Week 11 Lecture – March 18, 2014
Youth and Law
History of Youth Law in Canada
The Rise of the Child Saving Movement: Images of Delinquency
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 Foucaultian tools to understand those processes?
What were you meant to get from the foucaultian lecture on how modern power operates?
by looking at the history of youth law in Canada we can understand how modern power operates according to Foucault.
Designed to impose sanctions that were not good for the youth and lead by upper or middle class white women.
They were unified in the relief that young people need to be constantly supervised and passed legislation that would allow close surveillance of
adolescents especially in recreational activities.
The rationale was that children are precious and vulnerable and innocent and because of this it made them susceptible to corruptive influences. You see
the idea of ideololization of childhood as a time of innocence that needs special protection. This is a new way of thinking of children and childhood that
emerges in this time frame.
Before this movement children were not special or thought of differently or certain laws to control them.
“[T]he 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” (Platt, 1969: 21).
You can think of this movement as a crusade.
Was characterized by a “rhetoric of legitimization,” built on traditional values and imagery (Platt, 1969: 22).
One of the main forces behind the childsaving 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.
Women’s traditional functions were dramatically threatened by the weakening of domestic roles and the rearrangement of family life” (Platt, 1969: 26).
middle class women are experiencing a status revolution and certain institutions were threatening and weakening their domestic roles in family life. The
result of industrialization replaced the role of women and made their roles to be working rather then being at home taking care of children.
PreJuvenile Delinquent’s Act (prior to 1908)
During this time frame, kids, regardless of age, are treated mainly like adults. Both the sentences and the punishments for crimes are the same for both
children and adults. Childhood and children before this time frame are not ideolize and are thought of as small adults but have no rights and are not
understood as being rational people.
One exception: Even prior to 1908, the idea of criminal responsibility gradually starts becoming questioned and being changed. This questioning
eventually results in 1893 in the principle of doli incapax (the inability to do wrong). They question that children have the ability to be held
accountable for crimes.
Because of their age and immaturity, policymakers prior to 1908 during this era believed that kids lacked the ability to form mens rea the criminal
intent necessary for legal culpability.
The legal principle of doli incapax applied for kids under the age of 7 (before their 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.
The onus was on the crown to decide if they were capable or not through a rebuttable. Late 1800’s:
The beginning to attempt to police children In poor families.
the first thing that was developed in the late 1800’s were Special reformatories developed for kids.
The Belief in Social Darwinism theories had made it clear that crime was a disease that the vulnerable required segregation from. You need to separate
the healthy from the diseased and crime was a disease that could spread if it was not addressed.
Codification in law of the doli incapax rule. In 1982 the minimum age is raised to 12 and you are a youth if you are under the age of 18.
In the mid1800s, the trial system was changed for youth. While previously kids were processed in the same system as adults, in the mid1800’s the
trial system was made less formal and quicker.
The Child Saving Movement was motivated by rather wellintended middle and upper class folks who wanted to do something to improve the welfare of
The broader social movement of the era and the child saving moment was linked to growing industrialization and migration to cities that followed.
there is a Growing awareness by the mid 1800’s of how industrialization and migration to large cities was affecting children.
The move to urban cities where people could toil/work in factories, led to the abandonment and neglect of many children. They seem to be roaming the
streets and there is a lack of supervision because parents were working, or they were working and not attending school. This was a problem for middle
class people because there were young people hanging out and not being constructive. This was bringing down the moral tone of society.
Urban life was regarded as crimogenic. Seen as unregulated, lack of social rules, and the inhabitants of citites were seen as abnormal and struggling
and not very adjusted. It was the task of the social reformers to make city life better.
Child welfare 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.
these child reformers were criticized bcause they did not care for children they were just acting out of self interest to protect the moral tone of the
country. The point was to return these children to a normal state.
Child welfare reformers have been criticized as having pushed for these reforms, not out of a benign need to help children, but out of a selfinterested
desire to protect the moral tone of the country.
Normalcy was based on middleclass values.
the child savers were successful in intimidating the poor and the law legitimized their way of achieveing particular goals. This is an example of using the
law to achieve moral goals.
