UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Much ado about (almost) nothing: the youth criminal justice act: paradigms & paradoxes within Canadian… Nielsen, Lene Spang Dyhrberg 1999

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Item Metadata

Download

Media
831-ubc_1999-0437.pdf [ 9.41MB ]
Metadata
JSON: 831-1.0077557.json
JSON-LD: 831-1.0077557-ld.json
RDF/XML (Pretty): 831-1.0077557-rdf.xml
RDF/JSON: 831-1.0077557-rdf.json
Turtle: 831-1.0077557-turtle.txt
N-Triples: 831-1.0077557-rdf-ntriples.txt
Original Record: 831-1.0077557-source.json
Full Text
831-1.0077557-fulltext.txt
Citation
831-1.0077557.ris

Full Text

MUCH ADO ABOUT (ALMOST) NOTHING: THE YOUTH CRIMINAL JUSTICE ACT Paradigms & Paradoxes within Canadian Youth Justice Philosophy by  LENE SPANG DYHRBERG NIELSEN Cand. Jur., Aarhus Universitet, Denmark, 1995 A T H E S I S S U B M I T T E D IN P A R T I A L F U L F I L M E N T O F T H E R E Q U I R E M E N T S F O R T H E D E G R E E OF M A S T E R OF L A W S in The Faculty o f Graduate Studies Faculty o f L a w We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH C O L U M B I A August 1999 © Lene Spang Dyhrberg Nielsen, 1999  In  presenting  degree freely  at  this  the  thesis  in  partial  fulfilment  University  of  British  Columbia,  available for reference  copying  of  department publication  this or  thesis by  of this  for  his thesis  and  or for  her  Department of  Date  DE-6  (2/88)  Qg-  /7-  Columbia  requirements that the  be  It  is  gain shall  for  an  advanced  Library shall  agree that permission for  may  representatives.  financial  the  I agree  i further  scholarly purposes  permission.  The University of British Vancouver, Canada  study,  of  not  granted  by  understood be  the that  allowed without  head  make  it  extensive of  my  copying  or  my written  11  ABSTRACT The subject o f this thesis is Canadian youth justice philosophy, and the paradigms and paradoxes within the youth criminal justice system. It focuses on the historical, socioeconomic, political and intellectual elements o f the changes in Canadian youth justice philosophy.  I w i l l explore the reason behind the federal government's recent political  initiative, the Youth Criminal  Justice Act, and look into the question o f whether the  government's youth justice strategy w i l l accomplish its objectives and make significant changes to the existing legislation and justice system in the context o f young offenders.  The purpose o f the thesis is to delineate the development o f Canadian youth justice philosophy and outline the changes i n the developing process from a historical, political and intellectual perspective in order to understand the current regulatory framework.  I describe and analyze the changes i n youth justice philosophy using Thomas Kuhn's model o f change i n order to determine whether a paradigm shift has happened with the progression from the Juvenile Delinquents Act, to the Young Offenders Act to the Youth Criminal Justice Act.  I go on to describe the principles and theories behind retributive and restorative justice philosophy, as it seems restorative principles might become more influential than they have been hitherto.  I explore existing alternative measures within the restorative  Ill  framework in Canada, such as mediation, family group conferences and circle sentencing. I argue that the federal government's intention to implement the new A c t could be a step from retributive to restorative justice because of the government's promise o f additional funding for restorative programs.  M y thesis is that the intended renewal o f the youth justice system in Canada is a political response to a polarized public debate about youth crime. I argue that the Youth  Criminal  Justice Act is not a complete transformation o f youth justice philosophy. M y conclusion is that historical, political, intellectual and scientific changes in youth justice philosophy might have occurred in 1984 with the Young Offenders Act, but that the Youth Criminal Justice Act does not constitute a further advance.  iv  TABLE OF CONTENTS  Abstract  ii  List of Tables  ix  CHAPTER 1  1  INTRODUCTION I. CHOICE O F TOPIC AND PURPOSE O F STUDY II. METHODOLOGY  1 1 7  CHAPTER 2  12  T H E YOUNG OFFENDERS ACT- PRINCIPLES AND THEORY I. T H E YOA - A L E G A L FRAMEWORK  12 13  A.  Principles and Theory in the YOA  14  A. 1. A. 1.2. A. 1.3. II.  The Declaration of Principle Children's Rights and Freedoms Alternative Measures T H E CRITIQUE O F T H E YOA  14 16 19 20  A. B. C.  The Academics' Concern and Critique The Public Concern and Critique The Politicians'Concern  21 25 26  III.  CONCLUSION  29  CHAPTER 3  34  T H E HISTORICAL EVOLUTION OF YOUTH JUSTICE I. T H E RISE O F YOUTH JUSTICE IN T H E 19™ CENTURY  34 35  V  A.  The Legislation  35  A.l. A. 2.  The Historical Status of Youth in Canada Summary  35 40  B.  The Socio-economic Situation in the 19  B. 1. B.2. B. 3.  Urban Disenchantment and Socio-economic Changes The Rise of the Child Saving Movement Summary..:  42 45 51  C.  The Decline of the Classical School  52  C.l. C.2. C. 3.  Classical School Contributions: Cesare Beccaria The Intellectual Revolution - Positive Criminology Summary  52 55 57  Century  th  41  D.  Conclusion  58  II.  T H E J D A - PRINCIPLES AND THEORY  59  A.  Early 20  A.l. A. 2.  The Legislation Summary  B.  The Socio-economic Situation in Early 20  B.l. B. 2.  The Opposition The Continuation of the Child Saving Movement.  65 66  C. D.  The Rise of the Positive School Conclusion  67 67  th  Century Youth Justice  59  59 63 th  Century  65  CHAPTER 4  70  T H E YOA REVISITED  70  I.  T H E ORIGINS AND PROCESS O F R E F O R M  70  A.  The Reform of the JDA  70  A.l. The Origins A.2. The Process of Reform A.2.1. The 1965 Report A.2.2. Changes in Court A.2.3. BillC-192 A.2 A. The Renewed Process and the Canadian Charter of Rights  70 72 73 75 75 76  CHAPTER 5  79  A STRATEGY FOR T H E RENEWAL OF YOUTH JUSTICE  79  I.  TIME FOR RENEWING YOUTH JUSTICE  79  A.  Renewing  79  Youth Justice  A.l. The 1997 Report A. 1.1. Guiding Purpose and Principles  79 80  VI  A. 1.2. Public Understanding of Youth Justice A. 1.3. List of Recommendations  83 83  B.  The Renewal  85  B. 1. S.I.J. B.1.2. B.1.3. B. 1.4. B.1.5.  The Strategy for the Renewal of Youth Justice A Need for Balance Concerns About the Current Youth Justice System Key Directions for the Renewal of Youth Justice Legislative Components Summary  85 85 86 87 88 89  II. A.  T H E Y O U T H CRIMINAL JUSTICE ACT Much Ado about a New Bill  90 90  A.l. A. 2.  Press Conference on the Youth Criminal The Press' Comments  90 92  of Youth Justice  Justice Act.  B.  The New Youth Criminal Justice Act.  93  S.I. B.2. B. 3. BA.  77zeDeclaration of Principle Children's Rights Other Changes Sentencing  94 95 95 98  C.  A Comparison  C.I. C.2. C.2.1. C.2.2. C.2.3. C.3.  The Politicians'Comparison My Comparison Declaration of Principle Alternative Measures Other Changes Conclusion  of Some Provisions  of the YOA and the Act.  99 103 103 105 106 108  CHAPTER 6 PARADIGM SHIFS PARADOXES I. A. B. C. D. E. F. II. A. B. C. D. E.  99  109 IN  YOUTH  JUSTICE:  PARADIGMS  KUHN'S M O D E L O F C H A N G E Definition of Paradigm The Nature of Normal Science Anomaly and the Emergence of Scientific Discoveries Crisis and the Response The Nature and Necessity of scientific Revolutions Depiction of the Change Process in Paradigm Shifts T H E 'REFORMATIVE' PARADIGM The Philosophy under the JDA Normal Science Anomaly Modifications of a Dominant Paradigm or Crisis The 'Fairness' Paradigm  AND 109 110 110 113 114 115 117 122 123 124 131 132 134 136  VI1  F.  Revolution and Conclusion  139  III.  THE FAIRNESS PARADIGM AND NORMAL SCIENCE  142  A. B. C. D. E.  Normal Science Anomaly Modifications of the 'Fairness' Paradigm The'Clearness'Paradigm Conclusion  142 143 144 146 148  or Crisis  IV.  PARADIGMS AND PARADOXES  150  A. B. C.  Kuhn's Reservation on Paradigms The Academics'Reservation Political Reservations  150 153 155  V.  CONCLUSION  157  CHAPTER 7  161  RESTORATIVE JUSTICE AND T H E YOUTH CRIMINAL JUSTICE ACT 161 I. RETRIBUTIVE VERSUS RESTORATIVE 161 A. B. C. D.  Retributive Justice Restorative Justice From Retributive to Restorative? The Cost-Sharing Aspect of the Canadian  II.  ALTERNATIVE MEASURES  184  A.  Principles of Mediation  184  A.l. A.2. A. 3.  The Principles The Role of the Mediator Reconciliation  184 186 189  B.  Alternative  190  B. 1. B.2. B.3. B.3.1. B.4. B. 5. B. 6.  The Kitchener Experiment VORP. Family Group Conferencing FGC in Canada Circle Sentencing A Survey of Victim-Offender Mediation Programs Evaluation of the Programs  190 192 193 195 196 199 202  C.  Mediation  203  Criminal  Measures  and the Future  C. 1. Mediation - Qui Bono?. C.l.l. What does mediation do for victims? C.1.2. What does mediation do for the offender?. C.1.3. What does mediation do for the community ? III. CONCLUSION  System  162 171 175 179  203 203 204 205 206  viii  CHAPTER 8  215  CONCLUSION  215  Postscript  221  Bibliography  ^29  IX  LIST O F T A B L E S ;  Table 1, Youths and and federal statutes,  adults charged by sex.  in criminal  incidents,  Criminal  Code,  (Statistics Canada,CANISM) 5  Table 2, Differences criminology.  between  (Ray Jeffery, Crime Prevention  the  classical  Through  and  Environmental  positivist  school  of  Design)  58  Table 3, The Youth Criminal  Justice Act & the Young Sheet, (www.canada.iustice. gc.ca/news/1999/voafact)  Offenders  Act - Fact 99  Table 4, Depiction  of the Change  Process  in Paradigm  Shifts,  (Aultman 85 Wright: "The Fairness Paradigm: An Evaluation of Change in Juvenile Justice" (1982) 24 Can. J . Crim. 13-23 122  Table 5, Accountability:  Retributive  versus  Restorative  Paradigms,  (Mark Umbreit, "Holding Juvenile Offenders Accountable: A Restorative Justice Perspective", Juvenile and Family Court Journal (1995)/Vol. 46,No.2 at 32) 174  Table 6, Community Justice Initiatives Association, (Promising Restorative Justice, 22)  Models  in  208  X  Table 7a & 7b: Inspired by figure 7.1: Restructured South Australian Juvenile Justice System, (Joy Wundersitz and Sue Hetzel, "Family Conferencing for Young Offenders: South Australian Experience" in J . Hudson, et al., Family Group Conferences: Perspectives on Policy & Practice (Australia: The Federation Press, 1996) 210-211  Table 8: The Danish Youth Justice System inspired by Table 7a and 7b 225  1  CHAPTER 1 INTRODUCTION  I.  C H O I C E O F TOPIC A N D PURPOSE O F STUDY  O n M a r c h 11, 1999, Minister o f Justice and Attorney General o f Canada Anne M c L e l l a n tabled the federal government's strategy for the renewal o f youth justice i n the new millennium, the Youth Criminal Justice Act . The strategy is based on a report released 1  on M a y 12, 1998 , named A Strategy for the Renewal of Youth Justice, which responded 2  to the report made by a House o f Commons Standing Committee that conducted a 3  review o f the Young Offenders Act, proclaimed in force in 1984.  4  A Strategy for the Renewal of Youth Justice emphasizes the importance o f three areas related to youth crime:  Bill C-68, 1 Session, 36 Parliament, 46-47-48 Elizabeth II, 1997-98-99, The House of Commons of Canada. Minister of Justice and Attorney General of Canada, A Strategyfor the Renewal of Youth Justice, (May 12 , 1998) [hereinafter A Strategyfor the Renewal of Youth Justice}. House of Commons, Canada, Thirteenth Report of the Standing Committee on Justice and Legal Affairs Renewing Youth Justice, (April 1997) (Chair: the late Shaughnessy C. Cohen) [hereinafter Renewing Youth Justice]. Young Offenders Act, R.S.C. 1985, c-Y-1, enacted as S.C. 1980-81-82-83, c. 110. [Hereinafter the YOA]. 1  st  2  th  3  4  th  •  Promoting crime prevention and effective alternatives to the formal youth justice system  •  Ensuring that youth crime is met with meaningful consequences.  •  Emphasizing rehabilitation and reintegration.  These key directions are projected catalysts for better protection o f the public and include, among other elements, a replacement o f the Y O A with a new Youth  Criminal  Justice Act "that w i l l put public protection first and that w i l l command respect, foster values such as accountability and responsibility, and make it clear that criminal behavior will lead to meaningful consequences."  5  O n the occasion o f the release o f A Strategy for the Renewal of Youth Justice Minister Anne M c L e l l a n stated: " W e are responding to calls for necessary changes to the law, but we are doing much more than that.  Our new youth justice strategy looks beyond  legislation and even the youth justice system itself to explore ways society as a whole can address youth crime and associated factors such as poverty and child abuse."  6  With respect to these statements, my thesis w i l l be concerned with Canadian youth justice policy and the importance o f legal, historical, socio-economic, political and scientific elements in the understanding o f youth justice policy. I w i l l explore the reason behind the federal government's recent political initiative and look into the question o f whether  5  A Strategy for the Renewal of Youth Justice,  6  Ibid.  supra note 2 at 1  3  the government's youth justice strategy w i l l accomplish its objectives and make actual alteration to the existing legislation and justice system in the context o f young offenders.  M y aim is therefore to delineate the development o f Canadian youth justice philosophy and outline the changes i n the developing process  from a historical, political and  intellectual perspective in order to understand the current regulatory framework.  Furthermore, the purpose o f my study is to expand on the perspectives mentioned above; a 1982 article describing the shifting o f paradigms in Canadian youth justice has lead me to describe the development in youth justice from a scientific perspective.  7  It is m y  intention to analyze the changes in youth justice philosophy i n accordance with Thomas Kuhn's model o f change , and discuss whether a paradigm shift has happened with the progression from the Y O A to the Youth Criminal Justice Act.  M y thesis is that the intended renewal o f the youth justice system i n Canada is a political response to a polarized public debate about youth crime. I w i l l also argue that the Youth Criminal  Justice Act is only a legal response to political concerns about youth crime  rather than a complete transformation o f youth justice philosophy as predicted i n A Strategy for the Renewal of Youth Justice.  It w i l l be my conclusion that historical,  political, intellectual and scientific changes i n youth justice philosophy might have  M.G. Aultman & K.N. Wright, "The Fairness Paradigm: An Evaluation of Change in Juvenile Justice" (1982) 24 Can. J. Crim. 13-23. Thomas S. Kuhn, The Structure of Scientific Revolutions, 2 ed., (Chicago: The University of Chicago Press, 1962). 7  8  nd  4  occurred in 1984 with the Y O A , but that these changes did not proceed with A Strategy for the Renewal of Youth Justice in 1998/99.  What has caused the politicians' concern about youth crime?  Reading through A Strategy for the Renewal of Youth Justice and the Thirteenth Report o f the Standing Committee on Justice and Legal Affairs clearly reveals the political perception o f the urgent need for protection o f society because o f troubling behavior patterns in youth crime.  This perception is also shared by society in general.  The most recent example is the  media's engrossing focus on home invasions i n Vancouver, B C : Young offenders are dangerous and violent, and we need the protection.  9  Youth justice matters are constantly i n the public eye and are carefully fueled by the media.  The fear o f crime is pervasive, and with A Strategy for the Renewal of Youth  Justice that fear is justified.  10  Vancouver Sun, Weekend 13-14 February, with a messagefromthe Minister of Attorney General: A reward of $100,000 for information that could lead to information about the home invaders. 9  In "Juvenile Delinquency & Juvenile Justice" by Joseph W. Rogers & G. Larry Mays (New York: John Wiley & Sons, 1987) in part I, social myths about juvenile delinquency are being described. The authors argue that social myths have influenced juvenile justice and the legislation regarding juveniles. They define 'social myths' as "beliefs collectively held by many persons in a given society, images of what people believe to be 'true' or 'correct'." The authors delineate nine basic myths, such as 1) America is being ravaged by a crime epidemic; 2) juvenile delinquents become adult criminals; 5) criminals are solely responsible for their crimes; and 9) the fight against crime can be won by a 'war' on juvenile offenders. 10  5  Yet, Canadian statistics regarding youths charged i n criminal incidents, Criminal Code and federal statutes show that youth crime rates have seemingly decreased. (See table 1).  Youths and adults charged in criminal incidents, Criminal Code and federal statutes, by sex, Table 1  1993  1994  1995  1996  1997  Offences All offences Adults charged  666,706  611,054  454,465  454,971  425,422!  Male Female  556,623 110,083  512,886 98,168  376,269 78,196  376,236 78,735  351,308! 74,1141  Youths charged Male  150,665 119,178  143,268 114,087  128,809 101,407  128,542 100,654  121,1221 94,042  31,487  29,181  27,402  27,888  27,080!  Adults charged  456,241  422,509  408,791  409,894  383,833]  Male  349,210 73,299  337,061 71,730  337,435 72,459  315,795!  Female  373,948 82,293  Youths charged  126,887  119,625  120,663  119,410  111,736^  100,567  95,430  94,649  93,187  86,533!  26,320  24,195  26,014  26.223  25,203!  128,853  125,442  117,246  114,961;  Female  Criminal Code All Criminal Code  Male  Female  1  68,038  Violent crimes  Adults charged  114,144;  110,147  117,409 103,051  102,393  99,611  Female  14,709:  15,295!  14,358  14,853  15,350  Youths charged  21,477  21,629  22,441  22,521  22,252|  Male  16,381  16,747!  17,288  17,206  16,613!  5,096  4,882  5,315!  5,639  Adults charged  181,220  161,748  159,128  162,946  146,910  Male  Male  Female  ;  5,153j  Property crime 136,982  124,273  122,940  125,861  113,280!  Female  44,238  37,475  36,188  37,085!  33,630  Youths charged  74,981!  68,907  68,105  66,702  59,532  Male  59,232  54,656;  52,956  51,930  46,234!  