48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide Thursday June 4, 2009

1 - covering 3 major themes
- children’s rights  development and formal
incorporation into YCJA
- restorative justice
- preventive intervention (bifurcated strategy)

* Charter over-rides (takes precedence) everything,

48
setting what can take place in Criminal Code

Slide
CHILDREN’S - International conventions have different impacts on

JUSTICE, & T
law compared to CND interpretive
2 - YCJA cites CND’s commitment to uphold children’s
rights

YCJA Preamble – Children’s

(WHAT WORK
PREAMBLE

YOUTH
WHEREAS members of society share a responsibility t
developmental challenges and the needs of young p
guide them into adulthood; …
Slide
3 Required:
the Rights of the Childand
- late 19 c.
- pre-19th century

WHEREAS Canada is a party to theUnited Nations Co

- before children rights  possession of parent

recognizes
th

that young p
- emerge in response to change in childhood.

CHILDREN’S RIGHTS
rights and freedoms, - including –
those 3 STAGE
statedrole) EV
in theCa
•UJY Ch 9, 181-195
- Understanding of agreements of states
state’s role to protect children (paternalistic

Charter of Rights and

- late 20Freedomsand the Canadian
(Denov,
as citizen of own2005;)
c. th

Rights, and have special

citizenship guarantees of their rights a
- children rights  hold own

… - thought not old enough politically, BUT still

•UYJ Ch. 13, –272-28

recognized as citizens with legal rights

1. Social
NOW, (state)
THEREFORE, laissez
Her faire
Majesty, by and uphold pa
with the adv
of the Senate and House of Commons of Canada, e
authority
•UYJ
1.•Thispre-19 Ch
Act may 4,as the
th century
be cited 65-86 (De
> Youth Criminal Ju

•UYJ Ch 12, 242-259

UN Convention on the Rightsof the Child: an
2. State paternalism – protect children fro
Interpretive Guide; doesnot over-ride
vulnerabilities/dangers
legislation enacted by Parliament
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide - evolution of rights dates back to Western history

4 - Magna Carta – 1st to have legal limit placed on limit

on King

Human Rights & Children’s

- first granted to House of King  impose limits
- narrow role of citizenship  aristocrats held
power

- 1924
(Denov, 2005; see also http://www.udhr.org/history/t
- first written document suggestion children have
rights
- children have citizenship

• 1215 – Magna Carta- UN after WWII, came up with rights of instrument

- 1959 declaration  1989 creation of document
• 1689 – British Bill of Rights
• 1789 – French Declaration of the Rights of Man and
• 1791 – U.S. Bill of Rights
- image of PM, Lester Pearson of general assembly
Slide
5 • 1815 – Congress of (CND)
Vienna  help bring human rights into world
discourse

• Univers
1920 – Leagueal Declaration
of Nations Covenant of Human Rig
- entrench what is conceived in western nation

• 1924 – Declaration on the Rightsof the Child

http://www.un.org/Overview/rights.ht
Article 1. All human beings are born free
World Warand
II equal in dig
rights [and] are endowed with reason and conscience…

• 1948
Article – Universal
3. Everyone has Declaration
the right to life,ofliberty Human and Right
securi
• 1950 – European Convention on Human Rights
Slide • 1959
Article – UN
5. No oneDeclaration
shall be- Articleof the
- UD recognize
subjected
socialRights
to of the
and cultural rights
torture or Child
to cruel,
6
• degrading
1961 – European
treatmentSocial
orworldwide Charter
25. (1)
punishment.
- min. standard of living  THOUGH not applicable

Universal
• 1982 – CanadianDeclaration
Charter of Rights
- Article 25. (2
of Human and Freedoms Righ
• 1989
Article – UN
7. All Convention
equal before on
the
- emphasize thelawofRights
arehttp://www.un.org/Overview/rights.htm
principles …
- 1948 document brought attention to child
of the Child
motherhood, childhood
- JDA already acknowledge problem

Article 22. Everyone, as a member of society, has the

Article 9. No one
security and shall be subjected
is entitled to arbitrary
to realization, arrest,
through de
nation
exile.
international co-operation and in accordance with the
and resources of each State, of theeconomic, socia
rights
Article 10. indispensable for hisindignity
Everyone is entitled and thetofree
full equality deve
a fair an
personality.
hearing by an independent and impartial tribunal, in th
determination of .. any criminal charge against him.
Article 25. (1) Everyone has the right to a standard of
… adequate for the health and30 -being ofRatified
wellArticles himself andby
including food, clothing, housing and medical care a
48 states
social services, and the right to security in the event
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide - notion of community

- rights of children are problematic  children grow
7 into obligations

Universal Declaration of Human Righ

- everyone with duties to community

http://www.un.org/Overview/rights.htm

Article 29. (1) Everyone has duties to the communit

the free and full development of his personality is po

(2) In the exercise of his rights and freedoms, everyon

Slide subject only to such -history
limitations as are determined by
UNC is the most liable ratified legally covenant in
in 191/193 states
8
the purpose of securing due 1991
- 1989 created recognition andon respect
CND ratified and signed
- 2 states did not sign on (191/193)
and freedoms of others - USAand
[tend notof meeting
to sign the just requ
onto international

