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CRM 3312 A Complete Lectures 2013

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University of Ottawa
Kenneth Campbell

Separate Systems of Justice Lec #1 Sept. 10  Youth and adults should not be held accountable in the same way.  In Canada- treatment has evolved significantly, but recognition of special needs and limitations.  Adolescence – a distinctive stage of development – many physical, psychological, social and intellectual challenges occurring.  3 stages of criminal accountability: o Childhood 0-11 no liability o 12-17 limited accountability o 18 and up adulthood – full legal accountability and rights Separate Systems of Justice - YCJA  YCJA premised on belief that youth is similar to a state of “diminished responsibility similar to those lacking criminal intent” also known as (NCR)  Lack fully developed sense of moral judgment because of age and understanding  Lack intellectual capacity to appreciate fully the consequences of their acts  May lack empathy for victims because of their underdeveloped maturity  They make poor criminals and are easier to apprehend Rationale for a Separate System of Justice  Adolescents lack judgment and knowledge to effectively participate in the court process.  They are much more vulnerable than adults  They are more amenable to rehabilitation and change  In youth cases there is more discussion for rehabilitation as opposed to adult court hearings  Youth could be corrupted by exposure to adult offenders in jail/prisons  YCJA provides that youth should not receive a greater punishment than adults convicted of the same offence in similar circumstances because their needs are much different and because they want to rehabilitate them they are more careful on their decisions. Early Perspectives  Early doctrine held that youth and adults committing crimes: o Had the same intent; o Were similarly responsible; o Received the same punishments  Offender must have violated a law (actusreus) and possess criminal intent (mensrea) individual has to be able to appreciate the nature of their action and they knew what they were doing Doli-Incapax  DoliIncapax – legal doctrine that recognized a lack of maturity aged (7-14) and immunity from prosecution  If court could demonstrate that youth can differentiate right from wrong, accused could stand trial  Over age 14 were criminally responsible, under age were immune from prosecution Children in adult ithtitutions  Mid-late 19 century, youth were housed with adults in deplorable conditions  Brown Commission (1849) examined prison conditions and criticized this practice  Influenced the development of reformatories and in Quebec and Ontario  From the onset they resembled prisons, with scant attention to education and training Roots of 19 Century youth deviance  Increases in immigration to the cities resulted in more visibility of youth  Reformers/child savers considered working-class parents to blame for youth delinquency  J.J. Kelso – a very prominent Canadian reformer – blamed parents, not poverty, for children having to work Industrial Schools  Were developed in an attempt to compel school attendance  Victoria Industrial School (1887)  Different from the reformatory as it involved schooling, taught self-control, training and religious instruction  Criticisms: Seldom reformed, artificial environment, ineffective, and institutional abuses Crime as a Moral Issue  Morality of poor was a concern – children on the street were begging  Parent perceived as immoral, unable to control kids th  Era of social reform – late 19 century  Birth of rehabilitative philosophy  Appropriate social intervention – youthful offenders could be “saved” Probation and Anti-institutional Discourse  Probation involved a variety of agents supervising young offenders  Probation was flexible and reflexive  A radical departure from contemporary custodial modes of regulation  Ontario Children’s Protection Act 1893  Respecting the Arrest, Trial and Imprisonment of Youthful Offenders Juvenile Delinquents Act – 1908  Approach was paternalistic, not adversarial: very forgiving like a parent that provides guidance and assistance and more social welfare whereas adversarial is more like a criminal court system based on facts and charges  Informal courts  Judges had no legal training  Lawyers rarely involved  Powers to retain until 21 years old  Arbitrary and discriminatory not clear and usually heavy punishment was applied  Hearings not trials and you could not plead not guilty and worked against helping kids  Child welfare or parenspatriae (“parent of the country”) philosophy of state intervention based on assessment of child’s best interest.  Modeled after US juvenile court statutes Underlying Principles:  Children are children, even when they break the law should be treated as children  Juvenile delinquents and be reformed through probation officers  Adults should be held criminally liable for bringing about delinquency in children Juvenile Delinquents Act (1908 – 1984)  Established probation programs  Proceedings were held in camera and no public was allowed to enter the court room  Sentences were indeterminate until age 21  Judges had wide discretionary powers  Implementation staggered across Canada  The law made no distinction made between neglected and delinquent youth  Paramount considerations of “best interests”  Delinquents thought to be in need of guidance and assistance  Introduced “status offences”: conduct if undertaken by an adult would not incite legal action: truancy, sexual behavior, incorrigibility JDA Dispositions  Definition: encompasses any child (under 16) who broke a law or declared I need of protection under provincial child welfare legislation  No distinction made between offenders and abandoned or neglected children  Adjournment, Fine (not more than $10), Placement in foster home, Commitment to Children’s Aid Society (CAS) care of P.O.  