Female  15,749:  14,251  15,149  14 772  13,298]  ;  Their conclusion at 4: Despite the fact o f the high crime rate itself, however, the fear o f crime has been made worse by various myths about crime and, most important to us, about juvenile crime.  6  1993  1994  1995  1996  1997  Offences Other Criminal Code offences  Adults charged Male  Female  Youths charged Male  Female  146,168 122,822 23,346 30,429 24,954 5,475i  135,319 114,790 20,529 29,089 24,027 5,062  132,254 111,070 21,184 30,117 24,405 5,712  129,702 109,181 20,521 30,187 24,051 6,136  121,962; 102,9041 19,0581 29,952 23,686 6,266  50,443: 43,186; 7,257 6,096 5,003 1,093  48,215 41,281! 6,934 7,470 6,166 1,304  45,674 39,208 6,466 8,146 6,758 1,388  45,077 38,801 6,276 9,132 7 467 1,665  41,589 35,513 6,076 9,386 7,509! 1,8771  ;  Federal statutes Adults charged Male Female Youths charged Male  Female  Source: Statistics Canada, CANSIM Matrices 2198 and 2199  In the period between 1993 - 1997 youth charges have decreased in all offenses: all criminal code, property crime, and other criminal code offenses. Only Violent Crimes seem to have increased. But when one considers the whole matrix, it becomes apparent that violent crimes have actually been decreasing. A n increase in youths charged under federal statutes is evident.  So why are the society and the politicians so concerned about the current youth justice system?  The recent formulation o f A Strategy for the Renewal of Youth Justice and the Youth Criminal  Justice Act, intended to replace the Y O A as the statutory authority for dealing  with young offenders, reveals the trends in Canadian Youth Justice and sentencing  7  rationales.  A Strategy for  the Renewal of Youth Justice  emphasizes that the new  legislation will include a statement of principles and objectives.  11  The statement w i l l also make clear that prevention, meaningful consequences for crime and rehabilitation are all essential and complementary components o f a youth justice system that effectively protects the public. The statement will underscore that youth must be held accountable for their actions. It will also include the principle that youth should be treated differently from adults and that violent young offenders should be treated differently from nonviolent young offenders. 12  II.  METHODOLOGY  This section is comprised o f a brief description of the framework selected for this thesis.  The intention is to expose the development of youth justice and the concepts behind the regulatory framework with respect to young offenders in order to reveal the cultural diversities in youth justice.  I w i l l therefore delineate the changes in the regulatory  framework in the context of young offenders caused by socio-economic, political, historical and intellectual - scientific - changes in Canada from the turn of the century to today.  11 12  A Strategy for the Renewal of Youth Justice, supra note 6 at 2 and the accompanying text. Ibid.  8  A major part o f this thesis w i l l focus on changes in the youth justice philosophy and compare these changes to the theories o f paradigm shifts, using Thomas Kuhn's model o f change.  It is my intention to examine whether changes in paradigms have occurred  between 1982 and today.  M y approach w i l l be legal, historical, political and scientific. The analysis o f the current legislation and the theoretical structure o f earlier legislation will be doctrinal, i n the sense that I w i l l examine theories and principles o f the different legislation. Thereby, I w i l l answer law within law itself.  In order to explain the culture within the legislation with respect to young offenders, a description o f the historical development will be necessary: from the child saving movement and positivist school o f criminology in the late 1 9 century to the latest th  attempts at legislating youth justice matters.  The political situations from the 1 9 century to today w i l l also be described i n order to th  provide an understanding o f the current legislation. We can learn a lot about youth justice philosophy by looking at the political agenda.  The importance o f history, politics and legal theory i n youth justice matters is evident as one reads the literature.  13  Gordon West, "Towards a More Socially Informed Understanding of Canadian Delinquency Legislation" in Alan W. Leschied, Peter G. Jaffe & Wayne Willis, eds., The Young Offenders Act: A Revolution in Canadian Juvenile Justice (Toronto: University of Toronto Press, 1991) at 9, where he states that: "Again, 13  9  Judge Penny J . Jones describes the importance o f these factors in the following way: "That legislation gives expression to certain values which, to be fully appreciated, must i n my view be considered i n light o f the history o f the A c t which dates back to the turn o f the century."  14  The survey o f the development i n youth justice from a legal, socio-economic, political and historical view w i l l comprise Chapters 2, 3 , 4 and 5.  Chapter 6 w i l l delineate science i n combination with the law; namely, describing shifting in paradigms in a youth justice context. A n explanation o f Kuhn's model w i l l be offered in order to determine whether changes have occurred i n the paradigms used i n youth justice philosophy.  In the same chapter I w i l l examine the paradoxes o f and barriers to using the theories on change i n paradigm. The section w i l l consist o f several academics' theories on Kuhn's model o f change, and w i l l analyze how habits o f mind can govern scientific beliefs, such as paradigm shifts.  15  to understand contemporary delinquency and delinquency legislation, we might contextualize these issues by examining the socio-political situation of young people living in Canada." Penny J. Jones, Young Offenders and the Law, 2" ed., (Ontario: Captus Press, 1997) at 11. Howard Margolis, Paradigms and Barriers: How Habits ofMind Govern Scientific Beliefs, (Chicago: The University of Chicago Press, 1993). 1  15  10  In Chapter 7 I w i l l elaborate on Section 3 o f the Youth Criminal  Justice Act and the  intended renewal o f the philosophy behind the youth justice system. Minister o f Justice Anne M c L e l l a n , has stated  A s we approach the implementation phase, I want to underscore the need for increased community involvement. This is a fundamental shift in the Government's new approach to youth justice and it is key to the success o f our renewal efforts. Our experience over the last 15 years has made one thing abundantly clear — youth justice cannot be the sole purview o f a few select system professionals working in isolation. Effective youth justice must also involve educators, child welfare and mental health systems, voluntary organizations, victims, families, youth employers, neighbourhood groups — just about anyone who works with or cares about our kids, our communities and our country. The Government's Youth Justice Strategy opens the door to greater public and professional involvement i n dealing with youth crime, and I urge Canadians to get involved. The introduction today o f the Youth Criminal Justice Act marks an important turning point for Canada's youth justice system. It is our collective challenge to make sure we succeed. 16  I w i l l describe the principles and theories behind retributive and restorative justice philosophy as it seems restorative principles might become more influential than hitherto. Furthermore, I w i l l explore the existing alternative measures within the restorative framework in Canada, such as mediation, family group conferences and circle sentencing.  Chapter 8 w i l l be the final chapter, and w i l l therefore comprise o f my conclusion. Even though the intention is to renew the youth justice strategy, and to enhance restorative  http://www.canada.justice.gc.ca/News/Discours/sl 10399_en.html  16  11  principles, it w i l l be my assertion that the new Youth Criminal  Justice Act does not  provide a new breeding ground for changes in youth justice philosophy. Therefore, the new legislation will not provide a shift in paradigms, as the legislators expect.  This is the framework I have selected for my thesis.  12  CHAPTER 2  THE YOUNG OFFENDERS ACT PRINCIPLES AND THEORY  In this chapter, I w i l l delineate the current legislative framework with respect to young offenders: the Y O A .  1 7  The Y O A profoundly altered the course of the youth justice  system in Canada when it came into effect on A p r i l 2, 1984. There was a shift in the youth justice system, from the treatment-and welfare-oriented model under the J D A to the more justice-oriented model of the Y O A , that "[ejxpressly injected principles of due process or the justice model into the field of youth justice, while at the same time retaining the principles o f the medical or treatment model which had been such an integral part of its predecessor, the Juvenile Delinquents A c t . "  18  In Section I, I w i l l expound the Y O A . This will be a doctrinal analysis, as I w i l l look at the legislative framework.  In Section II, I w i l l look at the various scholars' and other  academics' opinions regarding the Y O A , and thereby outline the pros and cons with respect to youth justice legislation. This analysis w i l l describe the major concerns of the Y O A , including the abundant criticism that has been made against it. Section III w i l l include a conclusion.  17  See supra note 4.  13  The Y O A must be understood in a historical, political and socio-economic context. Consequently, a more in-depth analysis o f these factors w i l l be offered in Chapters 3 and 4, which w i l l delineate the development o f youth justice philosophy. Therefore, in order to understand the underlying values and the philosophy behind the current legislation with respect to young offenders, Chapter 2 must be read in the context o f the following chapters.  r.  THE YOA- A LEGAL FRAMEWORK  W i t h the enactment o f the Y O A in 1984, significant changes i n the youth justice system were introduced, constituting what some authors have characterized as a "new e r a " , a 19  shift o f paradigms , and a "revolution". 20  Other authors  have interpreted  21  the Y O A as " a conservative retreat  from the  "rehabilitative" ideal under the J D A to a more punitive and legalistic approach."  22  In order to understand the various academics approaches to the Y O A , let me start by describing the legislative framework i n the context o f young offenders.  Lucien A. Beaulieu, "Introduction" in Lucien A. Beaulieu, ed., Young Offender Dispositions: (Toronto: Wall & Thompson, 1989) at 1. Heino Lilies, "Beginning a New Era", Provincial Judges Journal, (1983) 7 (2) 21-26. M.G. Aultman & K.N. Wright, supra note 7 at 13. Leschied, supra note 13.  Perspectives on Principles and Practice, 19 2 0 21  14  A.  Principles and Theory in the YOA A.l.  The Declaration of Principle  W i t h the enactment o f the Y O A , Section 3, the "Declaration o f Principle", was intended to guide judicial interpretation o f the Y O A . It should be noted that the original Section 3 was amended in 1995, and Sections 3 (1) (a) and 3 (1) ( c . l ) were added to the Declaration o f Principle.  23  Bolton, et al., "The Young Offenders Act: Principles and Policy - The First Decade in Review" (1993) 38 McGill L.J. at 941. An Act to amend the Young Offenders Act and the Criminal Code, SC., 1995, c.19, s.l. See generally Nicholas Bala, Young Offenders Law, (Ontario: Irwin Law, 1997). The Declaration of Principle now reads: 3.(1) It is hereby recognized and declared that (a) crime prevention is essential to the long-term protection of society and requires addressing the underlying causes of crime by young persons and developing multi-disciplinary approaches to identifying and effectively responding to children and young persons at risk of committing offending behaviour in the future; (a.l) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions; (b) society must, although it has the responsibility to take reasonable measures to prevent criminal conduct by young persons, be afforded the necessary protection from illegal behaviour; (c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance; (c.l) the protection of society, which is a primary objective of the criminal law applicable to youth, is best served by rehabilitation, wherever possible, of young persons who commit offences, and rehabilitation is best achieved by addressing the needs and circumstances of a young person that are relevant to the young person's offending behaviour; (d) where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences; (e) young persons have rights and freedoms in their ownright,including those stated in the Canadian Charter of Rights and Freedoms or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to decisions that affect them, and young persons should have special guarantees of their rights and freedoms; (f) in the application of this Act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interests of their families; (g) young persons have the right, in every instance where they have rights or freedoms that may be affected by this Act, to be informed as to what those rights and freedoms are; and (h) parents have responsibility for the care and supervision of their children, and, for that reason, young persons should be removed from parental supervision either partly or entirely only when measures that provide for continuing parental supervision are inappropriate. 2 3  15  Sections 3 (1) (a) and 3 (1) ( c l ) emphasize the importance o f crime prevention in order to protect society and rehabilitation of the young offender. The addition was an attempt to respond to the criticism of the original Section 3, as w i l l be discussed infra Section II at 20.  The ten items contained in Section 3 outline the policy for Canada with respect to young offenders.  Section 3 (1) (a.l) states that young persons should not be held accountable in the same manner or suffer the same consequences for their behavior as adults, but also states that young offenders nonetheless should bear responsibility for their contraventions. Section 3 (1) (b) states that society must be afforded the necessary protection from illegal behavior, and that protection of society, which is a primary objective o f the criminal law applicable to youth, is best served by rehabilitation.  Section 3 (1) (c) states that young  persons require supervision, discipline and control, but also, because o f their special needs, require guidance and assistance.  Section 3 (1) (d-g) contains a catalogue o f the most fundamental and basic rights that a young person has when in conflict with the criminal justice system. It is interesting that in Section 3 (1) (f) it is stated that the rights and freedoms o f young persons include a right to the least possible interference with freedom "that is consistent with the protection of society."  16  Some academics have suggested that the Declaration of Principle reflects a certain ambivalence about how to deal with young persons in conflict with the criminal justice system, and that section 3 contains fundamental ambiguities.  Other academics have suggested that with the Declaration of Principle, we have criminal legislation with a broader social context and that the principles are more than rhetoric; they are also upheld by concrete measures. The Y O A with its Section 3, they suggest, has created a coherent and balanced process for dealing with youth crime, "which w i l l encourage respect for the law and promote the wellbeing o f both the young offender and society."  24  Indeed, the Declaration o f Principle has been exposed to thorough examinations. I w i l l elaborate on these examinations in section II, infra at 20ff.  It was not only the Declaration o f Principle that initiated the significant changes in Canadian youth justice. Another important factor was the referral to children's rights and freedoms in the Canadian Charter o f Rights and Freedoms and the Canadian B i l l o f Rights.  A.1.2.  Children's Rights and Freedoms  O m e r Archambault, " Y o u n g Offenders A c t : Philosophy and Principles" Provincial Judges Journal (1983) 7 ( 2 ) at 4.  17  Section 3 (1) (e-g) deals with a young person's rights as already described. The lack of children's rights had been evident in the J D A , but these rights were made visible in the YOA.  The Y O A does not only deal with fundamental rights; procedural changes were  also made. A s I w i l l describe i n Chapter 3, Section II, the criminal proceedings against young offenders under the Y O A were informal and gave the judge a discretionary power in the trial.  Under the Y O A , procedural safeguards became o f crucial importance and the Y O A formalizes many o f the procedures o f the youth court as it sets out in detail the procedures that are to be followed in various proceedings.  25  Some examples are as  follows:  Section 2 of the Y O A establishes a minimum and maximum age o f 12 and 17.  The Y O A also provides the young person with a right to counsel which is described in Section 11. This section delineates the situations i n which young people can retain and instruct counsel.  Section 12 reviews the situation i n which a young person appears in court and spells out the guideline to be followed by the judge in youth court. There are specific instructions to the judge, which were not apparent in the J D A .  According to Section 38, the young person's identity is not to be published.  Sections 20 - 24 explain in detail the dispositions to be made when a youth court finds a young person guilty o f an offence.  Specifying the available dispositions makes it clear  18  that youth court judges have a guideline that must be followed, and perhaps clarifies the earlier uncertainty about dispositions under the J D A .  Section 23, which describes the possible conditions attached probation orders, should also be mentioned.  Section  16 deals explicitly with provisions for transferring young  offenders to ordinary court.  Under the Y O A , a young person, who has committed an  indictable offence can be transferred to ordinary court. The young offender can only be subject to this subsection "after the age o f fourteen years".  In theory, a young offender can be transferred for any indictable offence "other than an offence referred to i n section 553 o f the Criminal  Code".  