SOC219: Lecture 10
Aboriginal
• Despite section 712, we have not seen a decrease in the
representation of aboriginals in the CJS.
• Long term- Need to address underlying systemic factors- need to
look at issues around poverty b/c there is a relationship between
poverty and crime. Need to think about social and educational
infrastructure on reserve and off reserve.
• Self- government- need to recognize that AB plp do come frm a
diff culture, and need to let them take care of their own
community.
• Short term- improving the CJS for everybody. Need to stop and
reflect, remove the politics. System should operate in a sensible
rational manner, so it can improve the system for everybody and
not only those that are disproportionately targeted.
• Maybe we have to stop and think about the uncomfortable
questions, and those with the most privileges should give up
some of what they have. Just changing the law, is not going to
have a dramatic impact. Need to narrow a focus that CJS is only
good to hold plp accountable and not for anything else.
Youth Justice
• 1984- young offender act came into place.
• What is that we’re hoping to achieve, is it different from the adult
system
• Statistics do Canadians believe young plp should be treated
differently than adults.
o Youth system applied to- ages 12-17
o Survey question tried to see how plp evaluate adults
and youth public seem to say that we should evaluate
the same for both adults and youth, so we don’t even need
a separate system.
o Higher likelihood for voting prison if they are adult.
Suggest that in the context of young plp, we are more
reluctant to send them to jail. About 78% say young should
not be sentence to prison but about 50% say old should
not be sentenced to prison.
o WHY?
o Because youth have a diff cognitive aspect. There are
challenges to reason in a logical fashion. Because logical
capacity is developed, as you get older, so may feed into
one’s ability to understand the CJS. They are not able to
appreciate their rights, lawyer. Teenagers also lack a SOC219: Lecture 10
psychosocial maturity so teens are known for being
impulsive and risk taking. They are more susceptive to
pressure from peers. It turns out teens do not think about
the consequences of their act.
o Teens mostly engage in some kind of criminal offending,
but everyone ages out of experimenting with criminal
activity. As plp move into late 20, plp age out this high
crime period. So if we know that most kids break the law
but are going to grow out of it, the concern is about have a
long sentence and this may push them into more offending
because your blocked from other opportunity. If you think
about all the bad thinks you do as a teens, there is a
potential that something you did as young would keep you
from excelling in the future. SO we should be lenient with
adolescence.
o Affects their issues to work- there are number of
employment you cannot attain, restriction to travel,
reputation in community is destroyed. There has been
strict prohibition in identifying young plp Long term
stigmatization because of doing a single bad thing. That
may push the young plp to go out and do more crime.
Provisions to treat some young plp as adults:
• Offence is just too serious, so need to treat offender as an adult
with adult consequences.
• Under JDA- mini trial to determine if the offender should be
trialed as an adult. But only after conviction, the crown can apply
for an adult sentence but remains in youth context so opens
eligibility for longer sentences like an adult. ( adult sentence
administered in a youth court)
• When do we determine when a young person is an adult?
Because you committed a serious offence does that make you an
adult or are you still a young person who just did something
wrong.
History:
JDA
• Before the JDA. 1894 opened first youth court. Separate trial, no
publicity of name, when held in custody, your not held in with
adults but in a separate location.
• 1908- developed separate legislation for youths.
• Now JDA- before was age 7 , but now it is 12. Max age ranged
from 16-18 according to diff provinces.
• 1908 legislation created a offence of delinquency- any provincial
law, any municipal law. i.e. law cannot ride a bike on the SOC219: Lecture 10
sidewalk so charged with delinquency. Under this, it was just a
charge of delinquency
• Status offences offence because of your own personal status.
It is offence because you are a young person. So it is only against
the law because they are young plp.
o Incorrigibility- difficult child- so can be charged with
delinquency.
o Sexual morality- any female acting with a male, bisful
behaviorcharged with delinquency
o Smoking, spitting, drinking
o Truancy- not going to school
• Private trials- plp sitting around and talking about what was
happen. Meeting with adults about the kids.
• Under JDA- always had capacity to treat young person as an
adult- but used rarely. Presumption is that young person should
be dealt with the youth system.
o Adjourne sine die- case ends and you don’t return
o Placed in a suitable family care- foster home with another
family
o Put in training or industrial schools (fancy way of saying
jail, may not look like adult jail but once in could not leave)
• This court had the ability to do sentences indefinitely- so no end
to your sentence, and had the ability to take you out of your
home. UP until age 21, can call you back and take any action the
court deems necessary
• JDA- was not about being a criminal law, but about doing things
for the child’s own good.
o ie. homeless so charge you and put you in a home.
• Something going on in the child’s life that needed attention. So
system was just trying to do something good. Putting in
industrial school is not punitive but doing so because you need
good parents, your parents are not doing a good job.
• No due process right to appeal- for youths. It didn’t matter what
your offence was because everything came under the umbrella
of delinquency. Consequences were the same for everyone.
• PrinciplesMisdirected and misguided child that needed
guidance and correction, youth were not seen as criminals. To
move you out of the state of delinquency, you needed guidance,
help and proper supervision. State was about to act as a caring
parents. Child was not a criminal but a state of delinquency.
Everything was about helping the child to act in the best interest
of the child. (welfare of the child)
• Youth offenders act- YOA – lasted only 20 years SOC219: Lecture 10
o Legislation that was moving in the direction of criminal law,
gets ride of offence of delinquency can only brought into
the youth system if you break a law that is in the criminal
code. A young person can be brought only for the same
reason an adult would be brought.
o More criminal in the orientation of the system, emphasis
that we may want to keep cases out of the formal system
but keep a watch by alternative measures. This act had no
formal principles to what it had to achieve or what was
most imp.
o There was a uniform age across country – 12 – 17 = young
person
o Creation of fixed disposition- not sentencing, disposing you
. Max sent that could be imposed was 2-3 years depending
on particular sentence. SO this meant state can not
indefinitely hold you, the judge had to indicate how long
they are going to keep you
o Sig increase in max sentences from 3 years to 10 years by
the time YOA died.
• New provisions with the YOA- first time we legislated alternative
measures- first time we recognized the due process right of
young plp (right to a lawyer, judge can order govern to pay for
your lawyer)
o Happens in open public court so anyone can come in. right
to a lawyer, cannot be compelled to testify against
yourself.
o Additional protections for young plp, to make sure they
understand their rights, ability for a parent to be present
when questioning police.
o Criminal record automatically removed once you hit a
particular age.
o Criminal piece of legislation, coming in after charter of
rights and freedom so recognizes that young plp have
those rights as well. There is a concern about welfare of
children.
o YOA- added restrictions about the use of custody for young
plp.
o If deterrence does not mostly work, so maybe we should
restrict youth of the lowest punishment available.
o Restraint in the CJS, and the sentences we impose.
o When we ask Canadian there is a distrust about the
prisonment having a positive impact. They do not see the
prison as a positive place. So YOA said we cannot use
custody for child welfare reasons. SOC219: Lecture 10
i.e. child being homel
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