Tuesday May 19, 2009

- unfairness of treating pre-delinquent children (neglected, abuse, no family ß defined

and presume delinquent)
- juvenile justice was to meet “best interest” of children
- state to act as parent to foster responsible citizenship in children
- pathological problem if child is delinquent à society (parent, community, sensitivity
to areas [poverty])
- since beginning of 20th century, peak of industrialization

- refer to actual author by surname and publication

- majority of society’s consensus behind JDA, OR would NOT have gone long
- public ignorance for how act it worked
- trial taped ß no sensationalization of youth crime in media ß fairly satisfied with

YouthOVERVI
in Con
youth justice system
VS
intrusive (marginalized part of population not listened to strongly)

JDA Reform (1961 – 1982)

- mid 1960s with sustained critiques
- 20 years of discussion of how to change act (public
consultation/brainstorming/deliberation/arguing) to improve act

48-361 (20
- rise of rights discourses, human rights instruments
- human rights instruments, 1984 - ?

DOING GOOD
Charter
- rise of sensitivity to human and legal rights
- notion of reforming society through social welfare

YOA
- key moment in shaping with 1982 act, major constitutional development

JD
- 1960s-70sprominent movements
- intense cultural change spreading across globe

- civil rights mvt – change consciousness of baby boomer movement

- anti-war mvt – opposition to Vietnam war
- student mvt – student had power to change world, and for democratic society
– campus with potential for social reform
- feminist mvt – 2nd wave fem changing/challenging gender norms

CHILD SAVING
- gay/lesbian mvt – now entering period of legitimate activity in law

• JDA SOCIAL
1908 > YOA CONTE
1984
* CND first to legislate, now spreading to other nations VS past illegal to engage in
such activity

- gave sense human could create safe justice world

- able change world
- domestic groups NOT only through democratic activity

• PRINCIPLES, PRACTIC
DISTURBING
* reminiscence of riots in 1970s of D’s burned buildings
* riot in assassination for Martin Luther King

Requ
Impacts

• JDA REFORM, 1961 -1982

- intellectuals & at large participants
- people now have concerns with delinquents and their families ß rights trampled on

INTENSE SOCIA
- consultations and meetings with lobbying concerns à reach parliament

• RISE OF RIGHTS41-47
Bala, 2005a (pp.
- same year YOA tabled, CHR enacted

JDA REFO
* IMAGE of Pierre Elliot Trudeau who chartered the group

Bala, 2005b (pp. 178-1Ri

- CHR was consequence of 20 years of wrangling among civil groups in society
Ex. vital society of groups for movement coming before Parliament enshrining CND

• DEMISE OF REHABILIT
rights/freedom (ex. Different catholic church)

RISE OF RIGHTS & DEM

- recognition YOA had to be consistent with the CHR to stand

Campbell, 2005b (pp. 2

- JDA treated conditions as warranting coercive interventions for state to help
children

• YOA DEVELOPMENT -- CO
- allow intrusive action

• CIVIL
Reid RIGHTS
(Bala
& 2005a,MOVEME
Zuker, 2005b;(pp
2005 Ho
• CRIME CONTROL / JUS
 ANTI-WAR MOVEMENT
 - government talked about new model replacing JDA (welfare model)

- hallmark of model was informality (going before justice), and inflexible (no relation
between act and disposition – point to figure out what would help child back on
citizenship

- placing juvenile justice in juvenile service à protect children

- unintended outcomes
- arbitrary, unfair
- may NOT seem like taking away into institution
- denial of due process (no appearance, no trial by jury, no disposition proportion to
what has been committed)
* nation wide of penal welfare response

The YOA, 198

- state is paternalistic with recognition of citizenship extended to youth

- crime(uphold protection for society) |----------| justice(prioritize due justice, rightness

of law, no miscarriage of justice, there is error in evidence )

- continue recognition that youth required respect for legal rights

http://www.parl.gc.ca/infor
- children had limited culpability & assumed potential for rehab

- balanced

Government “Sp
* government “spin” (reports on juvenile justice)

http://www.parl.gc.ca/info
With the 1984 coming into
-how get to modified justice approach? à through 3 competing lobbies
- lobbying activity made to official hearings by social movements/activists…
- what is needed for an appropriate response?

