Bill C-25: An Act to Amend the Youth Criminal Justice Act was introduced by the Minister of Justice and Attorney General of Canada, the Honourable Robert Nicholson, and received first reading in the House of Commons on 19 November 2007.
Overall, the bill strengthens the provisions of the Youth Criminal Justice Act(1) on pre-trial detention and sentencing. More specifically, it: broadens the possibility of pre-trial detention for a young person who represents a danger to the public or has previously failed to comply with conditions of release (clause 1);
On 1 April 2003, the Youth Criminal Justice Act (YCJA) replaced the Young Offenders Act (YOA),(2) which came into force in 1984.
The YCJA is based on the document A Strategy for the Renewal of Youth Justice, published by the Government in May 1998 in response to the report entitled Renewing Youth Justice,(3) tabled by the Standing Committee on Justice and Legal Affairs in April 1997.
The YCJA sets out the principles, procedural rules and protective measures applicable in the context of criminal charges brought against young people under federal laws. The minimum age of criminal responsibility under the YCJA and the YOA was set at 12. No criminal charge may be brought against anyone who is under the age of 12.
The YCJA stresses rehabilitation and the needs of young people. It also gives the courts great latitude in sentencing that involves committal to custody.
In October 2007, the Minister of Justice announced that a comprehensive review of the YCJA would be carried out in 2008.(4)
In November 2007, at a meeting of the federal, provincial and territorial ministers of Justice in Winnipeg, the provincial and territorial ministers discussed the need to amend the YCJA.(5)
Among Canadians aged 12 to 17, inclusively, the average annual crime rate is 7.5 offences per 100 population.(6) In 2006, there was a 3% increase in the youth crime rate, the first such increase since 2003, the year the YCJA came into force.(7) Broken down by type of offence, the total increase represents a 3% rise in violent crime (84 young people were charged with homicide, the highest level since 1961), a 3% drop in property crimes (in particular break-ins and motor vehicle thefts) and a 9% increase in other Criminal Code offences (such as mischief and disturbing the peace).(8)
In 2006, all provinces except Quebec, which saw a 4% reduction, reported increases in youth crime. The most significant increases were in Prince Edward Island, Newfoundland and Labrador, Nova Scotia and Manitoba.(9)
A far-reaching study carried out by the Canadian Centre for Justice Statistics between 1995 and 2005 found that “[w]hile recorded criminal activity is fairly widespread among Canadian youth, the amount of recorded crime committed by most child and teenage offenders is quite small and concentrated among the less serious types of crime.”(10)
Between 1995 and 2005, 59% of the boys and 76% of the girls reviewed by the study committed only one recorded offence.(11) A large majority of the offences were committed by a small minority of the young people: 10% of them were responsible for 46% of the offences.(12)
The Centre’s study found little evidence of specialization in any one type of crime.(13) In most cases where such specialization was detectible, it involved property offences, which represented 47.3% of all offences.(14) Crimes against the person represented 16.4% (9.9% being common assault) and drug-related offences represented 6.2% of cases.(15)
Lastly, the Centre concluded that the study’s findings “are generally consistent with the findings of similar research in other countries.”(16)
In October 2004, Statistics Canada noted that the incarceration rate for persons aged 12 to 17 in Canada in 2002-2003 was 13 per 10,000, the lowest in eight years(17) and 33% lower than in 1993-1994. “Overall, the number of young people incarcerated has been decreasing during this period in parallel with a decline in the youth crime rate.”(18)
The table below shows the numbers of young people in custody, on remand (temporary detention) and on probation.
