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CHAPTER 2 - GUIDING PRINCIPLES

A SEPARATE YOUTH JUSTICE SYSTEM

One of the issues upon which the Committee solicited comments in its June 1995 description of its mandate for this review was the "rationale for a youth justice system." Underlying this cryptic description of the Committee's concerns in relation to this issue were a number of implicit questions. Should there continue to be a separate youth justice system? Should it deal with all young offenders and the offences committed by them? How is a young offender defined? Is the criminal justice system the best means of intervening in the life, behaviour and acts of a young person? What role, if any, does the ordinary/adult criminal justice system have to play in relation to the acts committed by young offenders? In what circumstances is recourse to the ordinary/adult criminal justice system the most appropriate and most effective form of intervention?

These important questions, and others, are dealt with in the rest of this Report. The first issue to be addressed is whether a separate youth justice system should be retained. Later in this Report, the goals and parameters of the system will be discussed and recommendations made.

The youth justice system is not a recent development in this country. Some elements of it pre-date Confederation. The first legislation dealing explicitly with young offenders in Canada was adopted in 1857 in relation to their speedy trial and punishment. This enactment, as well as legislation adopted by Parliament in 1869 and 1886, was incorporated into Canada's first Criminal Code in 1892. These provisions ensured that the trial of a young person under the age of 16 took place apart from trials of adults charged with criminal offences. It was provided that once convicted, a young offender was to be detained in prison separate from adult offenders.

A comprehensive statute dealing with young offenders was not adopted by Parliament until 1908, when the Juvenile Delinquents Act was enacted. This legislation was put into place in part as the result of a concerted campaign by social service and child care workers, judges, and others in support of the establishment of a youth justice system that would effectively assist and provide support and guidance to juvenile delinquents in conflict with the law. Although subjected to minor amendments on several occasions, the Juvenile Delinquents Act was unchanged in its fundamental elements until the adoption by Parliament in 1982 of the Young Offenders Act, which came into effect in 1984 and 1985. Although amended three times by Parliament since its inception, the basic elements of the present Act are essentially intact.

From this summary review of the development of the legislation it is clear that virtually all who have considered the treatment accorded to young offenders agree there should be a separate youth justice system and that Parliament should adopt the necessary criminal law to ensure that this is so. The purpose of such a separate system is to ensure that young offenders are dealt with differently from adult offenders.

The Committee believes a separate youth justice system should continue to exist, with criminal law adopted by Parliament at its centre. Young offenders are different from adult offenders. They are not yet fully formed people but are at varying stages of the maturation processes, like other adolescents. Their behaviour and acts can often be explained by a number of criminogenic risk factors that do not apply to adult offenders. Their needs for treatment and assistance are often more typical of adolescents than more mature people. Young offenders are often more dependent and vulnerable than older offenders.

A number of those making submissions to the Committee agreed that there should continue to be a separate youth justice system. The Commission des services juridiques said in its brief:

One Federal Minister should be assigned all responsibility for federal involvement in Rural Economic Development. Currently, there is duplication, overlap and confusion in the public eyes, as well as an excess of bureaucracy. This bureaucracy is difficult for the uninformed citizen, so much so that the small entrepreneur's creative spark may be stifled because of confusion.
Since the approach in the youth system is different from the adult criminal justice approach, it is important that the framework within which lawyers, judges, social workers, etc., work in the young offenders system must be kept separate from the adult framework.
The Canadian Resource Centre for Victims of Crime stated in its brief:

There are two principal philosophies for a youth justice system, one, that the chances of rehabilitating an offender are greater when that person is a young person, and, two, that young offenders are not adults and as such do not have the experience and knowledge that are associated with being an adult.
The following comment was made by the Association des centres jeunesse du Québec in its written submission:

There must be a special justice system for young people as it guarantees respect for the rights of young offenders, just as it does for adult offenders, and it also makes it possible to apply the measures that are best suited to the needs of young offenders and to the fact that they are still growing and maturing.
Finally, the Province of New Brunswick made the following recommendation in its brief:

It is recommended that a separate youth justice system be maintained. Youth do not always consider the long-term impact of their actions and their behaviour patterns are unstable such that delinquent acts can often be isolated incidents. The maintenance of a separate youth justice system allows for flexibility that enables the justice system to work with other youth service providers to provide effective prevention and intervention strategies to respond to antisocial adolescents.
Although there has historically been, and still is, broad agreement on the necessity for a youth justice system, there are still disagreements on how the system should function, who should be considered a young offender, what offences it should deal with, and what role, if any, should be played by the ordinary/adult criminal justice system. These issues will be discussed in much of the rest of this Report.