Confinement in industrial school  Youth not charged, but accused of delinquencies  No pleas of guilty (or not) but admission or denial of allegation Problems  Harsh treatment in training schools  1960’s – growing attacks on JDA  Reformers were not concerned about rights as they were “protecting” children  Once adjudicated youth remained wards of court (21 years)  Lumping together offences (status + crim) undermined seriousness of some offences – this was a serious problematic because there was no differentiation and everything was considered bad Criticisms of JDA  Informality of Court operations  Indeterminacy of sentence  Lack of due process guarantees – lack of rights in court no right to counsel, or question witnesses  Law was applied inconsistently across the country  Definition of delinquency was too broad and not specific  Change influenced by rights discourse during 1960’s – 70’s and death of rehabilitative ideal  Lack of recognition of rights  Youth treated more punitively than adults  No direction regarding youth receiving adult sentences – judicial discretion Impetus for the YOA  “Equality Rights” Section 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race national or ethnic origin, colour, religion, sex, age or mental or physical disability”.  JDA could no longer stand as law because it was replaced by the Equality Rights The Development of Canada’s Youth Justice Law: YOA Lec #3 Sept 19 Young Offenders Act  Strongly influenced by the Charter rights and protections  Greater recognition of children’s rights  Established uniform upper age jurisdiction  Established determinate sentences premised on holding youth accountable  Was focused on rights and accountability Amending the YOA: Canadian Politics and Youth Crime  1986: Minor changes, included: (LIB)  Provisions to facilitate charges for breach of probation  Allow public info about identity of youth at large  1992:Youth crime an election issue (PC)  Lengthened sentence for murder from 3 to 5 years (3 years custody and 2 years probation)  Transfer provisions changed to include “protection of public” as paramount Amending the YOA  1995: “get touch” changes (LIB)  Murder sentenced changed to 10 years  Presumption created for transfer provisions (any young person age 16 to 17 committed one of 4 crimes – murder, attempted murder, aggravated sexual assault and manslaughter, would automatically be given an adult sentence and be put in jail with adults)  Facilitated information sharing  Increased use of community provisions YOA  Justification for state intervention: violation of criminal legislation, must be established by due process of law  Rehabilitative concerns and special needs may affect the way youth are dealt with YOA: Youth system separate from adult system  While accountable, youth are not held accountable in the same way as adults  Recognition of vulnerability, special legal protections not afforded to adults;  Act recognizes that youth are immature and have special needs and circumstances which require special treatment  It’s a social philosophy of the law which is intended to give direction to people dealing with young offenders Young Offender’s Act: Declaration of Principle of the YOA  Intended to give direction to judges, police prosecutors and youth correctional staff  Application is far from straight forwards, a lot of inconsistencies and ambiguities  No statutory priorization, confusion  Jurisprudence dictates a need to balance the principles – implementation varies Aspects:  3(1)(a) Crime Prevention  Symbolic commitment to prevent future crimes and focus on rehabilitation  3(1)(a.1) Accountability – hold youth accountable for using incorrect judgement and understand how their actions impacted someone else’s life. Accountability was limited because of their age  3(1)(b) Protection of Society – recognizes the importance of prevention and rehabilitation but provides protection by incapacitating the youth  3(1)(c)&(1.c) Rehabilitation and Special Needs – youth have different needs than adults so proper treatment and charges would have to be considered carefully before handing down a sentence  3(1)(d) Alternative measures and no measures – first time minor offenders, informal and quick in order to minimize the impact of sentencing  3(1)(e) & (g) Rights of young persons – right to lawyer paid by state regardless of charges, also this law protects statements of the youth. The idea is to protect them in court because in some cases they are unable to understand how their actions were wrong  3(1)(f) Minimal Interference – least intrusive way of responding is the best route in order to minimize labelling etc.  3(1)(h) Parental Involvement –must ensure parents take responsibility and in some cases poor parenting may be the cause of the criminal behavior that the youth committed  Kids have the right to speak to their parents and speak to a lawyer prior to a court proceeding Substantive and Procedural Provisions  1. Arrests and Police Questioning – to prevent harassment by police and abuse of power  1.1 Admissibility of statements  2. Trial Procedure – summary proceedings are applied to youth cases since they are less complicated and faster. The judge has to agree with all the charges and if he thinks there is not enough solid evidence the judge can enter a non-guilty plea against the charges  2.2 Exclusion from court – judge has the right to exclude any member of the public in order to prevent any sort of discrimination or uncomfortable situations for the youth  3. Publication of Information -  No jury, no preliminary hearing and the youth has to be present for the whole thing  The RCMP has to destroy records after 5 years if no further offences are committed  