(the "YOA"), Canada's tr

CC
- people should be accountable for their rime
- proportional punitive approach

JD

adolescents underwent
- prioritize/recognize there must be some accountability

YOA
replacedREFORM –
- legal rights of children need safe guard due to limited cognitive maturity

CW

the 1908 Juveni

- hang on rehab ideal
- suggest crime rooted in social conditions [choices structured by social conditions]

The YOA adopts w

- must prioritize children on rehab for treatment

exemplified what has bee

- law & order = enforcement

[MODIFIED]
of "justic
dealing with young offe
- progressive conservative – softer in rhetoric than current conservative party
- welfare state fostered dependency ß NEED to foster accountability
* people should pay for their crime regardless of age

CRIME CONTRO
- social welfare should be SEPARATED from justice

criminal justice. It re
THREE
and vulnerability
Informality andLAWCOMofA
flexibilit
the aim was to mitigate t
emphasis on both
“Loose, divergent
justice system so as to pe
 - Ex. lawyer, professional, criminologists

- those who worked with youth and adults, providing services in part with the justice
system

Ex. John Howard society

enhancement of due process rights à get rid of arbitrary process

DUE PROCESS
- agencies established in late 18-19th century in Britain to serve and provide
advocating services
- various agencies working with groups

- NOT rid treatment BUT retain rehab aim à balance with sensitivity with people’s
rights

- liberal mps favoured this approach

(left-right dichotomy emerging out of the 60s)

law & order (due process)

(Havem
- conservative progressive & liberal

center left

CHILD WELFO
CONSISTED
(Campbell 2005; Hav
- progressive human rights instrument

- how domains relevant to law written

• LEGAL PROFESSION
• CONSTITU
CONSISTED O
ACADEMICS
INTERVENING CONS
* US VS CND

• CHILDREN’S RIGHTS
- late 20th c. document

- CCRF subjected to reasonable limits (Canadian language)

• CHILD WELFARE AND

* US reasonable to carry arms

- justified in free, democratic society

* court can rule infringement on right BUT can deem justifiable/reasonable

– PSYCHOLOGISTS
–
KEY ADVOCATED FOR
PSYCHIATRISTS
PROVISIONS
– PROCESS’
SOCIAL WORKERSINTO
 * Freedoms won historically

- already had freedoms with common law tradition (unwritten British constitution from
1215 Magna Carta)

- right to assembly ß suppose to have permit to protest

- Ex. Tamil protest in cities across CND in last few weeks à Tamil tigers defeated after
25 years

The Charter of
- shots by rebel and state

d)
- Ex. likely to commit crime again, terrorist meeting

FUNDAM
8.
- Police cannot simply stop for search or seizure WITHOUT a warrant UNLES certain
circumstances

The Charter
2. Everyone hasof the
freedoms:
10.(a)
LEG
- right to be told why
- right to be informed of legal counsel

10.(c)
- ancient common law principle (habeas corpus)
- when detained, have right to be known and shown the evidence presented

–The
a) Charter
freedom of of
con
11.(b)

Legal Rights
- some complex cases
- restrain limits of reasonable limits à 8 months -2 years (Adults)

11.(c)
- don’t have to admit self guilty

– b) freedom
11. (d)
LEGAL
of tho
- part of common law tradition
- don’t assume police

7.
10.Everyone
Everyone
e)

has
has the
expression, incluo
the righ
right
* right to bail (constitutional right to bail) unless just reason to deny bail
- put onus on adjudication

Thethe Charter
person and of
the R
rig
Ex. denial of bail – family to pay $
- put mortgage of home

(a) to be informed promptly

and other media
- bail as some form of assurity to show up for trial

except in accordance
fundamental
(b) to retain LEGAL
and justice.
– c) freedom of pea
instruct RI
co
 - due processes spelled out

14.
* important in multicultural society
* citizenship debate on language
- need to be proficient to read newspaper

The Charter of R
-equal protection under the law

* EQUALITY
- controversial, mostly with sex
LEGAL R
The Charter ofrigR
15.(1)
– free from discrimination based on…
* no sufficient support for “sexual orientation” back then ß lobbying groups
- protection not limited to those listed ß these are just particular instances

12. Everyone has the

(2) important as (1)
- authorize law and policy to remediate and fix situations individuals that were
disadvantaged and suffered (historically and structured)
ex. aboriginal à criminalization, legalization

cruel and unusual tre

ex. 1st generation of immigrants à low wages
ex. women
- can gave special protection with these criteria

- AGE
- historically disadvantaged à youth are continually excluded (ex. voting,
citizenship)