RECOMMENDATION 1

The Committee recommends that a separate youth justice system be maintained and that Parliament, mindful of the importance of ongoing consultation with the provinces and territories, continue to exercise its criminal law power arising from its jurisdiction to provide guidance as to how the core elements of this system should be applied.

GUIDING PURPOSE AND PRINCIPLES

During the Committee's November 1996 National Forum, University of Toronto criminologist Anthony Doob threw out the following challenge:

The second item on my agenda is to urge the Committee to debate and address the principles of youth justice, really what we want to accomplish with the youth justice system and with the Young Offenders Act. . . . The enormous contribution this Committee could make would be to address real problems in a principled fashion and not jump on the bandwagon of making cosmetic and ineffective, unprincipled changes to the Young Offenders Act. (79:14-15)
The same point was made at the National Forum by British Columbia Provincial Court Judge Thomas Gove:

The question was raised as to how this Committee might help accomplish the prevention process which seems to be very much a consensus within this group.I agree with the recommendation that you might well consider a statement of principle. Tinkering with the law may be necessary, but a statement of principle, I dare say, may go much further. (79:42)
The Committee agrees with and accepts the challenge implicit in these assertions. Although statements of legislative intention in the form of declarations of purpose and principles are important, legislative change, or "tinkering" as some would call it, should not be discounted. It is a principled exercise of legislative authority that must be fostered and encouraged. By setting out what values underlie and support the legislation it adopts, Parliament indicates to government and the judiciary how it would like the laws it adopts to be interpreted and implemented. It is in this context that this part of the Committee's Report has been conceived and developed.

The resort by Parliament to preambles, statements of purpose and declarations of principle to set out its legislative intention, though not common, is not entirely novel. A Declaration of Principle can be found at section 3 of the Young Offenders Act, which was recently amended by Bill C-37 - more about this can be found in the following paragraphs. Recent statements of purpose and principles can be found in the Corrections and Conditional Release Act3 and the 1995 Bill C-41 sentencing amendments to the Criminal Code.4

Although it did not contain an explicit statement of purpose or principles, section 38 of the Juvenile Delinquents Act did contain the following indication by Parliament of its legislative intention:

This Act shall be liberally construed in order that its purpose may be carried out, namely, that the care and custody and discipline of a juvenile delinquent shall approximate as nearly as may be that which should be given by his parents, and that as far as practicable every juvenile delinquent shall be treated, not as criminal, but as a misdirected and misguided child, and one needing aid, encouragement, help and assistance.
Among the guiding principles set out in section 3 of the Young Offenders Act are the following:

Parliament has set out other guiding principles in sections 16 and 24 of the Act. Section 16 sets out the principles to be taken into account by the youth court in considering whether a transfer to ordinary court is appropriate and it also indicates how competing values are to be considered. Section 24(1.1) of the Act (added by Bill C-37) dealing with the imposition of a custodial disposition by a youth court establishes that custody should be used with restraint and not as a substitute for child protection, health or other measures. Another guiding principle is implicit in section 4 of the Act, dealing with alternative measures.

The approach to establishing principles such as those set out in section 3 of the Act has been both supported and criticized. The Act sets out in extensive detail the principles that are to govern both its interpretation and application, without indicating an order of importance or priority. Supporters of this approach say that it reflects a lack of social consensus in this country as to what philosophy should guide the youth justice system. They also affirm that this approach reflects the reality of the youth justice system - one set of principles cannot fit all situations; the best that can be done is to set out the governing principles without any indication as to priority, so that decision-makers may choose those most relevant to specific situations.

