LAWS 3307 Lecture Notes - Lecture 3: Youth Criminal Justice Act, Defense Of Infancy, Juvenile Court
Laws 3307B/T
Lecture No. 3
September 21, 2016
4. PRINCIPLES FOR RESPONDING TO YOUTH CRIME
A. Principles of Youth Justice Law
• Parliament has tried different approaches over the past 100 years
• 1908: Juvenile Delinquents Act took parens patriae approach: concern was (at least in theory) the
welfare of child offenders, and there was little focus on punishment or deterrence
• 1984: Young Offenders Act: totally new philosophy; more emphasis on protection of society;
accountability; respect for legal rights; young offenders were processed through the criminal
justice system rather than a child welfare system
• 2003: Youth Criminal Justice Act: there continues to be a separate but parallel system of criminal
justice; the underlying philosophy is that adolescents are to be treated differently from children
(more accountable, more mature, therefore criminally liable), yet also different from adults
(diminished responsibility, less mature, so emphasis is on rehabilitation and meaningful
consequences, even if that means dealing with the matter outside the criminal justice system)
• Over the past 100 years there has always been a recognition of decreased accountability and an
emphasis on rehabilitation, as well as a need to address the underlying causes of youth crime and
the idea that a less formal community-based response is often more effective than extended court
proceedings
B. The Evolution of Principles Governing Youth Justice
1) Common law
• Prior to 19th century, there was no recognition that a separate justice system was needed for youths
• Common law: doli incapax defence (“the incapacity to do wrong”) – at English C/L, law had
developed whereby children under 7 were deemed incapable of committing a criminal act; for 7-13
year-olds, there was a presumption of doli incapax that could be rebutted. Children who were
convicted faced adult penalties, including hanging.
Under 7 → irrefutable presumption, 7-13 → refutable presumption, over 14 → deemed
accountable
• Example: in 1813 a 13-year-old boy in Montreal was hanged for stealing a cow
• Upper Canada’s first prison, at Kingston, opened in 1835. In 1839 there were 6 boys aged 12-15
• From Department of Justice, International Working Group, The Evolution of Juvenile Justice in
Canada (2005) (found at http://www.justice.gc.ca/en/ps/inter/juv_jus_min/index.html):
Punishments were meted out frequently for simple disciplinary offences, often of the most
innocuous kind, and whippings were administered before an assembly of the inmates. One
10-year-old boy, committed on 4 May 1845 for a seven-year term, was publicly lashed 57
find more resources at oneclass.com
find more resources at oneclass.com
Laws 3307B/T Lecture No. 3: September 21, 2016 Page 2
times in the space of eight and a half months. His offences were staring and laughing, which
although in contravention of prison rules, were normal behaviour for a boy of that age. An
eight-year-old child, admitted on 7 November 1845 for a three-year term, received the lash
within the first week of his arrival. Over a nine-month period he was similarly punished 47
times. An 11-year-old French-Canadian boy received 12 lashes on Christmas Eve 1844 for
speaking French.
In the prison's female quarters young girls experienced similar treatment. The records show
that one 14 year-old was whipped seven times in four months, while a 12 year-old was
similarly punished five times over another four-month period. Both boys and girls were
sentenced to the same terms as adults for the various crimes, and in prison they were subject
to the same rules and conditions. At the time of the Brown Commission investigation, three
children under 12, including one eight year-old, and 12 under 16 were serving time in
Kingston Prison.
Children for some time continued to be put in jails and prisons across the country, and they
endured the same treatment and foul conditions that characterised the criminal justice system
as a whole. As the population and the number of settlements increased across the country, so
did the incidence of youth crime. More children were brought before the courts and sent to
jail. However, as soon became apparent, this form of punishment was accomplishing very
little. Rather, many juveniles were corrupted by older offenders, and instead of being turned
away from crime, returned to society schooled in the latest lawbreaking techniques. As a
result, many young people went on to more serious offences following their incarceration
and, all too often, ended up back in jail.
