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SOSC 2350 Note 21.docx

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York University
Social Science
SOSC 2350
Dena Demos

SOSC 2350 Note 21 Youth and the Law: History of Youth Law in Canada Changes - There is an omission of next week’s reading is cancelled – no discussion on human rights - Instead, we will be talking about the Carol Smart and Making Space for Mosques reading - The following week (Apr.2) will be an exam review. The exam review will last an hour - YCJA + Preamble o This afternoon we will talk about the framework of the legal treatment of youth o There will be an emphasis on Canada rather than the US, and how childhood has been generally constructed Rise of the Child Saving Movement: - What were the dynamics of the popular and legislative drive to bring undesirable youth behaviour within the ambit of criminal law? - How can we apply Foucaltian tools to understand those powers? - Specifically, we want to look at the Child movement o This was a conservative movement of the 19 century lead by middle- upper class women o It was designed to impose particular sanctions unbecoming to youth  They were unified towards an ideology  They were unified in a belief that young people needed to be supervised  They passed a legislation for close supervision to the activities o The image they’re trying to set is that youth are innocent and vulnerable, thus making it easier to corrupt them – therefore there had to be a lessened exposure to things that corrupted them o This was a time of innocence that required special protection - Prior to the Child-saving movement kids were seen as miniature adults, and there was no special treatment because there was nothing particularly special or unique about childhood. - The movement brought attention to and invented new legal categories of youthful misbehaviour which had been previously unappreciated or had been dealt with on an informal basis - Was characterized by a rhetoric of legitimization built on traditional values and imagery - One of the main forces behind the child-saving movement was a concern for the structure of family life and the proper socialization of young persons. These were concerns that had traditionally given purpose to a woman’s life - Child safety could be referred to as a crusade for child safety by feminist o Women’s general functions were threatened by urbanization that rearranged family life - Women’s traditional functions were dramatically threatened by the weakening of domestic roles and rearrangement of family life Pre-Juvenile Delinquent’s Act (Prior to 1908) - During this time, kids, regardless what age, are treated mainly like adults. Both the sentences and the punishments for crimes are the same for both children and adults - Even prior to 1908, the idea of criminal responsibility gradually starts becoming questioned. This questioning eventually results in 1893 in the principle of doli incapax (the inability to do wrong) o This idea is to be understood in a criminal context. - Because of their age and immaturity, policy-makers during this era believed that kids lacked the ability to form mens rea (intent) o By virtue of age they are unable to form the intent for us to charge them criminally. - The lthal principle of doli incapax applied for kids under the age of 7 (before the 7 birthday) - For children between the ages of 7-14, there was a rebuttable presumption of incapacity. Children older than 14 were treated no differently from adults. o This means that the onus is on the court and crown to show that this particular kid in question had a capacity or mental state to commit the crime o There is legislation being drafted that tries to help kids, but also to control and police kid behaviour in public, urban spaces (the age of industrialization) Late 1800s - Special reformatories developed for kids. Belief in Social Darwinism had made it clear that crime was a disease that the vulnerable required segregation from o Crime is seen as a disease can spread. - Codification in law of the doli incapax rule o Even if the criminal law couldn’t touch you (10 years old), you would still be dealt with through social or mental welfare. - In the mid-1800s, the trial system was changed for youth. While previously kids were processed in the same system as adults, in the mid-1800s the trial system was made quicker and less formal - The child-saving movement was motivated by rather well-intended middle and upper class folks who wanted to do something to improve the welfare of kids - The broader social movement was linked to growing industrialization and migration to cities that followed to certain social ills o Growing awareness of how industrialization and migration to large cities was affecting children - The move to urban cities where people could toil in factories, led to the things like the abandonment and neglect of many children - Urban life was regarded as crimogenic - Children reformers pushed for child labour laws, orphanages, public schools, reformatories, child welfare agencies, and ultimately for separate youth courts and a separate correctional system for youth o They wanted to make city life more “wholesome” o The endgame was to have a separate court system for children  This was good in theory – reformers pressed for things that would benefit kids o The goal was to return the children to what was deemed to be a “normal childhood state” - Child welfare reformers have been criticized as having pushed for these reformers, bot out of a benign need to help children, but out of a