Those who do not agree with the approach of section 3 argue that the failure to indicate the overarching philosophy of the Act leads to disparity, unfairness and uncertainty in the interpretation and application of the legislation at all stages and within all components of the youth justice system. They urge Parliament to clarify the direction it wants the youth justice system to take by providing legislative guidance. They also say that the conflict in governing principles in section 3 of the Act is more apparent than real - the principles are complementary rather than conflicting.

The Committee believes it is important that the purpose and the guiding principles of both the youth justice system and the Young Offenders Act be made explicit and clear. Many of the traditional criminal justice approaches to dealing with youth offending are no longer as effective as they may once have been. The time is right for a redefining and a renewal of the youth justice system. A good place to start would be in the enunciation of Parliament's legislative intention in the form of a stated purpose and supporting guiding principles. The Committee was disappointed that the Federal-Provincial-Territorial Task Force on Youth Justice did not develop recommendations for youth justice system purposes and principles, though it did recommend a comprehensive review of the issue and suggested some matters for consideration.

The Committee believes that on some approaches to youth offending and the youth justice system there is a large degree of consensus among people in all components of the system and many Canadians. These are discussed elsewhere in this Report. The Young Offenders Act, and especially those amendments to sections 3, 16 and 24 put in place by Bill C-37, already contains part of the purpose and principles to which, the Committee believes, Parliament should give more prominence.

Many debates and discussions of youth justice issues make a false dichotomy between rehabilitation and public safety. The Committee believes that the community is safer if rehabilitation efforts are effective and appropriate. This point was made byMr. Justice Cory of the Supreme Court of Canada when he stated in R. v M.(J. J.) that:

The aim must be both to protect society and at the same time to provide the young offender with the necessary guidance and assistance that he or she may not be getting at home. Those goals are not necessarily mutually exclusive. In the long run, society is best protected by the reformation and rehabilitation of a young offender. In turn, the young offenders are best served when they are provided with the necessary guidance and assistance to enable them to learn the skills required to become fully integrated, useful members of society.5
During the Committee's National Forum, Dr. Alan Leschied of the London Family Court Clinic said:

I often think the discussions and debates have been one of either rehabilitating youth or protecting society. I think it would be no small hurdle for this Committee to endorse the importance of those as coincidental goals. We don't either rehabilitate or protect communities. When we do one, we do the other. I think that's an extremely important principle to endorse by this Committee. (79:35)
As indicated elsewhere in this Report, the Committee agreed on a number of the best approaches for reducing, in the long term, youth offending and the resulting victimization. Most of these approaches were supported by those working in all components of the youth justice system whom the Committee met during its site visits and hearings across the country. Many such approaches were also advocated by those who made formal oral and written submissions.

Early intervention in the lives of young people was seen as an essential element in reducing long term youth offending, but it has to be appropriate, effective, community-based, and supportive of parents, families, and extended families. Where youth offending occurs, interventions have to be timely and appropriate; the intervention does not necessarily have to be related to criminal justice. Police and judicial interventions have to be used in only the most appropriate cases, thus ensuring that improper youth behaviour is dealt with in a timely and effective manner and not always processed through the criminal justice system. Finally, it was generally agreed that only the most serious instances of youth offending should be dealt with by the full panoply of the youth criminal justice system, including custodial dispositions and possible transfer to ordinary/adult court.

An approach to youth justice issues based on these elements of consensus and enunciated in a legislative statement of purpose and declaration of principles would have two long-term effects. It would result in the delivery of more preventive, timely and effective interventions leading to a reduction in victimization and recidivism. It would also lead to a more appropriate directing of scarce fiscal resources and using the most expensive resources where they will be most effective; that is, using the full panoply of criminal justice intervention components in relation to the most serious youth offending.

