by Carol Letman
The Criminal Lawyers Association has reviewed Bill C- 7, the Youth Criminal Justice Act and would like to take this opportunity to submit brief comments to the Committee presently considering the Bill.
To begin with, the Association applauds the efforts made to recognize the challenges posed by youth crime in our changing society. This is being pursued through an enormous piece of legislation that attempts to deal with both the special needs of young persons and society’s need for accountability, particularly with respect to “violent offences”. The increased focus on the use of extra-judicial measures, together with parts of the legislation aimed at decreasing the reliance on custodial dispositions, reflects the fact that many so-called youth crimes are minor in nature and are better addressed by community-based solutions rather than by criminal sanctions.
There are however, some areas of the Act that do give concern and are likely to give rise to challenge through the courts. The Association proposes herein to focus on a few of the most troubling areas.
While it is clearly understandable that there is a need to respond to increased societal concern regarding violent youth crime, the lowering of the age for these presumptive offences to age fourteen will add stresses to the youth justice system. One must seriously questions the underlying motivation to treat fourteen year-old young people in the same fashion as adults raises serious questions, particularly at a time when other pieces of criminal legislation (proposed and already in existence), recognize their immature status. Such a framework will likely to give rise to increased court challenges and appeals, particularly if significant “ adult sentences” are sought and imposed. More effort may be brought to have matters which are deemed presumptive and liable to “adult sentences” transferred back for a “youth sentence”. Likewise, the expansion of the category of presumptive offences to a three- strikes scenario is also likely to create additional demands on the justice system.
These additional demands will occur in at least two ways, firstly by increased demand on the adult courts to try additional young persons who fall into the doubly-expanded presumptive category, and secondly by necessitating additional court time to arrive at the judicial determination that an offence constitutes a “serious violent offence”.
The definition procedure to determine that an offence is a “serious violent offence” as put forward under section 42 (8), has been left extremely vague, with no direction to the presiding justice as to the process, standards, factors or elements to consider in making the determination. In light of the potential future ramifications, such determinations are likely to be seriously challenged, particularly if no clear distinction is drawn between bodily harm and serious bodily harm. Further, given the propensity in many jurisdictions to charge “assault causing bodily harm” where the “bodily harm” may be just past the “transient and trifling” level, a very real concern exists that setting the definition too low, will lead to a rash of young persons before the adult courts because of prior findings of guilt for assault causing bodily harm. As well, the use of the phrase “serious violent offence for which an adult is liable to imprisonment for a term of more than two years…” (Section 2) could essentially mean any violent offence given that virtually all the so-called violent offences expose an adult to a sentence greater than two years. The presumptive nature of these proceedings makes the process largely dependent on the young person making application, effectively shifting the burden to the young person to satisfy the court why he or she should be treated as a young person.
PART 4 -SENTENCING PROVISIONS
This section of the new Act is by far the most complicated and wide-sweeping revision to the existing youth criminal justice system. There are a number of components to this portion of the Act, from an extensive description of the purpose and principles, through to the elaborate provisions for the imposition of “adult sentences”. The wording of many of the sections is confusing and is indicative of an effort to anticipate all possible circumstances. The end result, however, are provisions which will likely tax counsel and judges for many years to come. One of the most obvious changes is that the concept of “dispositions” entrenched in the Young Offenders Act, has been replaced by the use of “sentences”. Gone are the “pre-disposition report” and the whole imposition of a “disposition” and that significant element distinguishing youth justice from adult justice has been abandoned in favour of a system with “youth sentences” and “adult sentences”.
On a positive note, the principle section clearly spells out a number of factors that judges must consider, and further imposes a requirement on a judge to give reasons for determining that a non-custodial sentence is not adequate to achieve the primary purpose of sentencing (Section 39 (9). The primary purpose of sentencing is described as “to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public”. Judges are directed that “the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances” (Section 38 (2) (a)), a particular concern given the findings of Statistics Canada that for some offences, young persons are receiving longer custody sentences.