self- interests desire to protect the moral tone of the country o Urban life itself was understood as crimogenic – life in the city carried implications for social disorder  People lived their lives in disorder in this urban space - Normalcy was based on middle-class values – the child-saved reforms were politically aimed at lower-class behaviour o This was very instrumental in intimidating and controlling the urban poor - Youth and youth justice becomes an issue until 1908 when it becomes a legislation. o What was happening in Canada, socially and economically in 1900s? o This is because there was a rapidly increasing lifespan – they were living longer, they were healthier than they were before. - Children eventually become a problem population, and eventually there is a feeling that they need to be control o They family has changed, they’re at the families, and the kids are unattended. o The nuclear family looks different, they were worrisomely different - How do you address things? o Create institutions for both the good and the bad. The good will include mandatory schooling and the problematic ones would be warehoused so that they (alongside society) could be saved.  This is a preoccupation. Juvenile Delinquent’s Act (1908) - It comes out directly out of the actions of the Child Savers and positivist philosophy o It was child-welfare legislation - The preamble of the JDA stressed treatment and control (separation of youth from adults), and no distinctions should have been made between children who had been neglected, and those who had been mistreated. - The best interest of the child was a key concept o This was very vaguely defined – the focus was on treatment, not on accountability. - The desire was to save children - therefore there was a clear merging of child welfare and criminal law. - The focus wasn’t on accountability, instead there is a focus on how we can help them – the focus wasn’t to be considered punishment. - Key Provisions of the JDA: o Employed a unique definition of a juvenile delinquent – a child who was in a condition of delinquency - It applied to the following conditions o The child had committed a criminal code offence o The child had committed any other violation of federal legislation o The child had breached a provincial statute o The child had breached a by-law o The fifth category consists of status offences. The training schools Act provided that children who were eligible be sent to a reformatory. Groups included unmanageability o The child had participated in sexual immorality. This particular provision was used to police appropriate genders for young girls. - The JDA didn’t outline a minimum age, but the doli incapax rule applied – applied to those aged 7 and above o The courts had the power to set maximum - The maximum age was set at 16, 18, etc. –In terms of the role of the parents, it was rather limited o Courts were very informal, o If the parents could be also charged if proven to have associated with the crime - Parens Patriae – it was thought that the relationship between the State and children wasn’t Antagonistic. - Youth had very few rights under the JDA – criminal justice personnel, particularly by judges, enjoyed vast discretion. - The was this was argued, it was seen as “treatment”, not punishment. If it was treatment why would youth need judges in the first place? Lawyers made the process complicated o These delinquents have a “disease” that needs to be treated as quickly as possible, therefore there was no delay in getting children the treatment that they required - The judges had vast discretion as far as disposition one o Note how different this is from the current regime in how limited the traditional discretion has become. - Sentenced under the delinquency act wasn’t even viewed as a punishment, instead it was referred to as a healing transition (treatment). o It is said to be impossible in advance the amount of time it would take to “treat” the young person – treatment can be time consuming. Professionals would decide when you would be released. Criticism of the JDA - It was influenced primarily by the rights movement and by the enactment of the charter - The first problem had to do with the vague definition of delinquent. The vagueness meant that virtually any child could be brought under the control of the state o Second: Unfair status offences  These essentially punished youth for being youth – only young people could be charged with a status offence (breaking curfew). By 1961 this was deemed to be unfair o Third: Excessive discretion o Fourth: Indeterminate sentences were deemed to be completely unfair and problematic  This is one of the biggest criticisms of the act – the indeterminacy of sentenced.  The fact that the sentence was to the discretion of prison guards was the problem of disparity  Two kids who violated the same law received different sentences. o Fifth: Lack of due process  By 1961 Canada has the Bill of Rights – the absence of rights for youth being processed to the legal system was very problematic o Sixth: Lack of rehabilitation  This is a more theoretical critique  Based on statistics, the JDA wasn’t preventing youth crime or rehabilitating youth much either.  This was an important criticism from a “rights” perspective”  If the “so called treatment” didn’t work, then it wasn’t treatment and instead was punishment.  If it was recognized as punishment, then kids needed to be equipped with proper rights. o Seventh: Allegations of abuse at custodial facilities and training schools  T
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