Equality Rights
- may have citizenship BUT don’t have full rights to practice citizenship

- charter extends to any residents of CND à immigrants…

- clause part of compromise to obtain charter

13. A witness who testif

- thought this would undermine power of parliament

- allow them to pass the law to intervene the charter

- passing it that it violates charter

right not to have any

- all these rights are subjected to change  Parliament to remind citizens

The (1) Charter of thR

- Quebec has never signed and passed over constitution/charter
- only province brought into this consensus ß create constitution difficulty

15.
used Every individual
to incriminate
- only parliament/legislator can cite, NOT court

law andNOTWITHS
has the
proceedings, righti
except
- argued contradictory  put ideas together that don’t go well

equal
for the benefit of contr
giving of the la
- children rights VS society’s interest

- need reported balancing of these 3 things

- critiques after YOA introduced

in particular, without
- Havemann in 1986

national or ethnic T
ori
14. A party or witness in
mental or physical di
 - myth of rights
- giving youth rights  questioning if they understand rights to exercise it
- ex. right to legal counsel

- prediction that punishment/accountability would displace treatment

- prediction YOA would widen social control à law & order would dominate

- Alternative

THE YOA – PRE

- continuous effort to divert from JDA à emergence of options
ex. youth and family attending counselling session VS institution

- Despite am to promote rights, promote punishment (accountability) displacing

treatment, narrowing on due process, eliminate status offences (children in state of
delinquent status due to neglect/abuse) and will subject to criminal convictions

- H argue a “net widening”

- narrow YJC WOULD increase criminal behaviour

- YOA, CND had largest incarceration rate for youth

-1984 enacted force

- JDA
(Havem
- movement with using legislation less

• MYTH OF RIGHTS
YOA
- immediate spiralling in crime rate

-76-77, increase in minor crimes (drug, assault…)

Under YOA Yo
– YOUTH CANNOT / DO NOT
‘WAIVING’ LEGAL RIGHTS
- incarcerating more for these offences

- violation of justice administration – any offence to justice system (ex. breaking in

parole, breaking bail condition, not showing up in court)

• PUNISHMENT / ACCOUNTABILI
- to deal with this…
- JDA
ex. punching someone may NOT result in designation of “delinquent” à

YOA
– YOUTHSENTENC
teacher/school’s job
normal adolescent behaviour NOW deemed criminal activity

- school defending someone who is charged

* supposedly everyone is criminally charged

/ PARENT CONSENT
Keswick à Korean taunted by racist, and used left hand, not right (weapon)
- suspended and criminally charged
- restorative justice, reconciling kids

•
* breaches in probation

NET WIDENING
- status offences re-enter in administrative offences
(Doob
- not criminal code to NOT go to school BUT violate if on probation

Custodial “Dispo
- UNLESS on probation, it would violate status offences à punishable

YOA Breaches (A
- increase incarceration for minor offences à “short shock”

– A PREDICTABLE DANGER /

ResultiW
– ALTERNATIVE MEASURES
RESPONDING TO THE MOS
 VIOLENT OFFENCES
 - increase incarceration for minor offences à “short shock”

- more youth in custody than <1 month, very few >6 months

- difference in open and closed custody

Youth Correction
- notion of short shock strategy that a little jail would be good for youth under YOA

The “shor

AFTER (10
- JDA primary purpose to treat child assistance NOT criminal

- full text can be found online for YOA (appendix has few excepts)

3.1 (a)
- critique of act
- each statements say 2 things

YOA – KEY
1) recognize should not be held for same consequences
2) should not bear same responsibility

Young Offe
b) where is priority? à societal protection & responsibility for children

** CONTRADICTORY but law & order voice stronger

Available onlineR
3(1)(c)
– theme in JDA, but framed differently
- require supervision, discipline, control
- BUT dependent and need guidance
* modified by recognition of special needs, invulnerability

3(c.1)
at
– subordinated to society

YoungOFOffe
- protect best served by rehab where best possible
- rehab by addressing needs and circumstances

DECLARATION PRIN
* treatment lobby à assistance
* law & order à society must be protected
** c1 is an amendment

Compe
CLASS DI
3 (1) It is hereby recogniz
 3(1)(f)
- continuation of notion in JDA – should leave children under supervision of parents as
much as possible
VS interfere life as little as possible

3)(1)h)
- clause placed so system does not have to over rely on custody à rely primarily on
custody
- to hold youth accountable, work with families RATHER than remove

