CHAPTER 3 - YOUTH OFFENDING AND PUBLIC UNDERSTANDING
Throughout the consultative process and in drafting this Report, members of the Committee were acutely aware of the lack of congruence between public perceptions of youth crime and the youth justice system, and the reality. Public opinion surveys, media reports and anecdotal accounts together show widespread negative attitudes toward the Young Offenders Act and youth courts. Generally, the public believes that youth court judges are too lenient, that youth crime, particularly violent crime, is on the increase and longer sentences are necessary.
VIOLENT CRIME LEVELS
Opinion polls consistently show public overestimation of the incidence of violent crime in Canada. A majority of Canadians believe that most crimes involve interpersonal violence and that such offences are increasing.10 In fact, crime in Canada principally involves property loss and damage; violent crime accounts for a small proportion of criminal incidents reported to police. In 1995, of the Criminal Code incidents reported,11% were crimes of violence and of these, 60% were minor assaults.11 Of all those charged in Criminal Code incidents, 19% of youth were charged with crimes of violence, compared to 29% of adults so charged.12 Of the roughly 2.5 million young offender-aged youth in Canada in 1995, 65 were charged with homicide. The 1995 rate for youth homicide was2.7 per 100,000 youth.The rate of youths charged with violent crimes increased by 2.4% in 1995, over half of the charges were for minor acts of aggression between peers, and did not involve a weapon or serious physical injury. According to a number of informed commentators on justice issues, the increase in the number of youth charged with violent offences reflects in part changing reporting patterns, reduced tolerance of acts of aggression in any form and a greater willingness on the part of the justice system to process reports. While Canada has a youth crime problem in need of attention, it is not experiencing an upsurge in serious violent crime perpetrated by youth.
RESPONSES TO YOUTH CRIME
Members of the public often underestimate the extent to which youth court judges send convicted young offenders to custody.Statistics reveal, however, that the rate at which youth justice system in Canada sentences youth to custody is four times higher than that for adults. In 1994-95, over25,000 youth court cases resulted in a custodial disposition in this country,13 at a unit cost of approximately $200 per day or $40,000 annually.
Under the Young Offenders Act, the Committee heard, the rate of youth incarceration in Canada is twice that of the United States, and ten to fifteen times the rate per 1,000 youth population in many European countries, Australia and New Zealand. (80:27) Although offences committed by youth are usually non-violent, these offenders are treated by the system similarly to violent offenders. In 1994-95, 34% of youth court cases with guilty findings resulted in custodial sentences. Property crimes accounted for 43% of these, and violent crimes for 18%. Since 1990-91, the number of youths sentenced to custody and the number held in custody on remand have risen by 20%. Unlike the adult system, the youth justice system has no parole or other form of conditional release.
The majority of custodial dispositions are for three months or less. A number of witnesses were critical of these sentences because they expose youth involved in minor offending to more serious offenders, they do not allow for any rehabilitative programming, and "there is no evidence contrary to the beliefs of some judges, that `short sharp shocks' have any impact on the likelihood that young people will commit further crimes."14 However, giving short custodial sentences is often the only option available to youth court judges given the dearth of community-based alternatives to custody. During an in camera meeting with judges who work in the youth courts, a number of them commented on the scarcity of available sentencing alternatives. One judge said:
Seriously, if anybody has to look at what the problems are in the Young Offenders Act, it's not because the law, the statute, or the courts are not putting enough kids in custody. It's because when it comes time to find or to develop programs to make sure they won't be a danger to the community in the long term, those programs aren't there, and they're being turned back by the day.