offences subject to transfer are serious violent offences.  26  However, in practice most  Section 16 (2) lists the factors  that should be taken i n consideration by youth court i n a transfer hearing. Such factors include the seriousness and the circumstances o f the alleged offence, the age, maturity, character and background o f the young person, and "any other factors that the court considers relevant." (Section 16 (2) (/)). Section 16 (1.01) applies to young persons aged 16 or 17 years, who have alleged to have committed certain offences, such as:  •  First-or second degree murder  •  Attempted murder  •  Manslaughter, or  See generally T.C. Caputo, "The Young Offenders Act: Children's Rights, Children's Wrongs" (1987) Canadian Public Policy XIII (2) at 125-143. Bala, supra note 23 at 273 footnote 20, where the author refers to Statistics Canada, Canadian Centre for Justice Statistics, Youth Court Statistics 1994-1995 (Ottawa: Statistics Canada, 1996) [1994-1995]. It is reported "that transfers were ordered for 123 cases (listed by most serious charge)" including murder 2 5  2 6  19  •  Aggravated sexual assault.  In these cases, Section 16 (1.01) states that prosecution should be conducted in ordinary court unless the youth court on application makes an order, "that the young person should be proceeded against i n youth court."  In 1984, 1992 and 1995, Section 16 o f the Y O A was amended. According to Bala, the amendments are responses to judicial controversy over the interpretations o f the 1984 and the 1992 amendments.  27  A.1.3. Alternative Measures  The Y O A recognizes that young offenders have special needs and that because o f their age, they cannot be held accountable in the same way, as adult offenders would be. But Section 3 and Section 4 under the Y O A , state that the young offender should bear responsibility for his or her contraventions towards society, towards the victim, and towards h i m - or herself.  Section 4 under the Y O A expresses the importance o f  alternative measures, and thereby outlines the legal framework  for programs for  alternative measures.  charges, sexual offences, assaults with weapon, robbery charges, assaults on police officers, property offences, and so forth. Ibid, at 286, where the author states that "...the 1995 amendments seem to be clearer than the 1992 provisions and would appear to specifically limit the factors to be considered in assessing the dual interests of society, namely, rehabilitation of the youth and the protection of the public." Bala also conclude that since the 1995 amendments the 'interest of society' as mentioned in Section 16(1.1) does no longer include accountability and arguably not general deterrence. This conclusion is based on the author's examination of case-law, such asR. v. M. (J.J.), [1993] 2 S. C. R. 421; R. v. S. (D. M) [1993] A. J. No. 717 (CA.) (QL), Fraser C.J.A., Cote and McFayden JJ.A.; R. v. C. (R) [1996] A. J. No. 909 (Prov. Ct.) at (QL), and R v. 0. (D.), [1996] OJ. No. 2703 (Prov. Ct.) (QL). 2 7  20  A s described in Section 4, alternative measures are methods other than prosecution in youth court o f dealing with youths who have committed offences.  Some o f these  programs are known as "diversion". Some o f the programs in Section 4 under the Y O A are offered on a pre-trial basis, which means that the program can be completed before a 28  charge is laid in youth court.  Some o f the program models for alternative measures are  based on post-charge. A s described in section 4 (1) (c), the young offender must fully and freely consent to participating in the alternative measures program. A l s o , the young offender must accept responsibility for his or her act. The Attorney General has the authoritative power i n alternative measures programs, according to Section 4 (1) (a).  Furthermore, it is mandatory that the evidence be  sufficient to proceed with the prosecution o f the offence, and that the prosecution o f the offence is not i n any way barred by law. "Section 4 codifies the most unusual aspect o f old paternalism".  II.  T H E CRITIQUE O F T H E Y O A  During the 15 years since the passing o f the Y O A , it has generated much controversy. The critique has evolved on several levels: Scholars, as well as the public, have contributed to the debate. Politicians' response to concerns raised over the Y O A can be  Penny J. Jones, supra note 14 at 20. Lucien A. Beaulieu, "A Comparison of Judicial Roles under the JDA and YOA" in Leschied, Jaffe & Willis, supra note 13 at 138. 2 8  2 9  21  found i n the three amendments o f 1986, 1992 and 1995. Furthermore, the latest, and some would say most dramatic, political response can be read in A Strategy for the Renewal of Youth Justice and the new Youth Criminal Justice Act.  A.  The Academics' Concern and Critique  A number o f concerns have been raised about the implementation o f the Y O A .  Soon  after the enactment o f the Y O A it became clear to the federal government that the legislation being introduced was not as clear, precise or measurable as expected. Advocates from both the children's rights system and the welfare model criticized the Y O A almost from the beginning o f the new era , and potential problems were pointed 30  out in an often heated debate.  I will start by delineating the major arguments o f the  critique from the academics.  The debate started in 1983 among the provincial judges.  31  One o f the articles states that  the Y O A represents one o f the most significant pieces o f social legislation o f the past few T?  years.  The author recognizes that the passage o f the legislation "marked the end o f a  critical phase o f the lengthy process o f reform o f our juvenile justice system."  33  It is also  stated that the Y O A "is Parliament's response to this evolution o f cultural values and attitudes towards criminal justice", and that "[t]he legislation is based on a new set o f fundamental assumptions reflecting this evolution and inspired, as well, by extensive  Lilies, supra note 19 ibid. The Provincial Judges Journal dedicated volume 7 (2) to a Young Offenders Issue. These articles describe the fundamental problems with the YOA that formed the basis for the discussions in the two past decades. Archambault, supra note 24 at 1.  31  3 2  22  research and a more sophisticated knowledge of human behavior generally, and the moral and psychological development of children in particular."  34  But the enthusiasm and the positivity towards the new legislation died down. A s stated by Judge A . Peter Nasmith, it soon became clear that the youth justice system had moved away from "paternalism" and toward "principles o f fundamental criminal justice", such as a right to counsel, a minimization of interference with an accused person's freedom, and so forth.  35  But as Nasmith states, "Paternalism dies hard"; the by-products of paternalism  had not been entirely eradicated under the Y O A . The author mentions as an example Section 4, Section 13 (6) and Section 23, and concludes that the clash between paternalism and "due process" under the Y O A w i l l lead to compromises. Therefore, the predictability o f the process under the Y O A is not as clear as was intended.  The Y O A is worded so broadly that the Declaration of Principle contains both the philosophy o f the J D A and the new philosophy:  In the overall terms, the A c t does, I think, betray one of the unfortunate, but perhaps inevitable results o f so many years of consultation and redrafting: that is tendency to include provisions which betray some inconsistency or at least ambivalence about both the approaches which should be taken with young offenders and the objectives it is hoped w i l l thereby be achieved. 36  Ibid, at 3. A. Peter Nasmith, "Paternalism Circumscribed" Provincial Judges Journal (1983) 7 (2) at 16. G. M. Thomson, " Commentary on the Young Offenders Act", Provincial Judges Journal (1983) 7 (2) at 27. 3 4 35  3 6  23  Another concern raised by Judge Thomson is the question o f whether there w i l l be adequate resources to implement the Y O A . That question was answered i n A Strategy for 37  the Renewal of Youth Justice  15 years later!  T o support the implementation o f the  Y O A , the federal government entered into a cost-sharing agreement with the provinces and territories.  That resulted in proportionately less federal support for provinces with  lower custody rates.  In addition to the cost-sharing agreement, federal funding was  frozen in 1989 at $156 million. Judge Thomson's concern 15 years earlier still holds true. I w i l l elaborate on the cost-sharing aspect in Chapter 7.  The debate about the Y O A continued through the following years. What was the impact of the Y O A ?  J i m Hackler, from the Department o f Sociology at the University o f  Alberta, stated in 1987 that the use o f counsel for a young offender, for example, had led to young people speaking less in court. Instead o f the youth giving their version o f the act, the defense lawyer became the young person's spokesman.  38  The author claims that  the disrespect for the youth justice system as outlined in the Y O A among the young offenders has grown because o f the confusion within the legislation itself.  Hackler  concludes, "The Youth Court is becoming a better place for lawyers but a poorer place for children i n need o f help."  39  A Strategy for the Renewal of Youth Justice, supra note 2 at 5. Jim Hackler, " The Impact of the Young Offenders Act", (1987) 29 (2) Canadian Journal of Criminology at 206. The problem of the professionals monopolising the criminal justice system was described already in 1977 by Nils Christie, "Conflicts as Property", 17 British Journal of Criminology at 1. Ibid. 3 8  3 9  24  Academics from M c G i l l University made a review of the first decade of the Y O A in 1993.  40  The critique was scathing. The authors claimed that the Y O A represented a  compromise between a variety o f often contradictory philosophies.  According to the  authors, the Y O A does not fully represent any philosophical position.  Because o f the  ambiguities o f the Y O A , youth courts are not provided with clear guidance as to the principles' relative priority or their precise meaning. The authors reached that conclusion by analyzing the central principles of phrases such as "special needs", "protection of society" and "least possible interference with freedom" used throughout the Y O A .  4 1  The  guiding principles in Section 3 under the Y O A , particularly, reflect the ambiguities in the Act, as already described on page 14.  The authors blame the extremely long process of drafting a reform under the J D A .  The  legislators had hoped for a clear, precise and predictable legislation with respect to young offenders, but "the broad language of the Declaration of Principle gives a large role to judicial discretion in the interpretation and application of the Y O A " .  Therefore,  4 3  "[accordingly, we w i l l suggest that the Declaration o f Principle, and the ambiguous concepts used therein, should be removed or de-emphasized under the Y O A . "  4 0 41 4 2 4 3  Bolton, et al., supra note 22 at 939. Ibid. The process of reform is being described in Chapter 4. Bolton, et al., supra note 41 ibid.  44 ru • j  4 4  25  The critique continued systematically during the next years, and i n Renewing  Youth  Justice, 1997, the critique was being heard: The guiding principles should be made more clear and precise, and education o f the public was necessary in order to make the Y O A or an amendment more accessible.  45  The Minister o f Justice followed the recommendations  in A Strategy for the Renewal of Youth Justice and suggested a replacement o f the Y O A with a new Youth Criminal Justice Act. The report emphasized that serious questions had been raised about the Y O A since its enactment in 1984. The main problem was lack o f public confidence in the A c t and the lack o f satisfactory alternatives to incarceration, as well as inadequate reintegration and rehabilitation.  The new Youth Criminal Justice Act was tabled M a r c h 11,1999.  B.  The Public Concern and Critique  Jim Hackler states in his conclusion that  Despite evidence that delinquency is decreasing, shrill voices from politicians and the press still capitalize on the public fear o f crime to emphasize punishment. The shift o f public resources to those activities guaranteed to be ineffective may lead social historians to describe this period as one where designers o f legislation meant well but ended up doing considerable damage. 46  Not many w i l l disagree that the media has fueled the public fear o f young offenders. The major complaint from the public has been that the Y O A is too lenient towards youth crime and that violent and dangerous young offenders can "get off easily" because o f the  See f o r a further description o f  Renewing Youth Justice,  C h a p t e r 4.  26  "gentle" Y O A .  4 7  The public also wanted a change in the youth justice system. The  maximum sentence for murder i n youth court was 3 years i n 1984 until 1992. This disposition was under attack by the public, which led to an amendment in 1992. The maximum sentence for murder i n youth court was raised to 5 years less a day. The public continued criticizing this disposition, which led to a new amendment in 1995. M a x i m u m sentence for murder i n youth court is now 10 years for 1 degree murder and 7 years for st  2  n d  degree murder.  (Please refer to Section C for a description o f the politicians'  concerns). The prohibition o f publishing the names o f young offenders was also under attack by the public. Establishing a minimum age at 12 was another point o f criticism. "Canadians want a youth justice system that protects society and that helps youth avoid crime or turn their lives around i f they do become involved i n c r i m e . "  48  The paramount  goal for the new youth justice strategy is protection o f society and involvement from both the society and communities. It is therefore important that the public be informed about youth crime and youth justice philosophy. This might take away the public fear that has impeded the progress o f a sensible youth justice system.  C.  The Politicians' concern  A s noted above, the critique o f the Y O A has been predominantly negative. E v e n though some authors have argued that the Y O A just needs time, not criticism, the tendency i n Canadian youth justice philosophy has been abundant criticism o f the present system. That is also the conclusion o f the proponents o f the Y O A .  4 6 4 7 4 8 4 9  4 9  Hackler, supra note 39 at 209. See for information, Bolton, et al., supra note 44 at 941 footnote 7. Minister of Justice, Anne McLellan in A Strategy for the Renewal of Youth Justice, supra note 2 at 1. Omer Archambault, "Foreword", Leschied, Jaffe & Willis, supra note 13..  27  Most unfortunately, in my view, professionals in the social and behavioral sciences failed to tackle the new law with the same degree o f enthusiasm and vigour. It appears to me that many of them spent too much time and energy lamenting lost ground and not enough in ensuring that the new law be implemented in a balanced way. Others devoted much of their energy to criticizing the act and characterizing it a 'pure justice', or essentially, 'offence'based model with the result that they are convincing themselves and everyone else (much like a self-fulfilling prophecy) that, under the Y o u n g Offenders A c t , the treatment and rehabilitation of young offenders are out of the window. M a y I suggest that they would better serve the system by spending more effort on showing and emphasizing the essential differences between the Y o u n g Offenders A c t and the ordinary criminal law than building the case for their similarity.  Even though Judge Archambault was of the opinion that the Y O A was a realistic and effective blueprint for youth justice, the politicians were afraid not to respond to the systematic critique of the Y O A . Therefore, in response to the growing concerns over the Y O A , the A c t has been amended three times: in 1986, 1992 and 1995.  The 1992  amendments raised the maximum sentence for first or second-degree murder from three to five years and made transferring youths facing serious offences to adult court easier. The amendments were a result o f a perceived public belief that the Y O A was vague, inconsistent and overly lenient towards young offenders. But the criticism continued and it was not long before the Y O A got amended again. In 1994, B i l l C-37, " A n A c t to A m e n d the Y o u n g Offenders A c t " , was introduced. The B i l l was a response to the public critique and the academic critique, respectively.  The critique was two-fold: one side  thought the Y O A was not tough enough on crime, and one side thought that the A c t  28  failed to rehabilitate the young offender. B i l l C-37 was proclaimed in force on December 1, 1995. B i l l C-37 again increased the lengths of sentences in youth court to 10 years; allowed victim-impact statements to be read in youth court; changed parole ineligibility periods, and so forth.  The debate in the House o f Commons regarding the implementing o f the B i l l C-37 was heated but definitely expounds the two-fold critique o f the Y O A .  The first example  shows the disbelief in rehabilitation, and the feeling that the Y O A is too lenient towards the young offender:  M r . Rose: "You're asking i f there's something we can do to help rehabilitate these kids, and you're saying that imprisonment is not the way to do it....We put the mandatory treatment in there to rehabilitate....If a man commits a crime, he serves time for the crime, he very seldom walks away. But a kid knows he can refuse treatment, so he refuses treatment. A s the lady was saying before, you're wasting money having the social worker sit down in front of the kid when the k i d say's he's not going to anything, so goodbye....The provincial government is spending a lot of money anyway on these kids that could be better used. Put the mandatory in there and tell them i f they don't want to talk to us today, they'll have to talk to us tomorrow....I'm saying we should put the law in there, put in the automatic transfer to adult court i f they commit crimes. Hey, they committed a c r i m e . " 50  Another example is the hope for a strengthening o f the rehabilitative aspects o f the Y O A :  "First, we understand the causality o f crime. We understand that why kids commit crime and we target that within our programs. For example, it means providing programs that take seriously the underlying causes of the  House of Commons, Justice and Legal Affairs Debates, 20-10-1994 at 1015.  