Convention on[stilland
morality, public order - the
document
tend to the Rights
commit
hasn’t signed on]
general welfare
to minors until of& Somalia
1995] thein Ch
a de
society. * US does (Denov, 2005)
NOT like to surrender sovereignty to
anybody, in general
- could not convince congress to opt-in this
provision

• (3)INTEGRATES
These rights and freedoms may in no case be exe
– A MAJOR
to the purposes and principles of the United INNO
- distrust in the UN (housed in NY)

Nations
– Civil and political rights and
– Economic, social and cultural right
Slide - impact on restructuring youth justice since 1995

9
30 Articles
1. – must be undertaken in any activity
Ex. consideration of religion, social welfare… 
NEED to consider CHILD FIRST

Convention on the Rights of the

2. – build on notion of humans have notion of

* 1&4 impacts most

1st (Denov,rights
globally applicable 2005) instrume
* attention directed to child’s concerns
- whether we prioritize children
- participate with voice in decisions made

4 Fundamental Principles
Interpretive Guide
Does not over
Context civil-and
ridepolitical
legislation
& social, cultural, econom
enacted by Parliament
1. Best interests of the child must be a pr
Cited in YCJA
consideration
PREAMBLE in all [state] actions
2. Children have right to non-discriminatio
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide - difficult for CND to create legislations across

provinces
10 - range of compromises and differences to
accommodate
- need mechanism to deal with lack of consensuses

Convention on the Rights of the

- state need to identify which articles NOT comply
with

(Denov, 2005)
- only Article 37 applicable to CND
- police to treat with humanity
- CND making reservation can NOT always make
guarantee due to practicality
• RESERVATIONS * recall Brown Commission
- segregate youth from adult
- youth not trial with adult adults
– State parties can identify specific provisions they
by, while remaining committed in principle to the
Slide
spirit of the Convention
* recall preamble to YCJA  build on Convention with
assertion of rights
11

• Convention on the Rights ofYOUTH

the Chil
- all 91 nations agreed/ratified to the 54 articles

CANADA’S RESERVATION RE JU
http://www.unhchr.ch/html/menu3/b/k2crc.ht
– Article 37(c) Every child deprived of liberty shall b
PREAMBLE
humanity and respect for the inherent dignity of t
person, and in a manner which takes into accoun
Considering that, in accordance with the principles procla
persons
Charter of theofUnited
his or her Nations, age. In particular,ofevery
recognition child
the inher
and liberty shall be
of the equal andseparated
inalienable from rightsadultsunless
of all members it is c
Slide
12
theischild's
family best interest
the foundation - A: of not to
- Q: how to define child?
freedom,
anyone younger than do
age 18so and
justice and shall
peacehav
- 18 is threshold to adulthood  questionable
… maintain contact about with humanhis or her
development wellfamily
into the 20s through co
- lowered the age of majority from 21 to 18
and visits, save in exceptional circumstances
Conventionthat, in theon the Rights of the Child
- protection from discrimination and punishment

Recalling Universal
from status
Declaration of Human R
United Nations has proclaimed thatchildhood is entitle
http://www.unhchr.ch/html/menu3/b/k2crc.htm
care and assistance, …
Article 1
For the purposes
Recognizing that, inofallthe presentinConvention,
countries the world, there a child
areme
ch
in exceptionally
human being belowdifficult
the conditions
age of eighteenyears, and that such unless
childu
applicable to the child,…
special consideration, majority is attained earlier.

Article 2. 1. States
Have agreed as Parties
follows:shall respect andensure the riR
in the present Convention to each child within their juri
without discriminationof any kind,54 Articles
irrespective of the c
her parent's or legal guardian's race,colour, sex, langu
political or other opinion, national, ethnic or social orig
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide - not primary, but there are other considerations

?!?!?!??! children are primary consideration
13

Convention on the Rights of the Chil- only developed nation without universal health
care  high infant morality rate
* US should extend

http://www.unhchr.ch/html/menu3/b/k2crc.ht
Article 3. (1) In all actions concerning children, whether u
public or private social welfare institutions, courts of la
administrative authorities or legislative bodies, thebest
the child shall be a primary consideration.
Slide - despite signing on, there are reason why CND did

14
Article 12. (1) States Parties
not comply shall
with the assure
convention to the child who
forming his or her own-consideration
views
not the
affirm child’s bestright toprimary
interest as express those
for those who come into the law
… the views of the child - not being givenbutdue
an explicit statement, weight
recurring theme in in acc

The
the age Convention
the document
and maturity of- YCJA the &child.
uses theYCJA
term 14 times for –“bestArticles
interests” 3
(2) For this purpose, the-punishment
child shall
punishment in particular
term  against be provid
philosophy of UN that

