CHAPTER 5 - LIMITS OF LAW AND LEGAL
RESPONSES:
THE CASE FOR COMMUNITY
RESOURCES
CRIMINAL JUSTICE SYSTEM LIMITATIONS
The Committee heard in every jurisdiction in this country how we have used the criminal justice system as the place to dump all our failures. Attempts to resolve conflicts and minor transgressions of the law informally or at the community level have been overshadowed by costly, formal criminal justice responses. Although the vast majority of youth crime involves minor offences, all too often minor offenders are processed through the youth justice system and sentenced to terms of custody.Canada uses imprisonment in response to youth crime more than many other countries. The bulk of financial resources devoted to youth in conflict with the law in this country has gone to build and operate custodial facilities. In fact, approximately 80% of the amount spent on the youth justice system funds open and closed custody facilities leaving a meagre amount for the development and implementation of community-based programs and custodial alternatives. In their oral submission to the Committee, the Canadian Criminal Justice Association (CCJA) blamed the current situation on the absence of strategic federal funding for effective measures to keep youth out of the youth justice system:
Its [Young Offenders Act] historic promise to intervene and redirect adolescents who have come into conflict with the law has never been realized due to the lack of targeted resources. (190:3)This overreliance on the formal justice system and imprisonment is an enormous drain on public dollars, introduces minor offenders to more serious, persistent offenders, stigmatizes offenders and reinforces criminal identity in a deviant subculture. Moreover, it fails to deter youth crime. Sister Bernadette O'Reilly of Rossbrook House, a drop-in community development centre in the inner city of Winnipeg, told the Committee that processing low-risk youth through the justice system and incarcerating them may have the unintended effect of increasing their chances of reoffending.
I think I speak out of the experience of some of the young offenders I've worked with who, having been released from a closed custody setting, are much worse than when they went in. They might have gone in with really minor offences and been placed into closed custody sometimes because the stresses on the family were too great for it to be able to cope. . . There's no question that young offenders learn crime in prison. To me, the whole system needs to be evaluated, not just the individuals. (53:6)Our reliance on legal solutions - police, courts and corrections - costs Canadians nearly $10 billion annually and has failed to buy social protection. This is because the factors associated with criminal activity are, in the main, social problems (e.g. illiteracy, poverty, poor housing, substance abuse, school failure, etc.) with which law and legal institutions are ill-suited to deal. The Committee learned that the social factors that put individuals at risk for involvement in crime and communities at risk for criminal victimization can be influenced through community-based crime prevention initiatives. Yet, according to Ross Hastings, Co-Chair of the National Crime Prevention Council, less than 1% of the $10 billion criminal justice budget goes to crime prevention. His colleague, Joan Pennell, Chair of the National Crime Prevention Council's Committee on Youth told the Committee:
Even though we're spending a great deal of money, we have overcrowded courts; we have police who are having a very difficult time in keeping up with all calls they're getting; and we have overcrowded prisons and youth facilities. If we pay attention to prevention and intervention, we will have fewer problems with young people getting seriously involved with crime and with the justice system. (193:3)The Committee was reminded of the failed crime policy of our neighbour to the South. The United States spends close to $140 billion (Canadian) annually on criminal justice responses to crime and has tripled its prison population over the last 15 years.26 Nick Bala, of the Faculty of Law, Queen's University, encouraged the Committee not to endorse this futile approach:
Certainly, the evidence in the United States suggests that the level of public demand about punitiveness and about getting harsher and harsher can just cycle along, and at one level it can never be satisfied. We'll never eliminate crime, and we'll never eliminate youth crime. Whether there is hanging or flogging or whatever, it's still going to go on, so be very cautious about that and show some leadership. (80:19)While witnesses before the Committee acknowledged the necessary role of criminal justice intervention in order to protect society from serious offenders, they also recognized that these formal responses have not created safer communities. Criminal law and criminal justice institutions are designed to react to offending behaviour after someone has been victimized. In the experience of Judge Heino Lilles of the Yukon Territorial Court, there are real limits to what laws can achieve in the way of social protection:
During the ten years I've sat as a judge, I've watched children graduate from the child welfare system into the youth court system and then into the adult court system. . . I've learned a number of things from this experience. One of them is that contrary to public expectations, legislation alone, whether it's the Young Offenders Act or the Criminal Code, is not capable of reducing crime in our society in any significant way. (79:9)Nor are more laws likely to reduce public fear and insecurity, according to Martin Garbor-Conrad of the Edmonton City Centre Church Corporation:
Feelings of public safety are not driven by the law and they cannot be improved by that. (80:38)
NEED FOR INCREASED COMMUNITY-BASED RESOURCES
The Committee was told that as long as the youth crime problem is linked to the criminal law and, along with the police, courts and custody, it is seen as the solution to the problem of crime and victimization, youth crime will persist, demands for more toughening up the Act will not cease, and public confidence in the system will remain elusive. More criminal justice interventions, it heard, will only increase the already substantial number of youth processed through the system and take valuable resources away from the front-end measures that attempt to prevent crime, argued Jim Robb. He offered this caution:
Measures designed purely to overload an already overloaded system and increase incarceration will only bleed away even more resources from the very fragile, and frankly very skimpy, resources available right now to get at the real problems in the system. (49:43)Scarce community resources is an issue about which the Committee heard time and again. It is a situation prevalent across Canada, from east to west, and in the north. Neil Sharkey, of the Maliiganik Legal Aid Clinic in Iqaluit, remarked to the Committee:
Most of the provinces. . . have dumped that money [federal transfer payments for young offenders] into youth jails. We have a fine youth facility here, but it's an expensive one and it gets the largest amount of transfer payments and proportionately deals with the fewest number of youth in trouble. It deals with the ones for whom there's no alternative. . . .And that's because there's no teeth to the other alternatives, and there's no teeth because there's no money. (43:2)In Iqaluit, resources to hire full-time probation officers to counsel youth and supervise intensively those in conflict with the law would, according to Neil Sharkey, provide a viable and meaningful alternative to custody and reduce reoffending rates. Several times during his testimony, he noted that the Young Offenders Act already has "teeth"; the problem is the dearth of community resources to assist minor offenders and youths at risk and their families.
The Committee was told of parents who have asked the police to charge their children because they can no longer handle them and cannot find any support or assistance in their community; of teachers who have nowhere to refer youths who display aggressive/disruptive behaviour and have been identified as having been abused and/or are at risk for future offending; and, of police officers, who have arrested obviously troubled youths involved in minor offending because they lack a supportive home environment and are in need of social service interventions.
Yvon Dandurand, of the International Centre for Criminal Law Reform and Criminal Law Policy, in commenting on diminishing community resources set out some valid reasons to resist shifting accountability for youth crime to parents.
I have had a chance to review about 100 case stories of young delinquents who were basically making crime into a career. I looked at those and I searched back in my own experience when I used to work in the youth justice system, and I couldn't remember one case where the parent, no matter how incompetent they were, has not asked for help at least once, if not fifteen times. They often asked at the level of school counsellors. Well, they're not there any more. . . .There's nothing in social services. . . So when we're talking about accountability and early intervention, there's an easy solution. Listen to the parents. Listen to the school teachers. They know which kid is in trouble. . . They can tell you. The problem is the lack of resources. We're devoting a lot of our resources to prisons and probation, yet we know both of those measures are not effective. (64:45)Witnesses before the Committee also spoke of the limited community resources to support youth released from custody. Even if some young people are helped in prison, without community-based resource people and programs to help youth make the transition from custody to society, many return to their former peers and lifestyle. Lisa Martz, of the Vancouver Family Court Youth Justice Committee, linked aftercare services to community safety:
. . . time and jail do make a difference. . . not because of the punitive aspect of jail. It's because of the resources they may link up with there. . . you have kids who benefited from jail time, but then when they are released. . . we simply don't have the resources here to help them make that transition, even though it's clear that discharge is a crucial time for a young person. (64: )She added:
Success in jail is one thing; success in the community is what we're all interested in. Yet decisions are being made, even as we speak, to cut back on resources at that crucial time. (64:3)Recognizing it is unlikely that new money will be made available, a number of witnesses recommended redirecting some of the hundreds of thousands of dollars in the criminal justice system into the communities where they may have the most impact. They told the Committee that if we are serious about reducing youth criminality we should be using our resources to develop a wide range of community-based options to support children and their families.
RECOMMENDATION 5
The Committee recommends that the Government of Canada enter into discussions with provincial and territorial ministers responsible for youth justice issues with the goal of shifting resources away from custodial institutions and into community-based services in support of children and families.
