rather than adult court.

Question 53

Justice Lucien Beaulieu (1994) raised some fundamental legal concerns about YOA transfer provisions that were not addressed until Bill C-10

he argued that

Answer 53

He argued that because the primary focus of transfer hearings was to determine the type of sentence that a young person would get in youth court versus adult court, a fundamental and “cherished principle of criminal common law” was compromised.

Question 54

Our justice system requires that an accused be presumed innocent until proven guilty in a court of law. However, in transfer hearings for young people we are forced to “____”

Answer 54

Our justice system requires that an accused be presumed innocent until proven guilty in a court of law. However, in transfer hearings for young people, we are forced to “presume innocence but assume guilt.”

Question 55

all of the information considered in a transfer hearing reflects an assumption of what? c

Answer 55

All of the information considered in a transfer hearing—­predisposition reports, medical reports, psychological reports, and the like—reflects an assumption of the guilt of the accused

Beaulieu (pp. 338–339) recommended that the legislation should be altered so that transfer to the adult system for sentencing would take place after a young person had been found guilty in youth court. Similar recommendations were made by the Federal–Provincial–Territorial Task Force and the Standing Committee on Justice and Legal Affairs

Question 56

> adult sentences and the YCJA

Answer 56

In drafting the YCJA, legislators responded to these concerns about transfer by ­sidestepping the transfer hearing altogether—all youth charges were to be heard in youth court and some youth would automatically be liable for an adult sentence.

Hence, under the YCJA, the initial issue for the courts was one of liability for an adult sentence, not transfer.

Question 57

There were provisions in the YCJA giving youth court the power to impose adult sentences (s. 61 to s. 73) rather than have to face the arduous task of deciding to transfer a youth to adult court. This new power was ­partially accomplished through the creation of the presumptive offence in ­combination with new sentencing provisions for “serious offences” and “serious violent offences.”

what is presumptive offence

Answer 57

presumptive offence: under the YCJA (2003), a serious violent offence or any other violent offence for which an adult would be a liable to a prison sentence of more than two years

The presumptive offence was defined in section 2.1 as an offence of murder, attempted murder, manslaughter, or aggravated sexual assault, or any other serious violent offence that an adult would be subject to more than two years’ imprisonment ­committed by a youth aged 14 or older. Quite simply, whether a youth was liable to an adult sentence depended on the nature of the offence, the youth’s age, and the sentence an adult would receive for the same offence.

Question 58

97 YCJA privisions for adult sentences .

Answer 58

study it

Question 59

Initially, there were three situations in which youth were liable to an adult ­sentence under the YCJA.

Answer 59

1) First, the YCJA required an adult sentence for youth 16 and over who were found guilty of murder, attempted murder, manslaughter, or aggravated sexual assault. (read textbook for more info)

2) Second, section 64(1) further strengthened the court’s ability to impose adult sentences by extending these powers to also include serious violent offences.

3) Third, there was a “three-strike rule,” so youth who had committed (or were alleged to have committed) a serious violent offence who already had two prior convictions for serious violent offences were also liable to an adult sentence.

Question 60

We have already seen how the YCJA definition of “serious violent offence” and lack of definition for “serious offence” and “violent offence” was problematic and ­necessitated revisions. Beyond this, the most problematic issues concerned ­applications of the “presumptive offence” as well as the reverse onus

Answer 60

Before the YCJA even came into effect, the Quebec government challenged the constitutionality of a number of YCJA provisions, including those relating to presumptive offences. More specifically, the Quebec Court of Appeal maintained that it is a violation of the Canadian Charter of Rights and Freedoms for the onus to be on a youth to convince the court that a youth sentence should be imposed rather than an adult sentence. A consequence of an adult sentence is that the youth is no longer entitled to a publication ban, and the Quebec court also ruled this to be a violation of Charter rights. The federal government under Jean Chrétien announced plans to revise the YCJA so that it would be consistent with the appeal court ruling (Bala & Anand, 2004, p. 264), but subsequent changes in government delayed these reforms until Bill C-10.

Question 61

Adult sentencing provisions are laid out in Box 9.7. Essentially, Bill C-10 ­simplifies the process of applying adult sentences and addressed some of the ­concerns raised by the courts—gone is the reverse onus and the presumptive offence.

There are now three necessary criteria for liability to an adult sentence.

Answer 61

1) A youth must be over age 14 and have been found guilty of a serious violent offence (see Box 9.4), and an offence for which an adult would receive a sentence of incarceration for longer than two years.

The Attorney General has less discretion in deciding to seek an adult sentence if the offence is a serious violent one and must notify the court, the youth, and parent(s) of his or her intention to seek an adult sentence. After a finding of guilt and prior to a sentencing hearing the court must conduct a hearing on the Crown’s application for an adult sentence. Provinces can still set the age of liability to 15. Where the YOA had a transfer hearing, the YCJA now requires an adult ­sentencing hearing, and its section 72(1) outlines the “test” for an adult sentence (see Box 9.7). The YOA was primarily concerned with whether the youth system would allow sufficient time for the youth’s rehabilitation and treatment; now, the YCJA is concerned about whether the youth system allows sufficient time for the youth to be held accountable for his or her offence.

Question 62

two concerns remain

Answer 62

Two concerns remain. While Bill C-10 has addressed rights issues associated with the presumptive offence and reverse onus, the concerns raised by Justice Abella that the presumption of “diminished moral culpability” as a cornerstone of “fairness” in a youth justice system continues to be violated by YCJA provisions for adult sentences for youth. Similarly, the UN Committee on the Rights of the Child is still ­admonishing Canada for applying adult sentences to youth under 18 years of age (Scoffield, 2012).

Question 63

(court proceedings)

youth court trials begin with what?

Answer 63

Youth court trials begin with a plea. Most young offenders plead guilty.

Question 64

Most young offenders plead guilty. In ­2011–2012, 57 percent of youth court cases involved a finding or plea of guilt, a figure that has been steadily declining since the high of 70 percent in 1998–1999

part of this decrease may be due to what?

Answer 64

Part of this decrease may be due to increases in proportions of cases with a stayed, withdrawn, dismissed, or discharged outcome

In spite of overall decreases in guilty cases, the rate of guilty findings for girls increased from 1991–1992 to 1999–2000. Sprott and Doob (2003) argue that percentage increases for girls do not mean that more girls are being found guilty, but rather that boys’ rates are declining due to decreases in guilty findings for boys charged with property offences

Question 65

what happens if a young person pleads guilty or of they do not plead guilty

Answer 65

If a young person pleads guilty, the court proceeds directly to sentencing; if she or he pleads not guilty, the case goes to trial. A youth court trial is the same as an adult court trial, with two exceptions. Initially, under the YOA, there was no preliminary hearing and no jury trial in youth court, but the 1995 revisions (Bill C-37) allowed young offenders to opt for a jury trial in murder cases only. The YCJA changed these rules considerably, allowing a youth to elect a trial when an application has been made for an order for an adult sentence, when a young offender is subject to an adult sentence, or when he or she is facing a murder charge. This is also the case when the charge is one that would entitle an adult to a jury trial. YCJA section 67(2) outlines the instructions that the judge must put to the young person in all of these cases:

Question 66

Preliminary inquiries must now be conducted in the same manner as they are for adults, except where this might be inconsistent with the YCJA. In addition, section 67(6) gives the attorney general the power to require a young person be tried by a judge and jury, even in cases where a young person elects to be tried without a jury.