NOT COMPLYING
opportunity to be heard-- NOT
be directed towards child
inconsistent
any judicial and administrati
with special care/consideration
“punishment” occurs just as much as “best
• proceedings affecting
Absence explicit the interests”
“best
interest” child, eitherprinciple directly,[term or throu
us
representative
YCJA text] or an appropriate
- CND reserved right tobody,
no other option available
detain youthin a manner
in adult WHEN con
• the
Useprocedural rules ofdifficult
of “punishment” national
within
- another
text law.
option should
to achieve in smallofcommunity)
YCJA [term used
be made available (ex.

text] - Ex. Windsor’s youth-wing in jail facility with adults

 did NOT comply  2005 close down due to need

Article 24. (1) States

• Detention of youthParties
in
community recognize
adult facilities– theright
of secure custody by transporting to another
of the chi
reservation
enjoyment of the is
no other option highest
viable attainable
(Article standard
custody (less37(c)), of health
- not liable to build another jail facility for youth 
hold in open security, not physically

• facilities for the adult

treatment of illness eroding and rehabilitation
boundary oc
retrained)
Presumptive sentences–
- Ex. PRESUMPTION as defined by UN as child (14-17)

– Overruled in R. v. D.B., 542008 SCC 25

will be subject to adult punishment
Articles
- Agree compliance  interpretation

COMPLYING - UN call for broader range of dispositions to deal

with children
- not just custodial response, with greater emphasis
• Rehabilitation / reintegration
on rehab/reintegrateprioritized
• Custody as last resort with range of non-custodial dis
• Dispositions proportional to child’s circumstances an
• Right to participate in proceedings specified
• Right to prompt access to legal counsel and assistan
• Right to non-discrimination (context Charter enshrine
to ameliorate historically constituted disadvantage– s
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide - YCJA proposed amendments

15 (a) – major reason US not sign on (ex. Texas)

Convention on the Rights of the Chil

(b) – incarceration as last resort
- aim of JDA  reiterated in YOA  explicitly stated
in YCJA
http://www.unhchr.ch/html/menu3/b/k2crc.ht
* legal aid a crisis in Ontario now  legal aid clinic
state only deal with serious crimes

Article 37. States Parties shall ensure that:

- work to rule measure [get paid]

(a) No child shall be subjected to torture or other cruel, in

degrading treatment or punishment.Neither capital pun
life imprisonment without possibility of release shall be
Slide offences committed by persons
- every below
state to agree to
- JDA 7  YOA 12
eighteen
set a minimum age years
16
(b) No child shall be deprived of his or her liberty unlawfu
Convention ondetention
arbitrarily. The arrest, the Rights of the Chil
or imprisonment of a c
in conformity with the law and shall be used only as a
http://www.unhchr.ch/html/menu3/b/k2crc.h
last resort and for the shortest appropriate period of tim
•(c) Article 40. 1.deprived
Every child States Parties
of liberty recognize
shall be the treated right
…ofineveam
alleged
takes into[of]account
having the
infringed
needsthe penal lawoftohis
of persons beortreated
her a
consistent
be separated withfrom
the adults
promotion unless of theit ischild's
considered senseinofthed
worth,
interestwhich
not toreinforces
do so …; the child's respect for the hum
(d) fundamental freedomsofofhis
Every child deprived others
or herand which
liberty shalltakes
have into
the
child's age and the
prompt access to legal desirability of promoting
and other appropriate assistan the child's
Slide and the child's assuming a constructive role in society.
- CND is doing important attempt to do this with UNC
- norm/notion of what responsibilities are
17
- seems like actual revolution from JDA, YOA, YCJA
- move to holistic understanding of international
3. States Parties shall seek to promote the establishmen
‘penal law’

DISCUSSION/DEBATE QUE
procedures, authorities
- CNDand institutions
help forge specifically
instrument as an important party to
reinforce importance, by writing it into the preamble
children … In particular:
YCJA
ap
* recall 191 nations in UN having to re-sign to
(a) The establishmentamendments
-of a minimum agebelow which c
no drawbacks/problems?
be presumed not to have the capacityto infringe the pe
- if commit crime under age <18, CND subject to

1. On balance, does the YCJA provid

UNC recognizing youth as a ‘child’ who is NOT fully
morally culpable to fully apprehend consequences

safeguards
4. A variety re the
of dispositions, such rights
as care, of young andpe
- age to play a major role
guidance s
- purposes of insurance for adult at age 25  data
show take less risk
orders; counselling; probation; foster care; education
training programmes and other alternatives tothe
under the UN Convention on Ri
- synapses in brain psychologically
- take on recognition for responsibility
institutio
beChild (and
available thethat
to ensure Charter)?
children aredealt with in a m
appropriate to their well-being and proportionate both
circumstances and the offence.
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide - adversarial judicial system – free will