DETERRENT EFFECTS OF HARSH SENTENCES
A view widely held by Canadians is that harsher penalties will deter young people from offending; yet youth court statistics show a high recidivism rate in this country. Of the young offenders convicted in youth court in Canada in 1993-94, 40% were repeat offenders and 25% were persistent offenders with three or more prior convictions.15 Moreover, a significant proportion of adults serving sentences in provincial jails and federal penitentiaries "graduated" from the youth justice system. These data buttress the findings from empirical research, which have shown consistently that harsh penalties do not change the incidence of crime post-release. In his comments on the high recidivism among Canadian youth, Glen Purdy, co-founder of the Sparwood Youth Assistance Program in British Columbia, observed:
Given that the Canadian experience is one of significant punitive action taken against youth in the vast majority of offences, that reoffence rate is really quite astounding. The system is not working to prevent reoffending. (66:29)This sentiment is not generally shared. For example, a number of people and some community leaders advocate sentencing youths to boot camps in the belief that exposure to a harsh, physically demanding environment will reduce their likelihood of reoffending. This belief, however, is not supported by the findings of an evaluation of boot camps in eight states in the United States. The research found in four of the states the reoffending behaviour of boot camp inmates was no lower than that of those in a comparison sample who had served other sentences (e.g. custody in conventional youth facilities or probation). In two states, boot camp inmates actually reoffended at higher rates than those in the comparison sample. Only in the two states where quality rehabilitative programs were a significant component of the boot camp regime and intensive supervision had taken place in the community upon release, were lower rates of recidivism reported.16 Subjecting offenders to strict discipline in a boot camp atmosphere, the research concluded, did not reduce demonstrably reoffending rates or, by extension, victimization rates.
These findings are not confined to Canada and the United States. In New South Wales, Australia, the Office of Juvenile Justice review of reoffending by youth who had been in custody found:
The disturbing proportion of juveniles re-entering juvenile justice centres on violent offences following initial custodial terms for non-violent offences must hold in question the rehabilitative qualities of juvenile justice centres, their ability to deter juveniles from reoffending and their ability to prevent or minimize exposure to the more experienced and the more violent criminal elements they house. Furthermore, these points support the use of alternatives to detention as far as possible in order to prevent or assist in preventing juvenile offenders escalating in their criminality.17
KNOWLEDGE OF THE YOUTH JUSTICE SYSTEM
Many witnesses who work on a daily basis with young offenders expressed considerable dismay and frustration over the lack of public understanding of the provisions and effects of the Young Offenders Act and lack of confidence in the young offender system. In their view, most people have had limited or no exposure to the youth justice system and base their criticisms and opinions on high profile cases and media portrayals of the serious young offender; neither of these are representative of most youth criminality and offenders.The findings from an analysis of newspaper reports on youth crime in Toronto reveal that the mass media, the source of most public information about crime, do a very poor job of informing the public.18 Over a two-month period in 1995, 113 stories about youth crime appeared in the three Toronto newspapers; over 90% of them reported on crimes involving serious interpersonal violence. (As earlier noted, of the youths charged with Criminal Code offences in 1995, 19% were charged with violent crimes.19) Moreover, in only 12 of the news stories was the disposition of the youth court reported and only one gave the youth court judge's reasons for the disposition. The author of the study estimates that in the two-month period, over 5,000 cases would have received dispositions in Ontario and, in the vast majority of those cases, the youth court judge would have given some explanation for the disposition.
Susan Reid-MacNivan of the John Howard Society of Canada has conducted extensive research on public knowledge of the Young Offenders Act and the youth justice system. The majority of respondents to her survey (60%) said they derived most of their information about youth crime from television news programs or newspapers. She found, not surprisingly, over 60% of the respondents were not familiar with any aspect of youth custody; 65% overestimated the amount of crime committed by youth of young offender age; and, 70% overestimated the amount of violent youth crime. (192:2)
Because of their tendency to focus on sensational and egregious violent criminal events and failure to provide context and critical analysis, the media fuel and reinforce the public's fear of youth violence and the misconception that most youth crime involves acts of aggression. In her submission to the Committee, Constable Olsen of the Edmonton Police Service described how public fear is incited:
We hear about high-profile, very violent crimes in this country. This in turn escalates the average person's fear of crime, especially if it's in their own city. This promotes the whole myth that they live in a violent city or a violent neighbourhood. We have so few kids who are actually involved in these incidents. . . But we don't promote the message that the kids who are bad kids represent only a certain percentage of the kids. The message that goes out from the media is the fear of crime; we all should be afraid. (49:67)The Committee heard that public anxiety over violent youth crime may have precipitated a backlash against young people in general. Susan Reid-MacNivan made the point: "We've created a spectacle out of youth by drawing attention to the minority of cases of serious violent offences that we read in the newspaper. We've created a fearful response in terms of what the public feels about youth." (192:3) Witnesses spoke of the need for policymakers to treat seriously the problems currently confronting youth, such as unemployment, underemployment and high stress on families, and to consider the perspective of those who work with youth regularly - teachers, child protection workers, youth service workers, school counsellors, police and probation officers and lawyers who prosecute in youth court - when making public statements about youth crime and enacting legislation affecting young persons.