Question 67

Processing a case through youth court is a complex affair, and the process is longer and more complex under the YCJA than it was under the YOA.

Answer 67

Bloomenfeld and Cole (2005) explain that case processing involves not only the accused and a judge, but also police, Crown prosecutors, judges other than the trial judge, a ­justice of the peace, and defence and duty counsel, as well as probation officers, youth workers, and a variety of other non-legal professionals.

Question 68

The median length of time taken to complete a youth court case (from first to last court appearance) in 2011–2012 was 108 days (about 3 ½ months), shorter than cases were in 2008–2009, but still 25 days longer than under the YOA.

this overall increase is likely explained by what

Answer 68

This overall increase is likely explained by the diversion of minor cases from the court to extrajudicial measures. It takes longer for cases that involve trials, and these are more likely for serious violent cases.

In 2011–2012, it took 395 days to process homicide cases and 252 days to process sexual assault cases. The number of charges heard by the court also increases processing time for cases.

Question 69

. In 2011–2012, it took 395 days to process homicide cases and 252 days to process sexual assault cases. The number of charges heard by the court also increases processing time for cases. In 1991–1992, less than half (45 ­percent) of court cases involved more than one charge, and this category increased to almost two-thirds (59 percent) with the introduction of the YCJA. In 2006–2007, 56 percent of the cases involved more than one charge and 21 percent involved more than three. In 2011–2012, the number of charges heard was almost three times the number of cases

Answer 69

. This provides further evidence that court cases are taking longer because they became more complex with the YCJA and consequent diversion of minor cases from the court caseload through extrajudicial measures (

Question 70

The YCJA requires some processes and lays the groundwork for provincial choices in others, such as judicial conferencing (see the discussion of sentencing conferences in the section title “Court Sentencing” later in this chapter).

this means that

Answer 70

This means that processing may vary from province to province. Bloomenfeld and Cole (2005) provide the following hypothetical scenario for court processing in Ontario. After the police have decided to lay a charge, the case goes to court for a trial judge to decide on pretrial release. Prior to this and after the Crown receives the police charge, the ­evidence and information presented must be weighed for a decision by the Crown as to whether to process the case through court or, when there is a guilty plea, whether to apply extrajudicial sanctions

. If the decision is to go to court, ­decisions must then be made in meetings with defence counsel about guilty pleas and potentially reducing charges in terms of number or severity. This stage often involves an informal judicial pretrial (JPT) meeting, where the Crown and defence counsel meet with a judge other than the scheduled trial judge to discuss the viability of particular sentences for a plea or finding of guilt (Bloomenfeld & Cole, 2005, pp. 203–216):

Question 71

extrajudicial sanctions

Answer 71

used when cases proceed to court and the provisions provide for specific sanctions and rules regarding the use of more formal diversionary programs

Question 72

If the case goes to trial and there is a guilty plea or a finding of guilt, the judge will then involve probation officers and other professionals to assist in determination of sentence through a variety of psychological, medical, or community ­assessments, as well as pre-sentence reports

Answer 72

In cases where there is an application from the Crown for an adult sentence, a hearing is held with all parties prior to the sentencing hearing, and this hearing must include a pre-sentencing report. Hence, 134 days from start to finish for one case may, in simple cases where all parties are in agreement, translate into 1 to 4 full court days to complete (Bloomenfeld & Cole, 2005, p. 211). In other words, a lot of behind-the-scenes work is required by policy, law, and jurisprudence

Question 73

jurisprudence

Answer 73

the science and philosophy of law and its practice

Question 74

> legal representation

Answer 74

Only with the introduction of the YOA (s. 11) did youth have the right to legal ­representation in court

Question 75

four types of representation are available to a young offender

Answer 75

a privately retained lawyer, a Legal Aid lawyer, a duty counsel (i.e., a lawyer on duty each day in the court), or a court-appointed/funded lawyer. Court-appointed lawyers are not available in adult court

Young offenders who are unable to retain the services of a private lawyer or a Legal Aid lawyer have the right to request that the court provide them with a lawyer—a policy that has been criticized as something that gives “inexperienced” lawyers an opportunity to learn on the job (Hak, 1996, p. 54).

Question 76

Under the YCJA. section 25

Answer 76

Under the YCJA, section 25, young people are still entitled to a private, Legal Aid, or court-appointed lawyer. If the court has a sense that the interests of a young person and the interests of a parent are in conflict, the judge is required to ensure that a young person is represented by counsel, independent of his or her parents [s. 25(8)]. Subsection 25(10) allows provinces to establish a program that would recover the cost of a young person’s counsel, either from the young person or from the parents of the young person. Of concern here is that parents may coerce their children to plead guilty to avoid having to pay legal fees. In addition, lawyers have expressed concern regarding tensions between youth receiving legal counsel and those paying their legal bills. Parents and other legal guardians of youth appearing in court, such as foster parents and institutions, are not always in agreement about what they consider to be the best interests of the youth relative to the young person’s instructions to the lawyer (Bloomenfeld & Cole, 2005, p. 210). If the court believes that these interests are in conflict, it has the power to ensure independent counsel for the youth (Doob & Cesaroni, 2004, p. 36).

Question 77

Whether a young offender has a lawyer does seem to make a difference

Answer 77

A survey of major cities across the country just prior to implementation of the YOA indicated that the presence of a lawyer and the type of representation did have an influence on the likelihood of conviction and/or type of conviction. Duty counsel lawyers were found to be considerably less “successful” than private lawyers. In fact, duty counsel cases were comparable in outcome with cases with no legal representation. Private lawyers were found to be better than duty counsel at negotiating to have charges dropped and in defending not-guilty pleas (Carrington & Moyer, 1990, p. 633). Both Bell (1994a) and Schissel (1993), who studied individual YOA youth courts in 1986, reported that type of representation made a difference and that the effect of representation varies by race, class, and gender of the accused. Schissel (1993) also found that Aboriginal youth do not benefit as much from private and Legal Aid lawyers as do non-Aboriginal youth.

Question 78

> the role of lawyers

Answer 78

A young person’s right to legal representation introduced with the YOA has continued with the YCJA. The YCJA and the Canadian Charter of Rights and Freedoms maintain that youth should be provided with ample opportunities for legal advocacy and advice before any court sanctioning and that access to lawyers should be available at pretrial stages and at all stages of the court process.

Question 79

Most young offenders do not have a lawyer when they first appear in court, and this is where duty counsel can step in.

Answer 79

In Ontario, duty counsel lawyers are either private lawyers paid by the Ontario Legal Aid Plan or employees of the plan. They work in the court waiting rooms to provide advice to youth and their parents about what to expect when they go into court, and they speak to the court on the youth’s behalf. They will also talk to youth about release and supervision, and they will ­contact people who might agree to supervise the youth or, in the case of extrajudicial sanctions, discuss options with the youth and negotiate sanctioning terms with the Crown and probation services. Duty counsel lawyers also make submissions and present arguments to the court judge about release conditions, extrajudicial sanctioning agreements, and sentencing if the youth has decided to plead guilty at his or her first court appearance. Beyond the first appearance, private, Legal Aid, or court-appointed counsel takes over these functions (Bell, 1994a; Bloomenfeld & Cole, 2005, pp. 208–209).

