New Youth Crime Act

Maclean's, ( national Canadian magazine ), by SUSAN MCCLELLAND, June 9, 2003

AT FIRST GLANCE, Greg looks much like the other inmates at the Toronto Youth Assessment Centre. Shoulder-length black hair pulled back in a ponytail, he's dressed in standard-issue burgundy T-shirt, sweatpants and running shoes with Velcro fasteners. But Greg is the boss of his cellblock, or what inmates call "the range" - and a symbol of what's wrong with prisons for kids. His territory isn't much to brag about: the cramped cells and cluttered common areas at TYAC smell of rotting food, sweat and smuggled-in cigarettes. Still, Greg (a pseudonym - like all the young offenders in this story, he can't be identified) enjoys the privileges of power. The previous night, he says, he was charged for beating up another inmate but was released from solitary confinement early because another kid on the range agreed to take the blame. And at dinner, a tall skinny kid gets him an extra slice of pizza and exchanges his milk for juice. "I hate milk," Greg explains to a visitor.

The source of Greg's power isn't his claim that he is the leader of a Toronto gang (he won't say which one) or the fact that he says he's a TYAC veteran with a mile-long rap sheet (it's his third stint). His strength is his violent "management" style - he says he and his "soldiers" use tightly rolled newspapers as bats to beat on and control other inmates. That's the norm in youth prisons: inmate-on-inmate assaults are so pervasive that one guard at a southern Ontario facility says he'd take "working at an adult penitentiary any day over working with kids who will kill each other at any time."

Violence is probably inevitable in youth detention - these aren't choirboys and girls. But the brutality that's become common in juvenile institutions, experts say, is directly related to chronic overcrowding. It's a problem that has crept into the system since the Young Offenders Act was enacted in 1984; Canada's youth incarceration rate has climbed to the highest of any Western nation. And it's a problem the newly minted Youth Criminal Justice Act aims to solve, by sending fewer kids to prison. As of April 1, chronic, repeat offenders or violent criminals will be sent to youth jails, as they were in the past. Most other cases, though, will be referred to community service or restorative justice programs in which victims and offenders meet and work out non-jail sentences together.

Roughly 23,000 young offenders were placed in custody in 1999-2000. Of those, 22 per cent committed offences involving violence, and less than one per cent were jailed for murder or manslaughter. But they get thrown into the same centres as the kids serving short sentences for petty theft, vandalism or administrative offences, including failure to appear in court. Being housed with hardcore inmates has a negative effect on low-risk offenders, says University of Western Ontario psychologist Alan Leschied. Prisons for kids are like finishing schools for gang members and career criminals, which fuels Canada's high rate of recidivism. In 1999-2000 - the most recent statistics available for young offenders - 53 per cent of property crimes and 25 per cent of assaults involved those with prior convictions.

Those alarming statistics, and the overcrowded prisons, prompted Ottawa to redraft its legislation. Signed into law on April 1, the new act takes its cues from studies that claim the majority of deviant youth behaviour can be turned around without incarceration. "There is a lot of scaremongering that goes on with young offenders but, in reality, most of the offences are minor," says Toronto defence lawyer Brian Scully. "Violent crime hasn't increased, yet youth were getting harsher and longer sentences than many adults."

Jeremy, a short and slender 17-year-old, illustrates the rationale behind the new rules. He's been at TYAC for several months, for car theft and a break-and-enter. Sitting on his bunk, Jeremy looks wistfully at photographs of his girlfriend, a pretty blond with bright blue eyes. "I try to call her every day," he says. "But sometimes I can't because the other kids in the dorm take my telephone privileges for themselves."

If Greg's the bully, Jeremy's the bullied. When he first arrived, he says, he was soldiered - an act in which a rookie prisoner is beaten by another inmate. Jeremy says he's seen other TYAC rituals: sometimes, inmates tie another kid's hands, feet and neck to one of the metal bed frames with sheets and then beat his exposed torso, or they force their peers to stick their heads in toilets filled with urine and feces and blow bubbles. Jeremy says he's turned to prayer to help him survive. "I pray whenever a fight begins that I am left out," he says. "I pray for the other kids that they don't get hurt."