18

Adversarial vs. Restorative J

- intentional infliction of pain in plans of future re-
offending

- evidence shows punishments works from own

(Elliott, 2005)
experience
- works with minor crimes (ex. traffic ticket…)
- NOT work with chronic crimes (ex. murder,
robbery…)  problematic

Adversarial - established paradigm

• Key assumptions:
– Humans are reasonable (“reasonable man
Slide – People hate pain & love pleasure, therefor
- all systems worldwide have worked on punishment
rationale
19
punishment/deterrence works (Bentham, 1
- have alternative ways to repair harm (ex. conflict,
repaying…)
- NOT always progressive or kind

Diversion & Restorative [Rehabilitative]

ex. case: 4-year old Afghan girl given to Uncle as
bridge by repaying
the harm of the other family

Historical
REASONABLEContext
PERSON IS(Bala, 200
CONTROLLE
ex. biblical story of wise King Solomon  2
mothers + 1 infant
PLEASURE/PAIN THROUGH LAWS A
• JDA – 1970s emergence of formal
since the JDA reaffirm in YOAdiversion
 YCJA program
- consistent of diversions instead of adversarial used

THREAT OF PUNISHEMENT [DETERREN

– Cautioning and other diversions
- re-affirmation by SCC  Overturn
that imposed longer sentences
widely used und
court decisions

police screening),- rewrite

withlawscant
to make clear
public notice
Punishment = deliberate infliction of pa
Slide
• YOA – Alternative Measures,
punished unjustly an explicit legislated d
* commitment to rehab + protection from being

20
encourage diversion
Empirically questionable but highly resilient
YCA – emphasis on prevention translated onto re-
embrace of protection
– Authorization of alternative measures elicited pub
- resonance of protection internationally

Emotionally/Symbolically
Rehabilitation Renaissance
w/strong opposition, powerful (Durkhe
(Campb
rehab especially in Ontario
- helping the astray to re-adapt

intervene
- state responsibility to take decisive/intrusive
• Supreme Court Affirmations
JDA – rehabilitation of Rehabilitative Ai
was paramount
measures
- aimed towards rehab

– R. v– S.
• YOA (S.), [1990] 2 S.C.R.
rehabilitation 294
was balanced against/c
accountability and 2due
– R. v Askov, [1990] process
S.C.R. 1199
• YCJA – new compromise or balance, balan
prevention
• YCJA – need measures
– Extra-judicial to address underlying
& sanctions, ca
legislat
provide meaningful
mechanisms that mandate consequences that prom
(rather than encourage) d
term protection
courts and custodyof forthe public
all but most serious and chro
– Rehabilitative intervention appropriate to assesse
mechanism for accomplishing this(implemented
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide - NOT the priority, but a priority

21
- rehab is key aim

YCJA ‘inter alia’ prioritizes Rehabil

- rejects 1993 court decision
- rehab is the heart of juvenile justice
- rehab is primary aim, but won’t use it to trample

(‘inter alia’ = among other things)

over due-process rights

• Affirms priority of rehabilitation from Pr

forward
• However, rehabilitative aim is tempere
riding concern with proportional accoun
Slide - CND’s emergence of restorative justice
internationally to deal with offenders
22 - work with wing of adversarial system

(sec. 38(2)(c)Justice & The YCJA(Elli

Restorative - initial movements of programs dealing with adults
 1990 New Zealand use for youth

New paradigm
– Prohibits use of– longer
Governsentence
through healing
to meet(dir
needs,(pre-modern)
• Traditional rejecting R.Europe
v M. (J.J.)(1993), 81 C
487 (S.C.C.)
• Traditional Aboriginal
– Prohibits custody to meet child welfare ne
(5)) RIGHT WRONGS, RESTORE PEACE,
Slide – COLLABORATIVELY
But allows court to REPAIR HARMS TO INDIV
order psychological as
- at core, rehab models can’t be fit together well

& THE COMMUNITY

* hard to reconcile  JM (justice model) co-opted

(sec. 34), and referral to child protection o

23 by adversarial

Restorative/Retributive
mental health facility (sec. 35) Tens
- adversarial  punishment, pushing offender away
as bad other
- justice model  no punishment, community works
Assumes people want/need to belong
with offender to reintegrate into citizenship,

• Co-optation vs. -Moral Pragmatism (Ellio

embraces to be among them instead of enemy

1970s defenders argue pragmatic response

 responsibility for state to adopt pragmatic
– Emergence in
• INCOMMENSURABILITY– Ontario
response toviafind a Mennonite/Probations
restorative
NEVER be a perfect system justice (RJ) & rp
balance recognizing there will

Victim Offender
competing Reconciliation
& irreconcilable paradigms
- adversarial – make sure thereProgram (VORP)
is a balance or rights
- foster VS balance punishment
• 1980s
– Premised on idealized view of informal-traditional-re
– Spread of VORP
community basedto B.C. alternatives
justice
• 1990s• Concern – resist contamination, usurpation, co-
– Family Group
retain Conferencing
“forward looking” harm (FGC) embraced in B
prevention/reduct
imported from New Zealand/Australia
– Aboriginal Sentencing Circles Vs. established in Sask
Yukon
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide - making policy links that are relevant to essay

