IV. Response to Proposed Amendments

A. Increased Youth Court Sentences for Murder

CAEFS does not support the proposed increases in the maximum sentences for young people convicted of first and second degree murder to ten and seven years respectively. The Minister of Justice has indicated that such amendments to the YOA are designed to address public concerns regarding the inadequacy of the Young Offenders Act in dealing with serious violent crime. The added rationale postured is that longer sentences would also allow additional time for rehabilitation and treatment, thereby providing greater protection to the public.

This was the same argument employed in 1992 to justify the increase of sentences from three to five years. Clearly, the future of this sort of approach is highlighted for us in other jurisdictions, most certainly in many of the United States of America. Resorting to more of an approach that has already proved ineffective and extremely costly seems wholly irresponsible. Not only does it feed public fears and misperceptions, it has the potential to increase the social and systemic costs overall, particularly those related to custodial expenses.

The Minister of Justice has clearly indicated that there are no additional resources for the juvenile justice system. This, combined with the reality of the limited availability of institutional treatment and other programming, as well as the current disproportionate amount of spending upon juvenile incarceration versus community-based options, does not hold out great hope for the future. CAEFS must unfortunately conclude that longer prison sentences are most likely to result in further warehousing of young people, rather than increase constructive intervention or community safety.

B. Transfer to Adult [Ordinary] Court

Like many other youth-serving and social justice groups, CAEFS does not support the transfer of young people to ordinary courts, presumptively or otherwise. Bill C-37 proposes that all 16 and 17-year-old youth who are charged with serious violent offences should be transferred to the ordinary court to be tried as adults unless they can demonstrate that public protection and their own rehabilitation could be achieved in the young offender system. It is difficult to imagine how it is perceived that this amendment might facilitate the achievement of either objective, let alone do anything beyond substantially increasing the costs of the juvenile justice process.

In addition to the obvious due process implications and CAEFS' questions regarding the Charter implications of the reverse onus provision, we find especially problematic the presumption that the manner in which adults are dealt with by the criminal justice system is in any manner a preferred means of addressing the impact of crimes committed by young people. The most likely result of a presumption of transfer is that more 16 and 17-year-old youth will be tried in adult court, and that this would in turn lead to more youths receiving longer sentences which will be served in more isolated and destructive environments.

In addition to being costly and counterproductive, mistaken premises about deterrence theory and practice abound in relation to the use of incarceration for both youths and adults alike. In order to be deterred by something one must first comprehend, not to mention apprehend, that thing or consequence, as well as the certainty of its occurrence. With all due respect to the views of the Supreme Court of Canada in J.J.M., rarely does an adult, much less a young person, think that s/he will be apprehended; rarer still is the individual who knows what the result of an apprehension will be.

Rather than see young people transferred out of the youth justice system, we would prefer to see the enhancement of services for young people within the context of the youth justice system. By making transfers easier, it also arguably limits the pressures on the provinces to enhance and/or implement sufficient youth correctional, mental health and child welfare services for young people. Rather than wasting limited resources on financing larger prisons and longer terms of incarceration, CAEFS believes that the government should invest in more preventative strategies.

It is CAEFS' submission that more interest and investment should be directed toward earlier identification of and support for youth at risk, particularly for children who are victimized, who live in poverty, without adequate shelter, education and personal/familial support. Universal health care, emergency shelter and crisis intervention assistance for women and children, community housing, educational and employment equity policies, as well as other means of identifying and addressing systemic and individual contributors to youth involvement in the criminal justice system, would be far more deserving recipients of our collective efforts, energies and resources in general.

Our communities as well as individual youth are best served by a juvenile justice system which ensures that the staff, facilities, services and programs therein are specifically directed towards young persons' levels of physical, cognitive and psychological development. Abandoning young people to the same system that currently institutionalizes and brutalizes adults cannot be presumed to augment societal protection.

Transferring young people to adult court violates the approach fundamental to, indeed introduced by, the YOA; namely, that youths should not be treated in the same manner as adults, but must be held accountable and responsible for their actions in accordance with their specific levels of development and maturity. By permitting easier transfers of youth to the adult system, these amendments also serve to excuse the lack of full implementation by the provinces of the pre-existing provisions of the Young Offenders Act, particularly those related to community-based services and treatment options. Moreover, it removes all incentive for the fulfilment of their responsibilities to provide sufficient youth-centred rehabilitative programming and services in the juvenile justice, mental health and child welfare systems.

CAEFS is clearly of the view that young people are best served with supportive and proactive measures as opposed to punitive measures. While popular in the short term, attempts at quick fix criminal justice responses cannot hope to address what are fundamentally social justice issues. It is far too simplistic and short-sighted to presume that the off-loading of scapegoated youth onto the adult system will solve youth crime. Youthful offending cannot and will not be resolved by an examination of the Young Offenders Act in isolation. Broader based social reform is a fundamental prerequisite to further youth justice revisions.