As well, the Committee heard how misinformation underpins recurrent public demands for harsher criminal justice sanctions. This was concluded by the researcher who conducted the analysis of Toronto newspaper reporting, discussed above. She noted:
Given the lack of information available to the public it is likely that if dispositions were made "harsher" they would not even know it and therefore, would not be any more content with the level of severity of youth court dispositions.20Indeed, as already noted, since the Act was proclaimed law 12 years ago, it has been amended on three separate occasions - in 1986, 1992 and, most recently, in 1995. Many of the amendments to the Act have increased penalties for offences involving interpersonal violence and facilitated the transfer of youth to the adult system. Yet, despite these policy changes, calls to enact even tougher legislative measures endure.
A number of witnesses appearing before the Committee believe it is not surprising that the public looks to the law and the legal consequences of an offence as the solution to youth crime; this is the message they hear on a regular basis from the media and some community leaders. Many were highly critical of those who exploit public safety concerns and promise to enact harsher sentences as the panacea to young offending. The Committee heard time and again in its travels that sensational cases drive the demand for harsher sentences and further amendments to the Young Offenders Act would not reduce public concern about youth crime or make our communities more secure. This position of the Canadian Bar Association was cogently articulated by its spokesperson, Elizabeth Bennett, during her appearance before the Committee:
The current review of the Young Offenders Act by this Committee, in our submission, must acknowledge the highly charged public debate resulting from a few sensational cases involving young offenders. We recognize the need to ensure that serious crimes of violence committed by young offenders are prevented. However, public outrage to isolated, albeit abhorrent, crimes should not be equated with evidence for harsher legislation. . . The long-term solution must be to have young offenders turn their lives around and become productive members of society. This solution can only be found in a thorough analysis of the contributing causes of youth crime. (64:47-48)In their joint brief to the Committee, the John Howard Societies of Canada, Alberta and Ontario identified the most important issue in criminal justice today as "the tendency of legislators to misinterpret public attitudes and the belief that punitive legislation will satiate those who promote deterrence as the cornerstone of youth corrections."21 Along the same lines, Jim Robb, of the Edmonton Legal Aid Office, suggested legislators may have limited their options through propagating the view that the Young Offenders Act is a weak law which causes youth crime, and by enacting ever tougher youth justice policies.
The dilemma I see we're in is that we have built up over the last five years an expectation that the Young Offenders Act is a total and complete failure, and therefore we must deliver on promises to make it tougher. One of the problems with that is, what do you do for your next act when the level of draconian measures fail? We're starting to amend this Act every two years. (80:48)Sandra Scarth, of the Child Welfare League of Canada, expressed concern that further amendments to the Young Offenders Act in response to misinformation about the Act and anxiety over extreme, unrepresentative cases would create a legal framework that failed to address the majority of youth crime. Public education, not further youth law reform, was advocated by the Child Welfare League, and supported by others.
Our belief is that policy based solely on these worst-case scenarios will be really ineffective in addressing the overall problem for the bulk of young offenders. So we're concerned that the federal government response might be based on similar misperceptions and we urge the government to first educate the public. (193:23)Similarly, Mona Lynch of Nova Scotia Legal Aid recommended:
In my mind, it's [Young Offenders Act] the most misunderstood piece of legislation we have in Canada at the present time, and I hope that's not a reason to change it. It's a reason to inform the public and educate the public but not to change the Act. (9:2)Despite anecdotal evidence to the contrary, witnesses who work regularly with youth in conflict with the law reported that most young people are as ill-informed as the general public about the specific provisions of the Young Offenders Act and the operation of the youth justice system, and most have internalized the refrain that the Young Offenders Act is lenient.