The Committee believes that any statement of purpose and guiding principles has to be clear and provide direction to all those involved in the youth justice system. It must also set out the priority to be accorded to possibly conflicting principles in the context of Parliament's overarching statement of legislative purpose. One of the problems with the present Declaration of Principle contained in section 3 of the Young Offenders Act is that it does not establish obligations to be fulfilled by the different components of the youth justice system. In commenting on an earlier case, Madame Justice L'Heureux-Dubé of the Supreme Court of Canada in R. v T.(V.) stated:

. . . no such positive obligation may be gleaned from the wording of s. 3(1)(d) and, consequently, none may be imputed to the authorities.6
Guidance on the drafting of a statement of purpose and guiding principles can be taken from the legislative style of the purpose and principles provisions in the Corrections and Conditional Release Act and the sentencing measures added by Bill C-41 to the Criminal Code. They provide direction to those in the criminal justice system and assert both a primacy in Parliament's legislative intention and an indication of the hierarchy of values to be applied. The youth justice system requires the same type of clear statement of philosophy and parliamentary intent.

The elements of a statement of purpose can already be found in the Young Offenders Act. Subsections 3(a) and (c.1) were added to the present Declaration of Principle by Parliament when it adopted Bill C-37. These provisions read as follows :

(a) crime prevention is essential to the long-term protection of society and requires addressing the underlying causes of crime by young persons and developing multidisciplinary approaches to identifying and effectively responding to children and young persons at risk of committing offending behaviour in the future;
(c.1) the protection of society, which is a primary objective of the criminal law applicable to youth, is best served by rehabilitation, wherever possible, of young persons who commit offences, and rehabilitation is best achieved by addressing the needs and circumstances of a young person that are relevant to the young person's offending behaviour;
The Committee believes that these two paragraphs should constitute the fundamental purpose of the Young Offenders Act and of the youth justice system. Protection of society is the main goal of the criminal law and the criminal justice system as it affects young persons. This goal is best achieved by effective crime prevention and rehabilitation strategies as discussed elsewhere in this Report. These goals and strategies are not mutually exclusive, but reinforce each other. This does not mean that more restrictive strategies should not be available if crime prevention and rehabilitation do not work. It means that punitive measures should be resorted to only when these other approaches are ineffective.

The Committee believes that subparagraphs 3(a) and (c.1) should be used as the starting point for Parliament's adoption of a statement of its legislative intention in the Act and the youth justice system. This provision should give primacy to the contents of subsection (c.1) by enunciating the overarching value that the protection of society, crime prevention and rehabilitation are mutually reinforcing parts of an underlying criminal justice philosophy. A statement of purpose must be supported by a declaration of applicable principles providing direction for its implementation throughout the youth justice system.

Some principles for providing support to a statement of purpose can already be found in section 3 and elsewhere in the Young Offenders Act. Others are implicit in the legislation in its present form. Still others are widely accepted in the youth justice system and by many Canadians. The Committee will not provide a draft of the guiding principles it believes should be adopted by Parliament, but will rather set out in general terms the direction they should take and point out useful models upon which they can be based.

As indicated elsewhere in this Report, the Committee takes as its starting point the importance of early intervention in preventing crime. Communities, families and parents must be supported in their efforts to deal with youth offending. It is important that interventions be made at an early, appropriate time and they do not necessarily have to be formal; interventions from outside the youth justice system are often more effective. The youth criminal justice system should be used with restraint, with the full panoply of components up to and including the judicial and custodial elements, and with transfer to ordinary/adult court being reserved for the most serious instances of youth offending. The statement of guiding principles adopted by Parliament should reflect these findings of the Committee.