Alternatively, future federal-provincial funding negotiations could revolve around the redistribution of the some $170 million in annual transfer payments for youth justice away from custodial expenses to the development and enhancement of community-based correctional and mental health resources. CAEFS is firmly of the opinion that this would be a far more fiscally, morally and ethically responsible approach to addressing youth justice issues, rather than continuing current strategies which have only served to feed public fears and misconceptions regarding the nature and extent of youth crime, by further eroding the juvenile justice system jettisoning yet more children into our most expensive and inefficient adult system.

Finally, CAEFS wishes to remind our elected representatives that Canada is a signatory to international covenants which speak against the imposition of criminal responsibility prior to the age when most other adult rights and responsibilities accrue.

C. Information Sharing and Records

Bill C-37 provides for the sharing of information about young people among service providers. CAEFS does not support the publishing of identities of young people, regardless of the offence(s) for which they are convicted. Via paragraphs (1.1) through (1.4) of subsection 38(1) of the YOA, provision is already made for the lifting of the ban on publication in circumstances where it is deemed necessary in order to assist in the investigation and apprehension of a young person who is deemed dangerous to others.

In at least one circumstance of which CAEFS is aware, despite the contravention of these provisions by the media, no charges were ever laid pursuant to subsection 38(2), the penalty provisions regarding violation of the stipulations against the publication of the identities of young people. We have little faith that any relaxing of these provisions will benefit individual youth. Rather, such a move would further erode the principles of the Young Offenders Act and therefore have significant likelihood of bringing the administration of justice for young people into disrepute.

In any circumstances where the sharing of information might be beneficial, the consent of a youth would allow such sharing to occur. Few young people would refuse to consent to such information sharing, given the option of allowing release of information in order to provide or facilitate access to community-based and youth-positive services or programs, as opposed to secure custody detention or other restrictive sanctions. Contrary to popular misconceptions, most young people are painfully well aware of the inability and inadequacy of the justice system to meet their needs and simultaneously address public protection concerns.

We encourage a revisiting of the original rationale for the YOA ban on publication. CAEFS is very concerned about the increasing interest in identifying offenders in general and young people in particular. CAEFS contends that rather than facilitate proactive and preventative work in communities, such moves are more likely to result in the labelling, as well as encourage scapegoating of youth. Furthermore, given the information that is known with respect to the number of offences and perpetrators that go undetected, CAEFS is extremely troubled by the potential of these sorts of provisions to result in the creation of false senses of security. Such moves also unfortunately have the tendency to be simplistic and diminish the pressure to create more proactive and preventative means of addressing complex issues and concerns.

The likelihood of short as well as the long term risks of harm increasing are far greater once such basic principles as this one are diminished. As we have witnessed in the case of the media violations, there is significant concern regarding the abuse of such provisions and the consequent deleterious impact upon the lives of young persons. There are bona fide concerns of educators and others who work with youth, with respect to the presence of perpetrators of violence amongst the youths in their care and/or with whom they work. Given the aforementioned reporting realities, and corresponding prospect of undetected as well as detected perpetrators, we would argue that the protection of all would be best served by proactive and preventative youth-positive approaches, rather than by reliance upon increased detection and apprehension.

D. Declaration of Principle

The proposed injection of statements in support of the need for crime prevention and rehabilitative approaches to section 3 of the Young Offenders Act exemplifies the faulty logic and misguided premises based upon which the proposed amendments are presented throughout Bill C-37. Most simply stated, if it were not for the presence of the additional propositions for amending the YOA in Bill C-37, there would be no need to examine s. 3. Unfortunately, the evisceration of the fundamental principles and underlying philosophy of the Act which will be occasioned if Bill C-37 achieves passage would necessitate the sort of pseudo-balancing attempt suggested in s. 1 of Bill C-37.

The original purpose of section 3 of the YOA was to provide guidance to the interpretation, application and implementation of the YOA. The rationale was to emphasize the fact that offenders should be held accountable for their actions but not in the same manner as adults. The intent was to keep youths out of the justice system as much as possible, and within the juvenile justice system, as opposed to the adult system, in situations where criminal justice sanctions were deemed necessary.

CAEFS believes that the proposed amendments to s. 3 speak directly to the misguided and illogical nature of the entire Bill. But for the provisions that follow it, the amendments to section 3 would be moot at best, as they merely restate the obvious. It seems somewhat trite to be articulating that the primary objective of the juvenile justice system is the protection of the public, without recognizing that youth rehabilitative processes whereby the needs of young people are met are ultimately the most effective means of stemming the tide of youths as victims and/or perpetrators into the criminal justice system. Consequently, the presence of the proposed amendments merely underscores the continued slide of the YOA towards an ever increasing focus on punitive sanctions and regressive crime control methods, as opposed to concentrating our efforts on justice models that recognize the need for fundamental community changes and constructive and individualized interventions for and with young people.