A youth court judge at an in camera meeting related an experience he had when he was a defence lawyer representing young offenders: "I had a kid who'd heard it all, every time you turn on the television. . . every time you open a newspaper. . . nothing is going to happen. This is all kids hear. I was talking [to her] in custody through the glass, and she said, "nothing is going to happen to me because it's the youth court." I said, "you're in jail." She had heard it so often, she didn't even realize she was incarcerated. We have to take responsibility for that attitude, it was right over her head."
Criminal justice personnel who propagate the view that the Young Offenders Act is a weak law, the Committee heard, may also have an incomplete understanding of the Act. Brian Scully, Chair of the Youth Justice Committee of the Ontario Social Development Council, recounted comments made by a long-serving police officer to a victim who had been seriously assaulted by a young offender; they are illustrative.
[A] police officer with seventeen years' experience spoke to the victim and said: "Of course, if this young man had killed your mother, father, and everybody in your family, he would have received only three years as a maximum sentence under the Young Offenders Act." This was two years ago. . . I then turned to him and asked him why he had said that, when obviously it is not true. He asked me what I meant by that, and I mentioned section 16. He asked what section 16 was, and I told him it was the transfer section of the Young Offenders Act. He asked what I was talking about. With seventeen years' experience, he was ashamed and embarrassed to admit that he had arrested thousands of young people since 1984 and he didn't know about the transfer section of the Young Offenders Act. He went on to say to me that he was concerned because he felt that a lot of people in his force do not understand the Act, don't know it. (23:28)In light of the foregoing, witnesses called for a national education campaign to put youth crime and its prevention on the national agenda. They spoke of mass education as a vehicle for presenting accurate information, dispelling myths and advancing awareness of social responsibility for the occurrence and prevention of crime. The Committee believes that, if public confidence in the youth justice system is to be regained, the information received by members of the public about youth crime, the Young Offenders Act and the youth justice system must be factual and comprehensive. As well, plain language information should be developed and made available to those who work in the system and those who come into contact with it.
RECOMMENDATION 3
The Committee recommends that the Minister of Justice undertake discussions with provincial and territorial ministers responsible for youth justice to foster, in conjunction with community agencies, comprehensive, multifaceted education campaigns on youth crime, the Young Offenders Act and the youth justice system to be directed at the general public, those who work in the system and those who come into contact with it.
10 K. Hung and S. Bowles, "Public Perceptions of Crime," Juristat, Canadian Centre for Justice Statistics, Statistics Canada, Vol. 15, No. 1, January 1995, p. 10.
11 H. Johnson, "Violent Crime in Canada," Juristat, Canadian Centre for Justice Statistics, Statistics Canada, Vol. 16, No. 6, June 1996, Figure 1, p. 6.
12 D. Hendrick, "Canadian Crime Statistics, 1995," Juristat, Canadian Centre for Justice Statistics, Statistics Canada, Vol. 16, No. 10, 1996.
13 G. Doherty and P. de Souza, "Youth Court Statistics 1994-95 Highlights," Juristat, Canadian Centre for Justice Statistics, Statistics Canada, Vol. 16, No. 4, March 1996.
14 A. Doob, et al., Youth Crime and the Youth Justice System: A Research Perspective, University of Toronto, Toronto, 1995, p. 118.
15 G. Doherty and P. de Souza, "Recidivism in Youth Courts 1993-94," Juristat, Canadian Centre for Justice Statistics, Statistics Canada, Vol. 15, No. 16, December 1995.
16 D.L. MacKenzie, et al., "Boot Camp Prisons and Recidivism in Eight States," Criminology, Vol. 33, No. 3.
17 M. Cain, Juveniles in Detention: A Model for Diversion, Office of Juvenile Justice, Sydney, Australia, 1993, p. 36.
18 J.B. Sprott, "Understanding Public Opinion of the Young Offenders Act," Brief submitted to House of Commons Standing Committee on Justice and Legal Affairs, Phase II Review of the Young Offenders Act, September 1995.
19 Hendrick (1995).
20 Sprott (1995), p. 3.
21 John Howard Society of Canada, John Howard Society of Alberta and John Howard Society of Ontario, "Brief to the House of Commons Standing Committee on Justice and Legal Affairs, Phase II Review, of the Young Offenders Act Main Submission," November 1995, p. 4.