Question 80

There is some debate over what role lawyers should play in youth court. Should they act in the best interest of the child, or should they merely offer legal representation? In other words, should a lawyer assume a legal advocate role or a guardian role? The Law Society of Upper Canada advises lawyers to serve as advocates:

Answer 80

There is no place . . . for counsel representing the child to argue what is in his opinion in the best interest of the child. Counsel should not be deciding whether training school would be “good” for the child. . . . It is advice with respect to the legal rights of the child which is being provided, and that advice is being provided to the child, not to the parents, not to the court, and not to society, but to the child. (1981, cited in Bala et al., 1994, p. 83)4

Question 81

legal advocate vs guardian

Answer 81

legal advocate: the role of a lawyer in making decisions and acting in the best interests if his or her client, to ensure that the client has every possible legal advantage

guardian: a person who has been given legal authority over and responsibility for another person

Question 82

lawyers who assume a legal advocate role will advise young clients of their ….

Answer 82

Lawyers who assume a legal advocate role will advise young clients of their right to remain silent, suggest that they not cooperate with police, provide a legal defence, and try to prevent a conviction. In the case of conviction, they try to get the most lenient disposition possible

Question 83

lawyers who assume a guardian role are primarily concerned about…

Answer 83

lawyers who assume a guardian role are primarily concerned about what they believe to be the “best interests” of the young offender. As one Manitoba lawyer put it, “My attitude to the practice of law is not adversarial. I am aware of the legal issues and the fact that I am a lawyer, but I am concerned with rehabilitation. I do take the role of a stern parent” (cited in Milne, Linden & Kueneman, 1992, p. 333). In the event of a conviction, this kind of lawyer will be primarily concerned about what he or she thinks the young offender requires for rehabilitation. Bloomenfeld and Cole (2005) maintain that most defence counsel “. . . likely combine elements of both of these approaches to best address their client’s needs and requirements” (p. 211). A study of young persons’ perceptions of lawyers from their court experiences found that youth were satisfied with their lawyers when they demonstrated legal competence and professional skills and were dissatisfied when they did not or showed a lack of respect (e.g., he doesn’t do what I ask; he thought he was better than me) (Peterson-Badali, Care & Broeking, 2007, p. 390).

Question 84

> legal rights

Question 85

a fundamental principle underlying a seperate justice system for youth is that

Answer 85

A fundamental principle underlying a separate justice system for youth is that they are of a different level of maturity than adults and, as such, have special needs and require special protection

To this end, the YOA and now the YCJA specify these rights and the procedures to ensure them. Beyond the right to counsel and the right to a court-appointed lawyer, the YCJA provides youth the right to be informed, through a variety of means, of these legal rights [s. 25(9)] and of provisions specific to youth regarding the admissibility of statements they make to the police. These latter provisions, in addition to the ones provided to adults (such as the right to not make a statement), include the right to consult a parent or other person as well as a lawyer and a requirement that statements to police be made in the presence of counsel and any other person requested by the youth [s. 146(2)(b)(iii, iv)]. The YCJA also requires that rights regarding police statements be “clearly explained . . . in language appropriate to his or her age and understanding”

Question 86

These latter requirements, also included in the YOA [s. 56(b)] sparked controversy because police “technical” mistakes could lead to acquittals and were eventually accepted as “overly prescriptive.”

Answer 86

The YCJA provides more leeway for the courts in deciding if a youth’s rights regarding statements were upheld. More specifically, the court can decide to uphold a young person’s statement even when it has determined that required procedures were not followed when the youth waived his or her right to not make a statement. The court must satisfy three conditions to uphold this type of statement: The court must be satisfied that procedures were not followed because of a “technical violation,” that the young person was informed of his or her rights and waived them voluntarily, and that admitting the statement “. . . would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection” to ensure their rights [s. 146(5) to (6)]. It is interesting to note that the YCJA does not define what constitutes a “technical violation” (Bala, 2003).

Question 87

From a strictly legal perspective, there are questions about whether young people understand the rights that are provided to them by law.

Answer 87

While a youth may understand that she or he “has” rights, the fundamental question concerns whether any particular individual understands the meaning of these rights.

Question 88

Viewing the issue in terms of how young people experience their world, Feld (2000) maintains that rights are seen by youth as something you are allowed to do, rather than as something you are entitled to exercise (p. 147).

Answer 88

Young people’s understandings of rights then is befitting of their status in society. They seem to not feel empowered or to have agency and choice; rather, rights are like privileges, something that people in authority give them. The question of young people’s understanding of their rights to silence and to legal representation was put to the test by Abramovitch, Peterson-Badali, and Rohan (1995) and Abramovitch, Higgins-Biss, and Biss (1993) by comparing a sample of students aged 11 to 18 with a university student ­population. They found that youth over 16 understand their rights better than younger youth, and that older youth are more like university students in this regard. An important difference between the groups is that younger youth are more likely to assert their right to silence if they perceive strong evidence of guilt in the case and are more likely to assert their right to a lawyer if the evidence of guilt is perceived as weak. The researchers conclude that university students are less naive than young high school students in that, for them, the guilt or innocence of accused persons has no bearing on their assertion of their rights.

Question 89

In separate surveys of young people in primary grades and high school (Grades 6 to 13), Abramovitch et al. (1993) found that younger youth were more likely to report that they would give a statement to the police if they were asked to do so.

Answer 89

With regard to rights to legal representation, including the right to instruct counsel themselves, the authors found that most youth did not fully understand what it meant to waive their right to a lawyer. They did not understand that a waiver meant that no one but the police would be present when they were questioned (cited in Doob & Cesaroni, 2004, p. 37). The central issue then is the extent to which ­protections are provided for youth who waive their rights, given that they may not understand the meaning of the rights themselves and the consequences of their waiver. With the exception of statements given to the police, it is not clear that the YCJA has provided sufficient protections.

Question 90

One final legislative means to ensure the protection of young people in the justice system comes from restrictions on the disclosure of information about a young offender.

Answer 90

Because of the media and its reporting of crime, most people are aware that the media is not permitted to publish the names of young offenders. This publication restriction surfaces periodically as a debate over the “public’s right to protection” versus a young offender’s “right to privacy.” The latter is defended as an important tool to assist in the rehabilitation of young offenders and their reintegration into society. The protection of a young person’s identity has been entrenched in the juvenile justice system since its inception in 1908, when JDA privacy regulations stipulated “. . . no report . . . in which the name of the child or of its parents or guardian is disclosed . . . shall, without the special leave of the judge, be published in any newspaper or other publication . . .” [JDA 1908 s. 10(3)]. In addition, section 10 stipulated that hearings were to be closed to the public; section 8 allowed parents or guardians to attend, while section 20 prevented siblings from doing s

Question 91

Over the past 100 years, changes to privacy provisions in the juvenile/youth justice system have made the regulation of privacy considerably more complex by increasing the amount of information about a young offender and youth court cases that is private, while at the same time eroding protections by decreasing limitations to the sharing of young offender information.

