The degree of leniency displayed in youth sentencing is an issue of particular concern to Canadians. Inadequate sentences are the result of a legislative framework stressing that the needs of the offender be placed above other considerations. In sentencing, judges are instructed to consider rehabilitation first and foremost, with emphasis placed on keeping the offender in the community. Lesser emphasis is to be placed on deterrence and condemnation of youth crime.

The Young Offenders Act

The highly controversial Young Offenders Act was passed by Trudeau’s Liberal government in 1982, replacing the Juvenile Delinquents Act of 1908.

The Young Offenders Act applied to those between the ages of 12 and 17, protecting offenders under the age of 12 from any threat of prosecution (under the previous Act offenders as young as seven could be charged). The act specified a maximum sentence of two years except in cases where an adult could face life imprisonment. In such cases the young offender could be subject to a maximum sentence of three years. The act also called for identity protection for the offender throughout the court proceedings.

Canadians took issue with several aspects of the act including the minimum age it created, the light maximum sentences, and conflicting interests guiding the decision to transfer a youth to adult court (the needs of the youth were to be considered alongside the public’s safety).

After the adoption of the Young Offenders Act the number of violent juvenile crimes skyrocketed in Canada, with a large number of repeat youth offenders. Violent crime rates climbed steadily throughout the 1980s, remained stable (at the same high levels) in the 90s, and have been increasing since 1999 . (Source Canadian Centre for Justice Statistics)

Amendments to the Young Offenders Act

Faced with criticism, the government attempted to restore credibility to the youth justice system by introducing several amendments:

• 1986 - Established that a young offender could be detained longer than three years if he/she committed another offence in the interim of a sentence. Furthermore, that sentence could continue once he/she became an adult.
• 1992 - Extended the maximum penalty for first or second-degree murder from three to five years. In addition, revised the section dealing with transfers to adult court to give greater weight to the need to protect society, as opposed to the needs of the youth
• 1995 - Extended the maximum penalty for first or second degree murder to ten years. In addition, created a presumption that youth aged sixteen years and over who committed serious violent offences would be transferred to adult court. If the Crown requested a transfer, it was up to the youth or defense counsel to establish why the case should remain in youth court.
• 1995 - Allowed victims to present victim impact statements in court

In spite of these amendments, a 1998 study found that seventy-seven percent of Canadians believed sentences handed down to young offenders were still too lenient. (Source: Statistics Canada).

In light of mounting pressure from both sides of the youth justice debate, those who felt youth sentencing was too lenient, and those who felt that youth incarceration rates were too high, the Liberal Minister of Justice, Anne McLellan, brought forward legislation in 2002 that replaced the Young Offenders Act with the Youth Criminal Justice Act.

The Youth Criminal Justice Act is the legislation currently in effect in Canada. There are many similarities between the Young Offenders Act and the Youth Criminal Justice Act. The major difference is that the present act gives clear principles to govern youth prosecution and sentencing. The goal of the Youth Criminal Justice Act is defined in its Declaration of Principle statement:

“The purpose of the youth criminal justice system is to prevent crime by addressing the circumstances underlying a young person’s offending behavior, rehabilitate young persons who commit offences and reintegrate them back into society, and ensure that a young person is subject to meaningful consequences for his or her offences, in order to promote the long-term protection of the public.”

The Youth Criminal Justice Act states that youth sentencing must be governed by a set of explicit principles. These principles are summarized in the Declaration of Principle Statement (above) and are highlighted throughout the act. For example clause 38,2,d of the act states – “all reasonable alternatives to custody should be considered, particularly in the case of aboriginal youth…” , Clause 38,e,i states a sentence should – “be the least restrictive sentence that is consistent with the overall goal of youth sentencing”.

The Youth Criminal Justice Act places more emphasis on treatment for young offenders than the Young Offenders Act did. Also, in order to address the perception that incarceration rates were too high under the Young Offenders Act, the new law states that the court system is to be used only for serious offences. Police officers are instructed to consider alternatives to charges, including issuing verbal warnings. When the court system is used, alternatives to custody are encouraged.

The Youth Criminal Justice Act does not change the age at which a youth can be issued an adult sentence (age 14). What the YCJA does do is eliminate the transfer hearing process by empowering youth courts to impose adult sentences if considered appropriate.

The Act also introduced graduated sentencing. When a graduated sentence is given, a convicted youth will spend two-thirds of his/her time in custody, and one-third in the community under supervision. The act states that graduated sentencing is to be used as the norm in custodial sentencing.

In addition, the Act contains a clause which allows the provincial director to grant “reintegration leave” to any young person committed to a youth custody facility in the province. Leave can be granted for a period of up to 30 days (which is renewable on reassessment) for the following purposes:

• attend any educational or training institution;
• obtain or continue employment, or perform domestic or other family duties;
• participate in a specified program that, in the provincial director’s opinion, would enhance the young person’s employment, educational, or training potential; or
• attend an out-patient treatment program or other program that addressed the young person’s needs.

Read the Youth Criminal Justice Act

Conclusion

The Youth Criminal Justice Act is often accused of offering few changes from the Young Offenders Act. This is not true. The Youth Criminal Justice Act takes a principled approach to youth justice, whereas the Young Offenders Act contained inconsistent and conflicting principles. Where criticism is deserved is the fact that the new Act does not offer a tougher approach to youth crime – the tougher approach that the majority of Canadians have been demanding for decades.

The Canadian Department of Justice website classifies the following statement: “A get tough approach will reduce youth crime” as a myth, with their version of reality being: “Harsher criminal sanctions do not discourage youth from getting into trouble with the law.”

The website goes on to state “Another consideration is that a significant number of youth inmates have mental health problems and require treatment, not punishment.” The website also offers the following: “It is easy to forget that the accountability expected of adults cannot be expected of youth.” and “The most effective way to serve the community and the offender is to realize that young people are still developing their skills in judgment and foreseeing the consequences of their actions.”

The attitude towards youth crime shared by many Canadians - that youth should be held responsible for their actions - does not appear to be shared by the architects of the Youth Criminal Justice Act or the Canadian Department of Justice.

With the present legislation and the mindset of the Canadian Administration, youth offenders can continue to feel assurance that the severity of their sentences will not match the gravity of their crimes.