The YCJA: in theory and in practice.

The Youth Criminal Justice Act (YCJA) came into force on April 1, 2003. It was preceded by a number of major debates that called for a replacement of the former Young Offenders Act (YOA, 1984). In particular, the Youth Justice Strategy in May 1998 called for action on three levels: prevention, meaningful consequences, and harsher punishment for violent repeat offenders. In addition, many of the recommendations arising out of the Summit on Justice in 1999 were also incorporated into the new legislation. Some of the key recommendations included lowering the age of responsibility, parents being held more accountable, the use of incarceration as a last resort, and reliance on alternative measures.

Under the YOA, Canada came to have one of the highest youth incarceration rates among western nations. It was in essence in violation of the 1985 UN Beijing Rules, the 1990 Rules for the Protection of Juveniles Deprived of their Liberty, and related UN standards and norms in the area of juvenile justice of which Canada is a signatory member. In addition, a number of high-profile incidents involving young persons as either victims or offenders (e.g., the cases of Reena Virk and Clayton McGloan) drew considerable media attention to Canada's youth criminal justice system, most of which was negative. The general consensus was that the "youth justice system lacked a coherent justice philosophy. The system did not make a clear distinction between serious violent offences and less serious offences ..." (Juristat, 2006:4).

The four main principles of the YCJA under section 3(1) include:

* Prevention, to address the causes of crime and encourage community effort to reduce youth crime;

* Meaningful consequences that hold all young people accountable for their actions, and help them understand the implications of the harm they have done; * Rehabilitation and reintegration back into the community; and

* Flexibility for the provinces to establish youth justice policies that best meet their youths' needs. Collectively, the model of justice reflected in the YCJA can be referred to as a community change model. This means a model that includes provisions which attempt to address the causes of youth crime by creating options involving key environmental/community factors thought to be preconditions for youth crime.

These principles represent a significant shift from the former YOA. In addition to the legislative changes that accompanied the YCJA, the federal government allocated funding to begin a number of initiatives including special programs at the provincial and territorial levels for crime prevention efforts; the facilitation of professional training, research, and partnerships with other youth-related sectors (e.g., education, child welfare, and mental health); and improvements to Aboriginal communities and for the youth who reside there because they are disproportionately represented in the youth justice system.

While in principle, the Act offers much promise, in the few years that it has been operational, it has already been subjected to divided opinion concerning whether or not it is meeting its objectives of crime prevention, the development of new community programs promoting the rehabilitation and reintegration of youth at risk, and enabling provinces to exercise discretion in how to best implement the Act.

Here is a brief overview of some of the reactions to the YCJA.

Reactions to the YCJA

However, admissions to remand of young Aboriginals (remand refers to persons who have been charged with an offence and ordered by the judge to be placed in custody until their next court appearance) continue to increase. Aside from probation, custody continues to be a priority option for sentencing among all young persons.

A study in 2005 by Doob and Sprott indicated that consistent with the intention and provision of the Act, within the first year of the YCJA's implementation there was a significant reduction in the use of sentencing youth to secure custody. According to 2003/04 crime statistics, admissions to youth correctional services overall have continued to show a decline since the late 1990s. However, admissions to remand of young male and female Aboriginals continue to increase and aside from probation, remand continues to be a priority option for sentencing among all young persons. And while the rate of admissions might have declined since 2003, the intention of providing constructive and effective options for youth at risk does not appear to have been adequately addressed.

In 2006, the National Union of Public and General Employees called upon the Conservative government to address the shortcomings that have emerged since the YCJA was introduced. Specifically, the group speaks to the lack of programs that were earlier promised by the government to assist young persons once they are released from custody. Under the leadership of James Clancy, the National Union of Public and General Employees argues that many of Canada's young offenders are turning up in the adult system because of a lack of sufficient post-custodial programming. While alarming, this point is further compounded by the observations from several studies which have shown that if young people appear in the youth justice system before they reach the age of 14, they stand an 80% chance of ending up in the adult system.

The Canadian government spends in excess of $11 billion per year combating crime. Most of the initiatives are driven by The National Strategy on Community Safety and Crime Prevention--first introduced in 1994. The money is used for initiatives such as policing (approximately 58%) and adult corrections (approximately 20%), while only around 5% of the budget is used for youth corrections/prevention initiatives. Yet, youth remain disproportionately represented in the criminal justice system.

While it is beyond the scope of this article to provide a comprehensive summary outlining the successes and failures of these programs, we will offer two examples that bring into question the relative effectiveness of federally/provincially funded initiatives.