Answer 91

While there were a few modifications to the JDA, most of the change to privacy rights began with the YOA, and it has continued through the YCJA. The main section on privacy was contained in section 38 of the YOA, which stipulated that “. . . any information serving to identify . . .” a young offender or a youth victim or witness was private. No longer is information about parents or guardians stipulated as being private.

Question 92

Another important change came when the YOA (s. 39) opened the youth court (it was now no longer closed to the public) and allowed the sharing of information with specific parties (MacIntyre, 2006).

Answer 92

The YCJA is even more complex around privacy rights, with Part 6 (s. 110 through s. 129) being devoted entirely to disclosure of information. Once again, changes increased the amount of information that is private, such as DNA information, while at the same time decreasing limitations by making information more available. So, for example, while the names of all offenders in the youth justice system are not to be made public, this protection is not afforded to youth who have received an adult sentence. Furthermore, young offenders’ rights were further eroded by section 75, which allowed the court to decide if it would permit publication of the names of youth who received youth sentences for presumptive offences. Of course, the court debates around the presumptive offence included the provisions to lift publication bans for these offences, as well as the reverse-onus situation that required youth to argue why the ban on publication should not be lifted. Here the Quebec Court of Appeal ruled in 2003 that lifting publication bans and the presumption of publication for presumptive offences was a violation of Charter rights because the onus was placed on the youth to justify maintaining the ban. And again, the Supreme Court of Canada agreed, in 2008 (R. v. D.B.), and maintained that these presumptions of publication violate “the principles of fundamental justice” (Tustin & Lutes, 2009, p. 140). The Conservative government’s response in Bill C-10 was to eliminate the presumptive offence but allow consideration of lifting publication bans in instances of youth court sentences for violent offences [s.75(1)]. Interestingly, Bill C-10 now links publication bans to public safety by allowing the Crown to argue for lifting the ban if the youth poses a significant risk of reoffending in a violent manner and that lifting the ban is necessary to protect the public against this risk [s.75(2)]. These revisions also eliminate the reverse onus in both instances.

Question 93

The YCJA makes sentencing a far more complex process than it was under the YOA by adding sentencing conferences to the process, providing general sentencing principles, restricting the use of custody, and providing for a greater range of sentencing options.

what is sentencing conferences

Answer 93

a meeting of a group of professionals conferences to make recommendations to the court about appropriate sentences for individual cases

Question 94

section 19 of the ycja allows for a sentencing conference to act as an ___

Answer 94

Section 19 of the YCJA allows for a sentencing conference to act as an advisory body with regard to sentences, sentence reviews, extrajudicial measures, conditions for interim release, and reintegration plans. These committees are to ­consist of a youth court judge, the provincial director, a police officer, a justice of the peace, and a prosecutor or youth worker. Before sentencing, the court is required to consider recommendations from a sentencing committee (if these have been established by the province), pre-sentence reports, and any other information submitted by parents or counsel.

Question 95

In particular, before imposing a custodial sentence, section 39(6) of the YCJA requires the youth justice court to consider a ___

Answer 95

In particular, before imposing a custodial sentence, section 39(6) of the YCJA requires the youth justice court to consider a pre-sentence report and “any sentencing proposal made by the young person or his or her counsel,” unless the young person or his or her counsel indicates a preference to not have a pre-sentence report [s. 39(7)]. In the latter case, the onus is on the court to ascertain if the report is not necessary.

Question 96

Section 40 of the YCJA outlines what should be contained in a pre-sentence report.

Answer 96

These reports are generally prepared by a probation officer, who compiles information about the youth’s background, including a history with the YOA court and/or alternative/extrajudicial measures and sanctions; results from an interview with the victim; the recommendation of a sentencing conference; and information from the youth’s parents, extended family, social workers involved with the family, and school officials. The reports also often contain judgments about the emotional development, attitude, maturity, and character of the youth, as well as information about her or his insight into the offence, willingness to make amends, and plans for the future, particularly with regard to changing her or his behaviour (see Box 9.8 for an example). Recently, some judges and academics have begun to question the ­appropriateness of risk-assessment instruments in sentencing decisions (see, for example, Cole, 2007; Maurutto & Hannah-Moffat, 2007). One of Justice David Cole’s concerns is that when judges use pre-sentence reports based on risk assessments to make sentencing decisions, they have no idea what has been used for the assessment. He cites a Saskatchewan case where a person had been assessed as “medium risk to re-offend” and this assessment had been based on the offender maintaining his innocence for former theft convictions (p. 510).

Question 97

> sentencing principles

Answer 97

Four basic principles govern sentencing in adult criminal cases: retribution, deterrence, incapacitation, and rehabilitation (see Table 9.2)

Question 98

retribution

Answer 98

/ punishment for an offence committed

Retribution is based on the notion of moral accountability and the idea that persons who intentionally harm others should suffer negative consequences so that wrongs can be righted.

Question 99

an additional component of retribution is the ____ principle

Answer 99

An ­additional component of this principle is the proportionality principle—the belief that justice is best served if the consequence is in proportion to the crime

/ maintains that a sentence should proportional to the offence that a person is guilty of committing

So, for example, the death penalty would be an inappropriate sentence for car theft or shoplifting. For advocates of crime control, retribution is interpreted as punishment and the proportionality principle often means vengeance or “an eye for an eye.”

Question 100

deterrence

Answer 100

/ the theory that a certain nd speedy punishment will discourage or prevent future criminal behaviour, both in a general and in a specific manner

Deterrence is a theory that originated in the 18th century. It is based on the assumption that people will not engage in certain activities if the potential costs of doing so are greater than the potential gains. Deterrence may be general or ­specific/individual. Negative consequences directed at an individual may be designed to ­dissuade all members of a society from engaging in similar actions (general). Sanctions may also be designed to prevent a particular person from reoffending (specific/­individual).

Question 101

incapacitation

Answer 101

/ basically means to deprive a person, so to put someone in prison is to incapacitate her or him in an absoulte and fundamental manner

Incapacitation refers to measures taken, such as a prison sentence, to deprive a person of the opportunity to commit an offence

Question 102

rehabilitation

Answer 102

/ a correctional philosophy based on the belief that appropriate treatment programs can reform or change an individual

. Rehabilitation philosophies began to emerge toward the latter part of the 19th century and are based on the assumption that people can change their behaviour if given an opportunity to do so. Rehabilitation may or may not involve particular treatment strategies or programs.

Question 103

restorative justice principles

Answer 103

restoration, reconciliation, and reintegration: in the context of a restorative justice framework, these related concepts refer to restoring balance by repairing harms

The restorative justice principles of restoration, reconciliation, and ­reintegration are relatively new concepts just beginning to work their way into sentencing ­discourse and practice. While some of the “older” principles, such as deterrence and incapacitation, are based on assumptions that punishment and retribution are the most ­effective means of stopping criminal behaviour, restorative justice principles assume that the most effective response to crime involves policies and practices that attempt to repair the harm done to the individual and the community by criminal activity. As we will see in the discussion that follows, sentencing options in the YCJA incorporate these principles as objectives in their own right, and in a way that serves to redefine the meaning of the older principles. An important, long-standing issue concerns the extent to which adult sentencing principles are appropriate in youth justice systems, a discussion we will return to at the end of this chapter.

