III. Historical Context
We are now almost one decade into the implementation of the Young
Offenders Act. Proclaimed on April 2, 1984, and originally paraded
internationally as one of the most innovative and progressive
legislative responses to juvenile justice, the Act has suffered
serious chiselling and atrophy of its most progressive elements since
its inception. Indeed, even before 1984, some of the more proactive
elements of the Act were already being threatened. The YOA was enacted
in 1982, but sat awaiting proclamation while the federal government
negotiated with the provinces regarding implementation thereof.
A major reason for the delay in proclamation related to the
cost-sharing agreements, specifically the manner in which some of the
monies could be utilized. Despite the commitment of the federal
government to providing more resources for the development of
community-
based programming and services for young people, the provinces
negotiated long and hard for monies to build new prisons for young
people. We live with the unfortunate results of those negotiations.
Perhaps it should come as no surprise then that the attacks on the
YOA commenced almost immediately following its inception. The first
set of amendments to the Act occurred in 1986, when the provisions
requiring the destruction of Youth Court records were amended so as to
allow for the detention of records. The 1986 amendments also resulted
in the further enhancement of judicial discretionary powers by
empowering judges to lift publication bans as well as the authority to
exceed the three year limit on dispositions when imposing consecutive
dispositions.
Further reactionary amendments introduced in 1989, led to the passage
of more regressive changes to the YOA in 1992. The amendments
introduced a transfer test that hinges on the availability of
resources within young offender systems. Despite the laudable
intentions and hopes that these changes would result in the
enhancement of existing services and programs within the juvenile
justice system, as well as fewer transfers of young people to ordinary
courts for trials as adults, just the opposite has occurred by and
large. Indeed, although the overall number of transfers may have
declined over the past year, neither the reasons for this statistic,
nor an appreciation of its significance (ie. whether it is a
coincidental blip or an indication of a new trend) are yet
discernible. Moreover, services for young people in the juvenile
justice system have not enjoyed any meaningful enhancement since the
passage of the new amendments.
In addition to the transfer provisions, the last set of amendments
changed the penalty provisions of the YOA. Custodial dispositions have
now been extended to a maximum of five years less a day for youth
convicted of first or second degree murder. Further, for youths who
are transferred to the ordinary court and sentenced as adults, parole
eligibility guidelines have been established at five and ten years
respectively.
Throughout the three-year period that the amendments were in the
consultation process, concerns were raised about the potential for the
provisions to be further extended to offences other than murder. The
government repeatedly assured groups and individuals who expressed
these kinds of concerns that such a result was not likely. Moreover,
Justice assured us that more progressive, community-based,
youth-positive changes would be undertaken, just as soon as the Bill
C-12 -- as they then were -- amendments were passed.
In spite of the best intentions and concerns of many at the
Department of Justice, calls for toughening and opening up of the
Young Offenders Act continued -- indeed, still show no signs of
dissipating. Accordingly, while it is no less disappointing, it was
not surprising to see the parameters of the most recent discussion
document, Towards Safer Communities: Violent and Repeat Offending
by Young People, as well as the types of regressive approaches
outlined in The Red Book and now, in Bill C-37.
It is indeed time that we all took a closer look at how these
currently pending, regressive changes to the YOA have severely limited
the positive approaches initially envisioned for young people. It
seems unconscionable to consider addressing concerns regarding youth
by merely off-loading them into the ordinary court and the criminal
justice system. Indeed, it is distressing to observe continued
attempts to erode and chisel the fundamental tenants and guiding
principles of the YOA.
The YOA calls for the least restrictive interventions possible for
young people. In fact, it calls for an examination of all other
systems prior to invoking its provisions. Alternative or diversionary
options are entrenched in the Act. Paradoxically, the past decade has
seen just the opposite result. In most schools or child welfare group
homes, for instance, matters that previously might have been dealt
with by the relevant administrative authority are increasingly more
likely to be referred externally to the juvenile justice or young
offender system.
Rather than adopt a 'zero violence' approach, 'zero tolerance'
policies are resulting in ever increasing numbers of disenfranchised
youth being jettisoned out of schools and communities, usually
through, rather than into, an ever more drafty social safety net.
Rather than nurturing our youth, we are increasingly scapegoating and
disposing them as though they are expendable human refuse. Recognizing
the current stresses of fiscal restraint and downsizing, more focus
upon consolidating creative energies, as well as upon encouraging a
more empowered student body to provide peer and mentoring support are
but examples of the manner in which schools might re-direct energies.
In terms of custodial sanctions, the Act stipulates that such
dispositions must only to be used as a last resort. Further, where a
custodial disposition is resorted to, the expectation is that open
custody be utilised before the employment of secure or closed custody.
Clearly, it was initially anticipated that the use of secure
custodial settings for young people was to be the absolute last resort
in terms of sentencing young people under the Young Offenders Act.
Moreover, it was envisioned that open custody would be easily
distinguishable from secure custody settings. Open custody was
anticipated to denote a group-home type of setting, as opposed to an
institutional setting. This fact notwithstanding, in most provinces,
the two forms of custody are virtually indistinguishable, given that
most open custody settings are now mostly institutional in nature.
To make matters worse, young women remain disproportionately
disadvantaged in terms of access to open custody settings. The
majority of young women who receive open custody dispositions must
serve their sentences in secure custody and/or co-correctional
facilities. Consequently, they tend to have more limited access to the
community as well as institutional services and programs. In many of
the young offender centres across the country, incidences of sexual
assault and/or pregnancies have led to the further segregation of
young women within co-correctional facilities.
Statistics reveal that there has been an overall reduction of youth
crime rates generally as well as a relatively low incidence of violent
and repeat youth crime more specifically. These realities
notwithstanding, there is increased police, media and general
community focus on the YOA, as well as a tendency to more quickly
criminalize the behaviour of young people and then jettison them into
the ever wider, deeper and stickier nets of the juvenile justice
system.
It is clear that all young people suffer as a result of the lack of
adequate support services and other systems-based deficiencies.
Members of the Standing Committee will be all too familiar with the
erosion of resources and support for our community-based support
systems for young people. The overall juvenile justice situation is
all the more acute for young women. For instance, young women are
disproportionately disadvantaged as a result of a lack of
gender-focused community and institutional programming and services,
extremely limited access to open custody settings and consequent
systems-dictated secure custody re-sentencing, over-representation of
young women in custody for administrative breaches and child welfare
types of concerns. Systemic bias and discriminatory practices undergo
a multiplier effect where gender, race, class, ethnicity and/or sexual
orientation converge. Accordingly, immediate action to develop more
comprehensive understanding and concerted efforts to address issues of
bias within the youth justice system.
YOA Recommendations
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