- which adequately addressing substantial issue in
24

The YCJA
YCJA
- pragmatic? Excellent? Need to focus more on
rehab…? Response

Restorative &/or Retributive J

– Preamble
– Declaration of Principle – INTENT, EMPHASIS, P
SPECIAL CONSIDERATIONS(Sec. 3)
– Extra-judicial Measures & Sanctions– PRINCIPLE
Slide - international notion of victim’s rights

25 RESTRICTIONS ON USE(Sec. 4, 5, 10)

– Youth Justice Committees and Conferences– FUN
MANDATE (Sec. 18-19)
YCJA Preamble – RJ &/or Retrib
– Assessments, Referrals & Reports,ACCOMMODA
TREATMENT (Sec. 34, 35)
PREAMBLE
– Custody & Supervision – PURPOSE, RESTRICTI
WHEREAS39) members of society share a responsibility
the developmental challenges
• Sentenced custody vs. Remand and the needs of you
Slide and to guide them into adulthood;
- prioritize …
restorative or retributive?

26 – Sentencing – PURPOSE, DISPOSITIONS(Sec.

(i) – prevent future offending  rehab over
4
restorative
– Attendance Centres – NON-RESIDENTIAL have a youth PROG
YCJA Declaration of Principle,
WHEREAS Canadian society
(Sec.
system 42(2)(m)
that & punishment
commands Sec.
should
(iii) meaningful consequences
157) takes into account the
respect,
ex. child rearing  more effective to have MC than
crimin

RJ &/or Retributive (?)

victims, fosters responsibility
meaningful consequences
and ensures accountabil
- punch in face  can’t play with them
anymore, experience a loss
and effective rehabilitation
deprived from it
ex. re-paying the harm  buying a new bike that
reintegration, and thatwasreserves
wrecked its most serious interv
3.most
(1) serious
The crimes and
following - YCJA reduces
principles
“SHOULD”
promote….when
for non-violent young persons
say it willthe
it does NOT apply over
ENSURE -in
reliance
in order to
this on
Act:
(a) the youth criminal justice system isintende
NOW, THEREFORE, Her Majesty, by and with the advic
of the Senate and House of Commons of Canada, ena
(i) prevent crime by addressing the circumstances
young person's offending behaviour,
1. This Act may be cited as the Youth Criminal Ju
(ii) rehabilitate young persons who commit o
and reintegrate them into society, and
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide (i) restorative

27 (ii) not restorative, but rehab

- retributive

YCJA Declaration of Principle, (iii) – no pr in restorative justice

- more formal procedural adversarial justice  due
process, going to court

RJ &/or Retributive (?) (iv) – rehab strategy more likely to be speedy

(informal), no court needed
- meeting facilitated by youth worker (PO, judge,
teacher…)

(b) the criminal justice system for young person

separate from that of adults andemphasize t
following:
Slide (i) – consistent with restorative justice  reconciling
people, with values of empathy of mutual
28
(i) rehabilitation and reintegration,
responsibility
- some argue restorative justice does NOT uphold

YCJA Declaration of Principle, the law as social value  lacking the rule of law
(ii) fair and proportionate accountabilitythat is con
the greater dependency of youngpersons and th
RJ &/or Retributive (?)
level of maturity,
(iii) enhanced procedural protectionto ensure that y
are treated
(c) within the fairly of
limits and fair thatand theirproportionate
rights, includingacc the
privacy, are protected,
the measures taken against young persons w
(iv) timely intervention that reinforces the link bet
offences
offending should
behaviour and its consequences, and
Slide
(v) the promptness (i)and speedwith which persons re
from UNC of rights of child

(i) enforcing
reinforce this Act single
must act, given young murderpersons' p
29
respect formothersocietal values,
(ii / iii) Ex. Windsor star – 6 year old watch murder of
– vowed to king mother’s in

(ii)time;
YCJA Declaration of Principle,
victim statement – dynamic dual face of victim
encourage the repair of harmdone to victims an
Ex. Karla Homolka changing name who committed
community, horrendous crime  not re-offending again

Considerations -- RJ &/or Retrib

(iii) be meaningful for courtthe individual
doing what victim wants young person gi
(iii) emotional accommodation “to be heard” NOT

needs and level of development and,where appro

involve the parents, the extended family, the co
(d) special
socialconsiderationsapply
or other agenciesin the in respect of proceed
young person's re
young persons and,
and reintegration, and in particular,
(iv) respect gender, ethnic, cultural and linguistic
(i) and
young persons
respond to the have needs rights and freedomsin
of aboriginal young pers th
such as
young a rightwith
persons to be heard
special in the course
requirements; andof an
in the processes, other than the decision to prose
to decisions that affect them, and young persons
guarantees of their rights and freedoms,
(ii) victims should be treated with courtesy, com
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide (a)