|
|
2000
|
2001
|
2002
|
2003
|
2004
|
|---|---|---|---|---|---|
|
Admissions to remand
|
15,055
|
15,359
|
14,648
|
12,392
|
15,312
|
|
Admissions to secure custody
|
6,958
|
7,385
|
4,814
|
3,238
|
2,758
|
|
Admissions to open custody
|
7,951
|
7,702
|
4,527
|
3,052
|
3,033
|
|
Admissions to probation
|
36,509
|
38,261
|
26,364
|
22,808
|
18,403
|
Time spent on remand is usually short: in 2002-2003, 54% of youth remands lasted one week or less, 30% lasted between one week and one month, and 15% lasted between one and six months.(20) Admissions to remand did, however, represent almost three quarters (73%) of total admissions to detention in 2003-2004.(21)
According to the same data, Aboriginal youth are overrepresented in the youth criminal justice system. While Aboriginal young people comprised only 8% of Canada’s youth population in 2002-2003, they made up “44% of admissions to remand, 46% of sentenced custody admissions and 32% of probation admissions, and 21% of alternative measure cases reaching agreement.”(22)
On 14 October 2004, a 52-year-old mother named Theresa McEvoy was killed in an automobile collision by AB, a 16-year-old. AB, who was driving a stolen car at the time of the collision, had been released two days earlier despite 38 outstanding criminal charges against him.
On 29 June 2005, Nova Scotia launched a public inquiry to examine the way in which the charges against AB had been handled and other matters relating to his release. The Honourable Justice D. Merlin Nunn was appointed to lead the inquiry. On 5 December 2006, Commissioner Nunn submitted his report,(23) which contained 34 recommendations:
To help solve the problem posed by the small group of dangerous and repeat offenders, Commissioner Nunn recommended including both short- and long-term protection of the public among the principles set out in section 3 of the YCJA.(24) At the present time, only long-term protection is included.(25)
Currently there is a presumption in favour of pre-trial release if the young person has not committed a “violent offence.”(26) According to Commissioner Nunn, the YCJA unduly limits pre-trial detention. To find a balance between the young person’s rights and public safety, he recommended expanding the definition of a “violent offence” to include “conduct that endangers or is likely to endanger the life or safety of another person.”(27)
There is also a presumption in favour of pre-trial release if the young person has no record of “a pattern of findings of guilt.”(28) This presumption means that a young person who is facing other charges but has as yet no criminal record will probably not be held. In order to allow for the detention of young persons accused of a series of crimes in rapid succession, Commissioner Nunn recommended replacing the obligation to demonstrate a “pattern of findings of guilt” with the obligation to demonstrate “a pattern of offences.”(29)
Commissioner Nunn also proposed the adoption of separate provisions for custodial remand, not dependent on the Criminal Code or on other YCJA provisions, as is currently the case.(30)
The Supreme Court heard an appeal from the sentences imposed on two young people found guilty of manslaughter (15 months of custody and probation for B.W.P.)(32) and aggravated assault (nine months of custody and probation for B.V.N.).(33)
In its evaluation of these sentences, the Court found that, under the YCJA as it stands, deterrence is not a principle of sentencing in the case of young people.(34)
While deterrence had to be taken into account under the Young Offenders Act,(35) the Court noted that the YCJA had brought in a different and entirely new sentencing regime.(36)
Currently, the YCJA provides for a presumption in favour of pre-trial release if (among other considerations) the young person has not committed a “violent offence.”(38) The court may impose a sentence that includes custodial detention if the young person is found guilty of such an offence.(39)
Noting the absence of a legal definition, the Supreme Court defined a “violent offence” as “an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm”:(40) murders, attempted murders, manslaughters and “serious violent offences.”(41) The Court’s definition excludes all offences committed solely against property.(42)
Given that the YCJA was passed to reduce reliance on detention, the Court decided that the definition of a violent offence did not include offences involving the mere likelihood of bodily harm to another person.(43) A definition that included such offences would be too broad. The Court therefore chose to adopt a restrictive interpretation.
In this particular case, the Court decided that the evidence presented at the trial did not permit the conclusion that arson causing property damage, bearing arms or dangerous driving constituted “violent offences.”(44)
Bill C-25 contains three clauses. The first broadens the circumstances allowing for custodial remand, while the second adds denunciation and the deterrence of crime to the principles of sentencing. Clause 3 provides for the bill to become law on a date to be determined by order of the Governor in Council.
As a general rule, the Criminal Code’s provisions on bail hearings apply to the release and detention of young people.(45) The YCJA may nevertheless override those provisions by providing specific rules for young people.(46)
At present the YCJA contains a presumption against the pre-trial detention of young people. However, this presumption does not apply, and an accused young person may be held until sentencing, in three specific cases:
The first clause in the bill provides that a judge may order the pre-trial detention of a young person only in the following circumstances:
According to the Department of Justice, this amendment to the YCJA was inspired by the Nunn Commission report.(51) While the bill extends the possibility of pre-trial detention to a larger number of young people, the YCJA’s new rules in this regard remain more restrictive than those in the Criminal Code.