YOUNG O
- evidence based ß best way to deflect from criminal future is to stay with family

Youths’ Rights
- it is not inconsistent

* recall graph with faint line before YOA and shoot through 90s
- system relying on key diversion à warning (youth, family) INSTEAD of charging as
an effective strategy

3(1) (e) young persons have

Young Offe
- police to use own discretion and do nothing instead of taking judicial procedure
proceeding

- provinces allowed to develop alternatives

right, including those s

Rights and Freedoms …
-
-
-
- Alternat
youth has to be charged
right to legal counsel
accept moral responsibility (Ex. I did it)
proceed through alternatives for judicial purposes

(f) … the rights and free

- Attorney General to decide whether there would be charge

3(1)(d)Youngwhere itOffe
right to the least possib
is n
consistent with the prot
Alternative
protection Measure
of soc
- only USED if authorized by program in province

- Police officer, liaison with youth’s parents,

(g) young persons have

** child à Young offender (12-17)

Young
oryoung
taking Offe
measu
- suppose to understand measure, and give consensus

those
(d) the rights and
person freedo
has, b
Ex. ON’s alternative programs [no formal finding of guilty IF youth complies/agree to
with charges erased OR adjudicate before court]
- rehabilitation
- restorative justice system

alternative
ALTERNATIVE measures,
MEASbe
proceedings
(h) parentsby
represented have und
respon
counsel a
opportunity A and
of their children, NEW
to consult fo
wit
 - to encourage youth to take alternative to a court process

- Police officer can take no measure OR take alternative measure under YOA [measure
established by their province]
- parallel “quasi” court response

Young Offe
Alternative Mea
HOW to get off once complied?
Ex. work 6/10 weeks

- court to make determination to balance the probabilities

- dismiss NOT erase charge

Young Offe
(2) Alternative measures sh
person alleged to have co
Alternative Me
person- those critical of net widening, formal diversions of justice

- Police officer urged not to take measure OR alternative measure ß usually lay a
charge and proceed against youth [hopefully turn them around]

(4) (a)
Thedenies
use ofhis participatio
alternative me
- resistant and embraced by some provinces
- ON insist formal charge be laid first ß had to be laid

NET
of theWIDENING &A
- QU oppose

- considered “cheaper” option for court’s time/$

alleged to have or
offence; committed
- YOA increased charges à not only reliance on justice system, but INCREASE it’s
reliance on JS

(Bala, 2005a;
proceedings Doobhim
against & Spu
(b) expresses his wish to
- increase on media for youth

with by the youth court.

- CND early 80s
- serious crime sensationalized, small minority crimes

• INFORMAL DIVERSIONS FRO

VS
US serious crimes that weren’t happening in CND ß US’s crime cut over border

YOA
(a) JDAREFORM
where the youth –T
court
- mobilization for public awareness of serious youth crime à YOA too soft, letting kids

THE WERE INSTITUTION

off easily and not providing sanctions ß need to harden

- immediate called for change for YOA

probabilities that the youn

- government institute tougher sanction to satisfy public’s response to youth justice

- 2 sets of competing demands

GETTIN
1) tougher, less leniency

(3)the
•NoGENERALLY
admission, confessioT
ex. murder 3à5à7à10 years

terms andRESTRICTED
conditions
2) introduction of transferring serious youth offenders to adult ß framed as presumed
automatic transfer for 16-17

3 sets of concerns on YOA

responsibility for a given

1) over-criminalization of youth for minor offences

youthNOTcourt shall
REQUIRED dismiss
(Provincial
(Bala 2005a,v
2) not have enough sanctions to deal with serious cases
- lengthen sentences
- allow transfer
3) not doing enough rehab and treatment
 - short length DID NOT meet practice (Ex. 1week-1month)
* EXCEPTION QUEBEC who met youth rehab needs à prioritized for long term
protection of society INSTEAD of punishing
* OTHER’S due process concerns PUSHING ASIDE REHAB
- 40 year low murder rate for QU

*** JUST NEED TO IMPLEMENT treatment instead of punitive responseà evidence has
shown for low rate offenders

- 1995 major shift with conflicting government

- resurgence of rehab of 90s as a goal justice (national wide)
- effective programs can be implemented to cut down likelihood of re-offending à
THUS need rehab as priority

Ex. BC
VS
CND’S law & order
- Harris against QU model à need to enforce law

- QU proved to others that incarceration coincide with rates of offending ß rate and
effectiveness in dealing
- advocates, academics paid more attention

