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. In 1908, the Juvenile Delinquents Act, SC 1908, c 40 [“JDA”] was enacted. 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. 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 the members of the justice system 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. 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 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.
A significant change is the inclusion of the victims’ role in the process. While victims have no rights per se as they are not a party to criminal proceedings, the YCJA holds that victims will be heard and treated with courtesy, compassion, and respect for their privacy, and be minimally inconvenienced. Also, consequences will include educating the offender about the impact of the crime, and focusing on repairing the damage or paying back society in a constructive fashion. In some respects, B.C. legislation dealing with victims of crime has already incorporated a number of these principles, particularly in the Victims of Crime Act, RSBC 1996, c 478. In 2015, Parliament enacted the Canadian Victims Bill of Rights, SC 2015, c 13, s 2 (“CVBR”). The Act guarantees victims of crime various rights, including the right to information about the criminal justice system, their rights as victims of crime, and their right to have their security and privacy considered by the appropriate authorities in the criminal justice system. For more information on victims’ rights, and resources for victims of crime see Chapter 4: Victims.
The YCJA was amended by Bill C-10 (“The Safe Streets and Communities Act”) on October 23, 2012. One change to the YCJA in Bill C-10 is that individual deterrence and denunciation of unlawful conduct was added as a sentencing principle. It also sets out that youths are presumed to have diminished moral culpability or blameworthiness in comparison to adult offenders. Furthermore, Bill C-10 states that the youth justice system is intended to protect the public by holding young persons convicted of offences accountable through using proportionate measures, promoting rehabilitation and reintegration, and preventing crime by directing youths to programs that address underlying causes of their actions. Bill C-10 also sets out definitions for a “serious offence” and a “violent offence” which are broader than previous definitions given in the case law.