Question 104

> YCJA sentencing principles

Answer 104

Section 38 of the YCJA presents a significant change from YOA sentencing provisions in that it sets out the purpose and principles for youth sentencing, along with factors to be considered in all sentencing deliberations, something that did not exist under the YOA. While the general principles of section 3 apply to youth sentences (as they did under the YOA), section 38 principles are also to be used by the court in determining sentences. Under the YOA, the only directive provided to the court regarding disposition decisions was for the court to strike a balance between the interests of society and the needs of the young offender.

Question 105

Interestingly, as with the section 3 principles, no one justice model is reflected in section 38 (Box 9.9). An examination of these principles and requirements reveals an interesting combination and prioritizing of the different justice models (see Table 9.2 in this chapter and Table 2.1 in Chapter 2). Justice ­principles of retribution [subsections (1)(2)(e)(iii) and (3)(a), (b)] and proportionality
[subsection (2)(a), (b), (c)] are paramount. These sections make it clear that the purpose of sentencing is to hold a young person accountable and to impose “meaningful consequences.” More importantly, from a justice perspective, these ­consequences must be proportional to other youth sentences for similar offences and not any more severe than an adult sentence for a similar offence in similar ­circumstances. The court is also required to look beyond the offence and consider the youth’s intention, the degree of involvement in the offence, and the degree of harm caused by the action.

Answer 105

see table 9.9 the purpose and principles of sentencing under the YCJA

Question 106

Nonetheless, subsection (1) also speaks of “protection of the public,” a crime-control objective, and subsection (2)(a) speaks of punishment.

Answer 106

hile stated in the negative, that punishment should not exceed that appropriate for an adult, this subsection nonetheless explicitly presents punishment, rather than proportionate sanctions, as an important principle of juvenile justice. Welfare principles are also evident. Subsection (2)(e)(i) reintroduces the minimal interference principle of the YOA and applies it specifically to sentencing; subsection (2)(e)(ii) incorporates the principle of rehabilitation from both the JDA and YOA; and subsection (1) ­presents rehabilitation as a primary objective of “just sanctions.” In addition, restorative ­justice principles are introduced through subsections (2)(e)(ii) and (iii), as well as (3)(c). Reintegration is also stated as a primary objective and guiding principle for ­sentencing decisions in subsection (1).

Question 107

However, while it might appear that this act, like the YOA before it, is establishing all of the justice models as guiding principles, it does not. Section 38(1) includes all models in a manner that gives priority to accountability and protection of the public, and subsection (2)(e) clearly states that welfare and restorative justice principles apply only after consideration of proportionality and responsibility principles. Furthermore, Bill C-10, for the first time in our 100-year history of youth justice, has added denunciation and deterrence as sentencing principles. They too are secondary to proportionality and responsibility. Hence, justice and crime-control principles are paramount in today’s youth justice system, with welfare and ­restorative-justice principles being secondary.

Question 108

> youth sentences

Section 42(2) of the YCJA allows for a wide range of youth sentences, from a simple reprimand to the most severe (as measured in terms of loss of freedom)—intensive rehabilitative custody with community supervision. The youth court has far more sentencing options than were available under the YOA [s. 20(1)] and judges can choose any one or a combination of sentences for a convicted you

Answer 108

The major sentencing categories from the YOA that remain for YCJA sentencing are absolute and conditional discharge, fine, community service order, probation, treatment order, and custody. They are discussed below, along with the new YCJA options and the most recent court statistics available. Some sentencing options such as absolute and conditional discharge, restitution, prohibition, seizure, forfeiture, compensation are combined with others, such as an essay, apologies, and ­counselling under the category “other.” Close to 40 percent of the sentences in 2011–2012 involved these “other” sentences (Dauvergne, 2013, p. 11). Youth may also receive combinations of sentences; for example, probation is often accompanied by a ­community service order.

Question 109

1) non custodial sanctions

Answer 109

• judicial reprimand
• absolute discharge
  -fine
• community service order
• probation

Question 110

judicial reprimand

Answer 110

Judicial Reprimand A reprimand, which did not exist under the YOA, simply involves a stern lecture from the judge; it technically does not constitute a “sentence.” A reprimand would likely be considered suitable for first-time offenders facing a minor charge, where it is believed that experience with police processing and the court is sufficient to meet accountability requirements (Thomas, 2005, p. 7). It, along with the absolute discharge, does not result in a criminal record. This means that a youth would not appear in a criminal record check. In 2006–2007, 724 cases resulted in a reprimand; this accounted for 2.1 percent of all sentenced cases. By region, Prince Edward Island administered the most reprimands (6.2 percent), while Quebec and New Brunswick stood at less than 1 percent (Thomas, 2008, pp. 18–19). In 2008–2009 there were 610 remands, representing 2 percent of all guilty cases, and figures for 2011–2012 were comparable (Dauvergne, 2013, p. 11; Milligan, 2010, p. 14).

Question 111

absolute discharge

Answer 111

e An absolute discharge is also a sentence with no criminal sanctions. As with the reprimand, the young person, even though found guilty, is free to leave the court with no penalty. This disposition is also given most often for very minor offences when the young person has no prior record. In 1999–2000, 2 percent of court cases resulted in an absolute discharge (1,363 cases) (Sudworth & deSouza, 2001, p. 16). No data has been reported for recent years.

Question 112

conditional discharge

Answer 112

The 1995 YOA amendments, Bill C-37, introduced a new disposition—the conditional discharge—and it is retained by the YCJA. The ­conditional discharge has always been available as a sentencing option in the adult system, where it is generally viewed as similar to probation, but more lenient. The conditional discharge provides for conditions similar to those outlined in a probation order. After successful completion of the terms of the order, however, the ­person’s criminal record is “erased”; in other words, the person is discharged without a ­conviction on his or her record. Such a person who applies for employment and is asked whether he or she has any prior convictions can legally respond in the ­negative. In the youth system, a conditional discharge similarly erases a person’s criminal record so that she or he can no longer be viewed as a convicted offender. It is most ­commonly used in combination with probation orders. In 1999–2000, less than 2 percent of sentences were conditional discharges (Sudworth & deSouza, 2001, p. 8). No separate data have been reported for recent years; these conditional discharges are simply included in the “other” category.

McGuire (1997, pp. 198–202) argued that the conditional discharge can work to a youth’s disadvantage in some circumstances. A conditional discharge may be revoked at any point if a young person is convicted of another offence. The court may then impose another disposition while denying the person the right to appeal with respect to the original sentence. In every other instance, courts are not permitted to impose a greater intervention for young offenders following original sentencing (i.e., when dispositions are reviewed). Because the conditional discharge allows for greater intervention with respect to young offenders, it should be viewed, McGuire suggests, as something more punitive than probation, but less intrusive and less punitive than custody.