Under Section 39, youth justice courts are directed not to commit a young person to custody unless certain circumstances exist, the first of which is that the young person has committed a violent offence. Other circumstances include a failure to comply with non-custodial sentences and the commission of an indictable offence coupled with “ a history that includes a pattern of findings of guilt under this Act of the Young Offenders Act” (Section 39 (1) (b) & (c). Even if these provisions apply, the judge must still not impose custody unless all alternatives that are “reasonable”, have been considered (Section 39 (2) & (3)). As well, the court is specifically prohibited from using custody “as a substitute for appropriate child protection, mental health or other social measures” (Section 39 (5)) and also from considering “the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court” (Section 39 (8)).
The “youth sentence” options under Section 42 (2) have been expanded to include, at the low end, a “reprimand” through to “intensive support and supervision programs” to “custody and supervision orders” and “intensive rehabilitative custody and supervision orders”. Some interesting new concepts have been introduced into the “youth sentence” scheme, the most significant of which is the mandatory inclusion of a community supervision component to a custodial sentence. This in effect, appears to be a form of parole, particularly since it has been set to come into place after two-thirds of the custody portion. The provisions are worded awkwardly, in that the court can “make a custody and supervision order with respect to a young person, ordering that a period be served in custody and that a second period — which is one half as long as the first –be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order” (Section 42(2)(n).
One other novel concept is the introduction of “deferred custody and supervision orders” where “the young person has been found guilty of an offence that is not a serious violent offence” and “it is consistent with the purpose and principles set out in section 38 and the restrictions on custody set out in section 39″ (Section 42(5)). In other words, a young person may avoid a custody sentence for up to six months, with the expectation that if they perform satisfactorily, they will not be placed in custody.
The introduction of “intensive support and supervision program(s)” and “intensive rehabilitative custody and supervision program(s)” are dependent on the provincial director having such programs in place. There does not appear to be a requirement under the Act to put such programs in place.
It is under Section 42(9) that the youth justice court can be asked to make a judicial determination that “the offence is a serious violent offence”, thus opening the door to the new category of presumptive offence. This determination is considered to be part of the sentence, but the process and the standard to be applied to the determination are not spelled out in any significant detail, despite all the detail that has gone into the balance of the sentencing provisions. The definition of “serious violent offence” has been previously given and is troublesome, given the absence of a definition of “serious bodily harm”, and the repeated references to “serious violent offence for which an adult is liable to imprisonment for a term of more than two years” (which basically means any violent offence). The ramifications of a finding that “the offence is a serious violent offence” mean that should a young person pass age fourteen and be charged a third time with a violent offence, they may presumptively be liable to an adult sentence unless they make application for an order to receive a youth sentence.
The balance of the “youth sentence” provisions are a confusing code of sections dealing with the imposition of more than one “youth sentence” , the imposition of prohibition orders and other orders, reviews of non- custodial dispositions and other such aspects. Intermittent sentences are allowed for, but only if there is a youth custody facility available in which such an order can be enforced, again not a mandatory requirement. Attempting to interpret how the various custody and supervision orders will run if a young person becomes liable to a new sentence while still serving sentence, will take considerable effort given the lengthy and confusing sections. One can only hope that efforts go into to thoroughly training the judiciary when these provisions are implemented.
One of the most troubling aspects of the new Act (from the defence standpoint) are the provisions relating to “adult sentences”. Once again there is a multitude of sections which have to be read extremely carefully in order to comprehend when notice has to be given and by whom, particularly when the offence is one of the ‘three strikes’ presumptive offences. It appears that the Attorney General first must give notice if there is an intention to seek an adult sentence by establishing that an offence is of this type, and that notice must be given prior to plea (Section 64(2), which then gives the young person the right to be tried by judge and jury (Section 67(1) & (2) and a right to a preliminary hearing. This also apparently applies to any included offence “for which an adult is liable to imprisonment for a term of more than two years”. It is obvious that the demand on the superior courts will be entirely dependent on whether the respective Attorneys General decide to seek the initial judicial determinations of “serious violent offence” and further then utilize the expanded “presumptive offence” category in an effort to seek more serious sanctions against so-called violent offenders.
