The Harsh Reality of the Young Offenders Act



Recent statistical data from the youth and adult judicial and corrections systems do not support the widespread notion that the justice system treats young people in a more lenient manner than adults. On the contrary, youth cases are more likely than adult cases to result in conviction and a greater proportion of youth cases with at least one finding of guilt result in a custodial disposition. Additionally, adults are more likely than youths to have sentences of 1 month or less. Further, the rate of incarceration for young people is much higher than the adult rate and this disparity can be explained, in part, by the higher probability of youths to be sentenced to custody.

The use of custody for young offenders has risen considerably since the introduction of the Young Offenders Act (YOA) in 1984. This legislation replaced the Juvenile Delinquents Act (JDA) which took a treatment approach to juvenile justice. The YOA, on the other hand, takes a more punitive approach - young people are now required to bear more responsibility for their actions than ever before. Youths were often sentenced to custody under the JDA, and for longer periods of time, on average, but only for specific reasons. It was thought that delinquent and neglected youths could be given care and treatment in custody - the ?best interest’ of these young people was made paramount. The YOA, unlike the JDA, does not have a clear statement of purpose and consequently, many considerations in the sentencing of youths have been given validity that did not exist prior to 1984, including deterrence and denunciation. These considerations have led to an increase in the use of custodial sentences for youths, particularly sentences that are short in length. Other considerations of the youth court under the YOA that have resulted in an increase in custody are the child welfare concerns of the young offender. Under the JDA, youths with problems at home could be committed to the Director of Child Welfare of the province; under the YOA, this option does not exist. Neglected and abused children are often given lengthier custodial sentences than their offences warrant because judges have no preferable alternative.

Bill C-68, the Youth Criminal Justice Act (YCJA), which passed a first reading in the House of Commons in March of 1999, has the potential to effect a dramatic reduction in the use of custody for young offenders. The Act, in its preamble, states that society must reserve the most serious form of intervention (incarceration) for the most serious of crimes, and must also reduce the over-reliance on custody that currently characterizes the youth justice system. The majority of young offenders could be diverted from the justice process, as few youths are violent or serious repeat offenders. The YCJA recognizes this, and provides for the expansion of diversion programs and policies. It is likely that the principles of deterrence and denunciation would only be factors in sentencing for the most serious of crimes, and this could further reduce the prevalence of custodial dispositions in the youth court. Currently, the youth justice system treats youths, in many respects, more punitively than adults. It is hoped that when the YCJA comes into force, this will be the case no longer.

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