Assistance in developing these guiding principles can be found in the experience of other countries. Yukon Territorial Court Judge Heino Lilles, who met with the Committee when it was in Whitehorse and who participated in the National Forum, set out in a recent article (which was also his brief to the Committee) the principles embodied in New Zealand legislation dealing with children and their families as follows:

Criminal proceedings should not be instituted if there is an alternative means of dealing with the matter.
Criminal proceedings must not be instituted in order to provide child welfare assistance to the child or his family.
Measures in response to offending should be designed to strengthen the family, the extended family, the clan, tribe or family group of the young person and to encourage them to develop their own means of dealing with the young person.
Young people should be kept in the community so far as practicable.
The young person's age is a mitigating factor in determining whether to impose a sanction and what that sanction should be.
Any sanction should be the least restrictive possible, and should promote the development of the youth in his family, extended family, clan, or tribe.
Due regard should be given to the interests of the victim.
In recognition of the vulnerability of young people, they are entitled to special protection during the investigation of an offence.7
Judge Lilles has said that the New Zealand legislation not only sets out a clear and consistent philosophy, but also provides direction to all parts of the youth justice system, including the police, the sentencing judge, and others. These principles for dealing with young offenders under Part IV of the Act are in support of "general objects," "general principles," and "principles" to be found elsewhere in the legislation in relation to both youth offending and child protection.

Principles similar to those set out in the New Zealand legislation are applied in Ireland in the implementation of its 1908 young offenders legislation. Ottawa lawyer James W. O'Reilly, in a December 1995 report for the Department of Justice, described these principles as follows:

juvenile offenders should be kept out of the criminal justice system as far as possible;
intervention in the life of the juvenile offender should, in the first place, be on a voluntary basis with his or her cooperation;
compulsory intervention in the life of the juvenile should be considered only when voluntary intervention has failed or been rejected. Compulsory intervention should still, at this stage, be concerned primarily with the juvenile's well-being and development rather than the protection of society;
detention of juveniles should be considered only when they are a danger to society or to themselves or their activities constitute a serious and consistent interference with the rights of others and all possible non-custodial alternatives have been exhausted.8
The Australian state of New South Wales has published a White Paper setting out its policy on its youth justice system. Among the principles it enunciated are the following:

the prevention of juvenile crime, diversion from the court process and reintegration into the community should be the primary focus of juvenile justice policy;
alternatives to court processing, where possible and appropriate, should be the first option in the juvenile justice system;
victims of crime should be given the opportunity to actively participate, where appropriate, in the juvenile justice system;
families and extended families should be recognized as the fundamental influence upon children and should be given support and opportunities to participate in the juvenile justice process;
the community accepts responsibility for young people and provides support and positive opportunities to enable young people to become valuable community members;
children and adolescents should be treated differently and separately from adults and according to their developmental needs.9
These examples drawn from other countries provide sufficient detail for Parliament to draw upon in setting out its legislative intention of developing a detailed enumeration of guiding principles to be applied in the context of a statement of purpose.

The British Columbia Civil Liberties Association in this context made the following recommendation in its brief to the Committee:

The British Columbia Civil Liberties Association recommends that the Young Offenders Act's objectives be prioritized to enable the system to serve the needs of its constituents best. Given current research, the primary goal for less serious property offences should be rehabilitation of offenders and prevention of future deviant behaviour. The Young Offenders Act must also recognize that where violent and repeat offenders are concerned, other objectives take priority.
The Committee agrees with this submission.

RECOMMENDATION 2

The Committee recommends that the Young Offenders Act be amended by replacing the present declaration of principle with a statement of purpose and an enunciation of guiding principles for its implementation in all components of the youth justice system. the statement of purpose should establish that protection of society is the main goal of criminal law and that protection of society, crime prevention and rehabilitation are mutually reinforcing strategies and values that can be effectively applied and realized in dealing with youth offending.

3 S.C. 1992, c. 20, as amended.

4 S.C. 1995, c. 22.

5 (1993) 2 R.S.C. 421 at p. 433.

6 (1992) 1 R.S.C. 749 at p. 768.

7 Heino Lilles, "Canada's Young Offenders Act: Some International Perspectives For Reform," Australian-Canadian Studies, Vol. 13, No. 2, 1995, p. 73-113, at p. 83-84. See also section 208 of New Zealand's Children, Young Persons and their Families Act, 1989 as amended.

8 James W. O'Reilly, The Treatment of Violent Young Offenders in Various Jurisdictions: An Overview, Final Report prepared for the Department of Justice on December 31, 1995, at p. 3-4.

9 Ibid, p .4.

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