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.

YOA Recommendations