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Another viewpoint.

In the late sixties, while working as a Juvenile Probation Officer, I attended a seminar on the draft of a Bill, called the Young Offenders Act (YOA), which was meant to remedy the problems with the Juvenile Delinquents Act (JDA) under which we worked at the time. The JDA worked in the sense that troubled youngsters (my youngest probationer was seven years old) received supervision and other assistance such as court-ordered psychiatric treatment through the benign paternalism of the Juvenile Court. It worked badly, however, in the sense, that young people could be found to be delinquent, and even sent to closed custody training schools, for behaviour such as playing hooky, running away from home, or coming home late on dates. These dispositions fell under the non-Criminal Code offence of being found "beyond the control of the parents".

The new Young Offenders Act (finally passed in 1983) gave minors specific legal rights so they were not criminalized for non-criminal behaviour. It was also meant to make older youth who committed Criminal Code offences more accountable for their actions.

The plan was that children from ages 7-11 would be treated through a comprehensive array of child welfare services run by the provinces. This, it was believed, would keep many of them from ever entering the youth criminal justice system. Perhaps it would have, but--with perhaps the exception of Quebec--most provinces developed insufficient services.

Now we are faced with another attempt at changing legislation in order to deal with youth crime. Given the importance of this new Act--it will be the framework within which many troubled youth first come into contact with notions of law, justice, crime, and punishment--LawNow has taken the unusual step of using our entire feature section to examine one federal Act.

We will begin with an article by Marian Bryant that highlights the major differences between the new YCJA and the YOA. This will be followed by an article that begins by outlining the history of Canadian criminal legislation dealing with youth, then examines the new Act, particularly some of the sentencing provisions, in the light of that history and wonders if anything will really change. The next article examines sentencing provisions and arrives at a rather different and interesting conclusion. For a change of pace, we then present two articles that deal with very specific issues from the new Act: bail hearings and conferencing. Finally, we finish the Feature section with a look at how the YCJA stacks up against our international obligations under the United Nations Convention on the Rights of the Child.

These articles and the YCJA itself, however, raise an important question, but leave it unresolved. Why is it that we have such difficulty figuring out how to prevent youth crime and to provide justice for both youth, and when youth crime occurs, for the victims? After all, we all started out as babies, those innocent beings with their big eyes and miraculously perfect fingers. Babies present us with that delicious combination of a cute unspoiled version of ourselves along with hope for a better future. What goes wrong?

Within a very few years of birth, these perfect little creatures turn into that dreaded sub-species of human: teenagers, sporting multicoloured hair, rings in the ears and other places, tattoos, and hanging in fearful-looking groups on the street corners. Sometimes, they actually turn into young offenders who confirm that our fears must have been justified. It just doesn't seem right, does it?

So before we move on to the Feature, I want to take a few moments to explore what might be happening as children pass into those years, 12-18, that cause such alarm and acrimony among the populace.

Some people suggest that it is only within the last couple of centuries that we have invented teenagers; that in earlier times, a 12 year-old was quite old enough to go into the mines or textile mills to help support the family. Earlier still, the rituals of entrance into adulthood occurred at puberty, then the new men and women took up the heavy adult roles of ensuring survival of the family, the tribe, and the species.

However, I would like to suggest that there is plenty of evidence to suggest an adult unease with youth long before the industrial revolution. One well-known example of this comes from Greek mythology and drama. In Sophocles' version of Oedipus Rex, performed in 430 B.C., we hear about a deadly oracle:
 "An oracle was reported to Laios once
 That his doom would be death at the hands of his own son ...
 his child had not been three days in this world
 Before the King had pierced the baby's ankles
 And had him left to die on a lonely mountain."


That Greek version of the struggle between father and son has, of course, been taken over by Freud and become one of psychology's commonplaces. But Oedipus was not the only son to kill his father. Even before Sophocles, the Greek historian, Hesiod, reported that Kronos, chief god of the Titans, is overthrown by his son Zeus, leader of the more familiar group of gods from Mount Olympus. Meanwhile, from India, we can hear the tale of the attempts of the tyrant-king Kansa to avoid the prophecy that a child of his cousin would kill him. The child was the divine Krishna and Kansa, the king, was doomed. And of course, there is the Christian story of Jesus; in his case it was not his father/God who he overthrew--it was the religious hierarchy of Pharisees and Sadducees, yet another version of the young overthrowing the old ... and the price they pay for their rebellion.

Moving away from gods and divine sons, we can still find plenty of evidence that ruling generations are uncomfortable with their youth. In Plato, we read that one of the chief accusations against Socrates was that he was corrupting the youth of the city. Picture the city square of Athens: an ugly and somewhat unkempt 70-year-old cobbler is surrounded by the youth from all the best families, encouraging them to question tradition and religion and the very wisdom of their elders. Not much wonder he had to drink hemlock!

Northrop Frye, a ground-breaking Canadian literary critic, makes the point in his Anatomy of Criticism that in the genre of comedy (not humour, but the story-type with a happy ending) a young hero is opposed in his goals by an older, often parental, figure. He points out "We notice how often the action of a Shakespearean comedy begins with some absurd, cruel, or irrational law." When the old law is overthrown by the hero, there is renewal and reconciliation, often with marriages, always being as inclusive as possible of the whole community. In tragedy, on the other hand, the traditional society succeeds in blocking the desire of the hero. Think of Romeo and Juliet, doomed by their families' feud to end their story in death, instead of the festive marriage of the comedy.

I am perhaps belabouring this mythic and literary look at the relationships of older and younger generations, but I feel it gives us a slightly different, and hopefully, useful ground from which to look at today's youth and young offenders. Now certainly I am not suggesting that young offenders are merely archetypal young rebels. However, if we accept for a moment my thesis that there is something like an archetype or plotline buried in our subconscious minds that warns us of strife between parents and children, the ruling generation and the generation that will rule, it may provide us with another way of looking at both the problem and possible solutions.

We know there is an intractable element of physiology involved: inevitably those cute babies grow as big or bigger than their parents; inevitably they acquire--especially for those teenage years--an overdose of the hormones that make us physically adult; inevitably they learn sets of knowledge that were not available to their parents; inevitably they are bursting with energy to try out their abilities to do adult things--including making decisions about how their world will run. And inevitably, that process of becoming adult brings them into conflict with the adult world they aspire to enter.

And that--in a plot--would be the climax. But the ending is not inevitable. It is the responsibility of both youth and adult society--the community or village--to determine whether each story ends as tragedy or comedy. Where the conflict becomes so great and the deeds so horrendous that we must expel the wrongdoer from the community, we have tragedy. Where we are able to intervene in the story, where we can find means of reconciliation, where we can find the courage to use restorative justice including as many of the community as possible, we may create the comedic cycle, the happy ending.

There are provisions in the new Youth Criminal Justice Act that, I believe, may lead both to the tragic and the comic archetypal stories. The provisions that call for adult sentences for youth as young as 14 for certain violent crimes may well lead to the long-term exclusion of those youth from society; sadly, no amount of punishment of the offender can ever return victims to their full pre-victimization state. So for me, those provisions seem to reinforce the possibility of on-going tragedy. On the other hand, the focus in this Act on community involvement in rehabilitation, reconciliation, and restoration may just lead us toward the comedic ending of inclusion, even celebration. On behalf of all the babies born each day, let us work at directing our society toward the comedic, not the tragic, ending.
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Author:Mildon, Marsha
Publication:LawNow
Date:Oct 1, 2003
Words:1606
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