In no case may pre-trial detention be used as a punitive measure.(52) The YCJA expressly provides that the court must take any time spent in pre-trial detention into account in the sentence it imposes.(53) When calculating a custodial sentence, the court has the discretion to decide what weight to give pre-trial detention.(54)
The YCJA’s general sentencing goal is “to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.”(55)
At present the YCJA sets out principles to guide the court in determining appropriate sentences for young people. These principles are as follows:
Clause 2 of the bill, by amending subsection 38(2) of the YCJA, adds the following two principles of sentencing:
These two principles already form part of the sentencing framework for adults.(56) The bill however makes the two principles subject to the fundamental principle of proportionality. In R. v. B.W.P, the Supreme Court looked at deterrence as a sentencing principle:
Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct. When deterrence is aimed at the offender before the court, it is called “specific deterrence,” when directed at others, “general deterrence.” The focus of these appeals is on the latter. General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.
While general deterrence as a goal of sentencing is generally well understood, there is much controversy on whether it works or not. Those who advocate its abolition as a sentencing principle, particularly in respect of youth, emphatically state that there is no evidence that it actually works in preventing crime. Those who advocate its retention are equally firm in their position and, in support, point to society’s reliance on some form of general deterrence to guide young people in making responsible choices on various matters, for example, about smoking, using alcohol and drugs and driving a motor vehicle.(57)
Opinion is divided on Bill C‑25’s usefulness and effectiveness. Some people point to the higher youth crime rates in 2006 in certain parts of the country, such as Halifax, Toronto and Winnipeg, to justify the need for stiffer sentences,(58) while others argue that this was just a cyclical fluctuation and that we should continue to reduce reliance on incarceration.(59)
To critics of the bill, it represents a step backward.(60) They point out that before the YCJA came into effect, Canada had the world’s highest youth incarceration rate, even higher than that of the United States.(61) We should therefore continue to stress rehabilitation and reintegration into society, and avoid incorporating concepts applicable to adults into the YCJA.(62) Community workers say the bill will increase the number of young people held in custody for minor offences,(63) thus misallocating the justice system’s resources.
Studies suggest that a punitive approach may be ineffective in combatting youth crime, since young people often act on impulse, without thinking about the possible consequences.(64) A number of people, including the former attorney general and chief justice of Ontario, regard prevention as the key, rather attempted deterrence in the form of stiffer sentences.(65) These critics feel that the government should look into the disturbing problem of the large number of inmates with mental health problems.(66)
By broadening the rules on pre-trial detention, Bill C‑25 could be contravening the fundamental principle of section 29(1) of the YCJA, which holds that pre-trial detention must not be used as a substitute for more appropriate youth protection and mental health services, or other social services.(67) According to Martha Mackinnon, a worker with the organization Justice for Children and Youth, the bill gives too much power to the police, since they will be encouraged to inflate the number of charges in order to ensure that a young person is detained.(68)
The opposing argument is that the bill targets only the small group of young people who represent a real danger to society.(69) The bill plugs a serious loophole in the youth justice system and gives more weight to the needs of victims and the community.(70) Nova Scotia’s Minister of Justice and the provincial government supported the bill, calling it a “positive next step” in the war on crime.(71)
While Commissioner Nunn does not think that the bill makes radical changes to the existing system,(72) he is pleased that it opens the door to amendments to the YCJA. Halifax’s deputy police chief Chris McNeil argues that the bill does nothing to implement most of the recommendations in the Nunn report.(73) They would both like to see in-depth amendments to the YCJA, especially as there are those who maintain that the YCJA is particularly complex and poorly understood by both lawyers and judges.(74)
Although the bill does not include the automatic imposition of adult sentences on young people found guilty of serious violent offences or on repeat offenders, because the Government preferred to wait for the Supreme Court’s ruling in R. v. D.B.,(75) the Minister of Justice has announced a full review of the YCJA in 2008.(76) Bill C‑25 thus represents just a first step in the revamping of the youth criminal justice system.
© Library of Parliament