But kids at TYAC do get hurt. An Ontario judge called conditions at TYAC "hellish," and gave one boy, up on charges of mischief and stealing cars, an absolute discharge after he was attacked in the facility last fall. Last autumn, another boy there committed suicide, and Ontario's Chief Advocate with the Ministry of Community, Family and Children's Services, Judy Finlay, is reviewing the level of care at TYAC. Finlay noted in a 2000 report that most prisoners spend their days confined to cells or dorms, bored. Frustrated, they set fires, or flood their blocks by plugging toilets with paper and clothing. Eventually, they take out their frustrations on each other. "The public wants kids punished for their crimes," says Finlay. "But we also want them rehabilitated so when they come out they are not a greater risk to society. Nobody wants these kids brutalized."

A FAR different form of justice is being meted out in a cosy Calgary home, where 16-year-old Dylan and his parents are meeting with Brian. The boys are munching on potato chips and pretzels and talking sports - specifically, Brian wants to know how Dylan's basketball team is doing. The subject makes the parents and the two boys laugh. After all, it was hoops that caused all of their lives to collide. Two years ago, at 14, Brian was charged with assault causing bodily harm for punching Dylan in the face and breaking his nose at a school basketball game. Brian might have faced jail time for the assault. Instead, the boys agreed to take part in a restorative justice program called conferencing, an option promoted by the new federal act but one that's already been used extensively in Alberta. In effect, it allows victims, offenders and their families to meet and settle the issues themselves.

Brian's and Dylan's conference took place at a church, and within minutes of starting, Brian admitted his guilt. He also apologized to Dylan, explaining that he was trying to defend his little brother, who was playing against Dylan on the opposing team, and went too far. The process had profound effects on both sides. Brian got to see the impact of his assault on Dylan and his family. And Dylan's parents say the conference gave them a chance to see that Brian wasn't the "monster" they'd imagined him to be after the attack took place. "He was just like my own son," says Dylan's mother. The boys, meanwhile, discovered they had a lot in common. Dylan's dad, who says he once thought restorative justice to be "bleeding-heart liberal stuff and a way for Brian to avoid punishment," wrote a letter to the court recommending that the charges be dropped. The presiding judge agreed, and the case was resolved.

Brian hasn't been in trouble since. "Facing what I did to Dylan was hard," he says. "I would have taken prison over meeting him. It would have been much easier for me to keep blaming someone else for my actions but to take responsibility in front of him and his family was really difficult."

Calgary got a head start on conferencing in 1998 at the suggestion of Doug Borch, then a probation officer. Borch, now a coordinator with Calgary's children and youth services, had conducted research for his master's degree in social work that showed criminals were less likely to re-offend if they met their victims and understood the impact of their crimes. The meetings also helped victims deal with their anger and fears of retaliation by speaking to the offenders directly. Calgary's program works on about 150 youth cases a year, which has helped relieve overcrowding at the city's juvenile prison. As well, offenders who have taken part in restorative justice conferences re-offend at a far lower rate than those who are incarcerated. "We've had a lot of success with conferencing," says Brian Holtby, senior counsel at Calgary and Edmonton's Youth Criminal Defence Office. "It's great to see a recognition that conferencing works. As a result, we hope we can do more of it."

Alcohol and drug rehabilitation, family reconciliation and school and work programs to re-integrate young offenders into their communities will also become more common under the new act. As for kids who are incarcerated, they will now have to serve at least part of their sentences in the community. That suits Tom, a rough-looking 19-year-old who spent 16 months in custody. "There is no such thing as a positive experience in a youth jail," says Tom, who was found guilty of assault with a weapon causing bodily harm in 1999. "The general attitude of a lot of serious offenders is that they can get away with anything. Drug treatment programs in prison are a joke. Jail is just daycare." He adds: "Inmates don't take responsibility for their crimes or think about the good things they want to do when they get out. It's just a cycle: you get out, do another crime and go back in again."