29  conditions within the family, with family-therapy targeting the strident belief some young people have that there's justification i n anti-social values that justify the anti-social behaviour....The guiding principles that promote the delivery o f effective human service are reflected i n statements that promote the importance o f rehabilitation. They go beyond the accountability and responsibility provisions and actually state rehabilitation as a principle - a guidepost... It's not enough to be punishing, punitive and accountable. W e need to go beyond that and treat, rehabilitate and understand." 51  Coinciding with the debates on B i l l C-37 i n 1994, the then Minister o f Justice asked the Standing Committee on Justice and Legal Affairs to review the Y O A . The report from the Standing Committee, Renewing Youth Justice, was released i n 1997. In 1998 the federal government released A Strategy for the Renewal of Youth Justice, and on M a r c h 11, 1999 the new Youth Criminal Justice Act was tabled.  Indeed, the politicians' concern about  52  the public's and the academics' growing  dissatisfaction with the Y O A once again led to a change i n the youth justice system and philosophy. But maybe the change was not as dramatic as the politicians claimed.  III.  51 5 2  CONCLUSION  House of Commons, Justice and Legal Affairs Debates, 20-10-1994 at 1115-1120. For a further description of the reports, see Chapter 4.  30  Reading through the Y O A makes it clear that the youth justice system has moved away from being a treatment-oriented system and a surrogate parent to becoming a youth justice system concerned with extending legal rights to young people.  The ideology  behind the Y O A is mentioned above, outlined in the Declaration o f Principle in Section 3. The philosophy behind the youth justice system as described in the Y O A is that o f a separate system for young offenders with as little intervention from the state as possible and an ideology evoking support for a system o f legal justice for young offenders equivalent to the adult justice system.  "The Y o u n g Offenders A c t , as has been well established in both numerous reviews and case law, is not child-welfare legislation."  54  Rehabilitation and accountability is still  important in the Y O A but the rights o f young persons i n the criminal justice system are just as important.  Consequently, the youth justice philosophy under the Y O A is a cross  between setting up a legal framework that protects the rights o f young offenders and a focus on rehabilitation and treatment within that legal framework.  Instead o f calling this section "Conclusion", I might as well have called it "The classical school o f criminology revisited". Under the Y O A it is emphasized that the sentencing should commensurate with the severity o f the act. Focusing on the severity o f the offence rather than looking at the offender is a return to the principles introduced by the classical school o f criminology in the late 1 8 century. th  55  The ambiguity lies i n the fact that  The parens-patriae doctrine is discussed in detail in Chapter 3. Leschied & Jaffe, "Dispositions as indicators of conflicting social purposes under the JDA and YOA" in Leschied, Jaffe & Willis, supra note 29 at 160. See for further information Chapter 3. 5 4  55  31  rehabilitation, reminiscent of the positivist school o f criminology, is still one of the guiding principles under the Y O A .  The Y O A has constituted some significant changes in youth justice philosophy in the 1980s, as has been stated by several academics. But the changes were a result of a 20year political and philosophical process leading to the Y O A .  I agree with the criticism, which states that, because of this long process, the Y O A represents a compromise between a variety o f contradictory philosophies and ideologies, and that the Declaration o f Principle, describing the leading principles, embodies too many possible interpretations.  56  The Canadian youth justice system has moved much  closer to the adversarial adult justice system with the Y O A .  The critique o f the Y O A is two-fold: academic and public. The ambivalence between the two perceptions of an ideal youth justice system is quite clear as described in Section II. This discrepancy could be one of the reasons why the Y O A has not been able to work in practice. The A c t was criticized right after it was enacted and the Y O A has been subject of ongoing debate since then.  See generally Bolton, et al., supra note 47 at 939.  32  In A Strategy for the Renewal of Youth Justice the description o f the Y O A is delineated as follows:  The Young Offenders A c t blended four fundamental principles: that young people must assume responsibility for their illegal behaviour; that society has a right to be protected from illegal behaviour; that i f young people are held responsible for their criminal acts, they are entitled to traditional rights and some additional protections; and that young people, because they are not fully grown or mature, have special needs and should not be held accountable i n the same manner or to the same extent as adults. 57  Despite the support o f the implementation o f the Y O A by the federal government entering into cost-sharing agreements with the provinces and territories, the Y O A has not been a success. The Minister of Justice noted in the beginning o f the 1990s that "the A c t was too controversial and that questions had been raised about whether it remained the best model for juvenile justice in Canada."  58  A n extensive review of the A c t has led to A Strategy for the Renewal of Youth Justice and a new Youth Criminal Justice Act.  What is the background of the Y O A ?  In Chapter 3,1 w i l l delineate the background o f the Y O A and the chapter w i l l contain a detailed description of the various factors leading to the Y O A , including socio-economic  A Strategy for the Renewal of Youth Justice, supra note 2 at 5. Ibid, at 7.  33  changes, political changes, intellectual changes and legal changes o f the 19th century and the early 2 0 century. th  34  CHAPTER 3 THE HISTORICAL EVOLUTION OF YOUTH JUSTICE  "It is wiser and less expensive to save children than to punish criminals" WL. Scott, 1908 59  In this chapter I w i l l delineate the historical development o f Canadian youth justice. The aim is to outline the underlying values/objectives in the developing process o f youth justice i n order to understand the current regulatory framework.  In Section I, I w i l l  describe the early developments in youth justice legislation and the rise of juvenile justice based on welfare philosophy i n the late 1 9 century. The concern for children and their th  welfare formed the basis o f the Juvenile Delinquents A c t .  60  In this section, I w i l l also  describe the dramatic changes i n society, and the decline o f the classicist approach to crime.  In Section II, I w i l l focus on the developing process o f the J D A , including a  description o f the theoretical structure o f the objectives o f the legislation. Furthermore, I w i l l delineate the intellectual and social changes i n society that lay the foundations o f  The Canadian Law Times (1908) 28 at 892 Juvenile Delinquents Act, SC., c. 40 [hereinafter the JDA].  35  early 2 0 century youth justice, including youth courts, the child saving movement and th  the parens patriae doctrine.  I.  THE RISE OF YOUTH JUSTICE  IN  THE  19  CENTURY  A.  The Legislation A.l.  The Historical Status of Youth in Canada  The young offender's legal status in the 19 political and intellectual context.  61  th  century must be considered in a social,  The historical aspects of Canadian youth delinquency  legislation demonstrate that concern for children and youth was apparent in early legislative measures.  62  "Concern for child welfare in Canada did not originate with the  late nineteenth century reformers' 'discovery' o f urban social problems. The family as a unit for the socialization of children had been long supplemented by state efforts."  An Act to Provide for  the Education  and Support of Orphan Children , 64  63  An Act  to  Provide for the Maintenance of Persons Disabled and the Widows and Children of such  For a historical background on the conceptual and legislative development of Canadian youth justice, see Jeffrey S. Leon, " The Development of Canadian Juvenile Justice: A Background for Reform" (1977) 15 Osgoode Hall L.J. at 71-106. Compare Gordon West, supra note 13 for a theoretic and socio-historical background. Leon, ibid, at 75. Ibid. 1799, 39 Geo. in, c. 3, s. 1 (Can.). 61  6 2  6 3  6 4  36  persons as may be killed in His Majesty's Services  , and An Act lo make remedy in cases  of seduction more effectual, and to render the Fathers of illegitimate Children liable for their support : 66  These are only an extract o f the legislation concerning children without  parents, i n particular those without fathers.  The early development o f legislation  therefore clearly reveals the status o f the child; legally as well as socially.  67  The acts dealt with neglected children or youth in different situations.  Although  children's rights had so far been considered relatively unimportant, the 1 9  th  legislation displays a growing concern for children and youth.  century  A combination o f  political, intellectual and social enterprises was conducive to the emergence o f the welfare philosophy, and consequently, youth justice philosophy.  68  Until the 19  th  century,  north-American children who violated the Criminal Code had been treated like adults and processed through same courts and prisons.  69  The concern for children without parents, and more specifically, without fathers, was also extended to children with 'inadequate' parents. Dr. Charles Duncombe, an early advocate o f prison reform in Canada, was distressed by the number o f Toronto children i n 1836 with a "ragged and uncleanly appearance", using "vile language", and displaying "idle and miserable habits". Their misbehavior was due to a lack o f control, with the blame being placed on their parents, who were "too poor, or too degenerate to provide them with clothing fit for them to be seen in 1813, 53 Geo. ffl, c. 4 (Can.). 1837, 7Wm. IV, c. 8 (Can.). Graham Parker, "The Century of the Child" (1967) 65 Canadian Bar Review at 745. Frederic L. Faust & Paul J. Brantingham, eds., Juvenile Justice Philosophy: Readings, Cases and Comments (St. Paul, Minn.: West Publishing Co., 1974) at 36. The authors state that social, political and economic conditions forced (encouraged) public policymakers to support significant changes in the legal codes. See also infra at 51. David Musick, An Introduction to the Sociology ofJuvenile Delinquency (New York: State University of New York Press, 1995) at 24.  6 3  6 6  6 7 6 8  6 9  37  school; and know not where to place them i n order that they may find employment, or better be cared for... " 7 0  Therefore, social problems with respect to family and youth existed before the Industrial Revolution was in actual progress.  The citation mentioned above also reveals that  concern and welfare philosophy regarding young people evolved during the 1 9 century: th  The early legislation was concerned with a young person's legal status in a social context, for example, legislation concerned with orphanage to legislation concerned with the hiring o f juveniles i n factories.  71  The legislation mixed the perceived need for the  protection o f others from children with the perceived need for the protection o f children from themselves or others.  72  The legislation which succeeded the previous state efforts in dealing with young people in the society was therefore concerned with the focus on control o f the family, and especially dysfunctional families, where the neglect o f children could be a possibility. "The question was not whether a child would be held accountable for his or her behavior - criminal or otherwise - but rather how to treat the child in order to effect adequate socialization before the child became a 'convicted criminal'."  73  Reading through the 1 9  th  century legislation makes it obvious that the state was assumed to have responsibility for the juveniles when the family as a social unit failed to assume it.  74  Leon, supra note 63 at 75ff, with citationsfromL. Johnson, History of the County of Ontario, 1615-1875 (Whitby, Ont.: Corporation of the County of Whitby, 1973) at 158. Ontario Factories Act (1884), 47 Vict., c. 39. Leon, supra note 70 ibid. Ibid. Parker, supra note 67 at 747. 71  7 2  73  7 4  38  Volunteer organizations and individuals were intensely concerned about juvenile problems in the increasingly industrialized society. improve youth welfare and to control youth behavior.  The paramount goals were to  75  It was not until 1857 that two statutes relating to the treatment o f young offenders convicted of criminal offences were enacted in Canada: An Act for Establishing for  Young Offenders  16  Prisons  and An Act for the more Speedy Trial and Punishment of Young  Offenders  11  The first statute formed the basis o f the construction o f "youth prisons" to which young offenders could be sent in order to "be detained and corrected, and receive such instruction and be subject to such discipline, as shall appear most conducive to their 78  reformation and the repression of crime."  The latter statute was concerned with the  sentencing process in the context of the young offender. The act provided an opportunity for special summary trial procedures.  These statutes demonstrate that the state intended to evolve social reform efforts in response to young offenders. The protection of children and juveniles took the pride of  " See e.g. An Act to Amend the Law Relating to Apprentices and Minors, 1851, 14 & 15 Vict., c. 11 (Can.) and An Act to Incorporate the Boy's Industrial School of the Gore Toronto, 1862, 25 Vict., c. 82 (Can.). An Act for Establishing Prisons for Young Offenders, for the Better Government of Public Asylums, Hospitals and Prisons, and for the Better Construction of Common Gaols, 1857, 20 Vict., c. 28 (Can.) 1857, 20 Vict., c. 29(Can.) See supra note 76, the preamble. 7 6  7 7  :  7 8  39  place in legislation that "intended to improve child welfare and the control of juvenile behavior."  79  Many o f the efforts to control young offenders' behavior were responses and were seen as preventive measures.  treatment-oriented  A n example is An Act respecting  80  Industrial Schools  , which accepted industrial schools as a residence for troubled youth  as an alternative to the reformatory. A s Leon concludes: "These developments provided for the background for the eventual enactment o f juvenile delinquency legislation in Canada."  The industrial school and other preventive measures could be viewed as a  supplement to the family which could not function adequately as a social unit.  82  In 1891, the Commission o f Inquiry into the Prison and Reformatory System o f Ontario finished its report, Report  of the Commissioners  Appointed  to Enquire  into the  83  Reformatory System of Ontario.  So far, the legal status of young offenders was defined  in two statutes from 1857, and these related only to the sentencing process. N e w recommendations, however, became a reality with the 1891 report. The Commissioners recommended, for example, that no child should be arrested and taken through a public street; that i f the offence was trivial, a summons be issued to the parents to produce the child i n court; and that i f the offence was serious, the child be detained separately from adult offenders. A l s o , industrial schools should be favored over reformatories.  84  Leon, supra note 73 at 77. 1874, 37 Vict., c. 29 (Ont). Leon, supra note 79 ibid. As described in T. Morrison, "Reform as Social Tracking: The Case of Industrial Education in Ontario, 1870-1900" (1974) 8 J. of Ed. Thought at 88. (Toronto: Warwick, 1891). As cited in Leon, supra note 81 at 84. Ibid.  7 9 8 0 81  82  83  8 4  40  In 1894, the first separate treatment o f young offenders became a reality at the federal level with An Act respecting Arrest, Trial and Imprisonment of Youthful Offenders.  85  The  act dealt explicitly with young offenders. The act ensured a separate treatment of young offenders under the age o f 16 years involved in the criminal process; once convicted, the young offender would be kept in custody separate from adult offenders. 1894 act re-enacted Section 550 of the then Criminal Code.  Thereby, the  W i t h the enactment of the  1894-act, the change in the status o f young offenders' rights had been ensured both legally and socially through legislation.  In conclusion; the development in 19  th  century legislation in the context of young  offenders was based on a 'welfare' model. The concern for children/young people and their behavior made it clear that it was not so much a question o f the young offender's accountability for his or her behavior as it was a question about how to treat, control and rehabilitate this offender. The 'welfare'-model placed a high value on these structures and solutions to crime-control rather than actual punishment.  A.2.  "  Summary  S. C . 1894, c. 58.  See generally Penny J. Jones, supra note 14 at 11. Penny J. Jones is referring to a  dissenting judgement written by M a d a m e Justice L'Heureux-Dube in the Supreme C o u r t o f decision in  R.  v.  M. (S.H)., [1989]  2 S.C.R. 446, 50 C . C . C . (3 ) rd  503,  Canada  for a clear exposition o f the  legislative history o f juvenile justice in Canada. 8 6  8 7  S. C . 1892, c. 29. S. R e i d & M . Reitsma-Street, "Assumptions and Implication o f N e w Canadian Legislation for  Offenders" (1984) 7:1 Can. C r i m . F o r u m 1 at 4.  Young  41  A s described in the previous section, legislation concerned with children and young offenders emerged in the 1 9 century. th  The legislation clearly established the status o f  children and young offenders in a social and criminal justice context, respectively. The social work profession also emerged in the 19th century and legislation in the context o f young offenders from that time particularly represents this profession's view on youth justice matters.  