30 (d) - YCJA pointed out structured discretion, are

Extrajudicial Measures - Prin adequate and should be used UNLESS…  aim to

rehab

RJ &/or Retributive (?
4. The following principles apply in this Part in addition
set out in section 3:

(a) extrajudicial measures are often the most appropr

effective way to address
)
youth crime;
Slide
31 (b) extrajudicial measures allow for effective and time
focused on correcting offending behaviour
Extrajudicial Measures – In
(c) extrajudicial measures are presumed to be adequ
young person accountable for his or her offending b
RJ &/or Retributive (?
young person has committed anon-violent offence
previously been found guiltyof an offence; and
(d) extrajudicial measures
5. Extrajudicial measuresshould shouldbebe used designed if they to are
hold a young person accountable for his or her offen
and, if the use of extrajudicial measures is consi
• principles
provide an
seteffective
out in this and timely
section response
, nothing in thistoAo
Slide
their use in respect
behaviour outsideof the
first a3 levels
youngbounds
(warning,person who
of judicial
- SD, have to consider EM (extrajudicial measure)
crown caution, referral to meas
32
(i)encourage
has previously
•Extrajudicial been
young dealt with by the use of ext
community agency)  if not adequate, move to
persons to acknowledge a
measures, or Sanction
harm caused to the
formal restorative
- Sanction =
justice
punishment
victim
–
andcarthe
Restriction
[sanction]

almost community
* experiences
ex. 13-year old boy wrecking killing self

• (ii)encourage
has previously
RJ been
&/or found guilty
Retributive of anforoffence.
probation rather-- (?)
& friend conference agreed to mow lawns 40
families oflawnyoung persons inclu

to 20 hours under YOA, given
than sentence
families
10. (1) where appropriate
An extrajudicial sanction may -- and
court
thetocommu
- YOA, need substantial evidence before going to
be used deal wi
become involved in the design and
person alleged to have committed an offenceonly ifimpleme
* Bill C-25 reduce emphasis on restorative 

thosecannot
person measures; deterrence and sanctioning goals
be adequately dealt with by a war
- NOT every youth will be held  want to offer

• orprovide
referral [i.e., extrajudicial measure ] mentioned in s
where appropriate
an opportunity for victims to partic
because of the
decisions seriousness
related to the of the offence,
measures the natur
selected an
previous offences
reparation; and committed by the young person o
aggravating circumstances.
• respect the rights and freedoms of young
be proportionate to the seriousness of the
(2) An extrajudicial sanction may be used only if [(a)
province authorizes program, deemed appropriate, yo
youth is advised of right to counsel, youth accepts res
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide -
-
33

BREAK

Slide - notion of committees

-
34

YCJA Committees – RJ &

Retributive (?)
18. (1) The Attorney General of Ca
Slide
province or any other minister tha
- what does it practice in outline?

35
lieutenant governor in council of
- consistent with restorative justice
- victim reconciliation offending program 

YCJA Committees – RJ &/or Retrib

facilitator, not meeting independently

province may designate

-
may est
18. (2) The functions of a youth justice committee may in
orfollowing:
more committees of citizens, t
known
(a) in the case of asa young
youth justice
person alleged committe
to have comm
assist
offence,
in any aspect of the admin
(i) giving advice on the appropriate extrajudicial
ofused this Act or
in respect inyoung
of the anyperson,
programs or
(ii) supporting any victim… and facilitating the
for young
of the persons.
victim and the young person,
(iii) ensuring that community support is availab
person by arranging for the use of services from w
community, and enlisting members of the comm
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide - who can convene these?

- judge, police…
36
- mandate to give advice on different stages
judge can convene committee of citizens  what
to do with child  release, strategy for rehab youth

YCJA Conferences – RJ &/or Retri good? What to review?

- judge has ability to find out everything of youth, as

responsibility

19. (1) A youth justice court judge, the p

director, a police officer, a justice o
peace, a prosecutor or a youth work
Slide
37
convene or cause to be convened a - get assessment if encounter re-offender
- before disposition, find out what compels the re-
offender

for the purpose of making a decision35. ** important point

- act prevents CJS to meet CWA, but authorize youth

Medical/Psychological/Child
be made under this Act.
We
courts to make refers to youth protection
- those under 16 can be taken into care
* Case: study of girl waited until age 16 to run away

Assessments, Reports, Referra

-

34. (1) A youth justice court may, at any stage of proce

2) The
youngmandate of arequire
person, by order conference may
that the young per
assessed by a qualified personwho is required to r
other
resultsthings,
in writingto give
to the advice on appro
court,
Slide
(a) extrajudicial
with the consent of measures,
the
-
young person conditions
and the prosecuto for
38 (b) interim
on its ownrelease,
… if the court sentences,
believes a medical,
- relevant to bill c-25
including
psycholog
psychiatric reportin respect of the young person is ne
- interesting to compare to the principles that apply

