According to scholars, the juvenile system was the creation of Victorian
reformers, or child savers who believed that delinquency was the product of
bad environments and that the state should act like a parent to save
children from these environments.
child savers a term used to refer to 19 century North American middle-class
reformers who were instrumental in the creation of a separate system of justice for
The Canadian juvenile justice system was created in 1908 through the
passage of the Juvenile Delinquents Act (JDA).
This chapter discusses the development, philosophy, and structure of the
juvenile justice system under the JDA.
The Canadian Juvenile Justice System
- J.J. Kelso and W.L. Scott created the juvenile justice system.
- Kelso began campaigns aimed at getting children, including delinquents, out of
institutions and into foster homes. In 1892, the federal Criminal Code was
amended to allow separate non-public trials and custody for those under 16. The
Ontario Childrens Charter provided for separate magistrates to hear cases
involving youth under 16; youth under 21 received separate trials and
commitment to places other than prisons.
- In 1906, W.L. Scott went to Philadelphia to examine that citys system separate
childrens courts, judges, and probation officers. He persuaded Ottawa to appoint
two probation officers for the supervision of child offenders. Scott went on to
draft the Juvenile Delinquents Act, which was accepted in the House of Commons
and became law on July 8, 1908. This legislation created a justice system for
children and youth separate from the adult system.
JDA: Philosophy and Definitions
The JDA created a welfare-based juvenile justice system. The main
philosophy underlying the legislation came from the doctrine of parens
patriae, meaning parent of the country.
Welfare-based juvenile justice system a model of juvenile justice based on a
Parens patriae a doctrine based on English common law that gives the state the
power to take on a guardian or parenting role for children.
the United States delinquency was considered a state of being or a condition,
under the original JDA.
The JDA defined delinquency as the violation by persons under 16 of any
federal, provincial, or municipal law for which a fine or imprisonment was the
penalty, or the commission of any other act that would make the young person
liable to be committed to an industrial school or reformatory.
JDA: The System JDA gave the courts extensive powers. If an offence was indictable, it was up to
the court to decide if the youth would be tried in an adult court.
Indictable in the Canadian criminal code, refers to offences that are of a serious
nature; the maximum sentence is never less than two years.
Juvenile cases were conducted privately, and separate detention and jail
facilities were mandated for delinquents.
Probation was a central element of the juvenile court. The JDA required
probation officers to conduct investigations for the court, to assist and direct the
court, and to represent the interests of the child in court.
Probation - a sentence of the court that involves supervision in the community and
set conditions that must be adhered to if the person is to remain in the community.
Scott argued that the probation officers object was to work to reform the child
and the whole family.
Under the JDA, the provinces were allowed to set the maximum age under
which a youth could be adjudicated as delinquent.
Opposition to the JDA
Those who opposed the bill did so on the grounds that it was not punitive
enough or out of concern about potential abuses to childrens and parents right.
Police official David Archibald and others was outspoken in the opposition to a
juvenile justice system and proposed legislation. He saw reform proposals as
too lenient (coddling) and was more concerned about the effect that these
policies would have on a class of perverts and delinquents.
Most were not concerned about childrens rights because they were convinced
that what they were doing was protecting children.
Modifying the Juvenile Justice System
- Challenges to the JDA began in the 1960s as a result of a growing international
and national rights discourse.
- In 1959, the United Nations, through its Declaration of the Rights of the Child
gave legitimacy to notions that children should have rights.
- A source of criticisms was directed at the JDA with regard to status offences
(acts not considered criminal if engaged in by an adult, behaviours such as
sexual behaviour, truancy, or incorrigibility). Critics argued that lumping
together all child and youth offences undermined the seriousness of some
criminal offences and thereby inhibited any deterrent effect of punishment on
criminal behaviour. Young people who were not breaking criminal laws were
being punished in the same manner as those who did.
- Status offences behaviours considered to be illegal only because of the age
status of the individual (e.g., truancy).
- There was also no set term for sentences incarceration terms lasted as long as
it took for a young person to be reformed or rehabilitated.
- Other critics charged that the JDA failed to provide adequate public protection
from the criminal behaviour of children and youth.- Reform attempts began in 1965, and a number of legislative proposals followed
- Provincial governments were concerned about what changes would cost them,
and looked for federal funds to support implementation.
- The first drafted legislation, the Children and Young Persons Act of 1967 was
rejected because of provincial objections to changes in jurisdiction and federal
cost sharing. The first Young Offenders Act, introduced in 1970 was seen as too
legalistic and too punitive a Criminal Code for children.
- In 1975, Young Persons in Conflict with the Law also met provincial concerns
over costs and jurisdiction. By 1977, a new Young Offenders Act came into
effect, replacing the Juvenile Delinquents Act.
Principles of Juvenile Justice Introduced by YOA
Young Offenders Act created a juvenile justice system different from the JDA.
The JDA referred to delinquents as misdirected and misguided children in
need of aid, encouragement, help and assistance, the YOA referred to young
persons as in a state of dependency who have special needs and require
guidance and assistance as well as supervision, discipline and control.
The YOA introduced principles to the juvenile justice system that focused the
system on youth responsibility, protection of socie