Tom was then addicted to methamphetamines, had few job skills and had no money for college, so it would have been easy for him to fall back into his old habits. A social worker and Tom's parents helped him get his act together. He managed to complete high school behind bars, and now, out of prison, he's off hard drugs, working part-time and is enrolled in a welding program at community college.

The new act has garnered a lot of praise, but it has its critics, too. The act has a set of guidelines recommending which types of crimes will result in prison sentences and which ones won't. Politicians in Quebec - which already has one of the lowest rates of incarceration - don't want their courts to be governed by the guidelines. And some Ontario officials are also against the act. A decade of cutbacks have left the province without the community-service infrastructure to handle the increased number of kids. As a result, justice officials say some kids, who have committed minor offences post April 1, aren't even being charged because there's no room in the system. "The new act is going to make it easier for kids to escape punishment," says Calvin Barry, a Toronto Crown prosecutor. "The old act was bad enough. Kids were showing up in court, offence after offence, and getting two days in jail as their sentences - slaps on their wrists. I heard prosecutors and police refer to the old system as Smurf court and the Goof Act. With the new act, kids won't even get their slaps in court."

Serious offenders, however, will not get off so lightly. Children who commit heinous crimes will still go to prison. And even though they will be tried in a juvenile court, under the new act they could be handed an adult sentence that is longer than the maximum juvenile term of three years. That's a change that Theresa McCuaig wishes had come earlier. On October 25, 1995, an Ottawa gang called Ace Crew beat her grandson, Sylvain Leduc, 17, to death. A 17-year-old girl, with a long list of prior convictions including assault, had instigated the brutal slaying.

McCuaig hoped the girl would be tried in adult court in the belief that a longer sentence was a more just punishment. A judge denied the Crown's request for a transfer and the girl spent a mere 18 months in a halfway house and then 18 months on parole. "Offenders need to be given the proper time to be turned around," says McCuaig. "A kid is not going to do this in 18 months, in open custody, in a halfway house."

FOR SOME KIDS, the new act comes too late. Patrick, for instance, never wanted to be a career criminal. There was a time when the one-time honour-roll student harboured dreams of becoming a fireman. But Patrick's unstable upbringing dampened his dreams. Since he was a small child, he and his single mother, who suffers from manic depression, have battled physically with one another. Patrick, now 17, says he probably would have been taken out of her care at age 7 if he had reported it. But he stayed. He travelled with his mum as she pursued boyfriends and work in one Canadian city after another. The instability took a heavy toll. Patrick lost a year of school.

Last June, his mother kicked him out of their house in Calgary, saying she couldn't take the fighting anymore. Within two weeks of moving into a youth shelter, Patrick committed his first crime, an attempted mugging, with two kids he'd met at the centre. He spent a couple of weeks in prison. He returned home to his mother, but shortly after, she threw him out again. He stayed with one of his mum's ex-boyfriends for awhile, then began living on the streets. The teenager, who used to enjoy snowboarding, became depressed. He beat up a kid at school who had been teasing him, and found himself facing assault charges. Soon after, he and some boys from another youth shelter robbed a liquor store. Then, on Valentine's Day, Patrick attempted to rob a convenience store with a fake gun. "I don't know why," he says. "I guess I was testing myself, seeing what I could get away with."

Patrick was apprehended by police and sent to live at a residence for homeless kids in trouble with the law called Raido, which is the rune for travel and journey. At Raido, Patrick talked about returning to school and finding a part-time job. But when he was charged for some old offences and faced the prospect of more jail time, he stole a car and tried to get away. He got caught and now resides in a B.C. penitentiary. David Staines, Raido's program director, isn't surprised. "Patrick's previous jail experiences spooked him, so he fled," says Staines. "If Patrick had been sentenced for his first crime under the new act and come to us right away, things might have been different."

See also JUVENILE JUSTICE SYSTEMS.

Maclean's June 9, 2003
Author SUSAN MCCLELLAND