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SOC 3750
Bill O' Grady

Chapter Sixteen Introduction - This chapter is intended to draw attention to the positive developments in the juvenile justice policy field as well as to some of the challenges that are still ahead The Legal Regulation of Childhood and Adolescence - The law that regulates criminal conduct for children and youth is a binary system - It focuses on the children until they cross into “the age of majority” or adulthood - The children and youth are given protection from the state - There is restrictions on their freedom and investment in their development so they will become competent adults as productive members of society eventually - The age of majority is when an individual has reached an age and development stage where they can be autonomous individuals who do not need the state’s protection anymore - This system only focuses on “immature children” and “competent adults” - Problem: there is no opportunity to include the evolving capacities of children as they mature during their adolescent years - These policies are in place so that they allow the changing capacities of young people based on the notion that social welfare and the welfare of the young person can both benefit through such a reclassification (ex. The age of consent for a minor to receive medical treatment à By lowering this age, this benefits the young person and the community in regards to reduced health costs associated with pregnancy, STDs, etc.) - In the Youth Justice the rationale for lowering the age isn’t focused on the promotion of welfare for the youth à treating a youth like an adult for the purposes of criminal responsibility is more of a reflection of societal values reflected in the adage “adult crime equals adult time”. - There are many juvenile justice statutes that undermine the principle of confidentiality in youth justice proceedings (increasing the number of opportunities to share info about the youth defendant with criminal justice, education, social service agencies & the media) - This stance has been underscored by such policies such as zero tolerance, curfews, naming and shaming rituals, and the targeting of pre-criminal disorder and incivility through anti-social behavior orders - Best interests of the child doctrine à key principle of the United Nations Declaration on the Rights of the Child à is in opposition to an increasing trend toward the adulteration of youth crime throughout the world - Are provisions in juvenile criminal statues throughout the world that allow the youth to be transferred to the adult system for adjudication or punishment - Imposing adult penalties on young people has led to serious problems and incarcerating youth runs counter to the reduction of youth crime The Codification of a Separate System of Youth Justice in Canada - In 1985, the Beijing Rules recognized the special needs of young people and the promotion of diversion from court proceedings - Underscored the principle that custody should be used as a last resort and all proceedings against young people should be anonymous to protect children from labeling - The UNCRC (United Nations Convention on the Rights of the Child) expanded on these rules in 1989 - UNCRC believes that children should have a right to be protected from cruel punishment and should receive special treatment in the criminal justice system & children below a minimum age lack the capacity to infringe the penal law - Believes the best interests of the child should be the most important thing - For a child who has violated the penal law they should be treated in a manner consistent with their age and there should be an importance of promoting the child’s reintegration back into the community - Canada’s international obligations believe that juvenile offenders should not be treated as an adult - Canada however has continuously violated the UNCRC by insisting on a reservation with respect to the rule about housing adults and youth in separate facilities - UNCRC is probably the most violated & it doesn’t lead to any formal sanction - In many countries they have ratified it but the UNCRC hasn’t been incorporated into the domestic law & in other cases countries have put in reservations around specific issues regarding juvenile justice to allow for alterations to the provisions in the case of housing youth with adults and other key issues that might promote the best interests of the youth - Even such fundamental principles like not having children be subject to inhumane punishment can be liberally construed in light of the controversy of the age of criminal responsibility and the ability of state parties to bend these rules - In Canada there has been a formal system of youth justice that is separate from the adult system since the JDA, it wasn’t until the YCJA that states in s.3(1)(b) “the criminal justice system for young persons must be separate from that of adults” In 2002 that Canada was explicit in its law - Before this, Canada didn’t adhere to the UNCRC even though Canada had ratified it in 2002 Diverting Children from a Life of Crime: Sustaining the Original Purpose of a Separate System of Youth Justice - Origins of the juvenile justice system in North America à “child savers” tried to divert youth from the harshness of the adult system - After the JDA had arguments for policy changes that center on children as criminals - The JDA mainly had the approach of focusing on social welfare concerns and the “best interests” doctrine of child welfare and protection hearings - Attention was drawn to the inequalities on the youth and youth without legal representation - There was a cry for more procedural safeguards to the confidential juvenile justice proceedings - Began to question if the discipline of the youth court was sufficient enough to protect the community by the crime from young people - Was a “care” vs. “control” argument - There was a number of provisions within the legislation that suggested alternatives to the court system - The implementation of the YOA with its goals of rehabilitation and protection of society led to an increased use of the courts and a greater use of custodial sanctions (the sentencing of a young person to custody under the YCJA) - YOA increased the use of custody à Canada had the highest rate of youth incarceration in the world - Decided that the YOA needed to be changed for the better à determined that there were six broad areas that needed to be looked at (diversion was an important part) - Matters related to diversion, pre-trial detention, community-based sanctions, and custodial processes, including the potential to deal more efficiently an effectively with young person's by making greater use of diversion from formal court proceedings and community based alternatives to custody - In 1998 the Department of Justice released the Strategy for the Renewal of Youth Justice à underscored a need for “crime prevention” and “meaningful consequences” - YCJA was introduced between 1998 & 2002 à it reintroduced Bills C-68, C-3 & C-7 - YCJA came into force in 2003 - YCJA has reduced the number of young people sentenced to custody & has focused on alternatives to incarceration - Reserves youth court for only serious violent & repeat offenders - Early prevention & intervention through school networks, communities and assistance to families can help avoid stigma and labeling - There will always be however a small number of young people who are persistent offenders and need multidisciplinary assistance - Biggest mistake is to provide insensitive treatment with the low-risk offenders and then set them off without further entrenchment in the system - Diversion programs were developed to help reduce youth recidivism - Keeping youth in the community allows for a “holistic intervention approach” - Incarcerating people can do more harm than good and most successful interventions should be doing less criminal justice processing for offenders who are low-risk, low-need offenders - YCJA has an increased emphasis on extrajudicial measures à keeps them out of the formal system - Custodial sentences are seen as a measure of last resort for the highest-risk offenders - The continued success of the YCJA is extremely vulnerable from a number of perspectives: 1. The use of extrajudicial measures is based on police and Crown prosecutors exercising discretion and considering those measures as the first course of action 2. The existence of a number of extrajudicial measures and noncustodial sentences depends on the approval and funding of programs by provincial directors and governments 3. The success of many programs depends on the active co-operation of different sectors and individuals - Last year the government introduced amendments to the YCJA with bill C-4 however it died but with the change of government (Liberals to Conservatives) changes proposed in Bill C-4 became part of Bill C-10 à The Safe Streets and Communities Act - C-10 purports to be “comprehensive legislation that will target crime and terrorism and provide support and protection to victims of crime” - Critics of the Bill say that the provisions go overboard with respect to increased sentencing for minor crime and will put thousands more into prisons - The bill also toughens penalties for youth à will make it more likely that there will be more youth in custody - The cost to the provinces are estimated to be between $2-$13 billion over the next 5 years Challenges faced by Youth with Highly Complex Needs - In 2004 a youth involved in a high-speed chase who had multiple previous youth-related offences and was released two days prior, struck a woman and killed her. - The Nunn Commission gave a serious of 34 recommendations in a report in relation to youth justice administration and accountability, youth crime legislation, and the prevention of youth crime - First recommendation à should be additional training and adequate funding for assessment and early intervention in the education system for children and youth with learning disabilities and other mental and psychological disabilities that may increase the likelihood of coming into conflict with the law - This was because approximately 80% of repeat young offenders are living with disabilities, including mental heal
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