Youth Justice System in Canada the Doli

Youth Justice System in Canada

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.

Research Objective

To explore how the move from the Juvenile Delinquents Act to the Youth Criminal Justice Act enhances the youth justice system in Canada.

Research Questions

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?

Research Problem

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.

Research Contributions

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. 527).

Typically, Section 3(1) of the YOA was somewhat inconsistence and outdated to address the desired Canadian youth criminal justice system. Within the YOA Declaration of Principle, the Act stated a rehabilitation of young persons, which aimed to focus on the discipline, supervision and control necessary for young offenders. However, these qualities were particularly problematic. Leschied, et al. (1991) argued that few years after the passage of YOA, there were general clamour against YOA on the ground that the law was too lenient. Group of victims argued that many young offenders got away with the murder crimes because they were not transferred to the adult criminal court where they would be given a longer lifetime sentence as opposed to the maximum three-year sentence given to a young offender committing a murder crime. Leschied, et al. (1991) further argue that YOA's principles allowed young offenders to get away with the criminal acts making young people to generally believe that court procedure was a game where person could get away with his criminal responsibility if played properly.

Seventeen years after the Canadian government enacted the YOA, the system dealing with youth offenders saw the need for changes. After four-year deliberation, the YCJA was brought into force in 2003 to take the place of YOA. The YCJA is not an entirely new Act; the Act is designed to strengthen the YOA as well as introducing the significant reform to YOA.

The aim of YCJA is to bring equitable, efficient, effective and clearly directed approach in dealing with young offenders in conflict with justice system. One of the benefits of the YCJA over the precedent Acts is that the YCJA focused on determining the root of the young person's misbehaviour, rehabilitating the young offenders as well as integrating the offenders into the society. Typically, the YCJA provides a sense of equity and preserving the young people's right. The YCJA incorporates a principle where young offenders will be accountable for their crimes. The Act also introduces the extra judicial measures where young offenders will be rehabilitated and reintegrated into the society than adults committing the same crimes. (Bala et al. 2009).

A report developed by Department of Justice, (2004) provides similar argument by pointing out that Youth Criminal Justice Act came into force to provide the remedy on the problems identified within Young Offenders Act. The YCJA reduces the overreliance on incarceration and enhances the reintegration of young people into the community. There are substantial differences between Youth Criminal Justice Act and the Young Offenders Act with relations to sentencing of young offenders. "The Young Offenders Act principally relied upon its general Declaration of Principle to guide all provisions of that Act, including sentencing." (Department of Justice, 2004 P. 27). On the other hand, Youth Criminal Justice Act explicitly reveals the principle, factor and purpose that should be considered before sentencing young offenders. As a part of the Canadian government strategy to renew youth justice system, the Youth Criminal Justice Act seeks to provide more effective strategy to enhance fairer and effective youth justice regime. Typically, the implementation of Youth Criminal Justice Act has been noted to contribute to a more improvement in the youth justice system.

The Youth Criminal Justice Act has the following underlying principles that are more superior to the Juvenile Delinquents Act, and Young Offenders Act:

The YCJA is intent to promote the long-term protection of youth and general public.

The YCJA provides the provisions where young offenders will be accountable for their behavior. The strategy will make young offenders to acknowledge the consequence of their offences as well as encouraging them to repair harm inflicted on the victims and the public in general.

YCJA Act also indicates that the parent of the offenders and the whole community should be involved in enhancing social integrating of young offenders.

Moreover, YCJA indicates that victims should suffer a minimum degree of inconveniences because of the involvement in the youth criminal justice system.

The expectations of victims should also be taking into the consideration during the process of the youth criminal justice system. (Department of Justice, 2004).

Unlike the other precedent Acts, the YCJA provides more fairly equitable justice on youth and the sentences are solely depend on the gravity of the offenses. (Nicholas B. Carrington, and Roberts, 2009). "One of the objectives of the YCJA is to remedy the lack of sentencing guidelines in the YOA in order to have less court involvement for those who committed minor offences." (Ottawa Library of Parliament, 2012 P. 129). The YCJA Declaration of Principle, Section 3 are to "prevent crime by addressing person's offending behaviour, rehabilitate young persons who commit offences and reintegrate them into society The Act also aims to ensure that a young person is subject to meaningful consequence for his or her offence"( Bala et al. 2009 P. 132). The official crime statistics reveals that YCJA has been able to meet its expectation. In 2008, the rate of charges against youth fell by 4%. Between 2006 and 2007, there were 26% fewer cases heard at Youth court which is less than the number of youth cases heard between 2002 and 2003. Typically, all provinces in Canada record a considerable drop in the number of youth charged to youth court. Yukon decline by 45%, Newfoundland and Labrador declined by 47%, and Northwest Territories (52%). (Wallace Turner, Matarazzo et al. 2009). Despite the impact of the YCJA in alleviating the youth justice in Canada, there are still debates on the treatment that young offenders should receive. Some people believe that the Act is too lenient on young people who have committed repeated offenses as well as those who have committed serious offences.