A s Leon states: "Thus, at the close o f the nineteenth century, a  comprehensive base o f legislation had been secured as authorization for child saving ventures."  88  Therefore, in order to understand the underlying values o f the 19 century legislation, a th  doctrinal analysis is not sufficient. A n examination of the socio-economic situation in the 19 century is necessary in order to provide us with an understanding o f the development th  of youth justice philosophy.  B.  The Socio-Economic Situation in the 19 Century  In Section B , I w i l l delineate the dramatic changes in society that lead to the movement o f social reforms concerned with the neglect o f children. This movement soon became a part o f a larger child saving movement. The emergence o f the child saving movement is seen as the most important contributor to the development o f youth justice legislation and youth justice philosophy in late 19 century and early 2 0 century. The breeding ground th  of this movement was urban disenchantment.  th  42  B.l.  Urban Disenchantment and Socio-Economic Changes.  Throughout the 19 century the Industrial Revolution caused incredible growth of cities th  and an increase in the urban population.  The wake of the industrial revolution  combined with urbanization gave rise to socio-economic changes in the society.  90  Apart  from bringing with it material wellbeing for certain citizens, the industrial revolution also brought economic instability for those who were not able to maintain a secure position in the work force.  For children it was even worse: they were exploited as a cheap labor force, and this provided a breeding ground for crime and non-controllable behavior. The conditions o f family life changed in line with the technological revolution - it caused a breakdown o f the family as an economic unit.  91  Every family member became dependent on his or her  own skills.  In this context it is important to compare the growing discontent which was the result o f urbanization to the consequences o f the breakdown of the family unit.  From my  perspective, the breakdown of the family stemmed from the industrial and political unrest.  T o use an economic phrase; the breakdown i n micro-cosmos was caused by  unrest in the macro-cosmos.  Leon, supra note 84 at 91, and for further information Parker, supra note 74 at 744. Anthony M . Piatt, The Child Savers: The Invention of Delinquency, 2 ed., (Chicago: University of Chicago Press, 1977) at 37. West, supra note 61 at 5.  8 8  8 9  9 0  nd  43  So, even though the industrial revolution increased economic and financial wellbeing, it also brought with it "tenement slums, the city streets as playgrounds and the "dark satanic mills" o f a manufacturing society replacing the uncomplicated and self-sufficient rural environment."  92  Corporate reformers tried to "readjust institutions to conform to the requirements o f the emerging system o f corporate capitalism."  93  These reformers were also aware that there  was  a necessity for far-reaching economic, political and social reforms. It was their intention to oppose traditional laissezfaire business practices, increase the role o f the state in economic regulation, and develop a new political economy characterized by long-range planning and bureaucratic routine.  94  The need for reform was also partly based on the fact that 75,000 homeless British young people arrived in Canada during the late 1800s, which exacerbated the problem with the Canadian urban youth.  95  Thus far, problems with youth had been recognized and were considered to be huge, as youth living in urban communities in late 1 9 century were confronted with a very th  See generally Parker, supra note 88 ibid. Ibid. Piatt, supra note 89 at xix. Ibid., as citedfromWilliam Appleman Williams, The Contours ofAmerican History, (Chicago: Quadrangle Books, 1966) at 356. West, supra note 90 at 5. 91  9 2 9 3  9 4  9 5  44  complex; industrial way o f l i f e .  96  B u t actual reforms did not progress until late 1 9  th  century, as described in Section A . 1.  "To some social reformers, children were the innocent victims o f culture conflict and the technological revolution."  97  Described in another way:  If it is environment in childhood that counts in the making of criminals, the true and only way to cope with crime is to improve the environment, and when that cannot be accomplished, to remove the children to better surroundings. 98  It was the general assumption among politicians and social reformers that youth living i n the city were very much in need o f guidance from parents and the educational system i n order to survive as non-criminal subjects in the cities.  It became more and more evident that most parents could not provide sufficient guidance for their children. experienced that problem.  Families that were l o w in the feudalistic hierarchy A t least, that was the explanation given by the social  reformers.  Not only were social reforms in the context o f young offenders needed, but intellectual and political reforms were also at a premium.  These reforms became a part o f a  movement called the child saving movement. This movement did for youth justice what  9 6 9 7 9 8  Piatt, supra note 94, ibid. Ibid. Scott, supra note 59 at 894.  45  corporate leaders did for the economy in the late 19 century. The child savers tried to th  gain social control o f troubled youth, as Section B.2. w i l l describe.  B.2.  The Rise of the Child saving Movement  The fundamental transformation in economic and political structures also caused a transformation o f the family unit and the life o f the individual. A n d one o f the products o f the modernization/transformation was the troubled youth.  A s described i n Section B . I . , urban disenchantment lead to political and economic reforms. But social reforms were needed to control the troubled youth who had become more and more visible i n the cities. The young people were the victims o f "the age o f transition", because "mankind [had] outgrown old institutions and o l d doctrines and have not yet acquired new ones."  99  N e w movements i n the cities dedicated themselves to saving or rescuing children from the horrible and frightening urban life. The social workers assumed that aspects o f life in the urbanized society were "undesirable" and harmful for children.  Children acquire a perverted taste for city life and crowded streets; but i f introduced when young to country life, care o f animals and plants, and rural pleasures, they are likely to  John Stuart M i l l , "Spirit o f the A g e " in Essays in Politics and Culture, edited by Gertrude Himmelfarb, (Garden C i t y , N . Y . : Doubleday, 1963) at 3 as cited in John R . G i l l i s , Youth and History: Tradition and Change in European Age Relations 1770-present, ( N e w Y o r k : A c a d e m i c Press, 1974) at 39.  46  enjoy these, and to be healthier in mind and body for such associations. 100  The child savers wanted to control juvenile misbehavior and prevent future criminal behavior. This movement was growing in response to both the disturbing expansion i n juvenile crime and the hard treatment o f young people in the reformatories.  "Seen in  this way, the impulse to "save" children came hand-in-hand with the impulse to protect society, because those children who were not properly socialized could later grow up to be dangerous criminals."  101  Thus, the child savers wanted a social safety net that could adequately protect the young people, who were either neglected by their parents or influenced by the "evils" o f urban life. A s described by Piatt, there were many different opinions about the causes o f youth crime, but it was generally agreed that biological and environmental forces influenced young offenders.  102  Consequently, young offenders had to be reached and controlled, because "[t]hey are b o m to crime, brought up for it. They must be s a v e d . "  103  The legislation mentioned in Section A . l . can be viewed as a result o f the child savers' attempt to socially control the troubled youth.  In their attempts to control the young  Clara T. Leonard, "Family Homes for Pauper and Dependent Children" in Annual Conference of Charities, Proceedings (Chicago, 1879) at 174, as cited in Anthony Piatt, "The Rise of the Child saving Movement: A Study in Social Policy and Correctional Reform" at 123 in Faust & Brantingham, supra note 68. Bolton, et al., supra note 56 at 954. Piatt, supra note 100 at 124 100  101  102  47  people, the child savers did not distinguish between neglect and delinquency but recognized them as being o f the same class. Both neglect and delinquency should be dealt with in a way which serves the children's best interests.  The goal was an  improvement o f child welfare and control of juvenile behavior.  There was a strong belief among the social reformers/child savers that active intervention i n family life was a necessity in order to prevent criminal behavior; especially i f the family was dysfunctional. This control o f poverty and family life that can be seen in early legislation in the 19 century can therefore be traced to the growing th  public concern about: 1) The treatment that children were receiving under the Criminal Code; and 2) A n increasing awareness o f the perceived threat that city slum-life posed to the preservation o f middle-class, rural North-American values.  104  According to A . Piatt, the problem o f the later justification o f the control o f youth started with the enterprising reforms o f the child savers, who created judicial and correctional institutions for the labeling, processing, and management o f "troublesome" youth. C h i l d savers saw themselves as altruists and humanitarians committed to rescuing children less fortunately placed in the social order.  105  Who were the child savers?  Enoch C. Wines, The State of Prisons and Child saving Institutions in the Civilised Mass.: Harvard University Press, 1880) at 132, as cited in Piatt, supra note 102 ibid. Faust & Brantingham, supra note 100 at 36. Piatt, supra note 97 at 3, and also Rogers & Mays, supra note 10 at 19. 103  1 0 4 105  World,  (Cambridge,  48  Scholars have considered the child saving movement to be essentially composed o f middle-class citizens attempting to impose middle-class values on lower-class groups.  106  Because o f the industrial revolution, "[t]he middle class had to operate i n a social milieu which had never existed before; they were directly responsible for child-rearing and felt the pressure to maintain a social position and material comforts for the f a m i l y . "  107  The first child savers can therefore be recognized as 1 9 century middle class citizens th  who wanted to maintain a feudalistic society and the traditional values that were familiar to t h e m .  108  A s the child saving movement spread during the 1 9 century, it tried to gain th  political influence on youth justice matters. criminal  behavior  depended as much  It was argued by some child savers that upon  social experiences and economic  circumstances as it did upon the inheritance o f biological traits.  109  Consequently, the child savers saw themselves as 'crusaders', saving children from these perceived facts by intervening the children's lives. According to the child savers, the state had to assume responsibility where the private individual f a i l e d .  110  This idea has been rationalized in the notion that the child and his parents entered into a social contract with the state  Piatt, ibid. See generally Parker, supra note 92. Parker, ibid. Douglas Rendleman, "Parens Patriae: From Chancery to the Juvenile Court" in Faust & Brantingham, supra note 104 at 73ff. Piatt, supra note 106 at 35. 107  108  109  49  which undertook to protect and foster a child who had become a victim o f the industrialized society in which he lived. Closely related was the idea that society had to be protected against the undesirable forces, which could destroy it. 111  M i d d l e class citizens might have been the forerunners o f child saving but, especially during the latter two decades o f the 19 century, the movement expanded. th  Another  major  influence  on youth justice  philosophy  was the emergence o f  philanthropic societies. 'Philanthropy' referred to the concept o f social sympathy being expressed in the care o f the dependent members o f society - the physically, mentally and morally defective.  112  Philanthropists also saw themselves as child savers, and their methods were educational in nature. Several organizations used all their strength in working i n "the best interest o f the child", and these were the social, middle class reformers and the philanthropists.  W h o were the philanthropists?  They were mainly "Victorian maiden ladies and clubwomen."  113  The child saving  movement was therefore highly influenced and mobilized by feminist reformers who, at the turn o f the century experienced a complex and far-reaching status revolution.  111 112  Parker, supra note 107 at 747. See C. R. Henderson, "The Relation of Philanthropy to Social Order and Progress" in 26 Proceedings of  the National Conference of Charities and Correction 1-15 (1899).  ' Parker, supra note 111 ibid. Piatt, supra note 110 at 77. 13  1 1 4  114  50  A t the turn of the century, social work emerged as a profession and women were considered especially suited to working with young delinquents.  A s described by Piatt: "Philanthropic work filled a void in their own lives, a void which was created by the decline of traditional religion, increased leisure and boredom, the rise o f public education and the breakdown o f communal life in impersonal, crowded cities."  115  In all fairness, most women who pursued a career in the child saving movement were generally well educated and had access to political and financial support and were therefore extremely important to the development of youth justice philosophy.  A t the end of the 19  century, society philanthropists, career women, social reformers  and political groups were engaged in saving children.  A m o n g this group, certain  persons achieved prominence in the Canadian child saving movement, and they would eventually take up the cause for the enactment of legislation for a specialized juvenile court with probation services. The founder o f this particular group was J.J. Kelso, who in 1887 brought together prominent citizens from Toronto to organize the Toronto Humane Society - an organization with a mission: "Better laws, better methods [and] the development of the humane spirit in all the affairs of l i f e . "  116  Kelso later became  Superintendent of Neglected and Dependent Children in Ontario and many Acts  115 116  ibid. Leon, supra note 88 at 82.  51  representing institutional treatments can be traced to J.J. Kelso and his group o f influential members. It was also Kelso who conducted an active campaign for separate treatment o f young offenders.  B.3.  Summary  It is evident that political changes became a reality i n line with the expansion o f the child saving movement.  W h y did politicians support this movement?  First o f all: the movement did empirical analyses o f young offenders and used the statistics to advocate their ideas.  117  Secondly; the movement consisted o f well-educated  people who were influential in political circles. saving as a cause worthy o f supporting.  Thirdly; politicians regarded child  They could hardly fail to support the  movement, whether it was from personal values or political aim.  The catalogue is. not prioritized.  Consequently, politicians experienced the perception and pressure o f a social crisis. The special interest groups were extremely skilled at manipulating the politicians. The child  Scott, supra note 98, ibid. In his article, Scott reproduces a cost- benefit analysis on immigrant issues and young criminals. 1 1 7  52  savers would use their extensive political and professional contacts to implement their reforms for the protection o f society and the reformation o f the young offender.  118  In conclusion, "....at the close o f the nineteenth century, a comprehensive base o f legislation had been secured as authorization for child saving ventures."  C.  119  The Decline of the Classical School  In Section B.2. I described the social reformers' growing concern about socio-economic changes and the perceived belief that youth should be protected. In this section, I w i l l delineate a possible response to the changes i n society that were developing within a revolution in the criminological environment.  C.l.  Classical School Contributions: Cesare Beccaria (1738-1794)  In the 1 9 century, the classical school dominated criminology. th  The classical school  was representative o f the metaphysical stage i n the development o f criminology as it attempted  to produce a correspondingly  punishment with its abstract notions o f crime.  abstract  equation between crime and  121  R a y Jeffery, " Theoretical Structure o f C r i m e Control" in Faust & Brantingham, supra note 108 at 9ff. L e o n , supra note 116 at 91. See for further information about the positive school o f criminology, infra at 55. See generally H e r m a n n M a n n h e i m , Pioneers in Criminology, 2 ed., (Montclair: Patterson Schmith, 1973) at 36ff. Piatt, supra note 115 at 15, and compare to Jeffery, supra note 118 at 68.  1 1 8  1 1 9  1 2 0  1 2 1  n d  53  A n essay called On Crimes and Punishments  122  the classical school.  from 1764 by Cesare Beccaria triggered  Beccaria later became known as the 'creator' of the classical  approach towards crime, which was formulated in his essay.  