III. Historical Context
We are now almost one decade into the implementation of the Young Offenders
Act. Proclaimed on April 2, 1984, and originally paraded internationally
as one of the most innovative and progressive legislative responses to juvenile
justice, the Act has suffered serious chiselling and atrophy of its most
progressive elements since its inception. Indeed, even before 1984, some
of the more proactive elements of the Act were already being threatened.
The YOA was enacted in 1982, but sat awaiting proclamation while the federal
government negotiated with the provinces regarding implementation thereof.
A major reason for the delay in proclamation related to the cost-sharing
agreements, specifically the manner in which some of the monies could be
utilized. Despite the commitment of the federal government to providing
more resources for the development of community-
based programming and services for young people, the provinces negotiated
long and hard for monies to build new prisons for young people. We live
with the unfortunate results of those negotiations.
Perhaps it should come as no surprise then that the attacks on the YOA commenced
almost immediately following its inception. The first set of amendments
to the Act occurred in 1986, when the provisions requiring the destruction
of Youth Court records were amended so as to allow for the detention of
records. The 1986 amendments also resulted in the further enhancement of
judicial discretionary powers by empowering judges to lift publication bans
as well as the authority to exceed the three year limit on dispositions
when imposing consecutive dispositions.
Further reactionary amendments introduced in 1989, led to the passage of
more regressive changes to the YOA in 1992. The amendments introduced a
transfer test that hinges on the availability of resources within young
offender systems. Despite the laudable intentions and hopes that these changes
would result in the enhancement of existing services and programs within
the juvenile justice system, as well as fewer transfers of young people
to ordinary courts for trials as adults, just the opposite has occurred
by and large. Indeed, although the overall number of transfers may have
declined over the past year, neither the reasons for this statistic, nor
an appreciation of its significance (ie. whether it is a coincidental blip
or an indication of a new trend) are yet discernible. Moreover, services
for young people in the juvenile justice system have not enjoyed any meaningful
enhancement since the passage of the new amendments.
In addition to the transfer provisions, the last set of amendments changed
the penalty provisions of the YOA. Custodial dispositions have now been
extended to a maximum of five years less a day for youth convicted of first
or second degree murder. Further, for youths who are transferred to the
ordinary court and sentenced as adults, parole eligibility guidelines have
been established at five and ten years respectively.
Throughout the three-year period that the amendments were in the consultation
process, concerns were raised about the potential for the provisions to
be further extended to offences other than murder. The government repeatedly
assured groups and individuals who expressed these kinds of concerns that
such a result was not likely. Moreover, Justice assured us that more progressive,
community-based, youth-positive changes would be undertaken, just as soon
as the Bill C-12 -- as they then were -- amendments were passed.
In spite of the best intentions and concerns of many at the Department of
Justice, calls for toughening and opening up of the Young Offenders Act
continued -- indeed, still show no signs of dissipating. Accordingly, while
it is no less disappointing, it was not surprising to see the parameters
of the most recent discussion document, Towards Safer Communities: Violent
and Repeat Offending by Young People, as well as the types of regressive
approaches outlined in The Red Book and now, in Bill C-37.
It is indeed time that we all took a closer look at how these currently
pending, regressive changes to the YOA have severely limited the positive
approaches initially envisioned for young people. It seems unconscionable
to consider addressing concerns regarding youth by merely off-loading them
into the ordinary court and the criminal justice system. Indeed, it is distressing
to observe continued attempts to erode and chisel the fundamental tenants
and guiding principles of the YOA.
The YOA calls for the least restrictive interventions possible for young
people. In fact, it calls for an examination of all other systems prior
to invoking its provisions. Alternative or diversionary options are entrenched
in the Act. Paradoxically, the past decade has seen just the opposite result.
In most schools or child welfare group homes, for instance, matters that
previously might have been dealt with by the relevant administrative authority
are increasingly more likely to be referred externally to the juvenile justice
or young offender system.
Rather than adopt a 'zero violence' approach, 'zero tolerance' policies
are resulting in ever increasing numbers of disenfranchised youth being
jettisoned out of schools and communities, usually through, rather than
into, an ever more drafty social safety net. Rather than nurturing our youth,
we are increasingly scapegoating and disposing them as though they are expendable
human refuse. Recognizing the current stresses of fiscal restraint and downsizing,
more focus upon consolidating creative energies, as well as upon encouraging
a more empowered student body to provide peer and mentoring support are
but examples of the manner in which schools might re-direct energies.
In terms of custodial sanctions, the Act stipulates that such dispositions
must only to be used as a last resort. Further, where a custodial disposition
is resorted to, the expectation is that open custody be utilised before
the employment of secure or closed custody.
Clearly, it was initially anticipated that the use of secure custodial settings
for young people was to be the absolute last resort in terms of sentencing
young people under the Young Offenders Act. Moreover, it was envisioned
that open custody would be easily distinguishable from secure custody settings.
Open custody was anticipated to denote a group-home type of setting, as
opposed to an institutional setting. This fact notwithstanding, in most
provinces, the two forms of custody are virtually indistinguishable, given
that most open custody settings are now mostly institutional in nature.
To make matters worse, young women remain disproportionately disadvantaged
in terms of access to open custody settings. The majority of young women
who receive open custody dispositions must serve their sentences in secure
custody and/or co-correctional facilities. Consequently, they tend to have
more limited access to the community as well as institutional services and
programs. In many of the young offender centres across the country, incidences
of sexual assault and/or pregnancies have led to the further segregation
of young women within co-correctional facilities.
Statistics reveal that there has been an overall reduction of youth crime
rates generally as well as a relatively low incidence of violent and repeat
youth crime more specifically. These realities notwithstanding, there is
increased police, media and general community focus on the YOA, as well
as a tendency to more quickly criminalize the behaviour of young people
and then jettison them into the ever wider, deeper and stickier nets of
the juvenile justice system.
It is clear that all young people suffer as a result of the lack of adequate
support services and other systems-based deficiencies. Members of the Standing
Committee will be all too familiar with the erosion of resources and support
for our community-based support systems for young people. The overall juvenile
justice situation is all the more acute for young women. For instance, young
women are disproportionately disadvantaged as a result of a lack of gender-focused
community and institutional programming and services, extremely limited
access to open custody settings and consequent systems-dictated secure custody
re-sentencing, over-representation of young women in custody for administrative
breaches and child welfare types of concerns. Systemic bias and discriminatory
practices undergo a multiplier effect where gender, race, class, ethnicity
and/or sexual orientation converge. Accordingly, immediate action to develop
more comprehensive understanding and concerted efforts to address issues
of bias within the youth justice system.