In recent years, in Canada, we have seen a gradual reduction in the crime-rate. However, every day on the radio and on TV, we see and hear of another armed robbery, another sexual assault, another drug bust, or another brutal murder. This is scary because it affects us all. We are all potential victims; we are all susceptible to these horrible crimes. Even scarier is that more and more of these crimes, the violent ones, involve young offenders. We are hearing more and more about young offenders, youth between the ages of twelve and eighteen, who are stabbing people on school grounds, sexually assaulting others, and murdering their peers.
Recently, we heard the story of a young boy, only six years old, who murdered a fellow classmate in a Michigan elementary school. A few years ago, we heard of the two young boys in England who murdered a boy who was under the age of three years. The dealing of narcotics on the school ground, be it elementary or high school, is increasing. Gradually, it seems that people from every age group are becoming victims, and people from every age group are becoming offenders.
Because of space limitations, this paper will deal only with a few young offenders’ issues. In addition, only a few aspects of the Young Offenders Act will be dealt with.
The Young Offenders Act is the federal law for young people charged with crimes. Prior to April 2, 1984, the Young Offenders Act did not exist in Canada. Instead, the Juvenile Delinquents Act (which had been used since 1908) was used to deal with young offenders. The main philosophy of this latter Act was to deal with the welfare of the child. In April 1984, the Young Offenders Act was enacted and one of the major changes that took place was in the philosophy used to deal with young offenders.
The Young Offenders Act recognizes that in some situations, a young offender may be deemed (by the trial judge) to be beyond rehabilitation, and a lengthy period of incarceration may result, as opposed to further attempts to rehabilitate. Therefore, the Young Offenders Act deals not only with the welfare of the child, but also, with the welfare of society.
Thus, with the change in approach, from the old legislation to the new, it can be argued that it is now easier to imprison a young offender, and for longer periods of time. The Crown Prosecutor must only convince the trial judge that it would be in the best interests of society and that there is no other alternative way of dealing with the young offender. And, of course, a young offender is subject to longer periods of imprisonment if tried in adult court, as opposed to being tried in youth court.
For children who are under the age of twelve years, an offense is dealt with under the provinces’ child welfare laws. Under the former Juvenile Delinquents Act, only children under seven were considered too young to be held criminally responsible for their actions.
The Young Offenders Act does not apply to offenses involving provincial statutes, such as driving without a license, hunting out of season, drinking liquor while underage, and speeding.
AN ALTERNATIVE TO COURT
Not all young offenders who commit an offense wind up in court. If a young person has never before been in trouble with the law, a chance to participate in an Alternative Measures program may be considered, rather than a charge being laid and the young offender having to deal with it in court. The young person must accept responsibility for the offense that has been committed and be prepared to make up for the harm caused. As one example of an Alternative Measures program, a young offender might be required to attend an educational program to gain a better understanding of the wrong doing and how it has affected others. In the alternative, he/she might agree to perform community service. Frequently, as part of an Alternative Measures’ resolution, a young offender will be ordered to apologize to the victim and possibly do some work, such as raking leaves or shoveling snow, for the victim.
There are numerous sentencing choices open to youth court judges, following a guilty plea by an accused, or a finding of guilt by the judge following trial. These choices are listed in section 20 of the Young offenders Act and include:
A) Absolute Discharge
B) Conditional discharge
C) A Fine (not greater than 100 dollars)
D) An Order of Compensation, in favor of a crime victim.
E) Probation Order, with conditions, not to exceed 2 years.
F) Open Custody
G) Secure custody
A youth court judge may order a young offender to serve a sentence of probation or to perform community service such as working for a non-profit organization. Youth workers from the Correctional Services Division supervise and provide guidance to young offenders involved in these community-oriented sentences.
With respect to fines, a young offender may choose the Fine Option Program if he or she does not have the money to pay a fine ordered by the court. The young offender is given a chance to work in the community in lieu of payment of fine. An example of this kind of work is helping the disabled.
With respect to custody orders, a youth court judge may decide that a young offender should be placed in either a group home or a foster home and kept under supervision (open custody), or be confined in a special center for young offenders (secure custody), comparable to jail for adults.
Even though the Department of the Solicitor General administers the disposition of open custody, facilities for open custody are operated by the Department of Health and Community Services through non-profit organizations. The facilities include group homes and specialized foster homes.
Educational and recreational programs and counseling services are available to young offenders in open or secure custody.
TRANSFER OF YOUNG OFFENDERS TO ADULT COURT
In certain circumstances, a young offender may be transferred to, and be dealt with, in adult court. According to the Young Offenders Act, there are six factors which a court must consider when deciding whether to make the transfer. They are listed in Section 16(2) of the Act and are as follows (in summary):
(a) The seriousness of the alleged offense and the circumstances in which it was allegedly committed;
(b) The age, maturity, character and background of the young person including his/her criminal record;
(c) The sufficienty of any Act that would apply in respect of the young person if an order were made under this section to meet the circumstances of the case;
(d) The availability of treatment or correctional resources;
(e) Any representations made to the court by or on behalf of the young person or by the Attorney General or his agent;
(f) Any other factors that the court considers relevant.
Once a judge has considered these factors, he must decide whether or not to transfer the case to adult court.
A few years ago, Parliament enacted changes to the Young Offenders Act that, in effect made it easier for judges to transfer young offenders to adult court. Following are some highlights of these amendments, which were contained in Bill C-37.
Onus on youth to justify why she/he should be tried in youth system where:
ˇ The accused is 16 or 17 years old
ˇ Charged with - Murder
- Attempted Murder
- Aggravated Sexual Assault
ˇ Youth appears first in youth court
ˇ Judge informs youth of proceedings in adult court, unless an application to handle the matter in youth court, by youth or Crown, occurs.