FEDERAL-PROVINCIAL-TERRITORIAL COST SHARING
Although Parliament has constitutional jurisdiction for the enactment of criminal law, its administration is a provincial responsibility. Hence, over the years there has grown up a shared responsibility between the two levels of government for funding the different components of the youth justice system. Under the Juvenile Delinquents Act, these cost-sharing arrangements fell largely under the Canada Assistance Plan, Special Young Offenders Arrangements, and contributions from the Department of Indian and Northern Affairs (as it was then called) in relation to status young offenders. These arrangements generally provided for a 50-50 sharing between the two levels of government of the costs of custody; non-custodial dispositions were not cost shared in this way. These arrangements were changed with the 1982 adoption by Parliament of the Young Offenders Act.The legislative basis for present cost-sharing arrangements can be found in section 70 of the Act, which reads as follows:
Any Minister of the Crown may, with the approval of the Governor in Council, enter into an agreement with the government of any province providing for payments by Canada to the province in respect of costs incurred by the province or a municipality for care of and services provided to young persons dealt with under this Act.The Act was not proclaimed in force until 1984 in order to allow the federal, provincial and territorial governments time to negotiate and put in place a new cost-sharing arrangement to replace those under the former Act. It should also be noted that the uniform maximum age provision of the new Act was not proclaimed until 1985. Unlike the former cost-sharing arrangements, the new ones included both custodial and non-custodial services.
In 1984, the federal, provincial and territorial governments entered into a five-year agreement containing the following elements:
- 50% cost sharing of custodial services, post-adjudication detention, alternative measures and judicial interim release (bail) supervision; and
- 50% cost sharing, less a base year deduction, of predisposition reports, medical and psychological assessments, screening services, review boards, and post-dispositional community-based supervision services (such as probation).27
In 1987, negotiations were begun with the intention of renewing and extending the cost-sharing arrangements scheduled to expire on March 31, 1989. In May 1989, the federal Cabinet as a budgetary restraint measure capped the federal contribution to these arrangements at the March 31, 1989 level of approximately $156 million a year. The capping decision has to this day not been changed and in fact there have been further minor reductions in the federal contributions. Current fiscal restraints have effected a further 4% reduction of the capped amount, to bring it to $150 million a year. The arrangements expired on March 31, 1996, and are currently being renegotiated.
The effect of the federal capping decision is quite apparent. The level of potentially shareable provincial and territorial costs has constantly increased, while the federal contribution has largely stayed constant. The consequence is that the federal proportion of the shareable costs has declined over the years. It also appears that the proportion of the shared costs being allocated by the provinces and territories to custodial services has in recent years been as high as 70%.28
When he appeared before the Committee, the Honourable Allan Rock, Minister of Justice, addressed the cost-sharing issue as follows in setting out his long-term goals:
I think an important reason for a high level of custody in youth crimes is that there aren't alternatives. That's why I say that when we sit with the provinces to renegotiate the cost sharing, I want to stipulate for a plan that will work toward a reversal of the present ratio. At the moment, eight of every ten dollars that we give the provinces goes to custody costs. Well, that's easy, and in a sense it's lazy. It just makes sure that we build more facilities with locks on the doors. I'm going to negotiate this if I have the chance because I'd rather see that money spent in the other proportion over the next few years, with 80% of it going to alternatives. When there is a non-violent offender before the court and the court wants to see a way in which to deal with that young person other than just locking the kid up, it should have alternatives available. (189:19)Although not disagreeing in principle with Mr. Rock's long-term goal, the provincial and territorial ministers responsible for youth justice issues who met with the Committee had a different perspective on how it could be reached. They observed that their share of costs continued to rise while the federal contribution had been frozen. The 1989 capping of the federal share of the shared-cost program adversely affected those jurisdictions in particular that had not yet built the enhanced facilities and programs required to implement the Young Offenders Act. They also complained that each set of amendments to the Act by Parliament also increased their costs. Some concern was expressed about the federal government telling the other levels of government how they should exercise their jurisdiction over the administration of the youth justice system - this particularly as the federal government was not living up to its 1984 commitment to contribute 50% of this cost-shared program.
This last point was made most vociferously by Ontario Solicitor General and Minister of Correctional Services, the Honourable Robert Runciman, when he said:
However, we believe it is our responsibility, not that of the federal government, to decide how the federal contribution to the cost of young offender programs will be used.
. . . It is the province's responsibility to administer young offender programs. It is our responsibility to determine the manner in which the funding is allocated. And we intend to assert that prerogative to develop a made-in-Ontario system that meets our needs and our perspective.As the Committee has stated elsewhere in this Report, it favours an approach based on early intervention, where prevention efforts, community and family-based, informal, non-criminal justice and non-custodial strategies are given primacy. The full gamut of criminal justice instruments, including custodial dispositions, should be reserved for the most serious instances of youth offending. The Committee has come to the conclusion that the federal-provincial-territorial cost-sharing arrangements should be adapted to reflect and implement this reconceptualized view of the youth justice system, which it is confident is shared by the provincial and territorial governments. This agreement on a basic philosophy does not imply that the federal government will tell the other governments how to develop and run their youth justice programs; rather, it implies the identification of areas of partnership in which each participant has a role.
A number of those appearing before the Committee agreed with the thrust of the position advanced by the Minister of Justice. The St. Lawrence Youth Association in its brief to the Committee urged that:
The government should furthermore redefine the Young Offender Cost-Sharing Plan to encourage more cost-efficient, proven and `front-end' services. An increased financial emphasis on community-based services such as `family preservation' programs should move from 20% of the funding to 50% now and up to 80% in the longer term.Queen's University law professor Nicholas Bala offered the following advice during the Committee's National Forum:
When you're structuring your payments to provinces, try to structure your payments in a way that encourages alternative measures, family conferencing, community-based dispositions, and not the building of custody facilities. (80:19)The Canadian Association of Elizabeth Fry Societies said the following in its brief to the Committee:
CAEFS is heartened by Minister Rock's statements before this Committee with respect to his interest in renegotiating agreements between the federal government and the provinces in order to support community-based options and alternative justice approaches. We see this as a significant step in the right direction.And finally, the Canadian Criminal Justice Association had this to say in its brief to the Committee:
It could be hypothesized unless Parliament moves to change the direction of YOA funding, no amount of legislative drafting can address the following fact: not enough meaningful alternatives to custody are funded, which would reduce our overreliance on custodial institutions.The Committee agrees with the sentiments expressed in these submissions. In spite of this agreement on the general philosophical goals, the Committee is painfully aware of the difficulties ahead in any attempts to rearrange or "reprofile" the federal-provincial-territorial cost-sharing arrangements. The quest is made very difficult by hard fiscal realities faced by all governments today and exacerbated by the impact of the 1989 capping of federal contributions and the increasing growth of demands on provincial and territorial youth justice budgets. These difficulties and the different perspectives are reflected in the federal and provincial-territorial proposals in the Report of the Federal-Provincial-Territorial Task Force.29
The Committee believes it is possible to renegotiate the present cost-sharing arrangements to reach a result consistent with the goal enunciated by the Minister of Justice: to have 80% of the cost-shared funds allocated to non-custodial programs and services for young offenders. To do this, all levels of government and all Canadians will have to be convinced by those advocating this goal and its underlying philosophy, that society will thereby be safer and more secure, and that these public expenditures are affordable, justified and will have effective results. The task is not an easy one but can be accomplished if those involved in negotiations take a long-term view.
If the cost-sharing arrangements are restructured, certain realities have to be faced. The capping of federal contributions since 1989 has had an impact on provincial and territorial youth justice system budgets, which will have to be redressed somehow. As well, any renewal of the youth justice system or reprofiling of the cost-sharing arrangements in order to reach our goal will produce transition problems; there may be a need for a temporary increase in youth justice system budgets during the transitional period.
Governments must respond to transitional increased budgetary requirements if the ultimate changes in the youth justice system are to be achieved. There are two possible approaches to addressing this issue through the renegotiation of the present cost-sharing arrangements. The first of these would be the temporary lifting of the cap on federal contributions during the period of transition - say, for five years - after which, federal contributions could once again be capped. The second possible approach would be to leave the 1989 capping decision in place and provide the other levels of government with transitional funding according to proven need for financial assistance in changing youth justice services and programs.
However, these changes are effected in the shared-cost program, its long-term goal must always be the most effective and efficient expenditure of public funds for the protection of society.
RECOMMENDATION 6
The Committee recommends that the Minister of Justice, in consultation with his provincial and territorial counterparts, undertake renegotiation of the young offenders' cost-sharing agreement with the goal of ensuring that 80% of the shareable costs are to be allocated to non-custodial programs and services.
26 B. Welsh, "Crime Prevention - Global Perspective," The New Federation, July/August 1996, p. 21.
27 Department of Justice, Bureau of Review, Program Evaluation Section, The Evaluation of the Young Offenders Federal-Provincial-Territorial Cost-Sharing Program, January 1994, p. 14.
28 Federal-Provincial-Territorial Task Force on Youth Justice, A Review of the Young Offenders Act and the Youth Justice System in Canada, August 1996, made public in November 1996, part 2.3.2.
29 At parts 2.3.6 and 2.3.7.