Custody Must Really be the Last Resort

In terms of custodial sanctions, the YOA stipulates that such dispositions must only be used as a last resort. Further, when custody is resorted to, "open" custody should be considered before "secure" or "closed" custody. Secure custody was intended as the absolute last resort in terms of sentencing under the Young Offenders Act. Moreover, open custody was envisioned as easily distinguishable from secure custody, for example a group-home type of setting as opposed to an institution. In most provinces, however, the two forms of custody are virtually indistinguishable and provincial authorities have been the most vocal opponents of the two tiers of custody in the juvenile justice system. It comes as no surprise, therefore, that where both still exist, most open custody settings are now institutional and rather secure in nature.

The provisions of the new Youth Criminal Justice Act are even more clear and stringent in their direction. The focus on extra-judicial measures will hopefully help reduce the current reliance upon custody. Without resources to enable communities to develop meaningful community-based options, however, it remains to be seen whether this objective will be realized. Indeed, as we have also seen in the adult system, each time a new reform is introduced which aims to reduce reliance on prison, adequate resources are more often than not usually the key element that will determine their success or demise.

The introduction of conditional sentences probably provides the most recent example of this phenomenon. Initially embraced and utilized by the judiciary as a bona fide alternative to jail for many, after several years of resource deficient implementation, the scheme has now largely fallen into disrepute. Essentially, as Carol LaPrairie and others within the Department of Justice have chronicled, too many people were granted conditional sentences. Inadequate supports and supervision, coupled with stringent and often onerous conditions, resulted in many breaches of the conditions and subsequent jail terms-often for longer periods than if those concerned had received a prison sentence in the first place. Without sufficient resources for implementation, we fear that the progressive provisions of the YCJA may suffer a similar fate.

Where existing programs and services do not address the needs of young people, or the protection of society, the first priority must be to address these service or programming deficits. Rather than resorting to the "adult" criminal justice context at ever earlier ages, the federal and provincial authorities should focus on redistributing the $170 million spent annually on federal transfers for youth justice to the development and enhancement of youth-positive community-based dispositional options. This would result in improved educational and psycho-social programs and services in both community and institutional settings.

There is a paucity of community-based and therapeutic alternatives for young people in general and young women in particular. The federal Minister of Justice could address some of these issues through cost-sharing agreements with the provinces, rather than proposing legislative amendments. Such moves unfortunately also have the tendency to be simplistic, diminishing the pressure to create more proactive and preventative means of addressing complex issues and concerns. The federal government could reduce justice transfers for custody beds with a corresponding increase in community resource development for young people. Furthermore, provinces should be encouraged to develop gender-specific and culturally-appropriate services and programs for young people. Too frequently, the services and programs that do exist are ill-equipped to deal with issues such as gender, race, class, and sexual orientation.