123  Due to the existing criminal laws, which were, in general, repressive, uncertain and barbaric, Beccaria advocated in his essay a substitute for the confusing, uncertain and inhuman practices inherent in the criminal law. Beccaria's social contract theory of the state phase is an essential part o f the classicist thinking:  Laws are the conditions whereby free and independent men unite to form society. Weary of living in a state of war, and of enjoying a freedom rendered useless by the uncertainty of its perpetuation, men willingly sacrifice a part o f this freedom in order to enjoy that, which is left in security and tranquillity. The sum o f all of the portions of the freedom surrendered by each individual constitutes the sovereignty of a nation, deposited in and to be administrated by a legitimate sovereign. It was not, however, alone sufficient to create this depository of freedom, it was also essential to defend this sovereignty from private usurpation of every man who would want not only that portion of the sovereignty that he individually had contributed but also which had been contributed by all others. It is because of this that punishments were established to deal with those who transgress against the l a w . 124  According to the classicists, the basis for punishment is the necessity to restrain citizens from breaking the social contract. The classicists assumed that men are self-seeking by nature and motivated to gain all that they can from one another.  122 123  (Indianapolis: Bobbs-Merril, 1963) Mannheim, supra note 121 ibid.  It was therefore  54  important to find a method o f dealing with those who deliberately did not accept the boundaries o f society.  T o classicists, the basis or the purpose o f punishment was to  ensure the continued existence o f society.  125  The classicists also introduced the principle o f proportionality between the seriousness o f offences and the punishment imposed for these offences. Proportionality ensures that punishment is not about tormenting offenders but rather about preventing offenders from doing further harm to society. Predictable, clear, precise, and consistent laws are needed in order to deter an offender.  Therefore, the laws o f society must apply equally to all  members o f society regardless o f their status since they all are considered to be equal contractors.  In order to avoid arbitrary decisions, the laws had to be written i n a clear language for people to better understand them.  127  The classical school, with contributors  such as Beccaria and Bentham,  made  criminology a part o f moral philosophy. Reading Beccaria's famous essay, it becomes evident that laws should be a means o f social control and protection o f the rights o f the individual against the state. The classicists thereby raised all people, including non-lawabiding citizens, to the level o f self-determining individuals.  " A s such, persons were  As cited in Mannheim, supra note 123 at 40. Ibid, at 43. Bolton, et al., supra note 101 at 945. Jeremy Bentham is another important keyfigurein the classical school. He was a social utilitarian who believed in the greatest happiness for every one. As described in Jeffery's article supra note 121 at 6, Bentham put forward afree-willpsychology of hedonism, that man responded to pain and pleasure and 124 125  126  127  55  expected to act on the basis o f reason and intelligence and, thus, to be held fully and 128  personally responsible for their behavior."  Classicists approached crime with the assumption that human beings were "rational" and that as such they decided to break the social contract and thereby disturb the society. Because of the precise and predictable laws, everyone could decide for himself or herself whether they dared challenge the social order.  "Children, the mentally retarded, and even the insane were indistinguishable before the strict rule o f classical law."  C.2.  The Intellectual Revolution - Positive Criminology  In the last quarter o f the 19 century, a new movement within criminology emerged. th  Theorists like Lambroso, Ferri and Garifalo founded The Italian School o f Criminology; known as the positivist school o f criminology. Due to socio-economic changes in the 1 9 century, the criminal justice system had th  proven not to be efficient.  Crime still existed and it was abundantly clear that young  people in particular were affected by the "harsh" criminal justice system.  acted so to avoid pain and gain pleasure, and consequently; he stated that behaviour is governed by its consequences. Rogers & Mays, supra note 105 at 71. Ibid. 1 2 8  1 2 9  56  The positivists rejected the classical school's explanation that human beings had a free w i l l and as logical consequence of this human beings were free to decide to become criminals.  A s noted by Mannheim, it is difficult to make an exact definition  of  "positivism", because several branches of the term states that "[p]ositivism, which, though closely interrelated, are by no means identical."  130  Some of the elements of  positivism are: a clear-cut divorce of science and law from morals; a proclamation of the priority of science and existence of invariable social laws; and an interest  in  civilizations, social laws, stages and types, which shows that positivism is apt to neglect the study of the individual.  131  The positivists supported a doctrine o f determinism, meaning that delinquent behavior could be determined by forces outside the individual's own control.  "If  criminal  behavior was determined by knowable biological or psychological or social conditions, those conditions could be identified and changed, at least at the individual level. When the determining conditions changed, the criminal behavior would abate."  132  To the  positivists, crime and delinquency were to be understood as a disease, which could be treated and hopefully cured.  The positivists applied their mind to more propitious and treatment-oriented responses to the behavior of offenders, and o f young offenders in particular, in accordance with their beliefs.  131  Mannheim, supra note 125 at lOff. Ibid.  57  "The positivist believed in the rule of men, not the rule of l a w " criminology a part of biology, psychology, psychiatry, and s o c i o l o g y . "  C.3.  133  , and "made  134  Summary  In the late 1 9 century, the social reformers known as child savers realized that the rise th  of positivism in criminology could provide them with solutions to their concerns about young offenders.  The welfare philosophy was constructed largely on the concepts of  positivism. In this way, the child savers could both protect the society and reform the young offender. The positivist school largely replaced the classical school and positive criminology contributed the following elements to youth justice: 1. A concept of criminal and troublesome behavior determined by a complex of biological and social causes. 2. The medical analogy of diagnosis and treatment. 3. The idea that all troubled people suffered from basically similar maladies; and 4. the belief in the need for active intervention in people's lives to prevent misbehavior 135  before it occurred.  Table 2 describes the differences between the classical and positivist approaches to crime control.  Faust & Brantingham, supra note 118 at 3. Ibid. Ibid. Ibid., at 4. Table 2 in C. Ray Jeffery, Crime Prevention through Environmental Design, (Beverly Hills, Calif: Sage Publications, 1971) at 33. 132 133  134 135  136  58  Classical  D.  Positivist  Moral blameworthiness and free will Legal protection of civil liberties  Determinism, no moral guilt No legal protection of civil liberties  Legal definitions of crimes  Social definition of crimes  Values from ethics Criminal law retained  Scientific studies Criminal law ignored  Punishment and deterrence  Protect society and reform the criminal  Conclusion  In this section, I have outlined the basis o f the developing process o f youth justice in the 19  th  century.  Through 1 9 century legislation, one w i l l be able to understand that th  conflicting interests were dueling during the social, economic, political and intellectual changes. The thorough examination o f these interests w i l l provide the foundation for Section II, which w i l l outline the raison d'etre and birth o f the Juvenile Delinquents Act.  1 3 7  Ultimately, welfare philosophy, concern for young offenders and positivism proved highly influential in the drafting o f legislation and youth justice philosophy.  The JDA, supra note 60.  59  II.  THE JDA - PRINCIPLES AND THEORY  The question is not, "What has this child done?" But, "How can this child be saved? " W.L. Scott, 1908  A.  Early 20 Century Youth Justice th  The first legislation in Canada that provided for the establishment o f youth courts and a mandatory sentencing to special rehabilitation homes for young offenders was a reality with the Juvenile Delinquents Act.  138  In section II, I w i l l expound the principles and theory behind this unique legislation. It w i l l become clear that the child saving movement had a tremendous influence and impact on the J D A . It is also worth noticing the similarities between the J D A and the new Youth Criminal Justice Act.  A.l.  139  The Legislation  A s stated earlier, the child savers had an enormous impact on legislation prepared at the close o f the 1 9 century. th  The different branches o f the child saving movement were  See generally Penny J. Jones, supra note 14 at 11. Bill C-68, First Presentation. See supra note 1 and Chapter 5.  60  busy advocating their stance that children were not responsible for their acts and that they should be treated or rehabilitated rather than punished.  140  Social and behavioral sciences assisted progress o f the movement. From the turn of the century until the new federal legislation was enacted in 1908, the child savers formed a powerful lobby that attracted many politicians.  There was also strong support among  the public in general. Consequently, one could argue that a powerful lobby actually prepared the way for youth justice in Canada.  The essence of the 1908-legislation is  described as follows:  The juvenile court was given exclusive jurisdiction in cases of delinquency, subject to discretion to transfer certain cases to the ordinary courts. Trials were to be conducted summarily, separately, and without publicity, with notification of the hearing going to a parent, guardian, or near relative of the child and to the probation officer. 141  In drafting the J D A ,  [f]he reformers undertook the delicate task o f attempting to design new procedures which promoted simultaneously the welfare and best interest of the children through a philosophical approach similar to that of the parens patriae doctrine and prevented and controlled the misbehavior o f children in a criminal law context. 142  See Ira M. Schwartz, "The Death of the Parens Patriae Model", in Leschied, Jaffe & Willis, supra note 54 at 146. Leon, supra note 119 at 100. Ibid., at 72. 141  142  61  The principles of the legislation are clearly stated in the different sections of the J D A . These explain the characteristics of early 2 0  th  century youth justice. The objectives o f  i  treatment and rehabilitation are apparent in the preamble o f the J D A :  Whereas it is inexpedient that youthful offenders should be classed or dealt with as ordinary criminals, the welfare of the community demanding that they should on the contrary be guarded against association with crime and criminals, and should be subjected to such wise care, treatment and control as w i l l tend to check their evil tendencies and to strengthen their better instincts...  The separate treatment and the rehabilitative aspect are quite clear. W . L . Scott describes the reform in youth justice philosophy as follows: "The reform which the A c t seeks to introduce is marked not alone by a change o f procedure or the adoption o f new methods, but most of all by the introduction of a new spirit and a new a i m . "  1 4 3  Instead of punishment and repression, the attitude of the youth court was "benignant, paternal, salvatory , and for these reasons more efficiently corrective."  144  Section 31 is the keystone o f the J D A : This A c t should be liberally construed to the end that its purpose may be carried out, to wit: That the care and custody and discipline of a juvenile delinquent shall approximate as nearly as may be that which should be given by its parents, and that as far as practicable every juvenile delinquent shall be treated, not as a criminal but as a misdirected and misguided child, and one needing aid, encouragement, help and assistance.  Scott, supra note 117 at 894.  62  Thereby, the J D A conceptualized the youths court's role as that o f a surrogate parent.  145  The state had a right to intervene in families lives, because "[t]he state, too, has a rights and ought not to stand idly by while children are trained, either by evil example or by neglect, to disobey her l a w s . "  146  The legislators adopted the parens patriae concept, which determined the spirit of the youth court should always be "that o f a wise and kind, though firm and stern father."  147  Intervention in the life o f the young offenders and the family was considered to be a necessity i f the young offender were to be rescued and saved. Consequently, the result was an informal and discretionary system, as Section 14 o f the J D A provided that at the trial o f a child the proceedings should be as informal as the circumstances permitted.  The youth court was given exclusive jurisdiction i n cases of juvenile delinquency , and 148  all trial were summary.  149  The J D A applied to any boy or girl apparently or actually under the age o f 16 years.  150  The legislation did not provide for any specific right o f appeal o f a transfer hearing.  151  A transfer to adult court was possible in extraordinary circumstances i f the good o f the  1 4 4 145 146 147  148 149 150  Ibid. Bolton, et al., supra note 126 at 946. Scott, supra note 144 at 894. Ibid. The JDA supra note 137, S. 4. Ibid., S.5. Ibid. S. 2.  63  child and the interest o f the community demanded it.  152  Names o f the delinquents must  153  not to be published in the press.  A child was a young offender or delinquent when he  or she violated any provision o f the Criminal Code or any Dominion or Provincial statute, or any by-law or ordinance o f any municipality for which violation punishment by fine or imprisonment could be awarded.  154  Section 29 is very important i n the context o f the new Youth Criminal  Justice  Act.  Adults could be held responsible for their children's delinquency by a fine or by imprisonment not exceeding one year. The youth court had jurisdiction, and parents could be put on probation like their children. "But i f juvenile crime is to be stopped, adult contribution thereto should be put down with a firm h a n d . "  155  It is also important to mention that nowhere in the J D A were children's rights mentioned. This would later on become a target for major c r i t i c i s m .  A.2.  156  Summary  In drafting the J D A , legislators combined the perceived need for protecting the society and the perceived need for saving, rehabilitating and treating young offenders. The legislation was based on late 19 century welfare philosophy and positivist criminology,  Ibid., S. 7. Ibid. Ibid., S. 10. Ibid., S.2. Scott, supra note 147 at 903. See L. Beaulieu, "A Comparison of Judicial Roles under the JDA and the YOA" in Leschied, Jaffe & Willis, supra note 140 at 131-135. 151  152 153  154  155  1 5 6  64  and gave judges in youth court much discretionary power to convict young offenders and a mandatory sentencing to rehabilitative homes.  157  The underlying philosophy of the J D A was that of the child savers, and the philosophy of child welfare was reflected in the informality that marked the J D A , which had overlap with child welfare legislation. That was given explicit form in Sections 21 (1) and 39 of the J D A . These sections incorporated directly "the provincial statutes governing the child welfare system."  158  Therefore, young offender cases could be dealt with under  the child welfare legislation governed by the provincial government rather than under the criminal justice system.  "Thus it is apparent that the very provisions of the J D A placed the juvenile justice system in a rather complex jurisdictional environment where the shared and concurrent powers of the federal and provincial governments in the area of criminal justice and the exclusive provincial jurisdiction for welfare overlapped."  159  The provinces and the child savers had a strong interest in the reform of the youth criminal justice system.  Thus, the child savers are responsible not only for the  development o f the youth justice system but also for the child welfare system and the child welfare legislation.  The JDA, supra note 154 at S. 11 & 12. Jim Coflin, "The Federal Government's Role in Implementing the Young Offenders Act", in Hudson, Hornick & Burrows, eds., Justice and the Young Offender in Canada, (Toronto: Wall & Thompson, 1988) at 38. n /  158  65 "If it is environment in childhood that counts in the making of criminals, the true and only way to cope with crime is to improve the environment, when it is capable o f improvement, and when that cannot be accomplished, to remove the children to better surroundings."  B.  160  The Socio-Economic Situation in Early 20  B.l.  Century  The Opposition  In the early 20 century different opposition groups rallied to oppose the draft of the th  J D A . T w o particular groups can be discovered: 1.  A group that was concerned with the neglect o f the rights of children; and  2.  a group that argued that the J D A was too lenient on youth c r i m e .  161  The first group defended the rights of young offenders, arguing that children should be provided with the same rights as adults, such as the right to counsel, and so forth. The group questioned the informal procedures of the trial and the judges' discretionary power.  The latter group consisted mainly o f people working with children, such as 1 fry  police officers and magistrates.  159 160 161 162  Ibid, at 39. Scott, supra note 155 ibid. Leon, supra note 142 at 95. Ibid.  With the drafting of the J D A , the members of the  66  group mentioned above were concerned that their work o f saving children would be "in jeopardy."  163  The debate between this group and the powerful lobby, that J.J. Kelso administrated, was often heated.  But with the overwhelming acceptance o f the proposal o f the J D A in the House o f Commons and the Senate, the two opposing groups did not have success with their campaign against the J D A .  It was not until the 1960s that "Children's Rights"  movements gained ground with the neo-classicist approach to youth crime.  