Question 113

fine

Answer 113

The court may impose a fine not to exceed $1,000, but it must consider the youth’s ability to pay. Under a fine option program, young people can elect to do community service work if they are unable to pay a fine. The percentage of cases resulting in a fine was the same in 2003–2004 as it was in 1999–2000 (6 ­percent), but, as we would expect with decreasing numbers of cases going through the courts, the number of cases in 2003–2004 was about one-half of the 1999–2000 level (Thomas, 2005, p. 9). In 2006–2007, 1,860 cases resulted in a fine (5.5 percent) (Thomas, 2008, p. 18). Fines are still often used in traffic-related Criminal Code offences (76 percent impaired driving), where the mean was $462 in 2003–2004 (Sudworth & deSouza, 2001, pp. 8, 16; Thomas, 2005, p. 9). It seems that monetary inflation has also affected court fines, since 10 years ago only 2 percent of the court fines in youth court were over $500 (Statistics Canada, 1998, p. x). In 2011–2012 about 3 percent of the sentences involved fines (Dauvergne, 2013, p. 11).

The YCJA also offers the court a range of fine-related sanctions: compensation to be paid for loss of property, income, or support (with different rules in the province of Quebec); restitution involving an order to restore or replace stolen or damaged property; restitution that encompasses an order to pay someone who may have purchased stolen property from the young offender; and compensation in kind for loss, damage, or injury caused by the young offender. Seizure or forfeiture of property can also be imposed as a disposition separately from a fine under the YCJA.

Question 114

community service order

Answer 114

The court may order young people to perform unpaid and supervised community service for a period not to exceed 240 hours, with 12 months allowed for completion. Community service orders (CSOs) are often ­operated through probation offices. Arrangements are made for young people to work for food banks or other charitable or non-profit organizations, such as the Society for the Prevention of Cruelty to Animals. Most commonly, a CSO is attached to another, more serious sentence. It is used most often for property and drug offences (32 ­percent and 35 percent, respectively). It would appear that use of the CSO is declining with the YCJA. From 1999 to 2004, 28 percent of all convictions received a CSO, and in 2006–2007, this had decreased to 23.8 percent (8,120 cases) (Sudworth & deSouza, 2001, p. 8; Thomas, 2005, p. 15; 2008, p. 18). In 2011–2012, one-quarter (or 6,759) of all guilty cases resulted in a community service order, and the CSO was most often issued in combination with probation sentences for ­drug-­related offences (Dauvergne, 2013, p. 10, 27).

Question 115

probation

Answer 115

The most common sentence or disposition in youth court is probation. It was a provision under the YOA and continues to be so with the YCJA, but its use is on the decline. This may be because custody now automatically includes a period of supervision, while under the YOA a custody sentence had to include a period of probation to ensure supervision after release. Also, some cases that may have received a probation sentence in the past may now be processed through extrajudicial measures or sanctions (Thomas, 2008, p. 6). Probation is used for crimes against the person as often as for property offences. In 2011–2012, 58 percent of the convicted court cases resulted in a probation disposition. This is lower than it had been for the YOA and early YCJA years, when the proportions ranged from a low of 64 in 1999–2000 to a high of 70 percent in 2002–2003 and 63 percent in the first year of the YCJA (Dauvergne, 2013, p. 10; Robinson, 2004, p. 16; Thomas, 2005, p. 15; Thomas, 2008, p. 6).

Question 116

a probation order is a means of

Answer 116

A probation order is a means of controlling and supervising a young person’s behaviour while he or she is in the community. There are sanctions for non-­compliance with the conditions of probation, in that breach of probation constitutes a Criminal Code offence. Under the YOA, there were two mandatory conditions in all ­probation orders: (1) to “keep the peace” and “be of good behaviour” and (2) to appear in court as required. The YCJA adds two new mandatory conditions: (1) prohibition from possessing or purchasing weapons, ammunition, and explosive substances and (2) any other conditions necessary to “secure the young person’s good conduct” and prevent further criminal activity. In addition, young people may be required to report to a probation officer on a regular basis, maintain employment, go to school, reside at a particular residence, report any change in address, and/or remain within the court’s jurisdiction. The court often orders a youth not to associate with certain people and to avoid certain neighbourhoods, obey a curfew, abstain from drugs and alcohol, and/or attend treatment or counselling programs. Prohibition orders can also be imposed under the YCJA independently of a ­probation order. Community service orders are often included as a condition of probation.

The maximum term for probation is two years. In 2011–2012, 15,860 cases resulted in probation and the median sentence length was one year. Over the past few years, around half (51–54 percent) of the probation orders ranged from 6 to 12 months: 20–22 percent were for 6 months or less, and 23–24 percent were for more than 12 months (Milligan, 2011, p. 15; Thomas, 2008, pp. 7, 18). Compared with the later YOA years (Sudworth & deSouza, 2001, p. 9), there are fewer short-term and more long-term probation orders under the YCJA. Because longer terms of probation are generally attached to more serious offences, it would appear that the YCJA has changed the youth probationer population to youth who have been involved in more serious offences than was the case in the past. Pulis and Sprott (2005) compared probation sentencing under the YOA to the YCJA and conclude that youth court judges appear to be responding to section 38(2)(c) of the YCJA and are administering probation sentences that are more proportionate to the seriousness of the offence and degree of responsibility of the offender than they were under the YOA (pp. 709, 723). In 2011–2012, probation was most frequently used with violent offences, serious property offences, and drug possession offences (Dauvergne, 2013, pp. 26–27).

Question 117

2) treatment order/ intensive support and supervision order

Answer 117

Section 22 of the YOA allowed the court to order youth detained in a hospital or other facility for the purpose of treatment, providing he or she gave consent. The requirement of consent for treatment was a contentious aspect of the YOA (Leschied & Jaffe, 1991), and the 1995 amendments to the YOA (Bill C-37) repealed sections 22 and 20(1)(i) of the act. Treatment as a disposition was no longer allowed under the YOA after that date.

While Fetherston (2000) argues that YCJA principles move the youth justice system even further from a welfare model by requiring similar sentences for similar offences and sentences proportionate to the offence (pp. 111–112), the act does promote rehabilitation as a sentencing principle and provides a new sentencing option that is potentially rehabilitative: an intensive support and supervision program. This disposition is similar to probation in that it is served in the community and comes with conditions attached. The difference is that this sentence is intended to provide closer monitoring and more support and services than probation. Unlike probation, the YCJA allows provinces to decide if they wish to offer this sentencing option (Thomas, 2005, p. 7). In 2008–2009, 470 youth received this sentence (1 percent of the total court cases) (Milligan, 2010, p. 14).

Question 118

non-residential attendance order

Answer 118

Also new with the YCJA, the court may order a youth to attend a non-residential program for up to 240 hours. This too is a potentially rehabilitative sentence and other conditions may be attached to the order, such as to refrain from alcohol or to not associate with certain persons. As with the intensive support and supervision order, these two dispositions, as sentences, sidestep the thorny issue of consent to treatment. Similar to probation, there are sanctions attached to non-compliance with the orders of the sentence, but here the charge is “failure to comply.” Provisions for the use of these sentences by the court will be ­discussed in Chapter 10. In 2008–2009, 198 youth received this sentence (0.06 ­percent of the total court cases) (Milligan, 2010, p. 14).