In 2005, under the Community Mobilization Program, the federal government gave $1 million to fund 28 community-based programs under the National Crime Prevention Initiative for British Columbia. The grants ranged from $10,000-$50,000 per program. Aside from offering these programs seed money, there is no clear documentation concerning how and why certain programs were identified and selected, or evaluations of their ultimate success.

Also in 2005, through the Job for Youth Program, Ontario's provincial government provided $500,000 for 600 youth at risk to locate summer employment opportunities throughout the greater Toronto area. Aside from the Program's selective focus on a major urban centre, further implications become notable when easy calculations reveal that the dollar value of assistance offered to each youth was only around $833.

Similar examples can be found across the country. In fact, there is no shortage of like programs in most provinces and territories. Since 1998, the National Crime Prevention Strategy has supported more than 4,300 projects nationwide.

Is there any evidence that indicates that the programs worked or that youth crime has declined? While there has been a decline in incarceration rates for young persons (e.g., incarceration rates dropped from 19.6/10,000 in '94/'95 to 8.8/10,000 in '03/'04)--consistent with the purpose and principles of the YCJA, the rate of youth being diverted into other correctional and intervention options has increased (e.g., deferred custody and supervision or extrajudicial/ alternative measures programs). And of those who go through the traditional correctional process, the results do not appear to bode well. For example, about 4 in 10 youth accused of homicide also had previous criminal records, and slightly more than 15% of youth victims had criminal records. Furthermore, 2003 Statistics Canada data reveal that the 57 homicides committed by youth in 2003 were 15 more than the previous 10-year average. While still a comparatively rare occurrence, such trends seem to be highlighted by incidents such as the 12-year-old girl charged with a triple murder in Medicine Hat in April 2006, or the case of the Toronto youth fatally stabbed while on the way to a party. In other words, while incarceration might be declining, the rate and nature of violence among youth evidently is not!

There has also been research looking at the nature of cases entering Youth Court. According to Statistics Canada, there was a 17% drop in the number of cases brought before youth courts between 2002/03 and 2003/04. "Failure to comply" (FTC) with a previous ruling under the YCJA was the second most common reason for appearances in youth courts (approx. 11% for 2003/04). Yet Sprott (2006) observed that FTCs have played an increasing role since the implementation of the new Act, and that judges are sentencing youths with recurrent FTCs proportionately. Therefore, prior criminal history is playing a significant role in the types of sentences judges are administering.

Finally, the YCJA includes provisions for provincial variations in the administration of the Act. Based upon the rates at which the provinces bring young offenders to youth courts, there is considerable variation as to how the Act is administered across the country. Quebec has consistently had the lowest rate of young offenders while the western provinces tend to have rates higher than the national average.

Time for another reform?

As noted earlier, legislation alone cannot (re)solve the real problem that youth crime and youth at risk present. And while there has been a decline in the number of cases being brought to Youth Court, an increasing number of youth are being diverted into alternative measures based programs/initiatives. This is consistent with some of the newer provisions of the YCJA. For example, under section 42(2)(n), young offenders sentenced to custody now serve the final one-third of their sentence under community supervision. In addition, it is possible to defer a custody disposition (some 1,077 youths deferred in 2003/04), and there is also the Intensive Support and Supervision Program (ISSP--YCJA, sec. 42(2)(1))--a new, community-based alternative to custody. While these measures are intended to facilitate re-integration into the community, based on the evidence presented above, it appears that support and resources are insufficient to ensure that such initiatives can generate their intended objectives.

The YCJA has incorporated many of the guidelines and norms recommended under the various UN conventions on young offenders. Yet clear provisions and initiatives that concern crime prevention are still lacking. Instead, we are left with a model of youth justice that remains essentially reactive in nature. The youth justice system and policy-makers need to ensure that we capitalize on the opportunity under the Act to promote and support prevention initiatives that rely less on formal agencies and more upon lateral and vertical organizations and connections within our communities. The safety and well-being of our youth rests in the community at large. A growing number of voices speak of restorative justice, transformative justice, reintegration, and improved child welfare and mental health programs. Law-makers should strive to strike a balance between criminal accountability and the promotion and support of crime prevention initiatives through social development and support for therapeutically informed processes within a justice context.

John Winterdyk, PhD is a professor with the Department of Justice Studies at Mount Royal College in Calgary, Alberta and an adjunct professor at St. Thomas University in Fredericton, New Brunswick.

Kiara Okita is currently an MA student in the Department of Sociology at the University of Alberta in Edmonton, Alberta.