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Chapter 3 & 4

LAWS 3307 Chapter Notes - Chapter 3 & 4: Youth Criminal Justice Act, The Young Offenders, Criminal Law Of Canada


Department
Law
Course Code
LAWS 3307
Professor
Mike Smith
Chapter
3 & 4

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YOUTH AND CRIMINAL LAW
CH.3 LEGISLATIVE FRAMEWORK: CRIMINAL OFFENCES
Juvenile Delinquents Act (1970) 1908 1984: was the guiding legislation for youth
criminal justice for ¾ of the country, from 1908 until the implementation of the
Young Offenders Act in 1984
Young Offenders Act repealed by the YCJA in 2003
Minimum and Maximum Age Jurisdiction in the Juvenile Justice System
Doli incapax notion that a child of tender years (under 7) was incapable of an
unlawful act because he/she was incapable of evil intent [children aren’t capable of
distinguishing between right and wrong]
Puberty was traditionally reached at 14 for boys and 12 for girls children between
7-14 were considered accountable for their actions, but only if the proof od their
intention to act was clear and certain
Since April 1, 2003, the criminal prosecution of people in Canada who are aged 12-
18 has been governed by the YCJA
- S.2 set out its “age jurisdiction”: only people aged 12+ and who’re younger
than 18 at the time of committing an alleged offence are covered by the law
- After being found guilty, adolescents who were 14-17 at the time of the
alleged offence may be sentenced as assaults under certain conditions,
- People younger than 12 when they commit what would otherwise be
considered a criminal offence can’t be prosecuted under Canadian criminal
law
- The separate and distinct treatment of adolescent offenders under the YCJA
was affirmed by the 2012 amendments to the law making law harsher for
the most serious offenders, it also provides that youth are to be kept in youth
facilities at least until they turn 18, even if they’re serving an adult sentence
In criminology, the positivist school of thought dominated the period between the
late 19th century through the middle of the 20th century
- While the classical approach emphasized rationality as the root of both adult
and youth behaviour, the positivist paradigm allowed greater recognition of
social ills as a cause this new theory characterized crime prevention as a
responsibility of society in general and sought to prevent crime by promoting
the welfare of the population, shifting the emphasis from a punitive to a
rehabilitative response
- Positivists believed crime was caused not by a deliberate act, but by forces,
such as societal and/or parental failure, that were out of the individual’s
control

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Positivist school of thought a branch of social sciences that argues that human
behaviour is a product of social, biological, or psychological forces
Paradigm a pattern to explain phenomena
The Juvenile Delinquents Act
- The positivist approach was highly influential in the drafting of the JDA
- Through this “welfare model” legislation, the drafter sought to integrate an
approach based on the “best interests “ of children, and a framework to
address “delinquency” or misbehaviour
- Children were not to be perceived as “criminal,” but rather “misguided” and
“misdirected”
- The JDA system was modelled on the parens patriae approach
o Parens patriae the doctrine that the state has the responsibility to
look after the well-being of vulnerable persons, such as youth, and to
step in as parent if necessary
o “state as parent”; emphasizes state protection of the property and
lives of vulnerable persons
o Implies a connection between flawed care and control (poor
parenting) and juvenile criminality
- 19th century, An Act for the Prevention of Cruelty to and Better Protection of
Children (1893) in Ontario lobbied hard for the welfare-oriented JDA the
common purpose of the two pieces of legislation was to protect “misdirected”
young persons from their own “evil tendencies” and from becoming
criminals, and to sae them from wilful neglect and the prospect of “idle,
dissolute, immoral lives”
o The JDA extended from age 7 to 16 or 17 years
- The court’s structure under the JDA was procedurally inform the purpose
of this informality was to allow for ample flexibility in the design of rehab
programs suited to individual needs
- The legislation specified little if any procedural rights for the alleged
delinquent child
- The court processes were informal and speedy, not subject to the discipline
of public scrutiny in the courts or in the press, judicial appeal, or due process
procedures
o Discretion and informality were promoted, despite the potential for
coercive action
o Children had no explicit right to legal representation, and appeals
were extremely limited
- A juvenile could be found to be “in a state of delinquency” for offences that
were relevant only to youth, known as status offences (ex. Truancy, sexual
impropriety)
Status offence a genre of criminal offence that is based not on the committing in
the past of a particular prohibited action or inaction but on the allegation that the
offender has a certain personal condition or is of a specified character

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- Treatment and rehab often meant long periods of custody in “training
school”, “industrial school” or “reformatory” were imposed on children and
youth who may not have committed any criminal offence, but had been seen
to be incorrigible, truant, or otherwise disruptive to the maintenance of an
orderly community
- “Rights revolution” and other socio-political influences of the late 1960s
inspired an increase in critical writing on youth justice
- By the late 1960s, social workers and lawyers grew increasingly uneasy
about the discretion given judges who sit in juvenile courts argued children
should be accorded the same legal rights as adults
- The principle of due process requires that young people be regarded as
persons, entitled to a minimum number of social goods because they’re
individuals and citizens a rights approach requires that criminal justice
officials justify their control over an alleged delinquent
- When there is justification for intervention, the due process principle
suggests, the state should impose the least restrictive means in balancing the
interests of the individual criminal and society’s need for protection
The Young Offenders Act
- In 1995, the federal government appointed a committee of the Department of
Justice to research the problem of juvenile delinquency and offer its
recommendations for legislative reform
- The result was a report that led to a draft bill to replace the JDA
- This was followed, in 1970, by Bill C-192, which died after the second reading
- As a result of the bill’s failure, a solicitor general’s committee was established
to evaluate the proposed reforms eventually led to Bill-61 (1981), which
came into force as the Young Offenders Act in 1984
- 3 important developments that contributed to successful reform in the late
1970s and early 1980s:
1. Empirical studies demonstrated that rehabilitative techniques
consistent with the parens patriae system had been ineffective in
preventing recidivism
2. Academics and professionals increasingly emphasized the
potential of diversion programs “Diversion” encompasses
anything from community absorption plans to police screening,
pre-trial diversion, and alternatives in sentencing
3. Canadians were becoming more “conservative” in their ideological
preferences, and this was reflected in their exaggerated
perceptions of juvenile involvement in crime the new legislation
was a way the government could demonstrate its response to the
public’s various concerns
- The YOA didn’t only incorporate a rights-based framework but also elements
of crime control
- Protection of the young people and promotion of their best interests were
still part of the philosophy for the YOA
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