CC200
Youth Justice
Creating a Juvenile Justice
System: Then and Now
Chapter Two
Introduction
We tend to link the juvenile justice system
with understandings of crime prevention
and crime control.
However, the creators of the system had
other objectives in mind.
According to some, the jjs was created in
response to problems generated by the
newly emerging capitalist system that
undermined traditional family supports.
The resulting problems included growing
numbers of young people on the streets
and higher levels of street crime
committed by young people.
Other scholars argue that the juvenile
justice system was a creation of Victorian
reformers, or ‘child-savers’.
These group argued that delinquency was
the end-result of bad environments and
that the state should act like a parent to
‘save’ children from these environments.
This meant that the state should go so far
as to remove children from their parent’s
homes and institutionalize them.
The child-savers were motivated by
humanitarian concerns and a desire to
save children from harmful family
influences while protecting them from the
full force of criminal law and the negative
influence of adult criminal offenders.
Juvenile Delinquents Act
The Canadian juvenile justice system was
officially created in 1908 through the
passage of the Juvenile Delinquents Act.
This legislation did not occur in isolation
but was, in fact, the culmination of a
number of pieces of legislation and welfare
reforms.
The JDA created a welfare-based juvenile
justice system (one based on the
philosophy of rehabilitation) and was
based on the principle of parens patriae.
Parens patriae can be translated as
“parents of the country” and has its
historical roots in medieval England.
It began as the King’s right to control
property of orphaned heirs for the purpose
of protection.
By the 18th century, parens patriae had
expanded to include a ‘best interest’
principle as a means of actively promoting
the best interests or well-being of a child
or young person.
By the 19th century, the doctrine had
expanded beyond the monarch to the
state and to children without property who
were orphaned or neglected by parents or
guardians.
This doctrine formed the foundation of the
new Juvenile Delinquents Act of 1908.
The JDA defined delinquency as the
violation by persons under the age of 16
(this age varied by province) of any
federal, provincial, or municipal law for
which a fine or imprisonment was the
penalty, or the commission of any other
act that would make a young person liable
to be committed to an industrial school or
reformatory.
The JDA gave the courts considerable powers.
Cases were to be handled summarily.
If an offence was indictable, it was up to the
court to decide if the youth would be tried in an
adult court.
Indictable offence – CCC refers to offences that
are of a serious nature; the minimum sentence is
always two years or more.
More like hearings than trials, juvenile
cases were conducted privately and
notices of delinquency hearings were sent
to parents or guardians.
Separate detention and jail facilities were
mandated for delinquents.
The JDA also allowed for a wide range of
dispositions (sentences).
Probation was a core element of the
juvenile court, with probation officers
playing a key role.
The court could place a child in the
custody of a probation officer as a form of
sentence.
The JDA required probation officers to
conduct investigations for the court, to
assist and direct the court, and to
represent the interests of the child in court.
The probation officer was also responsible
for supervising children sentenced to a
period of probation.
Once adjudicated as delinquent, children
remained wards of the court until the court
released them or until they reached the
age of 21.
Under the JDA, the provinces were
allowed to set the maximum age under
which a young person could be
adjudicated as delinquent.
Because the juvenile justice system
required probation officers, separate
courts, separate judges, and separate
detention facilities, its implementation was
costly.
As a result, provinces were allowed
significant leeway the time allowed to
implement of these policies.
This meant that there was a great deal of
time between the time the first court was
set up (Manitoba in1909) and the last
(Northwest Territories in 1979)
NFL never did implement the JDA, but
established instead, a juvenile court
through provincial legislation.
Opposition to the JDA
The JDA faced opposition.
Those opposing the act did so on either
the grounds that it was not punitive
enough or out of concern about potential
abuses to the rights of children and
parents.
Victorian reformers ignored the opposition.
Most were not overly concerned with
protecting the rights of children because
they were convinced they were acting in
the best interests of the child and were
protecting children.
They, therefore, believed that the
decisions and actions of anyone working
in the justice system would also be
focused on the best interests of the child.
The system itself was also considered to
be focused on meeting the needs of
children and on ‘helping’ rather than
punishing with the objective to treat and
rehabilitate.
Modifying the Juvenile Justice
System
Serious challenges to the JDA began to
emerge in the 1960s as a result of a
growing international and national rights
discourse.
A major source of concern directed at the
JDA was in regard to status offences.
Status offences – behaviors only
considered to be illegal because of the
age status of the individual.
Critics argued that lumping all child and
youth offences together undermined the
seriousness of some offences and thereby
weakened the deterrent effect of
punishment on criminal behaviors.
The opposite effect was considered equally
problematic by other critics who argued that
young people who were not breaking criminal
laws were being punished in the same manner
as those who did.
They were also concerned that status offenders
were being negatively affected by close
associations with chronic offenders in
institutions.
Another concern was the lack of set terms
of sentences.
Incarceration lasted as long as it took for a
young person to be ‘reformed’ or
rehabilitated.
While this served the welfare interests it
did not satisfy those who were concerned
with matters of due process.