2) Juvenile Delinquents Act (1908)
▪ JDA’s philosophy was child-welfare oriented, aimed at correcting wayward youth, exemplified by
the status offences of “sexual immorality or any similar form of vice”
▪ Because state intervention was seen as being for the benefit of the child, court proceedings were
informal and the child had no legal rights
▪ Because the JDA was tied in with the child welfare system, which was a provincial concern, the
age of juveniles was defined by the provinces (in Ontario, maximum age was 15 – 16-year-olds
were treated as adults)
▪ Because the goal was to correct behaviour so the child did not become an adult criminal,
“sentences” were indefinite and ended when the child had been “reformed”
3) Young Offenders Act (1984)
▪ It had become clear that a welfare-oriented approach was not protecting society, as juveniles
continued to reoffend; a number of other problems were also seen with the JDA (disparity,
discrimination, abuse in reform schools, etc.), so it was recognized that there needed to be more
emphasis on the legal rights of youth
▪ The Charter had come into effect in 1982, with an emphasis on individual rights, including legal
rights such as freedom from arbitrary punishment, rights to counsel, right to fundamental justice
(including due process); the JDA was inconsistent with the Charter
▪ Under the YOA, more focus on accountability and on protection of the community
▪ The YOA created a separate criminal justice system for youths aged 12-17, uniformly across
Canada
find more resources at oneclass.com
find more resources at oneclass.com
Laws 3307B/T Lecture No. 3: September 21, 2016 Page 3
▪ Under the YOA, the state intervened in the life of a youth not because it was in the youth’s best
interest, but because the youth had violated a criminal law
▪ Under the YOA, because the underlying justification for intervention was a criminal act, the burden
was on the Crown to prove BRD that ∆ had committed a criminal act, i.e., a youth proceeding was
a trial just like an adult proceeding, with all the same procedural and evidentiary safeguards, plus
some additional safeguards that took into account the vulnerability of youths
▪ Declaration of Principle in the YOA (as amended by the Liberal government in 1995) recognized
the following (section 3 YOA):
• Crime prevention is essential to protection of society, and requires addressing the
underlying causes of youth crime and a multi-disciplinary approach to responding to youth
crime.
• Young offenders should not be held accountable in the same manner as adults, or suffer
the same consequences, but they should still bear responsibility for their contraventions.
• Society has a responsibility to prevent youth crime, but at the same time needs to be
protected from youth crime.
• “Young persons who commit offences require supervision, discipline and control, but,
because of their state of dependency and lack of development and maturity, they also have
special needs and require guidance and assistance.”
• The protection of society – a primary objective of the law – is best served by
rehabilitating young offenders; rehabilitation is best achieved by addressing the needs and
circumstances of the youth that led to his or her criminal behaviour.
• Dealing with youth crime outside court is preferable, as long as it is not inconsistent with
the protection of society.
• Young persons have legal rights as set out in the Charter, in particular the right to be
heard and to participate in proceedings against them, and they should have “special
guarantees” of their rights and freedoms.
• Rights and freedoms of young persons “include a right to the least possible interference
with freedom that is consistent with the protection of society (i.e., jail is a last resort);
• Young persons have a right to be informed of their rights;
• Young offenders should be removed from their parents only as a last resort
▪ These principles were criticized as being incoherent and internally inconsistent. It was not clear
what the priority was, i.e., if in a given case the applicable principles were inconsistent with each
other, which principle took precedence?
▪ See quote from R. v. T. (V.) (1992, SCC), per l’Heureux-Dubé, J.:
[W]hile I am not unmindful of the apparent inconsistencies of the stated goals of the
[YOA] as contained in s. 3(1), in my opinion the better view is that advocated by Bala and
Kirvin in…The Young Offenders Act: A Revolution in Canadian Juvenile Justice
(1991)…
While it may be inaccurate to suggest that the Declaration of Principle reflects a
certain social ambivalence about young offenders, it is also important to
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Parliament has tried different approaches over the past 100 years. 1908: juvenile delinquents act took parens patriae approach: concern was (at least in theory) the welfare of child offenders, and there was little focus on punishment or deterrence. 1984: young offenders act: totally new philosophy; more emphasis on protection of society; accountability; respect for legal rights; young offenders were processed through the criminal justice system rather than a child welfare system. The evolution of principles governing youth justice: common law. Prior to 19th century, there was no recognition that a separate justice system was needed for youths. Children who were convicted faced adult penalties, including hanging. Under 7 irrefutable presumption, 7-13 refutable presumption, over 14 deemed accountable. Example: in 1813 a 13-year-old boy in montreal was hanged for stealing a cow. Upper canada"s first prison, at kingston, opened in 1835. In 1839 there were 6 boys aged 12-15.
