SOSC 2350 Note 21
Youth and the Law: History of Youth Law in Canada
- There is an omission of next week’s reading is cancelled – no discussion on
- Instead, we will be talking about the Carol Smart and Making Space for
- 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
They passed a legislation for close supervision to the
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
- 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
- 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
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
- Special reformatories developed for kids. Belief in Social Darwinism had
made it clear that crime was a disease that the vulnerable required
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
- 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
- Youth and youth justice becomes an issue until 1908 when it becomes a
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
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
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
- 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 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
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
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”
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