Police, prosecutors brace for new youth crime law

Sweeping changes take effect April 1

National Post, Christie Blatchford, March 12, 2003

The Canadian criminal justice system is on the brink of profound change to the way it deals with young people in trouble with the law.

In less than three weeks, the much-maligned federal Young Offenders Act will be replaced by the Youth Criminal Justice Act and a set of sweeping changes quietly ushered in to radically different effect, depending upon the province and how warmly it has or has not embraced Ottawa's new vision, across the country.

The bill takes effect April 1.

Its intent -- to reduce the staggering numbers of youth under the age of 18 who are incarcerated for what are essentially non-violent crimes -- is being widely praised even as skeptics worry about its uneven implementation.

Bluntly, its thrust is an abrupt move away from custody, and toward rehabilitation and community programs, as the answer for the vast majority of the approximately 100,000 young people a year who are charged with Criminal Code of Canada offences, most of them for minor crimes.

For legislation that will so dramatically alter the policing and justice landscape, the bill has been the subject of remarkably little public scrutiny, though professionals such as prosecutors, defence lawyers, youth court judges, youth workers and police have been struggling for months with its anticipated effects.

Among the immediate nation-wide changes:

- Before laying a criminal charge, police officers will have the statutory obligation to consider issuing cautions or warnings to young people caught breaking the law, and in some provinces, such as Alberta and British Columbia, also will have a third option of referring them to community-based programs;

- A whole second level of what are called "extrajudicial sanctions" -- which run the gamut from formal judicial reprimands to fines of less than $1,000 and even orders to provide unspecified "personal services" to the victim of a crime -- will be considered by youth court judges before a custodial sentence is contemplated, but these sanctions can be used only if the young person can't be dealt with by the less serious warnings or referrals to community programs and only if he or she accepts responsibility for the crime;

- Judges must dismiss a criminal charge if they are satisfied that the young person has completely complied with the terms of any extrajudicial sanction, and may also dismiss the charge if they find he or she has partially complied with the earlier sanction or if the court finds that "prosecution ... would be unfair";

- Transfers to adult court have been completely eliminated, with all trials taking place in youth court, and only a handful of under 18s even eligible for adult sentences -- in the main, those convicted of murder, attempted murder, manslaughter and aggravated sexual assault and those who have twice before been convicted of a new category of "serious violent offence";

- There can be no publicity of the names of the young people -- either victim, alleged perpetrator or witness -- involved even in murder until after a case is over and the young person sentenced, and only then with parental or court consent, with the result that a murder victim such as 15-year-old Matti Baranovski, whose alleged killers' trial resumes in Toronto this month, might never be able to be identified or the larger community allowed to know, and arguably mourn, its loss;

- Sentences always must be "the least restrictive" possible, the "most likely to rehabilitate and reintegrate" the young person and the most likely to inculcate a sense of responsibility for the crime;

- Judges have the statutory obligation not to commit young people to custody except when the offence is violent (which is only loosely defined in the new Act as causing or attempting to cause serious bodily harm), when the youth has failed to comply with earlier community sentences, has committed an indictable offence for which an adult would get two years or more in jail or in certain other exceptional circumstances;

- Even then, judges are required by law to consider all alternatives to custody, and those who sentence a young person to custody must state the reasons why;

- Judges, designated provincial government officials, police officers, prosecutors and youth workers may convene what are called "conferences" to discuss what should happen to a young person.

While youth sentences for murder, attempted murder, manslaughter and aggravated sexual assault carry the same maximum penalties as they did under the old legislation -- for first-degree murder, for instance, 10 years with a maximum of six in custody and for second-degree, seven years with a maximum of four in custody and for other so-called "presumptive offences" a maximum of three years -- there is now an additional alternative to an adult sentence.

Called "intensive rehabilitative custody and supervision," it allows a court to send a young person to a specialized treatment unit instead of a regular youth prison if he suffers from mental illness, psychological or emotional disturbance and if there are reasonable grounds to believe such a plan "might reduce the risk" of him committing another serious violent offence.

In addition to these changes, which take effect across the board, there are others that provinces may enact, such as the option of sentencing a youth to attend what's called "a non-residential program" as another option to custody, and broad use of "youth justice committees," composed of ordinary citizens, to advise the courts and support victims by "facilitating reconciliation" with offenders.

The new Act is expected to have wide-ranging effects upon all sectors of the youth justice and social service systems, with some segments, such as children's aid societies, now braced for an increase in their already soaring caseloads (because judges may now refer an offender to an agency at any point in the court proceedings) even as others, such as senior officials with the Toronto Crown attorney's office, predict a dramatic drop in the number of offenders at the city's four major youth courts.

Virtually all of the affected players have had, or are planning, conferences to discuss the ramifications.

This month, about half of Ontario's prosecutors attended a three-day seminar in Toronto; Ontario youth defence lawyers will soon do the same; many of the province's children's aid associations have also sent representatives to a course on the new law, and most media lawyers have prepared briefs for their newspaper and television clients.

Toronto's Julian Fantino, chief of the country's largest municipal police force, whose 5,000 uniformed members will soon bear the burden of having to consider giving young people warnings before charging them, frankly told the National Post yesterday that most of his front-line officers have received no training.

"There may be some good things in the Act," Chief Fantino said, "but the feds have driven it without giving us the resources to administer it. We're in favour of community involvement, but it has to be well thought-out and well-managed. Here, there's been lots of talk, but what's it mean? Where are the resources for agencies to do more? There's more responsibility for our police officers, but no training, no money.

"We're not in any position to have all our people trained by April 1," he said, "so I guess we're in a state of limbo."

Ottawa, for its part, claims it has offered plenty of money -- almost a billion dollars over five years -- to pay for the "front-end" changes that will allow for the new reliance on rehabilitation and non-custodial sentences, but that some provinces are dragging their feet.

A senior Justice Department official said yesterday that because some provinces aren't committed to the new legislation -- notably Ontario -- they have been slow to use the funds or set up the community programs that will soon be required.

In fact, it was because of complaints from provincial attorneys-general that Ottawa delayed implementation of the new Act for more than a year, ostensibly to give provinces time for training.

Insiders say that while the new legislation, and its philosophical thrust, was welcomed by provinces such as Alberta and British Columbia, Ontario and Quebec fought it tooth and nail, albeit for reasons that are polar opposites -- Ontario's Tory government finding it "weak-kneed and woefully inadequate," as former attorney-general David Young once described it, while in Quebec, which has long opposed long prison terms for young people, senior officials found it too harsh because it lowers the age from 16 to 14 at which youths could receive adult sentences (though not be tried as adults) for the most serious crimes.

Nick Bala, a Queen's University law professor and youth justice expert who has just written a book on the new legislation, said yesterday that while the changes are in the main good and are aimed at reducing what he says is generally acknowledged to be Canada's alarming incarceration rate for young people -- "one of the highest in the world" -- he is concerned about the implementation.

He gave an example of how, under the old Young Offenders Act, a young person charged with a trivial crime often ended up being harshly treated. "The police would say, 'We're charging you with shoplifting or maybe fighting.' Then they release him, and say, 'Be back in court in two weeks.' But the kid, being a kid, doesn't show up. So now we're talking about failure to appear, and that's more serious, so now he goes into custody."

But for serious, violent offences -- which are only a tiny percentage of youth crime, he said -- what the new Act attempts to do, "and it is intended to be a profound change," is ensure that immature young people aren't criminalized for minor breaches.

Copyright 2003 National Post