Responding to Juvenile Crime in Canada

By Andrew Carvajal

Nov 21st 2007

Why Little Jim and Big John belong in separate cells

Common law conception of “incapacity to do wrong” Child under seven deemed incapable of

possessing criminal mind Could be extended to children up to the age

of 13 but rebutted if child had sufficient mental capacity

Reasonable person Discernment

Youths are limited in other ways Vote, marry, consent to sex, drink, smoke,

jury duty

Anna Leslie (1996): 2 concepts of social control ideology in legal regulation of youth ‘Doing good' (inclusion) rehabilitation as

the primary aim of punishment▪ Integration, tolerance, incorporation to the

community ‘Doing justice' (exclusion) fairness,

openness, and safety from abuse▪ Stigmatization – delinquent label▪ Segregation from community

(Doob et al. 1998)

Life-course persistent criminals are rare (Moffit 1993) Most common type is the adolescence-limited

type Depends on interaction with others at this time

of life Individual is trapped in a maturity gap

Crime is relational and a product of turning points in life (Sampson and Laub1993) Stops when contingencies shift▪ Maturity gap is overcome and commitments costs to

society increase▪ Informal social bonds in adulthood take priority

If young criminals “fixed” by time, then why punishment?

Crime-age curve peaks in late teens, when public opinion and judges are more willing to impose harsher sentences on youths Some may already be at the age where

they can be tried as adults Ignoring that criminality will decrease, they

will be in prison when they are no longer at risk of engaging in criminal activities

Crime as matter of social definition (Schur 1971)

Results from the labelling of a person as such “The person becomes the thing he is described as

being” (Tannenbaum, 1938) Initial delinquent acts are relatively harmless

instances of primary deviance BUT, as children go through the criminal process,

secondary labelling leads to a self-concept and attitude that fits the label (Matsueda 1992; Schur 1971)

A socialization process that is virtually irreversible Crime then becomes a self-fulfilling prophecy

Most youths will commit delinquent acts but only a few will be labelled criminals (Becker 1963) This will limit their future opportunities The individual is segregated form mainstream

society (Becker 1963) Studies find that prior delinquency largely

influences future delinquency (Matsueda 1992)

Criminality changes as the definitions of crime change (Schur 1971) Importance of agents of social control and

powerful economic and political groups behind it

A historical account

Colonial influence of French and English law Most common source of juvenile delinquency

was the fur trade Mostly urban boys who suffered parental neglect

Children generally expected to accept difficulties of life and often treated the same as criminal adults

Youth sentencing was met with mixed feelings and arbitrariness Combining harsh punishments and some justice

tempered with mercy Usually those under 7 not punished regardless of

crime, and those under 14 spared of most severe punishments

Influence of the Enlightenment Behaviour is influenced by social structure and people’s

behaviour can be rehabilitated Greater attention to the welfare of children

Movement to separate adult and juvenile offenders Offer education and religious services instead

Act respecting Arrest, Trial and Imprisonment of Youthful Offenders (1894) Separation of young and old offenders at arrest, trial,

custody Trials of young persons under 16 to take place without

publicity 1982 Criminal Code

S.9 : No one under 7 could be convicted of an offence S.10: Convictions of children under 14 only when

competent to know the nature and consequences of their conduct

First major legislation to establish a separate system for criminal youths

Doctrine of parens patriae State intervenes as "kindly parent“ when family

could not provide for the needs of its children “Every juvenile delinquent shall be treated, not

as a criminal, but as a misdirected and misguided child”

Established separate juvenile courts in all cases involving children Juveniles over 14 charged with an indictable

offence (such as treason or murder) would face ordinary court

Maintained distinction in the treatment of juvenile and adult crime But ended the paternalistic approach of the

JDA, awarding same legal rights to juveniles and adults, like right to counsel and appeal

Raised minimum age of prosecution to 12 and the a maximum age for some criminals to be tried as youth offenders to 17

Although it allowed transfers to adult court in certain situations, its intent was that most cases be tried in youth court

Many individuals thought that the YOA was too lenient on young offenders 80.6% of Canadians felt that youth court

sentences were not severe enough (Barber and Doob 2004)