Related issues were inconsistencies in the
application of the law.
Sentence lengths varied according to
individual characteristics and
circumstances rather than the nature of
their behavior.
Maximum ages for delinquency varied
across the country.
And treatment provisions were not consistent
from one jurisdiction to another.
In addition, concerns were raised about the role
of social workers in the system and the amount
of discretionary power they were able to
exercise.
Since social workers were not part of the
juvenile justice system, they were not
accountable to the courts for their decisions.
On the other side, there was the ever-present
argument that the Juvenile Delinquents Act
failed to provide public protection from the
criminal behavior of children and youth.
Reform attempts of the act began in 1965 and
by 1977 a new Young Offenders Act had been
drafted.
In April of 1984 the Juvenile Delinquents Act was
formally replaced by the Young Offenders Act.
Principles of Juvenile Justice under
the YOA
The YOA created a very different juvenile justice
system from the JDA.
The JDA referred to delinquents as ‘misdirected
and misguided’ children in need of ‘aid,
encouragement, help, and assistance’ the YOA
referred to young people as persons in a ‘state
of dependency’ how have ‘special needs and
require guidance and assistance, as well as
supervision, discipline, and control’.
The YOA included new principles to the
juvenile justice system that provided
emphasis on youth responsibility,
1. protection of society, special needs,
alternative measures, and legal rights
and freedoms
Accountability
A principle of juvenile justice was created
that young people who commit criminal
offences would have to assume
responsibility for their behavior.
However, the YOA recognized that young
people have limited accountability
compared to adults.
Protection of Society
The protection of society was included in
the original act and was revisited in the
1995 amendment.
This amendment underscored its
importance as a guiding principle in
juvenile justice by stating that it is a
primary objective of the criminal law.
Special Needs
Section 3(1)(c)(C.1) outlined more specifically
the rationale for a youth justice system.
Because of their immaturity and dependency
relative to adults, young people are said to have
‘special needs’.
The term ‘special needs’ is not defined in
legislation and, based on case law, seems to be
interpreted as the psychological and social
needs of the child.
These needs include a safe and secure
home environment and parents or
guardians who are willing and able to
provide for the child’s psychological and
physiological needs.
Alternative Measures
Section 3(1)(d) expressed the principle of
diversion: that where the protection of society is
not compromised, measures other than formal
court processing, with its potentially negative
effects, should be considered.
In most provinces only first time offenders and
young persons guilty of minor offences were to
be processed through alternative measures.
Rights of Young Persons
It is in s.3(1)(e) and (g) that one finds the
major difference between the YOA and the
JDA.
In addition to rights and freedoms
guaranteed through the Canadian Charter
of Rights and Freedoms and the Canadian
Bill of Rights, the YOA established that
young people would have special
guarantees.
These special guarantees included the right to
legal representation and the right to be informed
as to their rights and freedoms under the act.
Some rules pertained to statements made to
‘persons of authority’ and to the admissibility of
statements made to these people.
Interesting to note that parents were not
considered ‘persons of authority’ and so
statements made to them in confidence by their
children were admissible in court.
Minimal Interference with Freedom
Section 3(1)(f) applied to every aspect of
youth justice and affected every young
offender except where there were
concerns regarding the protection of
society.
This principle encouraged the use of
alternative measures, but also encouraged
police to divert youth from the system
altogether.
This principle also influenced bail hearings
and sentencing.
It encouraged the court to apply sentences
more lenient than custody and
discouraged the court from effecting
transfers to the adult system.
Parental Responsibility
Section 3(1)(h) marked another significant
difference from the JDA.
The YOA did not consider parental
responsibility but instead addressed
parental involvement with youth and the
justice proceedings.
Parents or guardians were required to be
notified of their child’s arrest or of youth
court proceedings and they could be
ordered to attend court.
Other sections of the YOA allowed parents
to make statements regarding dispositions
and transfers.
Modifications to the YOA
Most resistance to the YOA emerged after its
enactment.
The debate over the YOA was reminiscent of the
debates provoked by the creation of the juvenile
justice system 100 years earlier.
Groups expressed concerns over the rights of
children and the differences in the
implementation of principles found within the act.
Other groups argued that the act was not
punitive enough.
This resulted in three major sets of
revisions to the act, all of which moved the
justice system away from the welfare
model and towards a crime control model.
Bill C-37 was an amendment of note and
came into force on December 1, 1995.
The major changes to the YOA under this
amendment included:
Sentences for ten years for youth convicted of
first-degree murder or seven years for seconddegree murder.
Automatic transfer to adult court for 16 and 17
year olds charged with serious “personal injury”
offences unless able to satisfy a judge that the
two objectives – public protection and
rehabilitation – could be achieved better through
the youth court.
And, an emphasis that rehabilitation for
youth charged with minor offences is best
achieved in the community.
Still, law-and-order groups were not
satisfied.
After seven years, three drafts, and more
than 160 amendments, the Youth Criminal
Justice Act came into force in April 2003.