Question 119

custodial sanctions

Answer 119

Under the YOA, custody sentence options were limited to two choices: the court could sentence a young offender to one of two levels of custody—open or secure—which differed in terms of restrictions on freedom of movement, level of ­supervision, and access to the community. The YCJA has considerably expanded these choices, perhaps because, as we will see in Chapter 10, the use of custody under the YOA was a contentious issue. Those advocating a crime-control or justice model wanted more and longer custody sentences for some young offenders, while welfare and restorative justice model advocates expressed alarm over the excessive use of ­custody by the courts. The YCJA has addressed this issue in a number of ways. First, section 39(1)(a) through (d) of the YCJA specifies that a young person cannot be sentenced to custody unless she or he has committed a violent offence, has already received a non-custodial sentence and failed to comply with that, has committed an indictable offence for which an adult would receive a federal prison term, or has committed an indictable offence. In this latter case, the court is required to argue that there are aggravating circumstances that justify a custody sentence and that a non-custodial sentence would violate the sentencing principles of section 38.

see more on textbook

Question 120

sentence review

Answer 120

There are no changes in the YCJA from the YOA regarding review orders. All custody sentences of greater than one year in length must be reviewed each year by the youth court, and the youth or a parent may request a review after six months. When the custody term is less than one year, the youth or parent may request a review after one-third of the sentence (with a minimum of 30 days). Reviews of non-custodial sentences and of the level of custody imposed may also be requested [s. 87(1) and s. 94], and they must be initiated by the youth, parent, or Crown or provincial director after six months of the sentence has been served (or earlier, with permission from a youth court judge).

Section 94(6) of the YCJA outlines the grounds for reviewing a young offender’s sentence: the youth has shown progress with respect to rehabilitation; the circumstances that led to the youth’s sentence have changed materially; new services or programs are available that were not available at the time of the youth’s sentence; the opportunities for rehabilitation are now greater in the community; or any other ground that the youth justice court considers appropriate.

The sentence review involves a hearing and is mandated to consider the “needs of the young person” as well as “the interests of society.” The judge has three options in making a final decision, all of which involve a lesser or equal sentence: (1) transfer the young offender to a less secure custody level, or from custody to conditional supervision or probation; (2) release the youth from a non-custodial disposition or vary the disposition in some way (e.g., the court might omit a curfew or change a condition in a probation or supervision order); or (3) confirm the existing disposition and make no change.

Question 121

(sentencing issues)

Answer 121

In this section, we consider three sentencing issues that have been addressed by ­academics and practitioners: (1) the extent to which adult sentencing principles are relevant to the youth justice system; (2) the extent to which extralegal ­factors—race, class, and gender—affect court dispositions; and (3) the severity of youth court ­sentencing relative to adult court sentencing and sentencing under the JDA and YOA.

Question 122

> relevance of adult sentencing principles to youth court

Question 123

1) retribution and incapacitation

Answer 123

As we have seen in this chapter and in Chapter 8, the principle of retribution, viewed as moral accountability, is an integral aspect of youth justice under the YCJA. However, given that young people lack the moral development, intellectual and ­emotional capacity, and judgment of adults, it would be unreasonable to apply an adult standard in making them accountable for their actions (Bala et al., 1994, pp. 30–31). Those who advocate transferring youth to adult court and subjecting youth to adult sentences do, in fact, hold youth to an adult standard of ­accountability—a position at odds with the spirit of a youth justice system. And, in Justice Abella’s view, ­diminished moral culpability is fundamental to notions of ­fairness in a youth justice system.

Question 124

incapacitation refers to

Answer 124

Incapacitation refers to removing offenders from the community—generally by putting them into an institution—so that they can no longer pose a threat (Bala et al., 1994, pp. 34–35). While most would agree that young offenders who have committed serious violent crimes should be removed from the community, there is no agreement as to where they should be held in custody, for how long, and under what conditions. Some people maintain that youth facilities are “holiday camps” and should be more like places of punishment. Others think ahead to the time that young offenders will be released back into the community and worry that custodial institutions may be “schools of crime” or a “recipe for disaster.”

Question 125

Although the YCJA seems to have addressed this issue through its strict requirements for the use of custody and increased emphasis on extrajudicial measures and sanctions, along with provisions for sentencing conferences, some judges are concerned that these practices will not change

Answer 125

We have seen that custodial sentences have decreased dramatically under the YCJA, but Bill C-10’s revisions have the potential to halt or reverse that trend through its definitions of “violent,” “serious offences,” and “serious violent offences.” Even without these expanded definitions, the courts have already justified custodial sentences by determining the following range of behaviours to constitute violent offences: arson, aggravated assault, dangerous driving, sexual assault, robbery, break and enter and theft, and criminal negligence causing death. On the other hand, the Manitoba Court of Appeal (R. v. C.T. [2005]) replaced a 12-month custody and supervision order with 15 months’ probation because the judge did not adequately consider alternatives to custody or rehabilitation and reintegration (Tustin & Lutes, 2009, p. 85).

Question 126

2) rehabilitation

Answer 126

In the classical sense of the term, rehabilitation attempts to “change” the offender through the use of various types of programs, such as behaviour-modification or group therapy. The ultimate goal is to reintegrate the offender back into society. Rehabilitation is viewed as particularly attractive for young offenders because “it is assumed they will be more amenable to rehabilitation than adults” (Bala et al., 1994, p. 36).

The problem with applying the principle of rehabilitation to youth sentencing is that it can be viewed as counterproductive to the proportionality principle contained in the YOA and also in the YCJA. A 1993 Supreme Court decision upheld a two-year open-custody sentence because of concerns about the youth’s “depressing home conditions.” In his decision, Justice Cory addressed the issue of proportionality as follows: (see textbook)

see textbook for more

Question 127

3) deterrence

Answer 127

On the issue of general deterrence—which is based on the assumption that one young offender’s sentence will deter others from engaging in similar crimes—judges were clearly divided in their opinions of the YOA provisions. In the Alberta Court of Appeal, Justice William Stevenson wrote:

. . . in any event, deterrence to others does not, in my view, have any place in the sentencing of youth offenders. It is not one of the principles enumerated in the catalogue in section 3 of the Act, which declares the policy for young offenders in Canada. Indeed, I note that in regard to secure custody, section 24(5) prohibits committal unless necessary for the protection of society

see textbook for more

Question 128

Nonetheless, both general and specific deterrence as successful mechanisms for crime reduction are widely rejected on the basis of empirical evidence and ­theoretical/philosophical foundations. The principle of individual deterrence is based on an assumption or belief that people make decisions on the basis of rational choice. The rational-choice model of decision-making requires that a youth who is considering engaging in criminal activity will

Answer 128

1) Think about the consequences of his or her behaviour;

2) Give some thought to the chances of getting caught;

3) Know what the penalty is for the offence;

4) Take the chances of apprehension into account; and

5) Weigh the cost of the sanctions/penalty against what can be gained from the offence.