By 1900 people were living longer because of advances in science and its not necessarily that there are more children but more of them were surviving
infancy and this was growing the population and the general feeling was that they needed to be controlled properly. The nuclear family unit had changed
and parents were working and children were roaming the streets. They enforced child reformers and created 2 institutions one to work on the good
children and one to work on the bad children. Helping the good children and saving the bad children from being corrupted.
This is a preoccupation with child welfare.
The JDA embraces a child welfare philosophy, and this is criminal legislation that has strong social welfare philosophy.
JUVENILE DELINQUENT’S ACT (1908)
The Juvenile Delinquent’s Act came directly out of the actions of the Child Savers and positivist philosophy.
(social Darwinism) It was childwelfare legislation.
The Preamble (introductory statement) of the JDA stressed treatment and control; separation of youth from adults; and emphasized that no distinction
be made between neglected and delinquent children. In other words, that neglected and delinquent children were to be treated identically.
whether you were neglected or committing a crime you were to be treated the same way and it was a criminal punishment.
The ‘best interests’ of the child was a key concept that was never really defined and was vague.
Whether you were roaming the streets or committing a crime they needed to be saved not concerned with the crime but with the treatment.
The focus was on treatment – not on accountability. Not about punishment but about treatment To make them a better person.
The desire was to ‘save’ children – therefore there was a clear merging of child welfare and criminal law. Using criminal law to achieve a social goal.
Key Provisions of the JDA
The JDA employed a unique definition of juvenile delinquent. A juvenile delinquent was defined as a child who was ‘in the condition of delinquency.’ This
means that its not necessary for a children to be charge with a crime to be a delinquent it could be other things as follows:
The JDA applied to the following conditions (deliquent):
1.The child had committed a criminal code offence;
2.The child had committed any other violation of federal legislation (for example selling narcotics).
3.The child had breached a provincial statute (e.g. violation of the Education Act (truancy), or has violated child welfare law (curfews).
4)The child had breached a bylaw. Ie. Didn’t pay bus fair.
5)The fifth category consists of STATUS OFFENCES. The Training Schools Act provided that children who were eligible be sent to a reformatory.
Grounds for eligibility included unmanageability.
6)The child had participated in sexual immorality. This particular provision was used to police appropriate gender roles for young girls.
The JDA didn’t outline a minimum age, but the doli incapax rule applied – applied to those aged 7 and above.
Under the JDA, each province was allowed to decide the upper age (some provinces set it at 16, others at 18).
In terms of the role of parents, it was rather limited. Parents can also be prosecuted for contributing to their childs delinquency.
The JDA introduced the concept of ‘parens patriae.’ Father of the country. This is paternalistic legislation that the state was thought of to be
operating like a father or parent and this is reflected in this concept. The relationship between the state and the children was thought to be a kind but
stern parent and just improving the young people.
criminal/Court proceedings were very informal and very rarely the trials would last more then a couple of hours, young people had no rights and there
were no lawyers.
Youth had very few rights under the JDA because it was thought of as treatment to correct their wrong behaviour. By allowing lawyers and rights it would
complicate the proceedings which would be problematic to the child saving reformers they claimed the kids needed help right away and rights and
lawyers would delay proceedings.
Vast discretion was enjoyed by criminal justice personnel, particularly by judges. It was up to the judge to decide what to do with the kids. A fine,
custody, probation, training school, adjournment etc.
you ca have two offenders committing the same offence but could get different penalties at the determination of the judge. This is very different from the
current regime. Most judges dealing with youth have little discretion and completely follow the law. Sentencing was considered a disposition because it
wasn’t meant to be seen as a punishment it was more of a therapy or treatment. Adults got a sentence and young people got a disposition. CRITICISMS AND REFORM OF JDA (1961 – 1982)
Criticism of the JDA was influenced primarily by the rights movement and by the enactment of the Charter. A few of the criticisms included:
1.The vague definition of ‘delinquent’. The vagueness meant that virtually any child could be brought under the control of the state.
2.Unfair status offences. They were punishing youth for being youth. It was children from poor or working class families that were being punished by the
state with these consequences. Breaking curfew or truancy.
3.Excessive discretion by judges.
4.Indeterminate sentences were seen as unjust. Once you received a disposition the judge gave you your disposition and it was indefinite and no time
limit was suggested it was just based on when you