B.2.  The Continuation of the Child saving Movement  The establishment o f the child saving movement in the 1 9  th  century continued to be an  influential rallying point for social workers, social reformers, women, and businessleaders.  A characteristic o f the movement i n the 2 0  number o f influential women.  th  century would be the growing  From late 19 century, it had been evident that child  saving was an appropriate forum for w o m e n .  th  164  With the J D A women became even more influential, as they often acted as probation officers.  165  "The question o f the sex o f the probation officer is an open one. The  See Piatt, supra note 121 at 76. See Scott, supra note 160 at 894-896 where the probation officers duties are described as before trial, at trial, and after trial. Probation was one of the most valuable additions to the youth justice philosophy. 165  67  feminine gender is used here because experience has shown hitherto that women, intended by nature for motherhood, are better fitted for the work than m e n . "  C.  166  The Rise of the Positive School  Positivist principles had proven influential in the drafting of the J D A  , and it continued  to be influential in the later 2 0 century. th  A s stated by Bolton, "[b]y the 1950s, the whole field of corrections was dominated by behaviorists studying treatment and rehabilitation."  168  The rise of the positive school of  criminology had proven to be a long-lasting acquaintance.  D.  Conclusion  In Graham Parker's 1967 article  , he delineates some historical observations of the rise  of youth justice in the late 19 century. H e calls the 2 0 th  th  century "the century of the  child" and quotes from E l l e n Key's The Century of the Child,  166 167 168 169  Ibid. Bolton, et al., supra note 145 at 946. Ibid. Parker, supra note 113 ibid.  68 The next century w i l l be the century o f the child, just as this has been the woman's century. When the child gets his rights, morality w i l l be perfected. Then every man w i l l know that he is bound to the life which he has produced with other bonds, than those imposed by society and the laws. Y o u understand that man cannot be released from his duty as father even i f he travels around the world; a kingdom can be given and taken away, but not fatherhood. 170  O n the legal and socio-economic side, the prophecy proved correct. century and early 2 0  th  In the late 19  century children were treated as what they were; children/young  people, not adults. This entailed a change in their legal and socio-economic status with the help o f the positivist school o f criminology.  The family/fatherhood was important  for the child, but "[t]he rights o f parents are sacred and ought not to be lightly interfered with, but they may be forfeited by a b u s e . "  172  The principles and the theories o f the perceived need to protect children, prevent crime and protect the society became a part of the J D A .  The J D A included the following key elements: •  Juvenile courts  •  Treatment rather than accountability  •  Probation/personnel  •  Parens P«rt"iae-doctrine  •  Procedural changes, with no mention o f the rights o f the children  As cited in "The Lion's Whelp", (1909), at 45. Parker, supra note 169 ibid. Scott, supra note 166 at 894.  69  •  The welfare-model: Helping to better the welfare of children and protecting society from youth crime and moral degradation.  173  Indeed, it became the century o f the child.  Chapter 4 w i l l be a description o f what happened to the J D A in " the century o f the child".  Bolton, et al., supra note 168 at 944.  70  CHAPTER 4  THE YOA REVISITED  I.  THE ORIGINS AND PROCESS OF REFORM  In Chapter 4, Section I, I w i l l outline the origins and process o f reform that led to the Y O A in 1984.  A.  The Reform of the JDA A.l.  The origins  174  After the enactment o f the J D A in 1908, the work o f saving children and securing that juvenile court was created through the necessary provincial legislation. Subsequent to the J D A , only a few, technical amendments got adopted and the J D A remained substantially the same until the Y O A was enacted in 1984.  175  Thus, the dispositions o f the J D A survived for almost 75 years.  In 1929 a revised JDA was passed, but only minor amendments appeared.  71  The parens patriae  was still the doctrine o f the established youth courts and the  behavioral sciences dominated the field o f corrections until the 1950s. The behavioral sciences were fostered i n the universities; therefore  the parens patriae  "remained unchallenged as the dominant correctional ideology." Canadian Government made a survey o f juvenile delinquency.  177  176  doctrine  In 1962, the  The report was the  result o f the committee's study, and this became the starting form o f the changing process o f reforming the youth justice philosophy.  In 1970, B i l l C-192 was released.  The legislative response to the report did not last long and the re-evaluation o f the reforms continued during the 1970s.  In 1981 B i l l C-61 was introduced, and was passed in 1982 as the Y o u n g Offenders Act. The B i l l was enacted 2 years later.  1962 was the turning point in youth justice philosophy, with the J D A on the political agenda with the report.  W i t h the institutionalization o f criminology and behavioral  sciences at the universities, "the number o f studies relating to juvenile justice increased markedly."  179  F. T. Cullen & K. Gilbert, Reaffirming Rehabilitation, (Cincinnati: Anderson, 1982) at 82, where they describe the dominance of rehabilitation as a philosophy in universities and among social workers. Department of Justice, Report of the Department of Justice Committee on Juvenile Delinquency, (Ottawa: Queen's Printer, 1965), as described in Parker, supra note 169 at 754. [hereinafter the report] Young Offenders Act, 1 Sess., 32d Part, 1981. Bolton, et al., supra note 174 at 949. 177  178  179  st  72  Consequently; the new researchers started criticizing the values and the philosophy, which were the core, o f youth justice. Also, politicians and academics were concerned about the lack o f legal rights in the J D A and the discretionary power entrusted to the judges i n youth court. Gault  180  T w o U S Supreme Court decisions, Kent v. U.S. , and In Re 181  , discussed on page 72 supported the concern about the lack o f legal rights.  There where 4 developments in the criticism of the J D A  1 8 3  ;  1. Symbolic interactionism, "labeling theory" and development psychology.  This  development was scientific in origin. 2.  Growth i n numbers o f academics and professionals who believed i n children's rights.  3. Empirical research during the 1970s proved that rehabilitation was not that effective in preventing recidivism; and 4. the development o f diversion.  These 4 developments were "adopted as catchwords and used with influential effect by academics and politicians alike throughout the reform process."  184  They formed the new  approach to and process o f youth justice philosophy.  A.2.  T h e Process of R e f o r m  This "new" perspective did some scholar's call a paradigm-shift: From a "reformative paradigm" to a "fairness paradigm", see supra note 7 at 13-24. 383 U.S. 541 (1966) [hereinafter Kent] 387 U.S 1 (1967) [hereinafter Gault], Bolton, et al., supra note 179 at 950. 181  182  183  73  A.2.1. The Report of the Department of Justice Committee on Juvenile Justice, 1965 In 1962, the Department o f Justice set up a committee to conduct a survey o f juvenile delinquency. The preparation and investigation lasted for 3 years.  185  The conclusion  was that youth courts should stay in the youth justice system; though a due process for young offenders and a greater concern for society were recommended. The death o f the 1 Sri  parens patriae model seemed to be near.  The committee thereby chose the approach  similar to the approach taken in the United States.  187  Academics protested against procedural informality in the following years, and the due process movement emerged.  The forerunners i n this "campaign" i n Canada were  academics, interest groups and policymakers who had supported the recommendations i n the Canadian report.  "These due process advocates sought to implement reforms through legislative change 1 OQ  rather than through the courts."  The interest i n extending legal rights to young  offenders found support i n the literature.  Articles from the 1950s and the 1960s were  concerned with the denial o f legal safeguards to both young offenders and their  Similar committees were appointed in UK, Scotland and the States. As described in Bolton, et al., supra note 184 ibid., the recommendations on youth delinquency varied radically among the countries. But the reports were all very critical about the existing youth justice system. Schwartz, supra note 140. Report of the Governor's Special Study Commission on Juvenile Justice (I960), and President's Commission on Law Enforcement and Administration of Justice, Juvenile Delinquency and Youth Crime (1967). Bolton, et al., supra note 185 at 959. 18  187  188  74  parents.  The due process/legal rights development during the 1960s was not the only  factor that made an impact on the reform process o f the J D A . Socio-scientific developments also changed the view o f the J D A . It stemmed from the development o f "symbolic interactionism." According to this theory, cognitive development occurs as an "interplay between the active internal forces and the environment in which the individual l i v e s . "  190  Consequently, "[ajccording to symbolic interactionists, then,  concepts o f self are not biologically determined but, rather, change and develop by way of an individual's relations with parents and society."  191  Therefore, "the symbolic  interactionists drew a radically different conclusion about possible solutions to the problem o f delinquency than the positivists."  192  Treating children/young offenders as they were under the J D A may prove not to rehabilitate the offenders, but to instead deviate and stigmatize them.  193  Labeling and  stigmatizing the offender would have the effect that a young offender's self-image would be under the influence o f such labeling, and that the external view o f the child might be influenced. H o w does the community view a 'young offender'?  194  The aspect o f due  process for young offenders and the aspect o f the new socio-scientific theories were both emphasized i n the report.  See for example Robert G. Caldwell, "The Juvenile Court: Its Development and Some Major Problems", Journal of Criminal Law, Criminology and Police Science, 51 1961 at 493. Bolton, et al., supra note 188 at 952. Ibid. Ibid. Ibid. Ibid. See also Francis A. Allen, "Criminal Justice, Legal Values and the Rehabilitative Ideal", Journal of Criminal Law, Criminology and Police Science, 50 1959-60, at 226-232, where the author states that rise 189  190 191  1 9 2 193  1 9 4  75  A.2.2. Changes in C o u r t The spirit o f reform regarding the J D A was evident also i n courtrooms.  The procedural informality was therefore also being challenged i n youth courts, and a new group of judges began to interpret the J D A from a different perspective.  195  But it  was difficult to rule in conflict with the J D A . So, in cases where J D A d i d not indicate otherwise, some judges followed the procedural guidelines as used in adult courts. T w o decisions by the U.S. Supreme Court in the mid-1960s had an impact on the youth court in Canada: Kent and Gault.  196197  Each o f these decisions emphasized the importance o f  a due process for young offenders being tried.  They were i n need o f procedural  safeguards and had rights like those o f adult offenders.  A.2.3. B i l l C - 1 9 2 The Report and its results were being used in the work o f drafting a new bill. It was introduced i n the House o f Commons in the 1970 as B i l l C-192. The objectives o f the bill reflected the critique from due process advocates and socio-scientific theorists. 198 There were 3 main policy objectives: 1. Redefinition o f grounds upon which young offenders could be tried i n youth court 2. Modification o f age group over which the youth court had jurisdiction; and of the rehabilitative ideal under the JDA mixed the question of guilt with the issues of treatment and therapy. He states that they should be clearly distinct. Beaulieu, supra note 156 at 153. See supra note 181 and 182. Parker, supra note 177 at 755: "In Gault, the Supreme Court decided that the child's parents must be given adequate notice of the hearing, that the child may be represented by counsel who should have the opportunity to present a case for his client withfreeaccess to court records and to cross-examine witnesses." See generally Bolton, et al., supra note 194 at 961. 195  196  197  198  76  3. introduction o f due process protections  A d 1) Changes were made to Section 2 of the J D A , redefining 'juvenile delinquency'. The new bill narrowed offences to those contained in the Criminal Code. A d 2) There was a modification of the age groups over which the youth court had jurisdiction. M i n i m u m age should be 10 years and maximum age should be raised to 17 years. A d 3) A procedural framework was being introduced with defined limits. The parens patriae model died slowly - the discretionary power given to judges in youth court was being limited and the intervention of the state was indeed being questioned.  It is also clear that Canadians were not ready in 1970 to accept the reforms contained in B i l l C-192, and the government abandoned the B i l l in response to substantial opposition from interest groups, Parliamentarians and the media. Opposition to the B i l l was hardened by the general impression that the government had not consulted sufficiently with experts and interest groups in the field after the 1967 federal-provincial conference. 9 9  A.2.4. The Renewed Process and the Canadian Charter of Rights and Freedoms In 1975, however, the Ministry of the Solicitor General released a report called " Y o u n g Persons in Conflict with the L a w "  2 0 0  , and this report laid the philosophical and legal  foundation for the draft of the Y O A . M a n y o f the proposals mentioned in B i l l C-192 were reintroduced in the new report and incorporated into the Y O A . The change o f  (Ottawa: Communication Division, 1975)  77  reaction was quite evident, but changes could be found in the new investigations o f the in-effectiveness o f rehabilitation, the rise o f "diversion", and the fact that Canadians i n the late 1970s and early 1980s were becoming more conservative and had made a shift 201  in the public mood towards more control o f young offenders.  The approaches used i n the reform process were called 'neo-classical' and 'fair', and reintroduced the "battle" between classical and positivists views on how to approach youth crime.  The dissatisfaction with the J D A was deep i n the late 1970s and the system was ready 202  for new legislation; the Y O A . A paradigmatic revolution had occurred.  In delineating the reform o f the J D A , I w i l l discuss the significance o f the Canadian Charter of Rights and Freedoms ' 201  The Charter o f Rights emphasizes due process and  equal treatment under the law. A s the Charter o f Rights granted rights to individuals, such as Aboriginal people, women, disabled people, etc., Canada became a "rightsbased" s o c i e t y .  204  Bolton, et al., supra note 199, ibid. Aultman & Wright, supra note 180 at 22. [Hereinafter Charter of Rights]. Enacted as a Part I of the Constitution Act, 1982, Schedule B of Canada Act 1982 (U.K.), which beside the Charter of Rights contains the amending formula and other changes to Canada's constitutional law. See generally Peter W. Hogg, Constitutional Law of Canada, 1998, Student Edition, (Toronto: Carswell, 1998). See Bala, supra note 27 at 49. 2 0 2 2 0 3  2 0 4  78  "It would be anomalous and surprising to find that, while everyone else in society was 205  receiving more legal protection, young persons were receiving less."  It became clear  that the J D A would not withstand challenge under the Charter o f Rights.  The  informality and lack o f legal rights o f the J D A was inconsistent with the legal protections granted with the Charter o f Rights.  The Y O A provided the more legalistic approach that was required with the enactment o f the Charter o f Rights, and "provided much more recognition o f legal rights than the JDA..."  2 0 6  For these reasons, the constitutional entrenchment o f the Charter o f Rights  plays a significant role in the renewal process o f the J D A .  In Chapter 5 I w i l l delineate what happened with this "paradigmatic revolution" in the 1980s, which led to a political initiative on renewing youth justice. B y doing so I hope to be able to prove that the changes originated in the historical, socio-economic, political and legal elements o f society.  205 1  Ibid. Ibid, at 9.  79  CHAPTER 5  A STRATEGY FOR THE RENEWAL OF YOUTH JUSTICE  In Chapter 5, Section I, I w i l l describe the course o f events that lead to the tabling o f the new Youth Criminal  Justice Act on March 11, 1999.  I w i l l focus on the House o f  Commons, Canada, Thirteenth Report o f the Standing Committee on Justice and Legal Affairs Renewing Youth Justice and A Strategy for the Renewal of Youth Justice, released M a y 12, 1998. In Section II, I expound the new Youth Criminal Justice Act, B i l l C-68, with a particular focus on the declaration o f principle and a comparison o f the Y O A and the new Youth Criminal Justice Act.  I.  TIME FOR RENEWING YOUTH JUSTICE  A.  Renewing Youth Justice A.l.  House of Commons Standing Committee, 1997-report.  80  A t the request o f the Minister o f Justice i n 1994, a Standing Committee on Justice and Legal Affairs conducted a review o f the entire youth justice system in Canada. years later the Committee handed i n its report entitled Renewing Youth Justice.  Three This  report would later on form the basis of A Strategy for the Renewal of Youth Justice, and finally the new Youth Criminal  Justice Act.  The committee states i n the introduction that it was aware when it began the study that many Canadians were critical o f the current youth justice system as it found expression in the Y O A .  