THE GUIDING PRINCIPLES OF THE YOUNG OFFENDERS ACT


As the Young Offenders Act (YOA) is criminal law, as opposed to child-welfare legislation, (Bala, 1988), it represents a significant philosophical shift from the Juvenile Delinquents Act. In 1984, a strict parens patriæ philosophy gave way to principles of societal protection, the special needs of young offenders, and the least possible interference with the freedom of youths (Bolton et al., 1993). In effect, the YOA was based on a hybrid model composed of child-welfare and justice models. The special needs of youths were still a priority to the court; however, these needs were to be balanced with procedural protections to ensure that young people were not subjected to harsher sentences than would be given to adults for a similar offence. The hybrid model has, on the surface, contradictory policy implications with respect to young offenders. But according to proponents of the Act, youth crime is a particularly difficult problem which must necessarily balance competing societal goals in an effort to achieve a solution. This balancing act was not a new feature in juvenile legislation- the JDA, like the YOA, aimed to meet the special needs of young people while protecting society. In fact, it can be argued that all Canadian juvenile legislation, including the new Youth Criminal Justice Act, have attempted to strike a balance between competing goals to some degree. The successive Acts differ in the priority given to each goal. Under the JDA, the best interest of the child was paramount, but community protection was also a guiding principle of the legislation. The YOA attempted to balance three guiding principles: the protection of society, the special needs of young offenders and due process rights. Individual judges working under the YOA have had to decide which principle should receive priority under a variety of circumstances. The new YCJA gives priority to the protection of society while recognizing that this goal is best achieved by rehabilitating and reintegrating young offenders. Further, the new Act aims to ensure public safety by holding young people accountable for their actions, and by providing meaningful consequences to youths in the hope that they will be deterred from future criminal activity.

Canada’s policy for dealing with young offenders is articulated in the Declaration of Principle (section 3) of the YOA which, like the JDA, is to be liberally construed by the youth courts. This policy was intended to address the special needs of youth while both guaranteeing their due process rights and protecting society. The limited accountability and the special needs of young offenders are addressed in subsection 3.(1)(a) which reads:

while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions.

Further, in subsection 3.(1)(c), it is stated that young offenders, “because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance.” In essence, young people should be held to a lower standard of accountability and should be given special treatment to facilitate rehabilitation. The influence of the child-welfare model is clearly in evidence in the Declaration of Principle, but it is tempered with a notion of the least possible interference inherent in the justice model- the severity of a disposition must be warranted by the offence (Hak, 1996). If the protection of society is not threatened, subsection 3.(1)(d) allows for the use of alternative measures or no measures at all. There are still some remnants of the philosophy of parens patriæ, particularly in subsection 3.(1)(h) in which it is expressed that children “should be removed from parental supervision...when measures that provide for continuing parental supervision are inappropriate.”


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