(c) ofthesentences, and

court has reasonable reintegration
- what isgrounds to believethat
- sentencing reverse principles of the act
plans
the yo
Sentencing Purpose - RJ
be suffering from a physical
the order of priority?
or mental&/or
- purpose of sentencing
illness or disor Retrib
psychological disorder, an emotional disturbance, a
- proposed legislation in 2007 would add to purpose
38. (1)disability
The purposeor a mental disability
of sentencing
of sentencing  promote
through denunciation,
, protection
under
and providesection
…
of society
42 (youth
(d)is to
the young
hold a person's
young personhistory indicates a patternof
accountablefor an repe
offence
guilt …, or - restorative seems to have priority  reversed to
imposition of just sanctions
(e) the young person is toalleged that
retributive for purposes
promote longto term
have meaningful
of sentencing,
have
protection
‘in order to’
committed cons
a seriou
for the young person and that promote his or her reha
35.and reintegration
In addition to anyinto society,
order that itthereby contributing
is authorized to maket
termcourt may, at any
protection stage
of the of .proceedings against a y
public
refer the young person to a child welfare agencyf
to determine whether the young person is in need Wha
3. (1)
services. The following principles apply in this Act:
the youth criminal justice system isintended to
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide -

39 (b) administrative offences under YOA --. Continues

to be this case
- serious offenders

Custody Restricted – Restorative or Re

- major reason for incarceration

c) – bc25 adds to this..

e) ‘willful’ behaviour that is likely to endanger life of
others

39. (1) A youth justice court shall

** see anythingnot commit
restorative (custody isa
- those are the kids held accountable
young perso
restricted)?

under section 42 (youth sentences)unless

(a) the young person has committed aviolent offence;

(b) the young person has failed to comply with non-custo
Slide
(c) the young person has (i) committed an the
- no matter how serious indictable
offence, offenc
40
adult would be liable to imprisonment for a term of mo
design special strategy to meet
intensive support/supervision
and has a history that indicates a pattern
– youth also of findin
Sentencing – Restorative or Retri
this Act or the Young Offenders
(n) 1/3 in community
attending Act, chapter
community Y-1 of the
agency centres
(ex. John Howard, community
Statutes of Canada, 1985;attendanceor centres)
(d)When
42 (2) in exceptional caseswhere
a youth justice court finds the young
a young
I0) presumptive
attempted murder…
personguilty
offence – person
murder, hasco
[(a
indictable offence, the aggravating
- presumption youth MAY
adult penalty
circumstances
BE subject to

are such
(l) … order that person
the young the imposition
into - ancustody of
intensive a non
/supervision -custodial
support
order
andsen
su
inconsistent with the
program approved by the(ii) purpose
provincial and
director; principles set o
(p) new disposition of deferred custody =
house arrest
- those who cannot comply with …order

(m) … (2)order
If any ofyoung
the paragraphs
person(1)(a)toattend to (c)a apply, ayouth justic
non-residential
- work to foster integration
prog
impose a custodial sentenceunder
* many have no place section
by the provincial director, at therelease times and on the terms that
to go once 42 (youth
unless the court has
fix, for a maximum of two hundred considered and
(step down allcustody)
fromforty
open alternativesto
hours, over a pc
 devise after care housing

the sentencing
exceeding hearing that
six months; are reasonable in the circu
ex. sally ann shelter
- REHAB justice
Slide determined that there- is not a reasonable alternative,
- ten years  IRC
alternatives, that is in accordance with the purpose an
Rehabilitative Sentences for Most
41
(n) make outa custody
in sectionand
38. supervisionorder
- 2 degree  IRC
nd
with respect to the
ordering that a period be served in custody and that a se
Restorative or Retributive
which is one half as long as the first- be served … under
in the community subject to conditions …[2/3 custody; 1
42(2)(r)(i)(B) if the young person is found guilty of an offencefor which
provided by the Criminal Code or any other Act of Parliamentis imp
(o) inlife,
thethree
caseyears
of …from
[a] ``presumptive offence''…
the date of committal , and make a cust
that orders th
supervision
be committed intoorderin respectperiod
a continuous of theofintensive
young person for a spec
rehabilitative
first portion three
exceeding of the sentence
years … and… to serve the remainder under co
supervision in the community …,
(p) … make a deferred custody and supervision orderthat is
(ii) that is for a specified period that must not exceed, in thecase of firs
period notfrom
ten years exceeding
the datesix months, subject
of committal, to the conditions…
comprising
(a) a committal to intensive rehabilitative custody, to be served conti
period that must not exceed six years from the date of committal, an
(b) subject to subsection 104(1) (continuation of custody), a placement
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide - what works?

- restorative OVER retributive
42 - actually recidivisms rates are similar (depending
on many factors)

Efficacy: Community-based Interv

- need to identify situations and apply where it is
likely to work

- CND at forefront since 90s on developing effective

rehab programs outside justice system
- best reductions
• Restorative Justice – works but not significant impr
- good humane jurisdictions

traditional (retributive) justice in terms of recidivism

- ranges depending where study conducted, how ell
it s implemented….

