College papers help


The changes in the criminal code of canada in 1984 the young offenders act

The Act replaced the 1908 Juvenile Delinquents Act the "JDA" which exemplified what has been described as the "welfare" model of dealing with young offenders. That is to say, youth were not to be treated as criminals but rather, in the words of the Act, as "misdirected [children]. The unintended results, however, were often arbitrariness, unfairness, and neglect of the interests of youth, consequences of the discontinuity between the ideals expressed in the JDA, and the actual delivery of services to juveniles.

Moreover, juvenile delinquents were denied basic elements of due process: The YOA adopts what is known as the "justice" model of juvenile criminal justice. It recognizes the special needs and vulnerability of youth, but also places emphasis on both protection of the public and the rights of young people.

The result is a considerably more detailed and explicit code governing criminal proceedings against youth. The emphasis is less on social intervention, and more on the delineation of rights and obligations. Jurisdiction The YOA is, on the whole, a procedural rather than a substantive statute: Rather, it stipulates the procedures to be followed in dealing with adolescent criminality.

It applies to all "young persons" between 12 and 18 years of age. In contrast, the JDA could be invoked against any child over 7 years of age, and, depending on the province, either under 16 or under 18.

When the YOA was proclaimed in force in April 1984, the provinces were permitted to continue to designate a maximum age of 16 or 17 for a short time, in order to allow them to adapt to the new system: Under the JDA, the range of conduct for which a youth could be prosecuted was very broad. A "juvenile delinquent" was any young person who violated the Criminal Code or any other federal or provincial statute or municipal by-law, or who participated in "sexual immorality or any similar form of vice.

Young offenders are to be tried by "youth courts," courts designated by the government of a province or, in the Territories, the Governor in Council to deal with adolescents. Such courts have jurisdiction where an offence is committed by someone while he or she is a young person. As did the JDA, s. Unlike the JDA, which left the transfer decision largely to the discretion of the presiding judge, the YOA sets out a detailed list of criteria that the court must take into consideration before ordering a transfer.

In legislation passed by Parliament in June 1986 Bill C-106s. This amendment was made, it appears, to remedy the problem caused by precipitate guilty pleas made to avoid transfers, or to deal with cases in which the parties have not given consideration to a transfer.

The Youth Criminal Justice Act Summary and Background

Bill C-37 in 1995 significantly amended s. Under these amendments, 16 and 17-year-olds charged with murder, attempted murder, manslaughter or aggravated sexual assault are presumptively dealt with in adult court.

If, on application, the Youth Court is satisfied that the goals of rehabilitation and public protection could be reconciled if the young person were under the jurisdiction of the Youth Court, it may order that a case be dealt with there.

The age limits stipulated in the YOA have become controversial. Some police forces, in particular, contend that they are virtually powerless to deal with criminal acts by children under 12 and over 7.

The federal government maintains that the provinces have the power to treat such children pursuant to their jurisdiction over child welfare. Some provinces were slow to accommodate themselves to the new upper age limit of 18. The following principles were originally in the Act. Young persons are said not to be as accountable for their acts as are adults, but even so they must "bear responsibility for their contraventions. The need for supervision, discipline and control of young offenders is recognized, as is the fact that they have "special needs" and require guidance and assistance.

The taking of measures other than judicial proceedings should be considered where not "inconsistent with the protection of society. Youth have a right to the least possible interference with freedom as is consistent with public safety.

Young persons have the right to be informed of their rights and freedoms in any situation where those rights and freedoms may be infringed. Parents are said to have a responsibility for the care and supervision of their children, and children are to be removed from parents only in compelling circumstances. Bill C-37 in 1995 added two principles to the original series. The first of these espoused a multidisciplinary approach to crime prevention, while the second asserted that the protection of society is best served by the rehabilitation of young persons.

A notable aspect of these statements of policy is their emphasis on protection of society, and on the rights of young persons.

  1. Police must consider all other options, such as a warning or making restitution, before laying charges; It clarifies the conditions for sentencing youth into custody; and It makes provisions for reintegrating youth in custody back into society.
  2. It is important to note, however, that the Act does maintain stiff sentencing, including long-term incarceration, for youths that have committed serious offences, such as murder.
  3. This was certainly an onerous offence for a first-time young offender since she would receive no remission for good behaviour.

This clearly indicates the approach of the YOA. As for their use as an interpretive tool, both youth and appellate courts have made reference to section 3 in dealing with such things as sentencing and transfer applications. Alternative Measures Section 4 of the Act gives substance to the statement of principle in s.

It provides legislative authority for the use of voluntary "alternative measures," or what is known as "diversion" - the decision not to prosecute a young person, but rather have him or her participate in some educational or community service program. The intention is to avoid the formal, time-consuming, and often harmful effects of prosecution and punishment.

A number of pre-conditions must be met before a young person can be diverted from the courts, however. A program of alternative measures must have been authorized by the relevant Attorney General, his or her delegate, or a person authorized by the Lieutenant Governor in Council of a province.

The young person must "accept responsibility" for the offence alleged, and he or she must consent to participation. There must exist a solid basis for a prosecution.

Section 4 preserves the right of any person to prosecute privately, but not in circumstances where a young person has completed prescribed alternative measures. Concern has been expressed about the fact that a youth must, in effect, admit guilt in order to take advantage of section 4.