4. Judicial Interim Release – usually released but sometimes detained if they do not have an address, have prior charges or if the public is at danger if they are released. Numerous things are considered such as age, circumstances of offence, whether on probation or not and what ties do they have with the community  5. Alternative Measures – statutory is when it is written in law, used for minor offenders and offences, quick, informal and inexpensive  6. Disposition and disposition review – judge has to look at what has the kid done, what background do they have, what community is he from, what are the kids needs – how mature is the kid, what character does he have, what is his attitude and does he understand what impact his actions had,  6.1 Absolute discharge 20(1)(a)  From now on they are considered reparative sanctions  6.2 Conditional discharge 20(1)(1.a)  6.3 Fines 20(1)(b) – the court has to considered the kids ability to pay the fine, not used very often since it’s considered very punitive  6.4 Compensation for victim’s losses 20(1)(c)– kid has to pay a certain amount of money to replace the property that was damaged but has to be a reasonable amount  6.5 Restitution for stolen property 20(1)(d)  6.6 Compensation to innocent purchasers 20(1)(e)  6.7 Personal services 20(1)(e) – if they vandalised a seniors home they could make the kid shovel the snow for a month or so, but it depends on the crime and circumstances  6.8 Community services 20(1)(g) – give back to community by volunteering  6.9 Prohibition, seizure and forfeiture 20(1)(h) – weapons, animals or illegal tender  6.10 Detention for treatment (repealed) – if they have committed a previous offence they could be detained and treated in a psychiatric pediatric treatment facility  6.11 Probation 20(1)(j) - About 60% of cases and in some cases have mandatory conditions such as keep the peace and do not involve in criminal behavior  6.12 Custody 20(1)(k) & 20(1)(k.1) - Most invasive and punitive condition imposed by judge, has to be necessary for the protection of society given the seriousness of the offence and the needs and circumstances of the offender. The judge decides whether or not the offender goes into open or closed custody. Open custody can be a community residential centre, and a secure custody is kind of a minimum security jail and they are locked up. Kids that usually end up in these custodies have committed more serious or violent offences against other persons. After one year there has to be a review where they can be transferred to other locations, are they disrupting the environment,  7. Transfer to Adult court - Federal – Provincial Tensions  Division of powers causes problems: Feds enact laws, provinces administer juvenile justice  Federal transfer money for youth justice declined after YOA  Provinces disagreed with the federal budget cuts that were affecting the services delivery for young offenders  With YCJA funding has increased Youth Criminal Justice Act – Reserve serious offences for serious offenders  System should: Reserve more serious interventions for most serious crimes  Sets “fair and proportionate accountability” sec. 3.(1)(c) as a central sentencing principle – under the YOA there was not 1 set philosophy such as – rehabilitation, crime prevention etc, but now under YCJA there is one guiding principle that it is should be fair, proportionate accountability  Greater emphasis on diversion – less serious cases not in court and more serious in court  Encourages greater participation of parents, victims, community in process  Gives courts limited authority to admit statements to police even if there is a technical irregularity  New community based options: intensive supervision, attended centered order – ordering a youh to serve 200 hours of instructional course to control themselves  Restricts custody to cases where violence has occurred – cannot use custody as a fall back system, should only be used for violent offences but if a kid has been given probation and they failed, then custody can be applied  Custodial sentence: last third now served in community under supervision (9 months custody means and 3 months serve in the community)  New sentencing option: Intensive Rehabilitative Custody and Supervision – only available to youth who has committed serious offences (attempted murder, murder etc) the youth is sent to a psychiatric center to serve their sentence, and youth has to agree to participate  Provinces have greater authority in establishing youth justice policies  Facilitates imposition of adult sentences Quebec Court of Appeal Reference – Before YCJA was enacted  Government was asking court for opinion, challenging constitutional validity of parts of YCJA  Act created presumption of adult sentencrdfor 14 years found guilty of murder, attempted murder, manslaughter, aggravated sexual assault, 3 serious violent offence – would automatically be given an adult sentence  Court held it is a violation of Charter rights to have a presumptive adult sentence – to not force such a sentence because kids have different needs than adults  Violation to publish identifying information of youth not subject to adult sentence  Federal government will not appeal this decision, will enact consistent legislation  Adult sentence can be imposed but crown has to justify such decision  Crown must now, in all cases, justify adult sentence Supreme Court: R v D.B.  17 year old kid involved in where he assaults a kid R, and continues to attack him while R is on the ground, later on that night R dies. Rarely do youth cases end up in the Supreme Court  D.B. was convicted of manslaughter – received 3 year sentence of intensive rehabilitative custody  Crown sought 5 year adult term  Reverse onus provision deemed unconstitutional (violation of section 7 of the Charter) the court has to prove why this is necessary  7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice  This case underlines the fact that kids have to be treated differently – principle of fundamental justice – youth should be treated more leniently than adults qualified  Youth no longer have to justify why a publication ban is warranted for these sentences  Crown may still ask for an adult sentence, but must now justify why it warranted for that offender  Decision affirms long-standing presumption that youth should be less morally culpable than adults  Burden of proof: Now the government needs to prove that youth’s crime warrants an adult sentence Lec #5 YCJA Declaration of Principle – This is needed for the assignment, how the judge treated the individual and or if they followed any of these points!  YCJ System: o Prevent Crime o Rehabilitate youth o “Meaningful consequences”  System Separate from Adults: o Rehabilitation and reintegration o Fair and proportionate accountability – underlying principle of this law, the punishment should fit the crime o Procedural protections o Timely intervention and promptness – even though the law states that the criminal justice system should be timely it does not always happen occur, sometimes takes up to 1 year o Within fair proportionate accountability, measures taken should:  Reinforce societal values  Encourage reparation of harm – restorative justice  Be meaningful, involve family and community  Respect gender, ethnic cultural, linguistic differences and Aboriginal youth  Special considerations apply:  Youth have rights and freedoms (to be heard, to participate)  Victims should be treated with courtesy Youth Court Process  Most cases resolved informally;  Police investigation involves questioning victims, witnesses, forensic work, interviews;  Youth have the right to consult a lawyer about their rights  Court make take: no measures, extrajudicial measures, warning, caution, parents;  In more serious cases youth may be detained pre-trial or released on conditions  Most youth plead guilty;  Most trials are judge without jury;  Sentencing: pre-sentence report, medical or psych assessment;  Sentences: verbal reprimand up to 3 years in custody as for everything except murder  Youth court can review sentence 6 months to 1 year – may make changes of where the kid is serving the sentence Youth Privacy Protections  Restrictions on disclosure of records  Prohibition on publication of identifying information  Publication when youth is at large and poses risk to public  Adult sentences – before a youth enters a plea he must be informed that crown will seek a sentence Limited Powers of the Youth Court Judge  Lack of appropriate rehabilitative services e.g. for girl young offenders  A facility can offer shelter, education and protection but not a lot more than that  Absence of services means needs are not being met  Judge can order youth to participate in available services or facilities, but cannot compel provinces to offer them or treatment Bill – C10 Safe Streets and Communities Act – Consequences for Young Offenders Purpose and Principal Amendments o Changes are similar to past amendments that died on the order paper Changes to YCJA: o Emphasizes the importance of protecting society – locking people up for longer period o Facilitates the pre-sentencing detention of young persons who reoffend o Addition of deterrence and denunciation as sentencing principles – these are given to adults but they clearly do not work with young offenders because they can be rehabilitated Background o Youth crime and violent youth crime are of concern, but are not on the rise and recent stats indicate decline o Overall youth crime – dropped by 7% in 2010 (compared to 7% in 2009) – violent youth crime – indicates a 3% drop o Sebastiane’s Law – in memory of Sebastien Lacasse o Nunn Commission Report – 39 recommendations written by a member in parliament were incorporated into the Bill-C10 law to toughen up sentences o 2007 – Exhaustive review of and consultation process of the YCJA Bill C-10 Clause 168 Basic Principles of the law – YCJA  Sec. 3(1)(a) – The youth criminal justice system is intended to protect the public  (i) Holding young person’s accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person  (ii) promoting the rehabilitation and reintegration of young persons who have committed offences and  (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community  (b) the criminal justice system for young persons must be separate from the Bill C-10 Clause 190 – Police Records of Extra-Judicial Measures  Currently, in conducting an investigation – police may establish a file that includes measures taken, police notes, victim statements, fingerprints, and photos  Police forces are now required to keep a record of any extra-judicial measures taken  If later a youth is convicted of an offence, police required to forward file to RCMP to keep a records of offenders which is not good because that paper trail will follow the young offender forever! Bill C-10 – Clause 169 Pre-Trial Detention Lec#6  Prior rule – youth court must direct the release of a youth except here Prosecutor can justify it  Specific presumption In favour of releasing a youth until sentencing (sec.29(2) no longer applies  Youth detained if: o Substantial likelihood he won’t appear in court o Necessary for public safety o Serious/violent offence, exceptional circumstances  In order to detain a youth, a judge must be satisfied that no set of condition of release would: o Reduce the likelihood young person will not appear in court o Offer adequate public protection o Maintain public confidence  Now includes offences against both property and persons  Pre-trial detention now extends potentially to youth charged with property offences  Court must consider time served in detention prior to sentence, when sentencing – court decides the credit to crown Bill C-10 – 167 (3) Serious Violent Offence o Serious violence: an indictable offence for which the maximum punishment is imprisonment is 5 years or more and includes: o Offence causing bodily harm o Attempt or threat to cause bodily harm o Offence that endangers life or safety of another by creating the substantial likelihood of bodily harm o Now includes “reckless behavior endangering public safety” sec. 167 o Includes offences such as child pornography murder, impaired driving, assault and sexual assault Bill – C10 – Clause 172 Sentencing Principles o Sentencing: must be proportionate to the severity of the offence, degree of responsibility of youth that afford best chances at rehabilitation/reintegration, least restrictive and no greater than adult would receive o Addition of two objectives to sentencing principles: o “to denounce unlawful conduct” Denunciation o “to deter the youth from committing offences” and deterrence o These are adult sentencing principles that have been rejected in the past Bill – C10 Clause 173 Committal to Custody o Committal to custody allowed – when offence was violent, youth failed to comply with 2 or more non-custodial sentences, exceptional case or committed an indictable offence and several findings of guilt o Now © the young person has committed an indictable offence for which an adult would be liabe to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of finding of guilt or of both Bill – C10 Clauses 176-183 Application of Adult Sentences o Court may now apply an adult sentence: o Where a young person (14 years +) found guilty for an offence where an adult would be liable for 2+ years imprisonment o 14 years +, guilty of murder, attempted murder, manslaughter, aggravated sexual assault or 3 serious violence conviction o In such cases, if Crown does not file for an adult sentence, the Crown is required to inform he court of that fact o Onus is still on the Crown to prove to the court: o Presumption of diminished moral blameworthiness or culpability is rebutted o Youth sentence would not be of sufficient length to hold the young person accountable for offending behavior o Standard of proof is not mentioned (B.A.R.D.?) Children’s Rights, Juvenile Justice, and the UN Convention on the Rights of the Child: Implications for Canada Youth Rights and The Law Children’s Rights o Children’s rights movement has a long history o Idea of rights for children creates controversy – because young children in other countries are used to makes shoes for example so companies could not use these kids to make $$$ o Previous 30 years have seen significant international development Evolution of Rights: PhasthI o Colonial times to 19 century: children viewed as possessions or parental objects o “Reasonable chastisement” o No protective legislation, no separate system of justice o Children were vulnerable to abuse, neglect, exploitation and brutality and were treated similarly to adults Evolution of Rights: Phase II o Confederation to mid 20 Century: views about children changed dramatically o Seen as special case of immature persons o Vulnerable, but possessing rights o Children continued to be viewed as objects in need of care “not-yets because they did not possess rights” o State intervention occurred in cases of maltreatment Evolution of Rights: Phase III o Post WWII – empowerment of children in political, civic and social contexts o Children seen as individuals with inherent rights, subjects not objects o 1959 UN Declaration of Rights of the Child o 1989 UN Convention of the Rights of the Child Hallmarks of the Convention o Civil and Political rights o E.g. right to self-determination, protection from arbitrary arrest, torture or compulsory labour o Recognizes economic, social and cultural rights o E.g. basic economic welfare, health care, education, freedom of religion Fundamental Principles of the Convention o Best interests of the child are a primary consideration o All children have the right to non-discrimination o All children have the right to life, survival and development o All children have the right to participation in decisions that affect them Monitoring Compliance o State parties must submit reports every five years o State parties must consider Committee’s recommendations for changes in policy and practice o Mechanism is limited as there are no formal measures to enforce compliance Canadian Compliance o Convention is not statute – it’s just an interpretive guide on how children’s rights should be respected but it’s not like the Charter o Government has entered reservations to: o Article 37 – children must be held separately from adults o Article 21 – state does not regulate adoption out of respect for Aboriginal peoples – regulating adoption o Health and education standards found to be unsatisfactory for poor/Aboriginal children Compliance of the YCJA o Ensures a variety of dispositions or sentences for young people o Increased focus on child’s dignity, worth, rehabilitation and reintegration o Right to life, maximum survival and development – increase use of community resources o Promotes child’s participation in youth justice system – they have the right to be heard in court rooms and participate in the decisions that affect them o Special considerations of Aboriginal youth Non-Compliance of the YCJA o Still have an emphasis on punishment and accountability like adult offenders – this is problematic! o Emphasis on custody and detention o Youth may be detained in Adult correctional facilities because of space limitations o Adult sentences available for youth is inconsistent with the law – this is like the YJA o Inadequate accommodation for special needs of youth in custody – it’s very hard to meet the needs of the kids that need special treatment o Restrictions on the child’s right to privacy o Lack of consideration of many children’s lives: o Social and economic disadvantages in sentencing o Lack of best interests of the child o The overall theme of this law is not even enforced o Regional disparities – kids in different regions are not considered based on their needs Trends in Youth Crime in Canada Lec#7 Oct 3 Measuring Youth Crime  A lot of youth crime does not get reported which makes it difficult to measure. There is also the grey area of crime which happens behind closed doors.  Starting point – arrests for offences  Most youth engage in aggressive behavior in infancy and decrease their involvement as they age  Thought to be part of “normal” development and does not indicate anything bad How to Measure Youth Crime  Justice system does not provide an accurate portrait of youth crime since most crime is not reported  Must begin with incident, arrest, identify suspect and charge or screening to Extrajudicial measures – police have a lot of discretion on who to charge and how to identify an action as a crime or not  Arrest/court data often measures of policy decision rather than offending behavior Self-Reported Behavior  Common for youth to commit crimes, small numbers get charged –this means that self-reported surveys are the most accurate than other information that is collected  Canadian National Longitudinal Survey: o Data collected every 2 years o 1994-1995 data do not reveal escalation in aggression – it was consistent across time; o Data can be used to show level of stability of offending over time Victimization Surveys  Statistics Canada – shows no evidence for increased victimization over time.  Homicides: public perception of an increase, but data indicate otherwise  Police Recorded Youth Violence  Increase in overall violence rates – 12% in the past 10 years  Climbed 30% since 1991  In 2006, violent crime was one quarter of youth crime  Driven by increases in assaults (80%) Accusations of Homicide  Varies greatly from year to year  2006 highest point since 1961  84 youth – represents 0.1% of all young offenders  2001 – represented a 30 year low  Many (52%) involve multiple perpetrators and gang involvement (22%) Weapons  5% if all youth crimes  20% of youth violent crimes  Knives and other cutting instruments  15% were blunt objects (clubs, bats)  14% were firearms  Typically older youth use weapons (15 – 17 years) Property Crime  Dropped one third from 1996  Break and Enter went down - 47 %  Minor theft – 33% drop (most common)  Motor vehicle theft – 41%  Result of: o Crime prevention targeting B&E o Increased home security devices Drug Related Offences  In 2006 – 1800 youth were accused  Increased dramatically over 10 years (+97%)  84% involve cannabis  Controlled Drugs and Substances Act  Strengthened law enforcement powers  Increased the range of illegal substances covered (LSD, steroids, amphetamines)  Increase in other drug use (crystal meth, ecstasy) Crimes at School  13% of Criminal Code and drug violations occur on school property  73% occurred during school hours  “Zero tolerance” policies increase likelihood that violence is reported o Common assaults 30% o Uttering threats 8% o Drug Offences 20% (70% possession and 10% trafficking) o Weapons 7% Measures other than Charges  74,000 charged with a crime  104,000 cleared using other measures o Warning and Cautions increased 44% o Extrajudicial program referrals 9% o Other means 47%  55% of males, 64% of females Provincial Variation  Canada – 6,885 per 100,000  PQ – 3,765 per 100,000  Saskatchewan – 19,939 per 100,000 large representation of Aboriginal population  Increases in youth crime in 2006: o All except PQ (largest increases PEI, NFLD, NS, MAN) 2006 Statistics  Violent crime accounts for ¼ of crime  Driven by an increase in assault rates  Highest point re. Homicide (84)  Weapon involved in 5% and 20%  Involvement in other Criminal Code offences has increased such as (mischiefs, bail violations, disturbing the peace) 34%  Drops in property crime (-47% B&E, minor theft – 33%)  Due to policing and home security  Increase in drug offences  ¾ of youth crime takes place at school Youth Crime and the Media  Media often convey the notion youth crime is out of control – this is the biggest source and they report that crime is increasing and that the criminal justice is not doing a good job  Remedy is tougher punishments  Journalists want to name young offenders – they want to put a name to a face  Cornerstone of youth justice is that a youth’s identity should be protected – privacy remains protected and not revealed Right to Privacy in Juvenile Justice Proceedings: Legislation  Juvenile Delinquents Act: hearings held in camera and no other persons allowed other than family and court personnel but after changed:  JDA banned publication of a youth’s identity  Unless in the “best interests” of child  Challenges to the Bill of Rights allowed some media access  Young Offenders Act allowed media and public in the courtroom but banned publication of youth’s name  Media reported on sensationalist stories  Increased fear and created a lack of public confidence in the system  Politicians responded by getting tougher on crime thus creating new policies etc… YCJA Lec #8  Youth Criminal Justice Act: court proceedings continue to be open to the public and press  Publication of name is banned, unless: o Youth receives an adult sentence o Court allows it, taking into account the importance of rehabilitation International Agreements  Protect a juvenile’s right to privacy, in order to avoid harm through publicity and labelling. Including o Beijing Rules o United Nations Convention on the Rights of the Child Right to Privacy: Rationale  Proponents of publication argue: o 1. Societal protection