Until the 1890s, there was no clear distinction in Canadian criminal law between adults and youths. There was, however, a defence of doli incapax available to children aged seven to thirteen who were considered incapable of understanding the nature and consequences of the criminal act for which they were charged. Despite the doli incapax defence, which could be rebutted if the Crown could show that the child did indeed understand the consequences of his actions, children could, if convicted, face the same dispositions as adult criminals (Bala, 1988). According to the common law, a child under the age of seven years was deemed incapable of committing a criminal act (Bala, 1988, p.11) and so could not be held responsible in a criminal proceeding. In a report in 1849, the Brown Commission detailed the extensive use of corporal punishment on incarcerated youths at Kingston Penitentiary and criticized the jailing of youths with adults, stating:
It is distressing to think that no distinction is now made between the child who has strayed for the first time from the paths of honesty, or perhaps has never been taught the meaning of sin, and the hardened offender of mature years. All are confined together to the unutterable contamination of the common gaol; and by the lessons there learnt, soon became inmates of the Penitentiary (Brown Report (1849) cited in Griffiths and Verdun-Jones, 1994, p. 598)
While the Juvenile Delinquent Act, given Royal Assent in 1908, was the first legislation to fully distinguish child offenders from adult criminals through the creation of a separate youth justice system, the JDA was not the first legislative indication of the Canadian governments commitment to differential treatment of delinquent youths (Jones, 1997). An Act for the Establishment of Prisons for Young Offenders, adopted in 1857, made possible the establishment of reformatories to which youths could be sentenced and An Act for the Speedy Trial and Punishment of Young Offenders shortened the length of pre-trial detention and created bail provisions for youths charged with a criminal offence (Hylton, 1994). The Arrest, Trial and Imprisonment of Young Offenders Act of 1894 was arguably the most significant juvenile legislation prior to the JDA. The preamble of this Act is reflective of a legislative effort to keep youths separate from adults in the justice process:
Whereas it is desirable to make provision for the separation of youthful offenders from contact with older offenders and habitual criminals during their arrest and trial, and to make better provision than now exists for their commitment to places where they may be reformed and trained to useful lives...Section 2 of the Act required that young people, prior to sentencing, be kept in custody separate from older persons charged with criminal offences and section 3 provided that an offender appearing to be under fourteen years of age could be sentenced to a home for neglected children. This legislation was intended to reduce the deleterious influence of adult criminals on young offenders, who were seen to be particularly susceptible to rehabilitation and treatment. Despite the good intentions of Parliament, delinquent youths were frequently sentenced to adult facilities.
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