Posted by Tim Dixon on December 8th, 2014
How did we arrive at today’s Youth Criminal Justice Act (YCJA)? In Part 1 of this blog post series, we looked at the very early history of the criminal justice system in Canada as it applied to youth. In this instalment, we’ll focus on the beginnings of reform, and the conflict that ensued, leading to the first legislation aimed at youth.
In the mid-1800s, those who wanted to see reforms to the way youth were treated in the criminal justice system met with opposition from those who advocated for continuing the punitive measures already in place or even increasing their severity. In 1836, the Duncombe report had already offered encouragement for reformers. A second report in 1849 by a commission headed by George Brown called for refuges to be built that would house young offenders. The aim would be to rehabilitate the youth in these refuges by offering them education, teaching them job skills, and apprenticing them in the trades.
Opponents to the actions called for in the Brown report said that because current punishments were not reducing crime, they needed to be made even more severe. Leniency, they said, would only encourage crime. The reformers were also facing a lack of the very institutions that would implement their reforms. At that time, there were not yet anything resembling social service agencies, and communities often could not justify the expense of creating them.
Nevertheless, such agencies did begin to appear in the late 1800s, mainly due to changing attitudes towards youth in Canadian society as a whole. Children were no longer being seen as “little adults”, but separate from adult society and having their own special needs. Some early institutions were beset with problems, such as inclusion of older offenders and poor education and program planning. Reformers were undaunted by such setbacks, as community support seemed to be swinging in their favour.
Another report issued by E.A. Meredith in 1862 called for youth institutions that not only provided remedial services for current offenders, but also preventive ones for youth who were considered to be at risk of offending. Such institutions began to arise in the form of industrial schools, with the aim of rescuing children rather than punishing them. Advocates, now known collectively as “child savers”, were also calling for free and compulsory education for all children, in part as a further preventive measure.
By the end of the 19th century, the groundswell of reform had become well-established. For example, in 1891 an Ontario commission inquiring into the penal and reform system made 48 recommendations, 16 of which were directed specifically at youth. The report had a nation-wide impact. The emergence of other social aid structures for youth, such as foster care, were also affecting juvenile delinquency.
Now, legislation began to be enacted that enshrined these emerging ways of thinking about youth and crime. Canada’s Criminal Code of 1894 contained a section that dealt with juvenile delinquents, and provided for separate treatment for youth based on age ranges. No child under age 7 could be convicted of a crime; children under 14 could not be convicted of a crime if it could not be proven that they understood its nature and consequences; and trials of youth under 16 should be held privately, and separately from adult trials. Two years later, the Act Respecting Arrest, Trial and Imprisonment of Youthful Offenders called for separation of young offenders from adult offenders, both in trial and in custody.
Despite legislation, reform was still slow in producing actual solutions or reductions in youth crime, mainly due to lack of funding, poorly run and maintained institutions, and reluctance to abandon punitive measures completely. Surveys of young offenders conducted at that time suggested that it was not the reforms that were not working, but that the underlying social conditions common to many juvenile delinquents were not being addressed: a home disrupted by the absence or death of one or both parents, an alcoholic parent, etc. By this time, it was clear to many reformers that child offenders needed to be dealt with under a system of social welfare rather than one that was penal and punitive.
In the next part of this series, we’ll look at the next legislative milestone on the road to the Youth Criminal Justice Act: The Juvenile Delinquents Act of 1908.
If you’re interested in learning more about our current youth justice system, the John Howard Society of Alberta has a collection of educational materials about the Youth Criminal Justice Act, including an introduction and summary.
Much of the information in this article was summarized from this publication from Justice Canada.