The doli incapax defence, which refers to the incapacity to do wrong, was developed under the English common law where a child under the age of seven was deemed incapable to do wrong. The same immunity was extended to a child aged between seven and thirteen with the presumption that this age group had not yet developed sufficient intelligence and experience to understand the consequence of the crime committed. (Johnson, 2006). Despite the protection accorded to children, the doli incapax defence was not applicable in all cases. Children often faced the same penalties as adult, which include hanging and incarceration. More than three or four-century ago, children were put in jail and underwent the same treatment similar to adult criminals. However, the growing reform movement that spread across the world in the 19th century emancipated Canada to pass series of laws for the protection of children. In 1908, the Canadian government passed the JDA (Juvenile Delinquents Act), which was the first statue in Canada exclusively concerned with young people in conflict with the law. Under the JDA Act, young people in conflict with law were considered not yet matured and they should not be treated as criminals but as a misguided and misdirect child. (Department of Justice, 1965). The Act further considered that children needed help encouragement, aid and assistance. The response was to protect young offender as well as focusing on the factor that gave rise to the criminal behavior rather than bringing young person into contact with the justice. The general opinion was that JDA resembled "social welfare exercise than a judicial process." (Ottawa Library of Parliament, 2012 P. 127). This approach, which was the general agreement until 1960 was strongly criticized on the ground that JDA provided too little attention to a more equitable system in Canada. (Vaz, 2012).
During this period, young offenders were given sentences not related to their offences making people to decry the inconsistencies treatment levied on young offenders. Young offenders neither had basic right to consult a lawyer nor appeal to a decision. (Myers 2006, Trepanier, 999). The JDA reform process took a very along time, and the reform process started in 1961 when a committee within the Department of Justice was given a task to investigate the youth crime. In 1982, the Canadian Government enacted the YOA (Young Offenders Act).
Young Offenders Act came into force in 1984. Between 1984 and 2003, the YOA marked the beginning of the era where the Federal government took the affair of young people in conflict with the law very serious. Contrary to the JDA, the YOA provided a much narrower definition of the term "young offender." Under the JDA 1908 Act, the offenses that young offenders could be prosecuted were very broad, and under the JDA,
"young person between 7 to 15 years of age was a "juvenile delinquent" if he or she had committed an offence contained in the Criminal Code 20 or in any federal or provincial Act or regulation or municipal by-law, or who was guilty of "sexual immorality or any similar form of vice." (Ottawa Library of Parliament, 2012 P. 128).
On the other hand, YOA defined young offenders as anyone aged between 12 and 17 created by regulations or federal statutes. Typically, the new Act set a threshold of criminal responsibility for young people at the age of 12, and the standardized age where law recognized a young person to be competent to commit a crime was 18. Similar to JDA of 1908, the YOA could send a young person aged 14 or older, who committed a serious crime, to an adult court. Contrary to 1908 Act, YOA moved away from the protective approach and attempted to balance the protection with accountability. Although, the Act still see young person as an individual not yet matured, however, the Act did not see a young offender as the product of the environment. The Act revealed that a young person should be responsible and accountable to his or her criminal acts.
From the time YOA took effect, the legislation has been criticized on the ground that it gave rise to injustice and disparity across the country. YOA was also being criticized on the ground that it supported the reintegration of young offenders into the society rather than the public protection of young offenders charged with the serious crimes. (Bala, Carrington, & Roberts, 2009). The responses of series of criticisms on YOA made Canadian government to amend the YOA in 1986, 1992 and 1995. Series of amendments on YOA gave rise to the YCJA (Youth Criminal Justice Act) of 2003.
The paper develops research objective to enhance greater understanding on the move from Juvenile Delinquent Act to the Youth Criminal Justice Act, which leads to the changes in youth justice system in Canada.
To explore how the move from the Juvenile Delinquents Act to the Youth Criminal Justice Act enhances the youth justice system in Canada.
What are the impact that the move from JDA to YCJA to the changes in Youth Justice in Canada?
How did move from the JDA to YCJA contribute to the changes in Youth Justice in Canada?
The passing of Juvenile Delinquents Act, Young Offenders Act and the Youth Criminal Justice Act has enhanced the enormous improvement in the juvenile justice system in Canada. Typically, the Acts provide the balance of due process of the right of young offenders, special needs of young people and protection of society. The imperfection identified in the Juvenile Delinquents Act made the government to improve on the YOA and YCJA. Despite the contributions of these Acts towards the changes in youth's justice in Canada, there are still scanty in-dept academic literatures that focus on how the move from JDA to YCJA contributes to youth justice in Canada. Trepanier, (1999) has been able to explore juvenile delinquencies in Canada and the factors that contributed to the passage of 1908 Juvenile Delinquents Act as well as how the JDA contributed to the development of subsequent Juvenile Acts in Canada, however, the literature could not provide the better understanding of the YOA and YCJA. On the other, Endres, (2004) has been able to explore the changes that occurred in the youth justice from the period of the Young Offenders Act to the time government enacted the Youth Criminal Justice Act. However, the author has not been able to provide the greater understanding of the Juvenile Delinquents Act in Canada which was the major Act that led to the transition into the Youth Criminal Justice Act in Canada. This study attempts to fill the gap created by the paucity of literatures on the impact of the move from JDA to YCJA on the youth justice in Canada.
By answering the research questions, addressing the research problem and achieving the research objectives, this study provides the following contributions.
First, the study enhances the greater understanding of the academic community on the changes that occur to the youth justice in Canada due to the move from the 1908 Juvenile Delinquents Act to the Youth Criminal Justice Act.
The paper also enhances the greater understanding of Canadian government on the effect of changes, from 1908 Juvenile Delinquents Act to the Youth Criminal Justice Act, on the youth justice in Canada. The study will assist the government to identify further changes that need to be made to improve the youth justice in Canada.
More importantly, the study reveals the extent the Youth Criminal Justice Act, which has been developed from the amendment of previous legislations, has been able to change the youth justice through respectful method of handling young offenders and the method of enforcing and punitive measures.
The paper explores the previous literatures to answer the research questions and achieve research objectives.
Review of the Previous Literatures
In 1908, the JDA was enacted to establish a state of sympathetic youth justice system because young offenders were considered as misguided children who required care and supervision. However, Juvenile Delinquents Act created a highly discretionary youth justice system in Canada where judges, probation officers and police could do whatever they considered as the child's best interest. Lack of legislative guideline governing judicial sentencing of the youth led to the criticisms of JDA. The response of these criticisms gave rise to the enactment of YOA. (Department of Justice, 2004).
Endres (2004) argues that the Canada's youth criminal justice has changed considerably since 2003. The YOA replaced Juvenile Delinquents Act' of 1908 due to the criticism levied against the JDA and despite the enactment of YOA, the YOA were not able to flush out all the shortcomings of the youth justice systems.
"The YOA was often criticized as falling short when it came to providing clear legislative direction on the logistics of applying the provisions of the act. Lack of clarity was a contributing factor to the major problems of the youth justice system under the YOA" (Endres, 2004 P.…