Question 129

> race, class, and gender

Answer 129

Research conducted in the United States indicates that race, class, and gender characteristics affect what happens to young offenders in the justice system. The effect of these factors is not always straightforward, because they usually interact with each other and with legal variables, such as a prior record. Unfortunately, there has been very little Canadian research on this subject, although some work has been done on the experiences of First Nations and Aboriginal youth in the justice system. Beyond this, Schissel’s work in an Edmonton court (1993) and Bell’s work in a southwestern Ontario court (1994a) shed some light on the effects of race, class, and gender in Canadian youth courts.

Question 130

who is more likely to be convicted

Answer 130

With regard to race, Aboriginal youth are more likely than non-Aboriginal youth to be convicted and more likely to receive a custody sentence or probation. In addition, without a parent or guardian in court, Aboriginal youth are more likely to receive more severe dispositions (Latimer & Foss, 2005; Schissel, 1993, pp. 99–102). A lack of resources or detention facilities in Aboriginal communities also means that more Aboriginal youth are removed from their communities (Hamilton & Sinclair, 1991; Morin, 1990). To the extent that justice officials define and assess “responsible parents or guardians” in non-Native terms, Aboriginal youth are also less likely to be released either without charges or on bail (LaPrairie, 1983; Stevens, 1990). Interestingly, Doob and Sprott (2007) challenge Latimer and Foss’s (2005) findings through re-analyzing the same data and suggesting that the differences they observed between Aboriginal and non-Aboriginal custodial sentences were a factor of jurisdictional variation in proportional representations of Aboriginal youth in particular jurisdictions (Winnipeg and Edmonton) that also had different sentencing practices than jurisdictions with lower Aboriginal ­caseloads (Halifax and Toronto).

Question 131

Generally, most girls in court are two years younger than boys (age 15 versus 17) (Schissel, 1993, pp. 37–38). As Duffy (1996) puts it, “It appears that courts are most offended by young girls (15 years of age) who are ‘already’ in trouble with the law and by older boys (17 years old) who are ‘still’ in trouble. The harshest sentences go to older males and younger females” (p. 214).

Answer 131

The findings on gender of Bell (1994a), Schissel (1993), and Duffy (1996) elaborate on the complex ways in which gender, class, and family factors influence court outcomes. According to Bell, girls are treated more leniently than boys only if their offences are the traditional criminal offences of property crime and crime against the person. Girls charged with administrative offences and with mischief or disturbing the peace are treated more severely than are boys. Both boys and girls are treated leniently if their only parent is a single mother—provided that she is not a professionally employed mother. When parents (particularly mothers) are professionals, and when fathers appear in court, young offenders are treated more severely (Bell, 1994a, pp. 45–54). Thus, for girls, sentencing is something of a “double whammy.” Not only are they judged in terms of their ability to conform to the stereotype of the “good daughter,” they are also judged by their parents’ ability to conform to gendered expectations of “good parenting.” On the other hand, Varma’s (2007) analysis of parental involvement in youth court, not accounting for gender, suggested it had little impact on the outcomes except in considerations of supervision and living arrangements in bail hearings (p. 252).

Question 132

Because race, class, and gender interact and intersect with legal factors to affect what happens to youth in the justice system, a number of scholars have focused their work (as we saw in Chapters 3 and 4) on street youth and homelessness, where the most marginalized among the youth population are to be found (Baron, 1995; Gaetz, 2004; McCarthy & Hagan, 1992; Miller, Donahue, Este & Hofer, 2004). Through an examination of this population, we most clearly see how the justice system, through policy, law, and practice, further marginalize youth who are already dispossessed and disadvantaged.

Answer 132

Some policies and legislative procedures and programs are more likely than others to criminalize marginalized youth. As we have seen in this and other ­chapters, administrative offence charges, often referred to as “technical violations” to differentiate them from behaviours considered to be “criminal,” increased dramatically through the YOA years and are still high relative to other offences. Moreover, these technical violations are more likely than other offences to result in a custody/prison sentence, and girls, Aboriginal, and Black youth are disproportionately represented among these charges. The most problematic technical violations, including YOA/YCJA offences, are those pertaining to breach of probation or failure to comply with conditions of an order, pre- or post-sentence.

Question 133

Youth who are homeless are not living on the streets because they are criminal; rather, because they are homeless, they are more likely to be criminalized. Green and Healy (2003) write from their experiences as lawyers working in the youth court and argue that the very nature of administrative offences (and, in particular, how ­violations are sanctioned) explains to a great extent the overrepresentation of marginalized children in the justice system and in custody.

Answer 133

There are a number of reasons for this. First is the tendency to view a person who has breached the conditions of an order as a “repeat” offender. This conceptualization makes little sense, Green and Healy (2003) point out, when the reality of the breach is that a young person has simply returned home past a specified curfew time. Nonetheless, as far as the official statistics and court records indicate, the youth has been in court and therefore “offended” more than once, and the likelihood of a more severe sentence is increased. Related to this are the actual conditions of the orders and how likely it is that some youth will be able to abide by them. The authors ­maintain that, for example, they would expect few 12- or 13-year-old youth to understand the legal definition of such concepts as “keep the peace” or “good behaviour.”

Question 134

milarly, another concern is the assumption that children and youth are all equal in their ability to abide by conditions. For some children and youth, it would be very difficult to comply with an order of regular school attendance or to reside in a particular residence. Green and Healy point out that in cases of family conflict or dysfunction, young people often find themselves in situations where a parent will leave the home or they themselves are forced to leave for their own safety. School attendance is also extremely difficult for youth who may already be disadvantaged by a learning disability or fetal alcohol syndrome or fetal alcohol effects, for example, a 15-year-old boy with a Grade 3 level in reading or math skills. They maintain that “. . . many of these conditions ask too much from the youth, and too little from the community” (2003, pp. 44–46).

Question 135

The final problem that Green and Healy raise relates to the fact that probation always comes with conditions and that sanctions are attached to the violation of these conditions. This is the source of criminalization and further marginalization for many youth, and there is no good reason to continue the counterproductive liaison between probation conditions and sanctions for technical violations. It would be a simple matter in the case of a breach of minor conditions to leave a youth in the community and provide more social supports, or, if a youth is considered “a risk to society,” to hold her or him in remand pending a review of the original sentence or order (2003, pp. 47–48). The authors sum up the issue through the words of an Aboriginal youth’s response to a question regarding how he would change the youth justice system:

Question 136

> is youth court sentencing a “slap on the wrist”

Answer 136

According to a public survey in Ontario, 86 percent of those surveyed believed that youth court sentences were too lenient

Yet, for a number of reasons, the majority of those who have studied or worked in the youth justice system do not believe that youth sentences amount to a “slap on the wrist.”

Question 137

> what is being compared?

Answer 137

It is fairly clear that the youth justice system is more lenient than the adult system for youth under age 14 with respect to particularly violent offences (including murder). Such is not always the case when it comes to other offences. For example, while adults are eligible for parole and may be released after serving one-sixth of a sentence or are entitled to statutory release after serving two-thirds of a sentence, young offenders lack the benefit of these provisions. In lieu of parole or early release, the young offender has conditional supervision, but even this is not automatic.

Question 138

see textbook for more