There is also a concern that this legislated form of alternative measures may be excluding more informal types of diversion, such as those exercised by the police at the arrest and apprehension stage. Detention and Interim Release The YOA makes it clear that most of the arrest and bail provisions of the Criminal Code apply to proceedings against young persons.

Until the passage of Bill C-106 in June 1986, the Act contained a virtually absolute rule that young persons were to be detained separately from adults. In view of the logistical problems this was causing to law enforcement officials, s. The bill also relaxed the rule that justices could hear bail matters only if no youth court judge was reasonably available.

The amendments permit justices to deal with bail without restrictions. Notice to Parents Consistent with the principle of parental responsibility, the YOA contains detailed provisions stipulating that parents must be notified where a young person is arrested or charged.

Young Offenders Act

Pursuant to section 10, a parent can also be compelled to attend at youth court, on pain of conviction for contempt in default, if the court is of the opinion that such attendance is necessary or in the best interest of the young person.

Medical and Psychological Reports Section 13 of the YOA sets out very detailed procedures governing the preparation and use of medical and psychological reports with respect to accused young persons. The JDA was largely silent on this issue, leaving a considerable amount of discretion to the courts. Section 13 deals with such things as: Bill C-37 in 1995 amended section 13 to allow for such reports to be ordered in cases of serious personal injury offences or repeated findings of guilt.

The Trial As was the case under the JDA, criminal proceedings involving a young person are summary in nature, whether or not the offence is expressed, in the Criminal Code or other Acts, as being indictable or punishable on summary conviction. This means that, even for indictable i. The denial, in most cases, of a jury trial to young persons has been challenged as unconstitutional. Thus far, most courts have upheld the validity of the Act on this matter.

The Charter of Rights and Freedoms guarantees a jury trial only where a person faces a possible punishment of five years' imprisonment "or a more severe punishment. Further, a youth court may not accept a guilty plea without first inquiring as to whether there are facts that support the charge. An adult court is under no obligation to make such an inquiry. In general, the procedures set out in the Criminal Code govern trials in youth courts, except where a contrary intention is found in the Act.

It stipulates, as the general rule, the common law position that a statement will be received as evidence only if it is "voluntary"; i. The person receiving the statement must explain to the young person "in language appropriate to his age and understanding": Further, the young person must have been given an opportunity to consult, and to make the statement in the presence of the adult consulted.

These latter two rights may be waived, but such a waiver must be in writing. Bill C-106, as originally drafted, would have removed the necessity for this waiver to be in writing. This proposal met, however, with considerable opposition and was eventually deleted. Section 56 was amended, however, to stipulate that a parent or adult relative consulted by a young person is not a "person in authority" whose offering of hope of advantage or fear of prejudice can vitiate the admissibility of a statementin the absence of evidence to the contrary.

Bill C-37 made a number of amendments to section 56 in order to deal with some of its "ambiguous" provisions. An exception to most of the requirements is made with respect to "spontaneous" statements made to a police officer or other person in authority. But such statements must still be voluntary. Statements made to persons who are not "in authority" are inadmissible if made under duress. Testimony of Children and Young Persons Until the coming into force of Bill C-106, the rules governing the testimonial capacity of children and young persons in proceedings under the YOA differed, in some respects, from the general law on such testimony.

Under the general law as embodied in s. If a witness is under 14, the Court must inquire into whether or not he or she understands the nature of an oath. If the person is held to understand the nature of an oath, his or her evidence is admissible without the need for corroboration, although the judge must warn the trier of fact as to the potential unreliability of such evidence. Unsworn evidence may be received if the child is deemed sufficiently intelligent and understands the "duty of speaking the truth.

It was more restrictive in that it required corroboration of the evidence of all persons under 12 years of age, whereas under the general law it was possible for some children under 12 to give sworn evidence, which requires no corroboration. It was less restrictive in that it presumed all persons over 12 to have testimonial capacity, whereas the general law made that presumption only for persons over 14.

Bill C-106 repealed s. Bill C-106 retained that part of s. Now, apparently, children and young persons may testify either under oath or under solemn affirmation.

The Badgley Committee which dealt with sexual offences against children and youth criticized the corroboration requirements. In its view, a witness's age should reflect only on the weight of his or her evidence, and not on its admissibility.

The Government apparently agreed, and Bill C-113 given first reading in June 1986proposed amending s. The bill also proposed removing a corroboration requirement related to children's evidence in the Criminal Code s.

Sentencing Dispositions It has been written that "the true magic of the juvenile court has always been in the dispositional [i. The YOA introduced a number of reforms with respect to what it refers to as "dispositions. This is particularly so with respect to custodial dispositions. In addition, there is provision for a wider range of dispositions including discharges as well as for periodic review, to evaluate their usefulness.

  • A Strategy for the Renewal of Youth Justice;
  • As amended by Parliament in 2012, the YCJA also allows publication of identifying information where a youth sentence is imposed for a violent offence if the following requirements are met;
  • In addition, the rule of presumptive destruction of youth records was abolished;
  • Many felt that the Act's limit on a three-year detention sentence for youths was overly lax, and allowed youths to get unreasonably light sentences for murder or sexual assault;
  • A court can impose an adult sentence only if a the prosecution rebuts the presumption that the young person has diminished moral blameworthiness or culpability and b a youth sentence would not be of sufficient length to hold the young person accountable.

Section 20 of the Act allows for a number of possible dispositions: