Defence bar says YCJA doesn’t need fixing

Several proposed legislative changes and a five-year review are on the way for the Youth Criminal Justice Act - but Ontario’s defence lawyers say it doesn’t need repairing.
Amendments to the YCJA, announced in new legislation last week, would make it easier to detain youth in custody before trial, including those who breached previous conditions of release or have committed an offence that created a danger of causing serious bodily harm.

Courts would also be allowed to consider deterrence and denunciation as objectives of youth sentences. As the YCJA stands now, a young person is held accountable through meaningful consequences and rehabilitative measures.

The legislation is one of a new series of bills aimed at tackling community crime, set to be introduced in this session of Parliament in addition to the Tackling Violent Crime Act, which was introduced last month.

“These amendments to the Youth Criminal Justice Act are intended to help hold young lawbreakers accountable to their victims and their community, and instil within them a sense of responsibility for their delinquent or criminal behaviour,” Justice Minister Rob Nicholson said when the legislation was introduced last week.

In addition to the changes, the government is also planning to carry out a review of the YCJA on its five-year anniversary next year, which it says will “address concerns and criticism regarding various provisions and principles” of the act.

However, Toronto criminal lawyer Joseph Di  Luca, vice president of the Criminal Lawyers’ Association, calls the amendments “unnecessary and ultimately unprincipled.

“There is nothing out there that I’ve seen that suggests that we are in a crisis over youth sentencing. So we have in effect a valid, new, sound, working piece of legislation that’s now being in effect tinkered with on a very fundamental level,” he says.

The YCJA, says Di Luca, includes a sentencing philosophy approved of by the Supreme Court of Canada.
The court acknowledged that, “Parliament made a choice in the Youth Criminal Justice Act to promote the long-term protection of the public by addressing the circumstances underlying the offending behavior and by rehabilitating and re-integrating young persons,” he says.

“I think a lot of the initiatives under the YCJA have been very effective and overall crime is down,” says criminal lawyer Joseph Neuberger.

According to Statistics Canada, in the year following the April 2003 implementation of the YCJA, the number of 12- to 17-year-olds admitted into some form of custody declined by nearly 50 per cent, partly as a result of the act’s increased use of community-based alternatives, focusing on rehabilitation.

He adds that while the proposed changes announced last week may appear to provide more tools to youth court judges on paper, in practice, he doesn’t think they will make any substantive difference.

The previous principles indicate acceptance and responsibility as well as rehabilitative measures, which correspond to the seriousness of the offence, he says. “When a judge is sentencing with the tools that are available to him or her under the Youth Criminal Justice Act, they’re taking into consideration the seriousness of the offence,” says Neuberger. He does add, however, that it is disappointing to see a movement away from rehabilitation with the new legislation.

With respect to issues of pre-trial detention, in reality, says Neuberger, when a youth court judge is faced with a serious offence that poses risk to the community, they are already balancing those factors when deciding whether or not to grant bail. There are currently several options available to youth court judges, other than detention in a youth facility, which speak to the issue of the accused being a youth, he adds.

Neuberger says that the changes could be incremental steps to mandatory detentions or jail sentences for particular offences for youth and extending the sentences available overall. “The concern is that it’s paving the way for increased sentences for youth,” he says.

Di Luca adds that if the amendments are passed, there will likely be an increase in the use of incarceration as a sentencing tool for youth.
Attempts to contact Crown counsel for comment were unsuccessful by press time.

While the government had indicated as part of its election platform that it would be amending the YCJA to include automatic adult sentences for youth found guilty of “serious and violent crime and repeat offences,” it said last week that it will be waiting for the Supreme Court decision in R. v. D.B. before it introduces sentencing reforms.

While older youth can already receive adult sentences, says Neuberger, the expansion of this would not take the characteristics of the person who is before the court into consideration, he adds. “They’re youth, they’re children, and we have to view them that way. Cognitively, they’re different than adults,” he says.

“Arguably, the message sent to judges under these new bail provisions is to be tougher on youth in bail court than on adults,” says Di Luca.
As chair of the legislation committee of the Criminal Lawyers’ Association, Di Luca says the association will be seeking to make submissions before committee on this bill.

“While the bill is short . . . it really does fundamentally alter the landscape of the Youth Criminal Justice Act,” he says.

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