Roger Love, B.A., J.D.

ACLC Advice Counsel

The amendments to the Youth Criminal Justice Act (YCJA) and prevalence of systemic discrimination at all levels of the criminal justice system will increase the overrepresentation of African Canadian youth behind bars.

Among the YCJA reforms, there are three amendments which are most likely to exacerbate the overrepresentation of African Canadian youth who receive custodial sentences. First, the presumption against a custodial sentence found at section 29 of the former YCJA has been repealed and replaced by factors that a youth court judge must consider before sentencing a youth to pre-trial custody. This host of factors includes whether the youth has been charged with a serious offence, or has a history that shows a pattern of outstanding charges or findings of guilt. By removing the presumption against a custodial sentence, the revised legislation is likely to increase the number of youth who will be detained pursuant to this provision.

Second, the restrictions on sentencing a youth to a custodial sentence have been relaxed. Prior to the amendments, section 39 (1)(c) of the YCJA stated that a custodial sentence could be considered where the young person has committed an indictable offence for which an adult would be liable to imprisonment for more than two years, and has a history that indicates a pattern of findings of guilt. The revised version of this section expands

‘findings of guilt’ to include participation in an extrajudicial sanction program such as community service. Extrajudicial sanctions are used in the youth criminal justice system to deal with less serious offences such as shoplifting. In order to receive an extrajudicial sanction youth accept responsibility for their actions but need not go through the entire court process or enter a guilty plea. It was commonly believed that an extrajudicial sanction would not create a youth record however, this was not the case before or after the reforms took effect in late October, 2012. In fact, participation in an extrajudicial sanction has always been kept on a youth’s record for 2 years. Under the revised legislation, youth who accept responsibility for their actions and participate in an extrajudicial sanction program will be saddled with a record that is treated like a finding of guilt without having gone through trial and been found guilty in accordance with

the principals of fundamental justice. This will inevitably reduce the appeal of accepting an extrajudicial sanction and may cause more youth to deal with their matters through the ordinary court process. This will clog the youth courts with cases that would have been more effectively addressed by an extrajudicial sanction program.

The African Canadian Youth Justice Program has successfully offered extrajudicial sanction programs for youth that respond to the specific cultural needs of African Canadian youth who come in conflict with the law.

The impact of the amendments may deter African Canadian youth from engaging in this program and others which address anti-social behaviour, promote self-worth, and ultimately improve public safety.

Third, the legislature has added specific deterrence and denunciation as objectives which may be applied when determining the appropriate youth sentence. While these factors must be applied in a manner that is consistent with the sentencing principles set out in section 38 of the YCJA , we can expect that these amendments will lead youth court judges to hand down harsher sentences - despite the fact that research shows there is little correlation between harsher sentences and deterring crime.

The amendments were ushered in for the stated purpose of promoting public safety, with no appreciable improvement to youth rehabilitation. Without improving conditions in correctional facilities, or significant funding increases for rehabilitation programs, it is unlikely that public safety will actually improve. Thus far the opening of the Roy McMurtry Youth Centre

(“RMYC”) in Brampton has not been well received by many members of the

African Canadian Community. Youth often express a sincere fear for their safety before entering the RMYC, which has developed a reputation for harsh living conditions, as documented in a report published by the Office of the Provincial Advocate in March 2010



) . While some may argue that youth should fear going to prison, the goal of rehabilitating young offenders cannot be realistically achieved in a hostile environment where some inmates live in constant fear for their personal safety.

We should not lose sight of the fact that the YCJA was enacted in response to the overuse of incarceration under its predecessor, the Young Offenders Act .

Under the Young Offenders Act Canada had the highest rate of youth

incarceration in the Western world. The enactment of the YCJA in 2002 helped curb this trend by reducing the rate of youth incarceration, and decreasing the number of cases before our youth courts.

The amendments reflect our Parliament’s regressive tough on crime agenda which will have a crippling impact on African Canadian youth who are grossly overrepresented in youth detention. In particular, young black boys who are incarcerated at a rate four times greater than their presence in the general population. Field information reports released to the Star reveal that

African Canadian youth like their adult counterparts, are more likely to be stopped and scrutinized by the police, leading to more arrests and charges.

Thus it will come as no surprise when this group bears the brunt of these harsh reforms.