Introduction to Youth Justice (2:I)

A. LSLAP and Youth Justice

LSLAP students cannot represent persons less than 18 years of age. If the client is a young person, aged 12 to 17 years, he or she should be referred to the Legal Services Society (LSS). The LSS provides legal services for young persons, regardless of income. See Section III.C: Right to Counsel. LSLAP students may not be able to represent clients with serious criminal records. However, clients who only have a juvenile record are considered first-time offenders for the purposes of this restriction.

B. History of Legislative Changes

Before the 19th century, there was little legal recognition of the special needs of children and youth. Children convicted of offences were punished the same as adults. The 19th century saw a growing understanding of childhood. In 1857, the first Canadian act to separate young persons from adult offenders was enacted. In 1908, the Juvenile Delinquents Act, SC 1908, c 40 [“JDA”] was enacted. The JDA created a juvenile justice and corrections system with a parens patriae philosophy. Juvenile offenders were believed to be similar to those who were abandoned or neglected. Under the JDA, children were subject to “delinquency proceedings” for violating federal, provincial, or municipal law. These courts operated informally to avoid technicalities from interfering with treatments considered to be in the child's best interests. The JDA was an improvement over the harsh treatment inflicted on youths; however, it was applied arbitrarily or discriminatorily depending on the juvenile's race, class and gender.

By the 1960s, the JDA was undergoing public criticism, particularly for its highly discretionary regime, which gave judges, police, and correctional officials broad powers to deal with youths according to their own perceptions of a child’s “best interests”. Thus, Parliament enacted the Young Offenders Act, RSC 1985, c Y-1 [“YOA”], which governed juvenile criminal law from 1984 to 2003. The Act applied to youths charged with specific offences under the Criminal Code, RSC 1984, c C-46 [“CC”] and other federal law. While the YOA considered the individual circumstances of young persons, it also purported to better protect society against violent youths. The Act also gave more recognition of juvenile legal rights, established a uniform national age jurisdiction, safeguarded against the infringement of the basic rights guaranteed under the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11 [“Charter”]), and increased protection for young persons by creating the requirement of parental notification upon arrest, rights to legal representation, and the availability of the insanity defence to youth charged with offences.

As of April 1, 2003, the Youth Criminal Justice Act, SC 2002, c 1 [“YCJA”] came into effect and replaced the previous YOA. The YCJA recognizes that youths have rights under the Charter, the Canadian Bill of Rights S.C. 1960, c 44, and the United Nations Convention on the Rights of the Child [“UNCRC”], which Canada signed and ratified in the early 1990s. The YCJA preserves many of the elements of the YOA; however, it focuses on three key objectives to better protect the public: (1) preventing youth crime by addressing underlying causes; (2) meaningful consequences for offences; and (3) increased focus on rehabilitation and reintegration for youth returning to the community (YCJA, s 3). The YCJA also encourages judges to impose non-custodial sentences on young persons who are found guilty under the Act where it is consistent under the general principles. This does not mean that it seeks to prohibit custodial sentences, but rather to ensure that such measures are the last option.