would be better served, through increased information o 2. Enhanced deterrent effect on young offender because of shaming  Unrealistic to expect the public would avail themselves of this information  Deterrence is ineffective with youth because they usually commit crimes without thinking of consequ Myths about Youth Crime  Media are an important source of common misperceptions about crime  Media reporting fosters unrealistic fears because they dramatize things which is not always the case  Factors influence crime news selection: o Seriousness of offence o Unusual elements o Sentimental aspects of offence o Involvement of famous persons  Vocabulary conveys message that crime must be “fought” rather than “solved”  Criminal acts will be publicized if: o Unusual o Increased number of victims o Multiple offenders o Victims are elderly, female, children, or affluent Moral Panics (Cohen, 1974)  Creating moral outrage through: o Negative images in the media of that group o Public outcry leading to harsher treatment of those individuals  He was the first to show us how the media tends to sensationalize things in order to make us believe what they convey although it’s mostly inaccurate and false  Cohen demonstrated a moral panic in the UK in 1970’s (mods and rockers)  Police overreacted, mediate perpetuated threat Moral Panic (Goode & Ben-Yehuda 1996)  Heightened level of concern over group  Increased hostility towards group  Widespread consensus re. threat  Concern is disproportionate to harm  Moral panics are volatile and relatively short-lived Moral Panics  Crime waves are actually media waves (Bortner, 1988)  Panics de-contextualize youth crime – when reading a media report we don’t get the full picture  Most frequent reporting is of individual episodic events, dissociated from context (historical, social environment) Research on Media Reporting  Reporting only began post Young Offenders Act (YOA) so it’s very recent  Various studies affirm previous findings  Alarmist reactions to crime: o Emotionally driven, promote fear to public o Cause and effect of moral panics; o Justify inappropriate, harsher strategies for dealing with youth crime How the media regulations to privacy and international agreement, what is the rationale and how weak the argument is, the myths, what kind of crimes get reported and what the message is, the moral panics what kind of impact and what the public believes Notion of different ways of measuring youth crime, how to count, what’s most accurate, some general trends in terms of violence, youth violence, homicide, drugs, weapons – check tables and graphs, what’s increasing what decreasing in terms of rehabilitation, arrests etc. Children rights movement and the regulations of the phases of evolution rights, How does Canada not comply with rights, and the non-compliance of the YCJA Bill-C10 check online PDF – what changes the bill c 10 brought to YCJA and the background page, what did it change in terms of extra judicial measures, before there was discretion now police have to keep record, release is not there, serious violent offences, sentencing Principles will be, YCJA – tensions that were behind the YCJA becoming law, what is the system supposed to do, what are the fundamental principles, greater emphasis on diversion, some of the new sentencing options, what was the result of the adult sentence. R v. D, how does YCJA differ from YOA, and the Youth Court process YOA – influenced by charter, amended 3 times, idea of balance, separate system of justice with limited accountability, what are some of the problems and why move away from it, enactment of YCJA, what is the declaration of Principle of the YOA AND YCJA what are the differences, what are the different sections mean, what are some of the substantial procedures that this law provides Historical perspective – age, why different system of justice becausethhey are more vulnerable and less maturity of adults, not able to think the same, Doli Incapax, roots of 19 Century, first types of institution such as the Industrial schools, Juvenile Delinquents Act and what modelled, what the principles were, what were some provisions available and what were some of the problems of the JDA. From now on Intervention comes to play: Police Decision-making with Young Offenders: Arrest, Questioning and Dispositions Lec #9 Oct 24 Initial Contact with Police:  Most police work is reactive - respond to crime after it happens When crime is reported, police:  Gather information and investigate then decide what to do  Identify the offender  Chose a disposition - how to deal with the case.... informal action or formal action which is laying a charge such as a warning etc...  Make a police report  Decide the mode used to compel court attendance Arrest, Search and Questioning of Young Persons o Legal authority is set out in the Criminal Code: Charter of Rights relates to policing Arrest: constraint of freedom: o Physically, by order lay a charge which is completing a form called information o Must have reasonable grounds, warrant and to be believe that the youth has committed an offence o Allowed without a warrant if they think they have committed or about to commit and offence or about to commit an offence or have an outstanding warrant Applies differently for youth: o Must notify parents by calling them or send a letter and state reason of arrest and location of detention o Right to retain and instruct counsel - parents cannot instruct counsel Search: cannot be used for "fishing" o Allowable without a warrant at times - evidence is being destructed, believe that there are weapons in the property, make sure they are safe YCJA modifies search for youth:  For police protection - for their own protection o Occupant has a "named substance" on him/her. o School officials are not subject to