The decision of where an “adult sentence” will be served is left to the youth justice court and includes the use of both youth and adult facilities, including the penitentiary, although the court must place the young person in a youth custody facility if the young person is under age eighteen at the time of sentence, unless the court is satisfied that it would not be in the best interests of the young person or would jeopardize the safety of others (Section 76 (1) & (2).
The implementation of these “adult sentence” provisions, will likely be costly both in time and resources, as additional court time will be needed for the various determinations and as the true picture of when these sentences are sought and imposed becomes clearer. While it appears from Statistics Canada that the number of violent offences beyond the simple assault level is not enormous, there will no doubt be far more young persons caught by these provisions than are caught under the existing transfer provisions of the Young Offenders Act.
PART 5 -CUSTODY AND SUPERVISION
This portion of the Act is yet another segment delineated by purpose and principle sections, in this case aimed presumably at encouraging the development and utilization of custody facilities that are “safe, fair and humane” and “assist young persons to be rehabilitated and reintegrated into the community” (Section 83 (1)). It is at this point that the Act finally imposes a specific obligation on the provinces, which is to require that there “must be at least two levels of custody for young persons , distinguished by the degree of restraint of the young persons in them” (Section 85(1)). At this point the Act begins to vary from the Young Offenders Act, in that the decision as to the level of custody is removed from the youth court judge and given to the provincial director (Section 85(3)). Transfers from one level to another are also under the discretion of the provincial director. This effectively removes the decision making as to level of security from the court which has heard all the facts and places it in the hands of an administrator, who may never have met or dealt with the young person involved. And rather than putting in place a detailed specific mechanism for review of these administrative decisions as so much of the Act seems to do in other areas, it is left to the lieutenant governor in council to “ensure that procedures are in place to ensure that the due process rights of the young person are protected with respect to a determination” (Section 86(1)). What is contemplated is that a young person may apply for a review to a “review board” which is to be “independent”. The composition of this “review board” is not specified, but its decision is final.
Another new feature of the custody provisions is the concept of “reintegration leave”, again in the discretion of the provincial director. This allows for a leave for up to thirty days for “medical, compassionate or humanitarian reasons, or for the purpose of rehabilitating the young person into the community” (Section 91 (1) (a)). As well, the provincial director may authorize the release from custody of a young person for school, employment, re-training programs or out-patient treatment (Section 91(1) (b)).
Further provisions exist to allow the provincial director to apply to the youth justice court to transfer an young person over the age of eighteen to an adult provincial correctional facility, however this decision must be made by the court after considering whether it is “in the best interests of the young person or in the public interest” (Section 92(1)). The actual process whereby this takes place is again not spelled out, other than a requirement that the court give “the young person, the provincial director and representatives of the provincial correctional system an opportunity to be heard” (Section 92 (1)).
In contrast to the rather vague provisions just described, Section 94 sets out detailed provisions for the review of a custody sentence, including the timing of such reviews , the notice requirements, the factors to be considered, the reports to be prepared and so on. As well, in certain circumstances the provincial director on his or her own initiative, can recommend that a young person be released from custody and placed under conditional supervision, and if not satisfied by the court’s initial order which may be made without a hearing, can then request a hearing (Section 96). The opposite is also possible, where a young person’s custodial portion is close to expiry, either the Attorney General or the provincial director can apply to the youth justice court for an order that the young person remain in custody rather than being released on conditional supervision (Section 98). Such decision is only to be made if “there are reasonable grounds to believe that (a) the young person is likely to commit a serious violent offence before the expiry of the youth sentence he or she is then serving; and (b) the conditions that would be imposed on the young person if he or she were to serve a portion of the youth sentence in the community would not be adequate to prevent the commission of the offence” (Section 98 (3) ). A number of factors are set out in subsection (4) to be used in making such determination. Once again, reports must be prepared and the presiding judge must give reasons for making a continued custody order. This decision is appealable to the court of appeal.
