Canada’s Juvenile Justice Law & Children’s Rights

1. Canada’s Juvenile Justice Law & Children’s Rights Prof. Nicholas Bala Faculty of Law, Queen’s University Paper on website of IBCR Making Children’s Rights Work: National & International Perspectives International Bureau for Children’s RightsMontreal, November 19, 2004

2. Presentation • History • Youth Criminal Justice Act • Major provisions • Impact (Ontario & B.C) • YCJA & the Convention

3. History: Juvenile Justice in Canada • 1908-1984: Juvenile Delinquents Act • Child welfare philosophy • Variation in application • Lack of legal rights & institutional abuse • 1984- 2003: Young Offenders Act • Due process & legal rights • Determinate sentences & variation • High use of courts & custody (outside Quebec) • 2003, April 1: Youth Criminal Justice Act

4. Youth Justice Reform • Perception of rise in youth crime in 1990’s • Demands for ‘get tough’ approach from conservative federal & provincial politicians, except in Quebec • But also concern that in Canada very high rate of use of court & custody for the non-violent 80% of offenders. • expensive • often ineffective in rehabilitating • may corrupt less serious offenders

5. Federal - Provincial Issues • Prior to enactment Federal - Provincial negotiations – to gain support • Provincial flexibility on implementation • federal $ for training & pilot programs • Ontario advocated many “get tough” measures that were not accepted and was slow to develop plans to implement • Quebec opposed accountability emphasis & lack of best interests concerns – challenge in courts • Age remained 12 to 18th birthday

6. Diversion :Extrajudicial Measures • Background: Outside Quebec under YOA Canada had very high rate of use of court for adolescent offenders. Court is: • Slow & expensive • frustrating for victims & parents • may not meaningfully engage youth • YCJA encourages use of extrajudicial measures: • police & Crown cautioning • Referrals to community agenies • Community based extrajudicial sanction programs • NO legal right to extrajudicial measures-> use depends on provincial policies and programs -> more in Quebec

7. Conferences • Increasing use of conferencing in Canada • Extrajudicial sanction or to provide advice to court for sentence • Develop a plan that may include: • Restitution, apology • counselling • Typically involves • Youth • Parents • Victims • Agencies • Possibly Police • Victim involvement cannot be compelled to attend • Need training for staff and support for victims

8. Legal Rights • Youths have special legal rights upon arrest. • Youths continue to have right to legal counsel paid by government

9. Pre-trial Detention:Background under YOA Issues: • High number of youth detained- 60% of custodial admissions under YOA • Use of detention to address social welfare needs • Lack of alternatives to detention

10. Pre-trial Detention: ss. 28-32 Detention is not to be used as a substitute for child protection, mental health or other social measures • Presumption against detention if the young person could not be sentenced to custody if convicted [i.e. one of s. 39(1) conditions to be satisfied.] • Duty of judge to inquire about availability of a “responsible person.” • What about community based ‘bail supervision’ programs?

11. Sentencing Principles :YCJA • Structuring of judicial discretion to reduce disparities & reduce use of custody • Sentence is to be proportionate to the offence, and promote rehabilitation. • Lesser accountability than for adults • Rehabilitative & social objectives cannot justify more onerous sentence than offence warrants • New community based sentence options, but mainly up to province to implement. • If services not available, judge cannot order province to provide needed services. • Restrictions on custody to violent offenders & those with history of non-violent offences

12. Sentencing: Community based • All community based sentences from YOA are in YCJA - discharge, probation, fines, community service etc • Also in YCJA – new provisions • intensive support & supervision • only if province agrees • attendance centre • only if province agrees • deferred custody & supervision

13. Custody and supervision order • Major change : custody orders include a period of supervision in the community. • Most offences: period of supervision is one half of the length of the custody period (2/3:1/3) • Judge decides custody level • Province to decide what facility within level • supervision terms usually to be set by provincial director • supervision & support in the community very important for rehabilitation

14. Restrictions on Custody: s. 39 • youth committed a “violent offence”; or • youth failed to comply with non-custodial sentences [ie two breaches]; or • youth has committed: • offence for which an adult would be liable to a sentence of more than 2 years ,and • has a “pattern of findings of guilt”, or • “in exceptionalcases” where the young person has committed an indictable offence and the aggravating circumstances

15. Adult Sentencing • Decision about adult sentence only after trial • If 14 or older & presumptive offence -> onus on youth to show that youth sentence adequate to hold youth “accountable”: • murder, attempted murder, manslaughter • aggravated sexual assault • 3rd “serious violent offence” • Quebec Court of Appeal rules violation of Charter and Convention to place onus on youth • Part of adult sentence may be youth custody • If adult sentence, early parole eligibility if life sentence for murder (5yrs - 10 yrs instead of 10 yrs - 25 yrs for adult) • intensive rehabilitative custody & supervision possible alternative youth sentence for these offences, but no involuntary treatment

16. Confidentiality & Non-Disclosure • As under YOA, generally no identifying publicity for young offenders under YCJA • Complex & detailed provisions on confidentiality and records [ s. 114 -129] • Restrictions on disclosure of records as under YOA, allowing sharing with schools and community agencies if : • safety concerns, or • needed to supervise youth on bail or probation, or • facilitate rehabilitation

17. Impact of Y.C.J.A.: 1/04/03 to 31/03/04 • Diversion by police & prosecutors • Ontario: youth charges 13% ↓ • British Columbia : 29% ↓in police referrals to court. • Pre-trial detention • Ontario decline in detention population 11% • British Columbia decline was 10%. • Youth Custody populations • Ontario: secure custody down 37% & open custody down 40%. • British Columbia: average custody population down 50% in 4 years

18. YCJA: New Principles & Provisions • More coherent and consistent set of principles • focus on proportionality, but limited accountability • diversion from courts & reducing custody use • using criminal justice for child welfare • Greater accountability for serious violent offender than under YOA, but largely unconstitutional • Ultimate effect of YJCA will depend on provincial implementation policies and resources decisions • Potential concerns in some provinces • Lack of policies on diversion & conferencing may be narrow • Lack of community services and support

19. YCJA & U.N. Convention • Some important ways Y.C.J.A. consistent CRC • Protection of legal rights • Minimum Age of 12 years & to 18th birthday • Diversion is encouraged • Community-based sentences are encouraged • But also important ways Y.C.J.A. is not consistent with CRC • Best interests not a factor in youth sentencing & accountability is predominant • Canada’s reservation on Art. 37(c) – adult sentencing, mitigated by Que CA Reference, relying on CRC