the same constraints as police o Case law is contradictory regarding room searches - not clear of what the rules are regarding searching a room of a child in a house of parents - either parents have to give the right to go ahead or parents School Searches: Reduced Expectation of Privacy o R. v. M.R.M. - search by VP need reasonable grounds to believe that a violation of school regulations or discipline has occurred - not agents of the police o Must consider credibility and specificity of information o Same conduct by the police would have been unconstitutional o Locker searches are considered legal; o Less intrusive than searching persons o Officials often have keys and policies that lockers may be searched o Youth have fewer Charter Rights when being questioned/searched by school officials than by police o R. v. A.M. - police search for drugs with sniffer dogs, without a specific request, but with principal's permission o Drugs found and youth charged with possession o Youth court found a violation of Charter Sec. 8 and excluded the evidence o The reason why the kid was acquitted because they violated the procedures that they found the drugs o Supreme Court clarified the role of sniffer dogs; o Can be used without a warrant for routine criminal investigation based on "reasonable suspicion" drugs may be present o Only public safety concerns would allow for a broader scope for police action – if a gun was in the school then they could go and search since it’s dangerous as also explained below o For drug search it has to be more specific of the details, but when it comes to public safety it's important to search everything in order to protect. Arrest, Search and Questioning of Young Persons Confession is not admissible if:  Not voluntary;  Obtained in a manner that infringed on rights Issue of Voluntariness is significant for youth:  Kids lack sophistication to understand rights  Don't understand roles of professionals  More open to influence of authority figures Sec. 146 of YCJA statement is inadmissible unless before statement, youth was informed of:  Right to remain silent  Evidence may be used against him/her  Youth had right to counsel or consult their parents  Youth could consult with counsel/parent before making the statement - youth can waive that right  Must be made in a language that was appropriate to youth's age and level of understanding  Admissibility of statement is most often litigated at trial Provisions that undercut protections:  Youth may waive right counsel/advice either audio recorder/videotaped  Judge may admit a statement where there has been a "technical irregularity" even though police might of made a mistake thinking that the kid understood what was being told, the judge can still admit it if the circumstances permit Police Dispositions for Young Offenders Informal Action:  Extrajudicial measures  Formal/informal warning - involve parents, social parents, or taking no action  78% of officers sample always considered informal or no action in most cases Diversion to a program: this is considered significant because want to keep kids out of the formal system, and keep this for serious offences:  Eligibility set by provinces (pre or post-charge)  99% of sample use diversion  Greatest dissatisfaction was unavailability of programs because not too many good programs to refer kids Factors Affecting Decision to Charge  Prior contacts with the police: strongly associated likelihood to charge  96% of sample said it was a major factor  Demeanor: more likely to be arrested if hostile, uncooperative or disrespectful  71% of sample considered it as a major factor when laying charges  Victim’s preference: 56% influenced by it  Youth’s Home, School and Parental situation: 42% considered it influential in decisions  Gang related Crime/Garn affiliated youth: 39% felt it was influential in decisions  Youth’s Age: 27% felt it was influential, UCR2 data indicated older youth charged more  Race: No respondents found it important  Other Issues: No role for lone/groups, location, intoxication, adult involvement, relationship with victim, gender  Nature and Circumstances of the incident are very important - how serious was the crime, who's the victim and what state are they in, was the act done alone or was another person or adult present  Characteristics of the offender - prior convictions, race, gender, age  Seriousness of the Offence: related to degree of harm done, weapon, victim and 98% of officers take this into account each time  UCR2 Survey Statistics - confirm the importance of weapons and harm done as significant factors Compelling Attendance at Court Lec #10 Oct 29  Surest method – detain youth  Voluntary methods: o Summons and Appearance notice o Release on Promise to Appear (PTA) - these are given on the street like a ticket  With Officer in charge undertaking (OIC) o Detention for a Judicial Interim Release Hearing:  Most intrusive option  Criminal Code establishes criteria The Roles of Legal Professionals in Youth Court Role of the Crown:  Must balance their role as: o Adversaries o Guardians of the public interest  Particularly challenging with youth due to immaturity, impact of system on them and long-term public protection  Crown involvement extends from pre-charge to sentencing Youth Criminal Justice Act  Structures Crown and Police discretion around extrajudicial measures, sentencing and custody  Police/Crown Caution programs – such as sending a letter to a youth  Such measures reduce charges – the idea is to keep more kids outside of the justice system  Fact Pattern: Police would consider extrajudicial measures for all three boys Extrajudicial Sanctions  YCJA allows ES only if youth cannot be dealt with via warning, caution or referral Plea Resolutions and Youth S
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