Power is also given to the provincial director to remand a young person to custody “if the provincial director has reasonable grounds to believe that a young person has breached or is about to breach a condition of a supervision order” (Sections 102 & 106). In both circumstances (the difference relates to which subsection of section 42 is involved) there are provisions for review of the provincial director’s decision by the youth justice court which has the power to revoke the conditional supervision and maintain the young person in custody, but not for a period longer than the original sentence. Any such decision must be accompanied by reasons which must be circulated to all parties (Section 109 (5)). This type of process may also add to the stress on the courts if they are called upon to review administrative decisions in this fashion, yet obviously the decision to return a young person to custody in the absence on the commission of a new offence is a serious matter.
SECTION 146 STATEMENTS AND WAIVERS
The provisions regarding the admissibility of statements made by young persons have been re-written in a fashion which raises serious questions, and serious challenges to the courts. The safeguards enacted in section 56 of the Young Offenders Act, have been incorporated into section 146, but they are largely made meaningless by the inclusion of subsections (5) and (6). These sections allow judicial discretion to admit any statement taken not taken in compliance with the procedural safeguards due to a “technical irregularity”. The term “technical irregularity” is never defined and brings to mind a whole plethora of possibilities, such as “failure to turn on the video” “poor sound quality” “telephone not working” and so on. In no other place in the Criminal Code or Canada Evidence Act or Charter of Rights, do we make exceptions for “technical irregularities”.
It is of great concern to this Association that section 56 be tampered with at all. That section was seen as a critical element in protecting the rights of young people, particularly to have legal advice and to have a parent or adult with them in dealing with the police. This is a special worry in light of a growing body of research in both Canada and the U.S. that suggests the young people do not always understand their rights and do not appreciate how to exercise them. The circumstances of a statement being taken may fit the traditional definition of voluntary, ie. no obvious promise of favour, threat, no physical force, yet not be the product of an informed mind, fully appreciating of the right to have legal advice, or to have an adult present and of the right to remain silent. To permit judicial discretion to overlook the waiver or compliance with the requirements to fully explain the right to remain silent or fully consult a lawyer or adult runs the risk of setting up a system where the young person must prove he or she did not waive their rights or did not understand them. It is difficult to imagine how, the young person’s rights as defined in section 56 will survive, once non-compliance can be over-looked. It is our understanding that the reason for these “new” provisions were because Crown Attorneys and police felt too many statements given by young people, were being excluded. Given that the statistics for young persons with respect to rates of pleas and rates of conviction are quite similar to those of adults, there does not seem to be a vast quantity of young persons escaping the consequences of their actions because the police didn’t comply with the procedural safeguards. Yet for some reason the authors felt it necessary to introduce a concept which is not codified for adults.
This proposal is perceived as the thin edge of the wedge aimed at doing away with the safeguards that made the Young Offenders Act a distinctive piece of legislation recognizing the unique needs of young persons. At a time when the adult courts continue to be faced with Charter applications under section 10, the existing section 56 protocol places the burden of compliance on the authorities, thus limiting the Charter applications in this area in Youth Court. The amendments in section 146, may well open the door to these challenges in the “youth justice court”
In conclusion, the Criminal Lawyers Association credits the architects of the new Youth Criminal Justice Act for their efforts in developing a comprehensive code for youth justice in Canada. The emphasis on extra-judicial measures and the focus on standards and options in determining the use of custody are clearly of significant benefit in dealing with the vast majority of young persons who come in conflict with the law.
While we all recognize that violence among young people must be dealt with in a fashion which protects society, yet encourages rehabilitation, the efforts to categorize and punish serious violent offences raise serious questions, likely leading to increased challenges for all participants in the justice system. The same can be said for the proposals to significantly alter the safeguards provided to young persons in dealing with admissions to persons in authority.
Our young people are the cornerstone of the future and clearly merit careful consideration from all parties involved in the justice system. The Young Offenders Act was a significant first step in attempting to deal with a complex problem. It is clear that careful consideration must be paid to the next steps.