-pragmatic solution – target high risk

- ensure 1/3 working community agency outside
custody (robust research show intervention has

• Rehabilitative intervention – works when appropriat

worked)
- mange to mange irks/conditions
Slide
43
(Campbell, 2005) -likelihood
dependent on appropriate assessing youth’s
of re-offending

– Meta-reviews since 1970s – to10% - risks

37%
- past 20 years, many experiments refining risk
assessment instruments determine posed reductio
- initially focused on recidivism  criticized for
Canada’s programs
Actuarial Justice:
criminogenic are risks notoriously sound– dep
An evolving st
appropriate assessment &
HM argue CND, as forefront, programming
developed 3 (Hann
rd

(Hannah-Moffat, 2005:needs
Canada’s “third-generation risk as
generation risk assessment – recognize risks &
 things that don’t predict re-offending (ex.
poverty)

• Programs
• Literature aboundswithwithbest critiquesoutcomes of actuarialtarget justice
high-ris
- pragmatic ways to deal with poverty and intersect
the risks
- have housing custodies to avoid homeless after
– 1st & nothing works best
2nd Generation riskfor
released non-serious critiqued
assessments
- provide education system
offendersa
of coercive control - TRS& surveillance
– everyone to change  RA identify where

• •Targets
Programs that work best are community -bas
risks that can be intervened

Slide needs as
- strategy risks, places
authorized under working
YCJA, piloted I n1950s class/
44 custodial
families or -post-custodial)
under surveillance as during JDA C
ON embrace ACP
(h
Attendance Centre Program
- always had liaisons for community agencies s(ex.
without addressing rootmental
youth go to YMCA, causes
with youth sin open custody
health agency…) to meet

• Prioritizing “high risk” youth offenders reduces

Delivered in partnership
- ACP, not

available to other
in custody,
with
come during
- provide different services
youth/citizens in need
highly skilled
community
daytime
with those who are ag
• Justifies
Treatment servicesexclusion/incarceration
- locally designed and delivered
integrated into rehabilitative on basis pro of r
attending to needs that drive/anchor risks
- currently listed 29 in ON
• psychological and psychiatric
- rehabilitative
therapy;
• education; -

•• 3counselling for alcoholism;

rd generation envisions substance abuse;
“transformative risk sub
• emergent
literacy; of ‘mixed model in evidence in Canadian p
• life skills;
– Evolved counselling;
• employment out of practitioner-driven research agend
“embraced
• chaplaincy the rehabilitative ideal and its post-Ma
services;
• anger (Hannah-Moffat,
management; 2005, p. 31)
• recreation; and
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

Slide -
-
45

DISCUSSION/DEBATE QUES

1. On balance, is the YCJA more retribu

restorative, AND on balance, does its
“what works” strategy promote the be
interests of youth and society?

Is it possible to promote both offending

and society’s best interests?
 48-361, 2009 – PP CL #8 CR, RS & Actuarial Justice

References Cited

Denov, M. S. (2005). Children's Rights, Juvenile Justice, and the UN Convention on the Rights
of the Child: Implications for Canada. In K.Campbell (Ed.), Understanding Youth Justice
in Canada (pp. 65-88). Toronto: Pearson.
Elliott, L. (2005). Restorative Justice in Canadian Approaches to Youth Crime: Origins,
Practices, and Retributive Frameworks. In K.Campbell (Ed.), Understanding Youth
Justice in Canada (pp. 242-262). Toronto: Pearson.
Hannah, M. K. (2005). Criminogenic Needs and the Transformative Risk Subject: Hybridizations
of Risk/Need in Penality. Punishment & Society, 7, 29-51.
Ministry of Child and Youth Services (Ontario), Youth and the Law. (2009 update). Online at
http://www.gov.on.ca/children/english/programs/youth/law/index.html
Ministry of Education (Ontario), Safe Schools. (2007 update). Online at
http://www.edu.gov.on.ca/eng/teachers/safeschools.html
Welsh, B. C. & Farrington, D. P. (2005). Evidence-Based Crime Prevention: Conclusions and
Directions for a Safer Society. Canadian Journal of Criminology and Criminal Justice,
47, 337-354.
_____. (2007). Saving children from a life of crime: Toward a national strategy for early
prevention. Victims & Offenders, 2, 1-20.

Legislation

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
(Canadian Charter of Rights and Freedoms).
Convention on the Rights of the Child. U.N. General Assembly Document A/RES/44/25 (12
December 1989)
Criminal Code (R.S., 1985, c. C-46)
Universal Declaration of Human Rights. (1948)
Youth Criminal Justice Act, S.C. 2002, c.1. (2007)

Case Law

R. v. S. (S.), [1990] 2 S.C.R. 294

R. v. Askov, [1990] 2 S.C.R. 1199
R. v. M. (J.J.)(1993), 81 C.C.C. (3d) 487 (S.C.C.)
R. v. D.B., 2008 SCC 25