March 2001
New Young Offenders Act Still Offensive
by Fred McMahon
Ottawa’s latest attempt to reform the Young Offenders Act is just more of the same old, same old. It contains most of the flaws of previous, failed attempts at reform and has irritated provinces on all sides of the issue.
The Young Offenders Act has raised howls of protest since it was first introduced in 1984. Under the Act, youth charged with even the most violent crimes are often tried in youth court. These young criminals often receive absurdly light sentences because they are juveniles. The Act lowered a shroud of secrecy over this whole area of justice and law enforcement by prohibiting the publication of young offenders’ names or any details that would identify them.
Yet despite three attempts over eight years, the current government has been unable to correct these and other flaws.
Alan Rock, when he was Justice Minister, failed to steer his changes through Parliament. Current Justice Minister Anne McLellan failed twice, with bills C-68 and C-3, which died on the order paper when the government took an early trip to the polls last year. McLellan’s latest attempt at reform, the Youth Criminal Justice Bill, tabled in Parliament last month, has horrified both Quebec, which fears its gentle-love rehabilitation approach will be shackled by what it sees as Ottawa’s get-tough approach, and other provinces, which believe the opposite— that the new bill will simply continue what they believe is Ottawa’s molly-coddling of dangerous young offenders.
Ideally, the new act would satisfy both sides in the debate by giving them the latitude to try their own approaches. This would be sensible policy. Experimentation means trying many different strategies. Ultimately, the most successful gets imitated. Right now, the debate is wide open about what is most likely to succeed in reducing juvenile crime.
Quebec’s go-soft approach seems to have some merit, at least on the surface. Between 1988 and 1998, the percentage of young people charged with violent crime in Quebec increased 42 percent, but this was the lowest increase in the nation. The average provincial increase was 77 percent.
However, the record needs more thorough investigation. Other factors may be involved. Quebec has long had one of the lowest birth rates in the nation. Its proportion of young people is small. Population growth is stagnant. The low density of young people and the lack of increasing population pressure likely plays a role in relatively slow increase in youth crime.1
In the last Parliament, the Bloc Quebecois put forward some 3,000 amendments to the youth bill in an attempt to force Ottawa to give Quebec the right to opt out of its provisions. This time, Quebec’s objections are difficult to fathom. The Act explicitly gives the provinces the right to opt out of its most contentious provision, one which allows juveniles as young as 14 to be given adult sentences. Ms. McLellan, with some justification, complains Quebec has failed to specify how this bill would limit Quebec’s freedom.2 The complaints of those provinces that seek a tougher approach to juvenile crime seem to have more merit.
In one area, the bill will make things worse for get-tough provinces. Under the current act, youth charged with extremely violent crimes can sometimes be transferred to adult court, a move that also lifts the veil of secrecy shrouding information on young offenders. Such transfers, the Justice Department claims, do "not adequately respect the rights of young people." Under the proposed act, the Justice Department says all trials of young people, no matter how serious the charge, will take place in "the youth court where age-appropriate due process protections apply," including the prohibition on information release. Only after a trial and conviction, can an application be made to have an adult sentence imposed. Quite apart from this question of whether this will produce an appropriately tough sentence, this change is potentially a threat to civil liberty. How can an adult sentence arise out of a trial geared to juvenile sentences? Can this be just?
The bill will also direct youth serving adult sentences to youth facilities. This, too, is highly questionable. It potentially mixes young offenders convicted of minor crimes with older youth convicted of murder, rape, and repeated violent offenses. It may well be that older, violent youth are more appropriately dealt with in adult facilities.
From the perspective of those who want a tougher approach to juvenile crime, the act contains only one significant improvement over the old act. The new act would allow violent offenders— those charged with offenses like murder— as young as 14 to receive adult sentences, though, as noted, provinces can opt out of this provision.
The Youth Criminal Justice Act does little or nothing to resolve the flaws in the Youth Offenders Act. Quebec’s complaints seem difficult to justify, but the other provinces, which believe Canada needs a tougher, more transparent approach to young offenders, have every reason to be disappointed. Those provinces will continue to be squeezed by the federal straightjacket.
Notes
1Nonetheless, it is important to emphasize that, since the crime numbers cited on Quebec are based on crimes per thousand young people, in a direct manner they already account for the relatively small number of young people in the province. However, this does not account for the indirect effects of the low density of young people or the lack of population growth pressure.
2Neither the Bloc Quebecois nor the Quebec Justice Department responded to my request for clarification.
Fred McMahon (fredm@fraserinstitute.ca) is Director of the Social Affairs Centre at The Fraser Institute. Formerly with the Atlantic Institute for Market Studies, his most recent book is Retreat from Growth: Atlantic Canada and the Negative Sum Economy.
info@fraserinstitute.ca
4th Floor, 1770 Burrard Street, Vancouver, BC, Canada, V6J 3G7
Tel: (604) 688-0221 Fax: (604) 688-8539 Book Orders: 1-800-665-3558 ext. 580
You can contact us at the above email address for any comments or information requests. Please report any dead links or technical problems.