More than 4/5 respondents identified “increasing sentences for violent youth” as the number one criminal justice priority (Tufts and Roberts 2002)

Between 1991 and 1996 Statistics Canada reported that violent crime by young offenders had increased by 16.1 percent

Others criticized the overuse of incarceration on young offenders Parliament could only encourage provincial governments to

adopts alternative measures to custody Too little use of alternative punishments and too many

substantial disparities in sentencing Amongst most frequent offences, except for robbery,

youthful offenders were likely to receive a longer custody than their adult counterparts (Statistics Canada, 2000)

In 1997, Canada had the highest rate of youth custody in the Western world (including the US), incarcerating juvenile offenders at four times the rate for adults (Bala 2004)

In 1999, approximately 3 out of 5 youths in custody at any given time, where there on pre-trial detention and not for a trial imposed custody

(Doob & Sprott 2006: 226)

Sold by the Government as a “tough” response to youth crime, but is it?

The Act’s preamble proposes: A more selective use of the formal justice system

in the treatment of young offenders▪ Toughen the response to grave violent offenders▪ Reduce over-reliance on incarceration for non-violent

youth▪ Greater use of extra-judicial measures and increasing

youth reintegration into the community after custody Pay greater attention to the victims of youth crime

It further calls attention to the role of the community in addressing the needs of young people

Unlike previous acts, the YCJA explicitly states the purpose, principles and factors to be considered in sentencing young persons A sentence must be fair and proportionate (ss. 3

& 38) No more transfers to adult court, but a youth

may receive an adult sentence if over 14 and convicted of an offence punishable by more than 2 years in jail▪ The identity may also become publicly disclosed

Pre-trial detention was further limited, and assumed to not be necessary unless if the offense, if convicted, would warrant custody

Amongst alterative measures to custody are the following: Encourage police warnings

and cautions Pre-court referrals to

community programs Deferred custody and

community supervision Judicial reprimand  

Interestingly the objective of deterrence has been left out of the Act

Where are we heading?

Incarcerations The imposition of adult sentences under the new act

for violent offenders seems to defy the age-crime curve

Less reliance on custody for minor offenders looks promising in this respect

Less pre-trial detention may lead to less labelling and less interaction with more serious criminal offenders

Proportionality and the idea that a sentence is appropriate for the time needed for treatment to occur▪ Compatible with the conception that crime changes over time▪ But, are youths reformed or do they simply stop committing

crime once they become older?

Generally speaking it seems that the YCJA has led to substantial reduction in incarceration of young offenders Since less reliance in custody for lesser

crimes, there are less short-custodial sentences (Bala 2004)

Comprehensive statistics on the new law and number of youths in court and custody does not yet exist

(Doob & Sprott 2006: 231)

Doob (2000) - if people who feel sentencing is too lenient knows: Cost to maintain a 17 year old in prison can

be 6000 dollars/month Most people in custody are released in less

than three months Unlike prison sentences, community service

and fines are supposed to be carried out in full

There is the possibility of group conferences as restorative approaches with the victims

Their support for incarceration declines

Lawmakers and law enforcers reacting to people’s comments that sentencing is too lenient may be reacting to people with mistaken assumptions

Alternative sanctions should be made more salient amongst the public discourse

Doob (2000): less attention to “too soft” or “too harsh” and more towards what is intelligent and fair

In 1998–1999 Aboriginal youth were heavily overrepresented in detention centres While they account for only 5 % of the total youth

population, Aboriginal youth made up to 24% of total admissions to custody

In Manitoba and Saskatchewan 75% of youth sentenced to custody were Aboriginal (Statistics Canada)

Those who are most often labelled deviant are at the margin of society (Becker) Less access to good attorneys, knowledge of their

rights and being able to negotiate a non-guilty plea

Less capable of obtain psychiatric or other means of help that keep them away from receding

Greater use of extra-judicial measures can lead to less labelling and its impact on crime

Publishing the identity of violent youth offenders can jeopardize their future Less opportunities to integrate to adult

and community life once out of custody, because of the criminal label