ˇ If application unopposed - no hearing - trial in youth court
ˇ Application opposed-hearing
-Same transfer test applicable - restructuring of words
-Shift-in-onus provisions must be assessed in context of
ˇ Transfer test
ˇ Longer dispositions for murder in youth court
ˇ Longer parole ineligibility
WHY SO MANY TRANSFERS AND ARE THEY A GOOD IDEA?
In recent years, the Canadian Courts seem to be transferring more young offender cases to adult court. One would assume that the main reason for this is because it lets the system deal more harshly with these offenders. Under current law, the maximum sentence a young offender can receive, in Youth Court, is 6 years. If tried in adult court, the maximum sentences are higher. Those who believe in the lock 'em-up and throw away the key theory do not realize a few very important realities. For example, if a young offender were to be tried in youth court for armed robbery, he/she might receive a sentence of 2 years in secure custody. Under current legislation, he/she would have to serve the entire two-year sentence. There would be no parole board that would have the authority to release him/her before the sentence completed. The only possibility for an early release would be an appeal before a youth judge, called a Review of Disposition. If the offender were tried for the same offense in adult court, he would probably receive a sentence of about 4 years in jail, would go to prison and would be eligible for parole after serving one-sixth of his sentence, i.e. after 8 months. It would be a parole board that decides whether or not the offender would be released, and not a judge. The parole board might look at it differently than would a trial judge, and might release the offender earlier.
Thus, by being sentenced as a youth, the young offender would probably serve more time in jail. As well, he/she would probably have more suitable rehabilitation programs available to him/her in a youth facility, as opposed to a federal prison.
Why are we seeing this trend of more transfers to adult court? There has been a lot of public criticism of the Young Offenders Act and many people believe that the penalties are not stiff enough. The fact that we are seeing more and more young offenders tried as adults may simply be a reaction by prosecutors and judges to this public criticism. If this is the case, then there is a potential problem, because the justice system is considering public pressures to be more important than the welfare of the young offender and of society.
If some people think that our current justice system treats young offenders too harshly, and too quickly seeks to transfer young offenders to adult court, wait until they see some new federal government initiatives, initiatives which may soon become law and which I will discuss further on in this paper.
The wording of the Young Offenders Act appears to be less stringent, in terms of the proof of transfer, than the standard of proof required in the old Juvenile Delinquents Act. (Bowker, pp. 479-480). In other words, it is easier to transfer under the Young Offenders Act than it was under the Juvenile Delinquents Act. This is another reason why we are seeing more transfers.
In a 1989 case in the Supreme Court of Canada, R. v. S.H.M., the accused and another youth were charged with first degree murder and possession of stolen property. The Crown Prosecutor applied to have the case transferred to adult court. The accused had a criminal record, for two counts of gross indecency, and had had a troubled childhood. Justice L'Heureux-Dubé of the Supreme Court wrote, The test, set out by s.16(1) of the Young Offenders Act for transfer, is a balancing act. In other words, the question is whether the judge is satisfied, after weighing and balancing all the relevant considerations [as stated in section 16(2)] that the case should be transferred to adult court. In this case, seven of the nine judges ruled that the case should be transferred. The two dissenting judges believed that transfer should only be considered in exceptional cases, and they believed that this case was not exceptional.
While it appears as though there is a trend in transferring to adult court more young offenders charged with serious offenses, according to Provincial Court Judge Irwin E. Lampert of New Brunswick, transfer should only be considered when the crime in question is a very serious one and the Young Offender is close to the age of 18. As Judge Lampert said in R. v. M.L.S. , even when those two pre-conditions are present, transfer is ordered with the greatest of reluctance:
Our children are our greatest investment in the future. They bring us overwhelming joy and sometimes, extreme heartache. When they go astray, we must do all possible to direct them back onto the 'straight and narrow'. We cannot abandon them, despite the setbacks. Programs might fail and counseling might be to no avail; yet, so long as there is a glimmer of hope, we must plod on. A 16 year old youth should not be abandoned to the adult system where he will be exposed to the very worst elements in our society unless and until we can say, with some certainty, that the youth system is not appropriate for him and has nothing else to offer him. Without a doubt, protection of the public is of great importance. However, we must not look at this factor in the short-term. A young person dealt with in an overly harsh and inappropriate manner today might turn into a monster tomorrow, posing a far greater threat to society than he would have been, had he been dealt with in a more humane and appropriate way.
The Young Offenders Act was originally established for the purpose of lowering the crime rate amongst youths. The majority of people would probably agree that it is falsely to assume that a youth between the age of 12 and 18 years has the same maturity, intelligence, and mind capability of differentiating right from wrong, as an adult with many more years of experience in life. Therefore youth crime should be handled differently than adult crime. The Young Offenders Act practices this theory.
In 1995-1996, in my home province of New Brunswick, approximately 5400 charges against young offenders were disposed of. In 1996-1997, approximately 5700 were disposed of, an increase of about 6% (Annual Report of New Brunswick Department of Justice for 1996-1997)
From the statistics we read in the newspapers, it would appear that adult crime is decreasing. But as we see from the statistics in the preceding paragraph, the youth crime rate is increasing. This same situation probably exists across Canada. Therefore, maybe the government could be right in wanting to toughen up the Young Offenders Act, but only time will tell if that’s the right approach!
Much can be said in critique or in praise of the Young Offenders Act. Needless to say, it is a very necessary law without which youth courts could not run and the youth justice system could not function. Therefore, in conclusion, while many people debate whether or not the Act is too “strict” or not “strict” enough, it has helped develop some decent human beings out of many troubled, and crime addicted young adults.
Word Count: 2522
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