Effective, just and humane responses
to the causes and consequences of crime

The Youth Criminal Justice Act: How did we get here? (Part 1)

"George Davey was sentenced to one month's hard labour in Wandsworth Prison in 1872 for stealing two rabbits. He was ten years old." Conditions in Canada were similar at that time. (via UK National Archives)

“George Davey was sentenced to one month’s hard labour in Wandsworth Prison in 1872 for stealing two rabbits. He was ten years old.” Conditions in Canada were similar at that time. (via UK National Archives)

In Canada’s criminal justice system, anyone older than 11 or younger than 18 is subject to their own specific legislation, called the Youth Criminal Justice Act. While its critics claim it is far too lenient on youth offenders, its proponents argue that its principles, based on evidence, are sound, and that on the whole, the YCJA is working.

But how did we arrive at the YCJA? What legislative steps brought us here? And what is the history of youth justice in Canada? Let’s start with looking at what conditions in Canada’s early history were like.

In the 1700s and 1800s, youth in Canada often brought their troubles with them. For example, young immigrants sometimes arrived orphaned, their parents having died of illness on the long sea voyage, and had to fend for themselves. Troublesome or unwanted children were sometimes sent to Canada just to get them out of their country of origin, and put to work as indentured servants.

Under the law in English Canada (which was based on English common law) children under seven years old were considered incapable of committing crime, because they were simply not intelligent enough to understand the morality of their actions. The same principle applied those aged seven to thirteen, but the law did allow for adult penalties such as jail or even execution by hanging to be applied to this age group, if it could be proven that the child had enough intelligence to know that what he or she did was wrong. (In general, children and youth were expected to shoulder the burden of adulthood as soon as possible, as per the needs of a growing country. They were all “little adults”.)

Most crimes committed by youth were minor offences, such as theft and vandalism. Sentencing was uneven, resulting in widely different outcomes for the same crimes. For example, a boy who had stolen a cow in Montreal in 1813 was hanged. Theft and other minor crimes were more commonly punishable by public flogging or imprisonment. If sent to jail, young offenders were mixed in with the general adult population. Jail conditions at that time were often inhumane and unhygienic.

For all its severity, the treatment of youth in Canada’s justice system in the 1800s was having little effect on the amount of juvenile crime. Some questioned the expense of housing people in jails when little if anything seemed to change once they were released. Something different had to be done.

Various reform movements that traced their origins to the Enlightenment were proposing ideas to reform the penal system and the prisoner. One of the earliest appearances of these ideas in Canada was in an 1834 report to the House of Assembly of Upper Canada. The report called for a recognition that youth in and of themselves are not completely responsible for their delinquency, that their parents and their community shared in that responsibility.

Still, the debate about how best to treat youth crime continued. Those opposed to reform principles suggested that they would simply encourage crime, and that even more severe punishment was needed. Others saw the ineffectiveness of punishment on reducing crime levels, and questioned their continued use.

In Part 2, we’ll look at early attempts to bring about reform to youth justice in Canada.

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.