E. Victim Impact Statements

By introducing Victim Impact Statements to the juvenile justice system, Bill C-37 yet again raises artificial and unrealistic promises to the Canadian public. Our criminal justice system is premised upon objective and impersonal standards and concepts which do not recognize the needs or interests of offenders, much less victims. Rather than meet the needs of or otherwise provide tangible assistance to people who have been victimized, Victim Impact Statements all too often merely create a sense of entitlement and participation which victims eventually recognize is ethereal at best. Such realizations consequently tend to compound and exacerbate frustration and dissatisfaction with the ability of the court system to meet their needs.

F. Medical and Psychological Assessments

CAEFS is extremely concerned about the appalling lack of adequate assessment and treatment options available for young people. We are similarly concerned about the alacrity with which proposals to facilitate court-mandated medical and psychological assessments are being proposed. Committee members must recognize that assessments are not particularly useful if the treatment needs identified cannot be met in the final analysis. Accordingly, it would be imprudent to presume that the facilitation of treatment might currently be achieved by the enactment of the proposed provisions.

It is imperative that community-based treatment options in particular be developed and enhanced. Thus, discussions that focus on the development of greater flexibility for youth to get access to treatment or the ability of the Youth Court to mandate assessments and/or treatment tend to divert attention from the fundamental problem. Rather than being seduced into discussions that focus on amending the YOA, CAEFS continues to call for the enhancement and development of the requisite assessment and treatment resources.

Finally, in keeping with earlier discussion regarding consent, as well as prevailing views within the therapeutic community that consensual consumer-driven treatment is more likely to produce positive results than, and is therefore preferable to, limited and mandated treatment, CAEFS supports the retention of provisions in the Young Offenders Act that require consent to treatment.

G. Alternatives to Custody for Less Serious Crimes

CAEFS is very much in favour of limiting the use of custody for youth. Indeed, CAEFS views the importance of limiting the use of custodial dispositions as a fundamental tenet of the YOA. Let us not forget that s. 3(1)(f) calls for the least possible interference with freedom that is consistent with the protection of society.

Given this reality, we consider it rather curious that we are now seeing particular emphasis on the importance of using alternatives to incarceration such as compensation and community services. CAEFS is of the opinion that these have always been implicitly understood and explicitly stated in relation to the Act. If community services are available and not used, it is a fair expectation that judges justify why they are not used.

Arguably, the judiciary has always had a responsibility, therefore, to provide a cogent and considered assessment of the appropriateness of the disposition chosen in any given case. Again, rather than being truly designed to encourage restraint in the use of custodial sanctions, it would appear that, as in the case of the proposed tinkering with s. 3, the introduction of this provision is axiomatic to the introduction of other repressive measures, most particularly the proposals to amend the sentencing and transfer provisions.

Where existing programs and services are inadequate to address the needs of young people or the protection of society, the first priority must be to address such service or programming deficits. Rather than resort to the "adult" criminal justice context at ever earlier ages, CAEFS supports the development and enhancement of youth-positive community-based dispositional options, as well as the development of improved educational and psycho-social programs and services both in community and institutional settings.

This is particularly true for young women, since they are 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.

More community-based dispositional options and fewer custodial beds should exist throughout the country for all youth, but the need is particularly acute for young women. CAEFS would support the cessation of federal transfer of resources to provinces for custody beds, provided there was a corresponding increase in the transfer of monies for community resource development for young people. Furthermore, provinces must be encouraged to develop more gender-specific and culturally appropriate services and programs for young people. Too frequently, services and programs which do exist are ill-equipped to deal with such intersecting issues as gender, race, class and sexual orientation.

H. Young Offender Statements to Persons in Authority

As a function of not having reached full cognitive, emotional and physical maturity, youth are correspondingly limited in their capacity to understand the legal system. Empirical evidence has consistently shown that young people charged pursuant to the YOA frequently are unable to understand legal terms, much less legal concepts. Young people are not able to appropriately exercise their rights in circumstances where they do not understand the role and function of counsel, much less the legal concepts and mechanisms within which they become enmeshed in the juvenile justice system.

Many young people cannot, and therefore do not, understand the youth, much less the "adult" system. For example, research such as the study by Rona Abramovich, Karen Higgins-Biss and Stephen Biss, regarding young people's general lack of understanding of police cautions and waivers, raise very serious questions with respect to the ability of young people to exercise their rights, much less their responsibilities, pursuant to the YOA. Consequently, CAEFS would oppose any and all attempts to remove the current safeguards available for young people with respect to statements to persons in positions of authority in relation to them.

YOA Recommendations

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