- everyone drew on this method

- punish to deter (expensive, not promoting)

- practice of bifurcation [2 strategies at once]

- government attempt to get tough & not get tough BUT smarter in dealing

- shifting back to PREVENTION/REHAB/DIVERSIONS from justice for minor offenders

* 2003-209 YCJA
- court challenges BUT no amendments
-2 statutes at once?

support (3/4 did not support YOA in QU)

1993 Liberal’s Chrétien era (11 years)

- Law & order an issue
- re-emergence of lobbies

CONTEXT O
LOBBIES / POLI
-bifurcation

- formal restrictions put on custody of youth amended into YOA

- custody should be imposed (“reserved”)

- directing to courts NOT to impose custody UNLESS no other way to deal with it
- non-violence, minor offence

YOA
Ex. Keswick Korean kid punch

• LOW PUBLIC CONFIDEN

SUPPORTED THE YOA
Restrictions o
QUEBEC)
24. (1) The youth court shall not c
 - complex revisions (8 pages put into a summary discussion in text)

- introduction of adult transfer  always had it BUT it was never prioritized

- YOA deal with serious offenders by transferring to adult court

- little practical impact

Adult Transfer
- US “adultralization” – treating youths as adults

Ex. juvenile executed for crimes

JDA - 7
YOA – 16

- court had opinion

(Under YCJA, Reconst

- MAJOR purpose to satisfy public demands ß strong symbolic impact
- satisfy authoritarian demands for public

** should also pay back

- bifurcation = continuum

- no measures to probation

- have continuum but differences in MINOR (non-custodial, non-judicial measures) VS

RESESRVED “custody (serious, violent)

SECTIONS 16 & 17
YOA BIFURCATIO
(Campbell, 20
• Lay out detailed, complex
-cont’d

- Argument

pages in Word download

Evidence-b
NOTES)
YOA BIFURCATION
(Campbell, 20
• NO
Highly controversial, the
-

MEASURES > FINES

CUSTODY
– Intended
• Intended CLAS
for minor
for off
chron
• Had little practical impac
judicial
youth who option
commit “serio
PRESUMPTIVEDISCUSS
/ ADULT
– Wide variation SENw
in the
 -

JDA
Additio
Bala, N. & Kirvan, M. (2000 [1993
YOA is overall an improvement
1) focus on acts/rules, not labeling broad category
YOA is NOT overall an improvement
1) led to increased incarceration and backs up court

and Their Interpretation by the

2) Emphasis on protection of public and the emphasis 2) alternative measures as a “choice”, where they may need
on the rights and freedoms of the young in question treatment
3) emphasis on rights and freedoms with procedural Ex. can’t assume every youth has substance abuse problem if
rules and formality ß retain possibilities of alterative drunk

and Delinquency: A Turn of the

measures 3) Provincial variation of administration of Act
- less individualized, less rules - Quebec VS ON
* 1867 allow variation in province’s administration
- (short shock)

Canadian Scholars Press.

4) Alternative measures provide option
5) 1995 amendment limits use on over-custody 
before had NO legislation
- Limits overuse custody (1995)
6) Looks tough – responds to the public  (pragmatic
balance)
- Ex. studies show some community showing toughness by
serving time [social values in relation to citizenship]
4) incarceration expensive
- assertion backed by evidence
Ex. $120 000/ year youth incarceration and ineffective
5) targets saving society, rather than dealing with child
- (populist not evidence based)
- rather than being by knowledge, driven by what’s

Garland, D. (1996). The Limits of t

- pragmatic EVEN though claim to be balanced political/population
approach [accountability & treatment] - prioritizes society with crime control aim
- youth accountable for choices they make
6) punitive rather than rehabilitating

control in contemporary societ

7) alternative measures facilitate accountability
- is proportional for minor offences
8) alternative measures save $ & labeling
- prevent criminal record, labeling at early age
9) consistent with the charger
7) due process over rehab
8) did not satisfy public
- advocates, professionals involved
9) presumptive and serious enhanced sentencing
- look at age RATHER than crime itself

Garland, D. (2000). The Culture o

- cannot impose sentences longer than an adult would
receive in the name of rehab  some argue fairness
VS QU argue subordinate to process, is society’s

of Recent 'Law and Order' Poli

responsibility

375.

Havemann, P. (2000 [1986]). From

Economy of the Young Offend
Juvenile Crime and Delinquen