Youth criminal justice act still stirring up controversy

Law Times, By David Gambrill, 2002

The federal government's proposed youth criminal justice act which gives judges and law enforcement officers more discretion in the sentencing and charging of youth could face a constitutional challenge, an Ontario Court judge told criminal lawyers last week.

The bill's discretionary powers could lead to a wide discrepancy in how youth sentences are applied from one jurisdiction to another, Ontario Court Justice Gilles Renaud told lawyers at a Criminal Lawyers' Association conference in Toronto.

"I would think the constitutional challenges will address the question of discretion," said Renaud, who presides in northern Ontario. "Sentencing ranges speak of what's being given in areas, what's generally being meted out in the region or locality. . . .

"I can see a number of challenges on the basis that, 'You are providing programs here that we don't have.'" Renaud offered a hypothetical scenario in which Prince Edward Island provides discharges for repeat drinking-and-driving offenders, whereas Ontario does not.

"I can see a hodge-podge situation that would bring about a constitutional challenge because of a concern that people aren't being dealt with equally," he said.

The youth criminal justice act passed third reading in Parliament on May 29, and is currently before the Senate. The government is hoping the Senate will pass the legislation before the end of the year. The provinces have asked for one year between the bill's passage and implementation to study how to proceed.

Among other things, the 171-page act would give police and judges more discretion to use "measures other than judicial proceedings" to bring youth offenders to justice. For example, the act proposes a new framework of sanctions, including:

• police warnings or cautions;

• referrals to community-based or 'restorative' justice agencies;

• judicial reprimands;

• supervision orders and programs;

• rehabilitative custody orders and programs; and

• "deferred custody orders," whereby a young person can avoid a custody sentence up to six months if they show good behaviour during this time, they will not be placed in custody at all.

Extrajudicial sanctions are available only if provinces choose to introduce them; there is no requirement that they do so.

Ontario Attorney General David Young has publicly expressed his concern about the legislation, saying it is not "tough enough" on young offenders.

"Our government has urged the federal government to develop effective youth crime legislation, but they haven't listened," Young said on Halloween, ahead of his appearance before the Senate committee on legal and constitutional affairs. "I am now hopeful that the Senate will hear our concerns and fix this weak and inadequate bill."

For this reason, the Criminal Lawyers' Association has wondered at the Senate hearings how the bill's provisions might be applied in Ontario.

The proposed legislation is intended to encourage the use of discretion in the justice system, said federal government lawyer Danny Graham, who participated in the formulation of the bill.

"We found under the [1985] Young Offenders Act that police officers decreased the use of their discretion," Graham told the CLA conference. "The way that they had used their discretion under the [1908] Juvenile Delinquents Act, they really stopped under the Young Offenders Act. They laid more charges, brought more kids through to the courts.

"What that resulted in, particularly [when] combined with the 'Zero tolerance' policies that have been floating around over the last 15 years, is a rise in the statistics around youth crime between 1984 and up to 1991, when it peaked. There's been a corresponding increase in incarceration during that period of time."

Youth crime statistics, particularly the number of violent offences, have since dropped, he added. And yet incarceration rates remain high.

"Despite having a reputation amongst ourselves as being a tolerant society, incarceration within the youth justice system is relied upon at a rate as high as any Western democracy to whom we've been able to compare ourselves. For eight of the nine most common offences that people go to jail for, when youths go to jail, they go to jail for longer periods of time than adults do."

He encouraged the CLA which he said has "an outstanding record" for speaking out about adult crime issues to lobby on behalf of the bill.

"If I can take my justice hat off just for one moment, the rhetoric around this act has built up already," said Graham, referring to a chilly climate towards young offenders during the House of Commons committee deliberations on the bill. "You have a role to play in balancing that discussion, and also in encouraging your jurisdictions to ensure the more effective and creative approaches to youth justice under new act are tried."

Renaud agreed with the additional discretion appearing in the bill. But he suggested judges are more interested in being fair to youth than in the policy aims of a particular piece of legislation.

"It doesn't matter how you address the legislation, if you are an advocate trying to convince everyone that 95 per cent of the young people before the courts ought not to be there, I think by and large you will receive a very favourable ear," Renaud said.

Discretion is necessary for justice officials to deal with youth who shouldn't even be in the courtrooms, said Renaud. Police are now going into the local Wal-Mart to arrest 12-year-olds for stealing lipstick, he said.

"Police have gone away from that exercise of discretion, and we ought to encourage them to return to it," he said. "Crowns, and I was one of them, went away from the exercise of discretion and we have to return to it."

Tougher attitudes toward youth can be seen in the wide disparity between how young people are treated in the civil and criminal courts, said the judge. For example, a court cannot render judgment in a civil case involving a child unless an adult guardian appears in court to represent the youth. But criminal courts often proceed with convictions without requiring an adult guardian to appear in court on behalf of the accused child.

Renaud listed a series of well-regarded politicians including former Ontario premier Bob Rae and Prime Minister Jean Chtien who admitted publicly in their biographies about minor, potential brushes with the law when they were young.

Where would they be now, Renaud asked, if someone in the justice system had not acted with discretion at the time they were in trouble with the law?

"The legislation makes clear what we've now had since Sept. 3, 1996, in the criminal code for adults: jail is the least attractive alternative and must be avoided at all costs every time," he said.

This article does not constitute legal or other professional advice and no responsibility for any loss occasioned to any person acting or refraining from action in reliance upon material contained in this article is accepted by the author or Canada Law Book Inc.

(c) Canada Law Book Inc. 2002. All rights reserved.