While the YCJA improves upon its legislative predecessors, it nonetheless presents some concerns, particularly with respect to the age at which a young offender can be transferred to the adult system, as well as the provisions for the publication of names of young offenders. The new legislation allows for young people over the age of fourteen, not sixteen as under the YOA, to receive adult sentences. Further, the names of young people who may be subject to adult sentences can be published. These provisions may work against the objectives of rehabilitation and reintegration put forth in the Declaration of Principles. Sending young people, just entering into their teen years, into the adult system and disclosing their identities to the public will make returning to the community as productive citizens extremely difficult. This brief discussion of the potential impact of the YCJA is by no means exhaustive; we will see in the coming years precisely what effect the new law will have on the administration of youth justice in Canada.
The YCJA, with its clear declaration of principles and its innovative approaches to youth justice, has the potential to deal with many of the problems that have plagued the youth system since the introduction of the YOA. One such problem is the over-use of custodial dispositions for youth. The implementation of the YCJA will, if commitment to its principles prevails, effectively reduce the number of young people in custody, particularly those found guilty of property offences and other lesser offences. The use of extrajudicial measures as well as warnings and cautions will allow police and prosecutors to divert young people from the formal justice process. This will increase the efficiency of the justice system by putting resources into the formal processing of more serious offenders.
Another problem faced by the youth justice system under the YOA is the disparity in sentences given to youths within and across jurisdictions. When the YCJA comes into force, disparity may lessen considerably as the new Act states in subsection 37.(2)(b) that a sentence imposed by the youth justice court must be similar to the sentences imposed on young persons found guilty of the same offence committed in similar circumstances. Judges will no longer have a free hand to apply any sentence deemed ?appropriate by the court. A potential barrier to the reduction in sentencing disparity is the flexibility the Act gives to the provinces to choose the options...that best meet their needs and suit their systems (Department of Justice, 1999a). If, for example, if one province does not implement a program of extrajudicial sanctions, the youths in that province will likely receive more formal processing and potentially more custodial dispositions than will youths in the other provinces that have implemented such programs.
A third problem that the YCJA attempts to solve is that, under the YOA, children in the justice process are given little treatment in custody and no real attempt at reintegration is made. The YCJA promotes rehabilitation and reintegration as two of its primary objectives, as the safety of the community requires that young offenders become productive members of society. Part of every custody sentence given to a youth must include a portion to be served in the community. This will help young offenders make a smooth transition from being in custody to returning to the community.
The YCJA represents a Parliamentary commitment to take youth crime seriously by holding young people accountable and by providing them with meaningful consequences for their criminal behaviour. It is also, more importantly perhaps, a commitment to diverting the vast majority of young offenders who are charged with non-violent, less serious offences, out of the formal criminal justice process. The new Act has clear, consistent principles that are set out not only in the Declaration of Principles, but are reaffirmed throughout the Act. Because of its clarity and consistency, the YCJA provides encouragement to the public, childrens advocates, and workers within the youth justice system who all have a stake in helping young people become productive, law abiding members of society.
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