2 0 7  Therefore, the study had to deal with this criticism and find possible  solutions to the lack o f confidence in the youth justice system.  The report came up with several findings and recommendations, which w i l l be described on page 83.  A . I . I . G u i d i n g P u r p o s e and Principles A part o f the Renewing Youth Justice report deals especially with the abundant criticism of the Y O A . The criticism focuses on the guiding principles set out in Section 3 o f the Y O A , which I have described i n Chapter 2:  The A c t sets out i n extensive details the principles that are to govern both its interpretation and application, without indicating an order o f importance and priority. Supporters of this approach say that it reflects a lack o f social consensus i n this country as to what philosophy should guide the youth justice system. 208  Renewing Youth Justice, supra note 3 at 1.  81 The committee stated that it believed in the importance o f explicitness and clearness o f the purpose and guiding principles o f the youth justice system. The committee found that the current Declaration o f Principle did not contain the necessary explicitness and guidance to the actors involved in the youth justice system. The Committee concluded that the Y O A did not set out the priority to be accorded to possibly conflicting principles in the legislation. "One o f the problems with the present Declaration o f Principle contained i n section 3 o f the Young Offenders Act is that it does not establish obligations to be fulfilled by the different components o f the youth justice system."  209  The Committee therefore recommended that the Y O A should be amended by replacing the present declaration o f principle with a statement o f purpose and an enunciation o f guiding principles for its implementation in all components o f the youth justice system. "The statement o f purpose should establish that protection o f society is the main goal o f criminal law and that protection o f society, crime prevention and rehabilitation are mutually reinforcing strategies and values that can be effectively applied and realized in dealing with young offending."  The committee provided guidance on the drafting o f a new possible statement o f purpose and guiding principles by describing principles embodied i n legislation i n N e w Zealand, Irish, and Australian legislation.  2 0 8  2 0 9  2 1 0  Ibid, at 4. Ibid, at 6. Ibid: at 9 .  82 Another guiding principle discussed in Renewing Youth Justice is whether a separate youth justice system should continue to exist or not. The recommendation from the committee was very specific on that issue - the separate youth justice should continue to exist. "Young offenders are different from adult offenders. They are not fully formed people but are at varying stages o f the maturation processes, like other adolescents. Their behavior and acts can often be explained by a number o f criminogenic risk factors 211  that do not apply to adult offenders."  It was important to the committee that young offenders were ensured a different treatment from that o f adult offenders.  Another important issue was the dichotomy between rehabilitation and public safety. A dichotomy was made by the media in the discussion about the youth justice issues. The committee suggested that the aim was to protect the society as well as rehabilitate the young offender with necessary assistance and guidance. "The Committee believes that 212  the community is safer i f rehabilitation efforts are effective and appropriate." Therefore, one o f the recommendations from the committee is that the main goal o f criminal law and the criminal justice system is to protect the society. According to the committee, reaching that goal is best achieved by effective crime prevention and rehabilitation strategies. These means were also adopted into A Strategy for the Renewal of Youth Justice.  211 2 1 2  Ibid, at 2. Ibid, at 5.  83  A.1.2. Public Understanding of Youth Justice The Committee described i n detail how opinion polls consistently showed public overestimation o f the incidence o f violent crime committed by young offenders i n Canada and public underestimation o f the extent to which youth court judges send convicted young offenders into custody. Public knowledge o f the youth justice system is therefore o f major importance in order to make the public understand the youth justice philosophy. Consequently, Recommendation 3 stated:  The Committee recommends that the Minister o f Justice undertake discussions with provincial and territorial ministers responsible for youth justice to foster, i n conjunction with community agencies, comprehensive, multifaceted education campaigns on youth crime, the Young Offenders Act and the youth justice system to be directed at the general public, those who work i n the system and those who come into contact with i t . 213  A.1.3. List of Recommendations The committee made a list o f 14 recommendations to be considered in future work i n i  •  •  214  youth justice: •  A separate youth justice system should be maintained.  •  The Y o u n g Offenders A c t should be amended by replacing the present declaration o f principle with a statement o f purpose and an enunciation o f guiding principles.  •  Campaigns on youth crime, the Y O A and youth justice system are to be directed at the general public.  •  Money from the criminal justice budget should be spent on crime prevention measures.  84  •  There should be a goal of shifting resources away from the custodial institutions and into community-based services in support o f children and families.  •  These should be renegotiations o f the young offenders' cost-sharing agreement.  •  The youth justice system should be reformed to accommodate alternatives, such as police cautioning, family group conferencing and circle sentencing.  •  Section 69 of the Y O A should be strengthened considerably.  •  Section 13 of the Criminal Code and the Y O A should be amended so as to provide the youth court with jurisdiction to deal with 10 and 11 year old young persons alleged to have committed criminal offences causing death or harm.  •  There should be no change in the maximum age.  •  There should be an amendment of Y O A so that the non-presumptive transfer provisions could be invoked at the post-adjudication, dispositional stage  of  proceedings. •  A n amendment o f the Y O A should require parents or guardians to attend youth court whenever a notice is sent to a young person. (Parental involvement)  •  Youth court judges should be provided with the discretion to allow general publication of the name o f a young offender under certain circumstances.  •  Section 56 o f the Y O A should be amended to provide for the exercise of judicial discretion in determining whether statements from young offenders to peace officers or persons in authority should be admitted into evidence against them by youth court.  Ibid, at 6.  85  This list o f recommendations proved highly influential in the drafting o f A Strategy for the Renewal of Youth Justice.  B.  The Renewal of Youth Justice B.l.  The Strategy for the Renewal of Youth Justice  O n M a y 12, 1998, Minister o f Justice and Attorney General o f Canada Anne M c L e l l a n released the government's proposed strategy for renewing youth justice in A Strategy for the Renewal of Youth Justice.  The report was a response to Renewing Youth Justice.  The report recognizes that the primary goal and principal objective o f youth justice renewal is public protection, as also stated in Renewing Youth Justice.  A s already  described i n Chapter 1, infra at 1, the report emphasizes the importance o f three key directions on which the strategy for the renewal o f youth justice is based: prevention, meaningful consequences for youth crime, and intensified rehabilitation.  B.1.1. A Need for Balance The report states that the objective o f the strategy is the protection o f society by reduction o f youth c r i m e .  215  Protection is achieved through crime prevention. The need  for balance i n the society is therefore addressed as both protection and prevention, a balance that, according to A Strategy for  the Renewal of Youth Justice,  is not  encompassed i n the current youth justice legislation. Consequently, the need for balance can be achieved by a renewal o f the youth justice system, and the governments proposals  2 1 4  Ibid, at 1-3.  86  promise to proceed on several fronts: prevention, to address the root causes o f youth crime; meaningful consequences for youth crime; and rehabilitation, to help young people turn away from crime.  It is a strategy that includes reform o f youth justice  legislation but extends beyond i t .  216  It is also stated i n the report that "[a]s Canadians'  demands and expectations o f their justice system change, governments and judicial institutions must be prepared to respond."  217  The report claims there is a need for  balance because Canadians want to feel safe and secure i n their homes and communities.  Is there a need for balance and does the Strategy for the Renewal of Youth Justice actually respond to that need? It w i l l be my thesis later on that there might be a need for balance, but that nothing new is about to happen with the new legislation. So why the need for balance?  B.1.2. Concerns about the Current Youth Justice System According to A Strategy for the Renewal of Youth Justice [t]he youth justice system has three main weaknesses. First, not enough is done to prevent troubled youth from entering a life o f crime. Second, the system must improve the way it deals with the most serious, violent youth; not just i n terms o f sentencing but also i n ensuring that these youth provided with the intensive, long-term rehabilitation that is in their and society's interest. Third, the system relies too heavily on custody as a response to the vast majority o f non-violent youth when alternative, community-based approaches can do better a job instilling social values such as responsibility and accountability,  A Strategy for the Renewal of Youth Justice, supra note 2 at 2. Ibid. Ibid, at 3.  87  helping to right wrongs and ensuring that valuable resources are targeted where they are most needed. 218  According to the report, these weaknesses lead to lack o f public confidence in the youth justice system, even though the crime statistics shows that youth crime is decreasing. There is also a widespread perceived belief that youth court is too lenient on crime and that longer sentence are necessary. That concern is being addressed particularly in the report as well as in Renewing Youth Justice, 1997.  B.1.3. Key Directions for the Renewal of Youth Justice The three complimentary strategies for resolving the lack o f public concern about the 219  Y O A have been mentioned before. The report enlarges on these key directions:  •  Prevention and meaningful  alternatives: Prevention can be achieved through  community-based crime prevention  and by addressing the social  conditions  associated with the root causes o f delinquency. Family Group Conferencing, victimoffender mediation and reconciliation meetings are a few o f the suggestions. The government has committed $32 million annually to assist the communities to develop alternative measures. •  Meaningful  consequences for youth  accountability.  2 1 8  ibid.  2 , 9  ibid.  crime:  achieved by rehabilitation and  The consequences for the crimes w i l l depend on the seriousness o f  88  the offense and on the particular circumstances of the offender. Firm measures w i l l be taken to protect the public from violent young offenders. •  Rehabilitation and reintegration: These objectives are still an important part of youth justice philosophy to be considered in a successful youth justice system.  B.1.4. Legislative Components In order to redeem the key directions, legislative components have to be considered. These are described in detail in A Strategy for the Renewal of Youth Justice.  A new  legislative framework is presented as a replacement of the Y O A . Furthermore, it is stated that the new legislation is supposed to preserve the effective elements of the current legislation while clarifying the principal objectives of the new youth justice system.  A clearer statement of principles and objectives w i l l be present in the new  legislation in order to ensure that the rights of young people are protected.  220  I w i l l mention the report's emphasis on parental and public involvement, which was also of great importance to the Standing Committee. It is stated that young offenders need the supportive involvement of their parents, and that the parents should be involved in the youth justice process.  But, "[t]here are many reasons why parents may not be  involved in the justice system. In some cases, it is a result of family dysfunction, a lack 221  of interest or poor parenting."  Parental involvement is vital to the legislators. So is  the public involvement. Y o u n g offenders do not only have a "unique" relationship with their parents, but also with their victims. 2 2 0 2 2 1  Ibid, at 1. Ibid at 16.  The role of the victim is therefore being  89  enhanced i n the new legislation with the alternative measures programs allowing victims to be actively involved in the sentencing process.  "Canadians want a youth justice system that protects society and that helps youth avoid crime or turn their lives around i f they do become involved in crime. The government's youth justice strategy w i l l accomplish this," Minister M c L e l l a n said on M a y 12,1998, the day o f the release of A Strategy for the Renewal of Youth Justice.  Later, my question w i l l be whether the new strategy actually contributes anything but confusion.  B.1.5.  Summary  Both the Renewing Youth Justice and A Strategy for the Renewal of Youth Justice clearly reveal the philosophy behind the process o f renewing youth justice.  The reports  describe the main weaknesses o f the current legislation and display solutions for how to deal effectively with young offenders.  The list o f recommendations outlined i n  Renewing Youth Justice has formed the basis for the government's proposed strategy for renewing youth justice, which becomes clear when reading through the 1998 report.  However, in Renewing  Youth Justice,  the Standing Committee has outlined the  perceived need for public protection from the young offenders. A part o f the report is dedicated to describing the importance o f public knowledge about youth crime. part is only implemented in the 1998-report to a certain extent.  That  90  The proposals are comprised o f a need for clearer principal objectives and the underlining o f a youth justice system that protects the public and encourages young offenders to become law-abiding citizens.  The new legislation is supposed to be " a  multifaceted, co-operative strategy for the renewal o f youth justice to protect the public", and "a strategy that includes reform for our youth justice legislation but extends beyond it."  222  In Section II, I w i l l delineate what happened when theory was put into practice with the Youth Criminal Justice Act.  II.  THE YOUTH CRIMINAL JUSTICE ACT  This section will consist o f press conference material and press releases in connection with the release o f the Youth Criminal Justice Act. Furthermore, I w i l l describe the new B i l l C-68 and compare it to the Y O A .  A.  Much Ado About a New Bill A.l.  2 2 2 2 2 3  Press Conference on the Youth Criminal Justice Act  Ibid, at 2. http://www.canada.justice.gc.ca/News/Discours/sl 10399_en.htmlln  91  O n M a r c h 11, 1999, Minister o f Justice and Attorney General o f Canada, Anne M c L e l l a n , held a press conference on the new B i l l C-68. She stated that the release o f A Strategy for the Renewal of Youth Justice was the result o f fifteen years o f experience that had shown that Canada's youth justice system is not working as well as it should in many significant areas.  Furthermore, she explained that the Government o f Canada began the process o f youth justice renewal last June when the National Crime Prevention Program was launched. "Since then, several millions o f dollars have been invested i n community-based crime prevention initiatives across the country — dealing at the front end with the root causes of crime, with a special focus on youth at risk." The tabling o f the Youth Criminal  Justice Act is the next key step i n the evolution o f  youth justice With the legislation I am tabling today, Canadians are being sent a clear message that a new youth justice regime w i l l be established. The new legislation reflects, i n its preamble and principles, the message Canadians want from their youth justice system: that it is there, first and foremost, to protect society. That it foster values such as respect for others and their property. That it insist on accountability and that it provide both violent and nonviolent young offenders with consequences that are meaningful and that are proportionate to the seriousness o f the offence. That it be a youth justice system that is inclusive, that engages Canadians in the response to youth crime and that does a better job o f responding to the needs o f victims. A n d also, because Canadians are not meanspirited, that it be a system that offers hope to youth, that gives youth who get i n trouble with the law a chance to turn their lives around — for their sake and for the sake o f their families and their communities. 225  2 2 4  ibid.  92  The press conference also introduced the important changes that were initiated with Renewing Youth Justice in 1997, which will be further discussed in Section B.  It is  emphasized that the new A c t is consistent with the Strategy released in M a y 1998 and, as a result of the extensive consultations that have taken place, B i l l C-68 reflects a balanced, common-sense and effective approach to youth justice.  226  The Government's Youth Justice Strategy opens the door to greater public and professional involvement in dealing with youth crime, and I urge Canadians to get involved. The introduction today of the Youth Criminal Justice Act marks an important turning point for Canada's youth justice system. It is our collective challenge to make sure we succeed. 227  A.2.  T h e Press' Comments  The coverage of the release of the Youth Criminal  Justice Act has been intense. From  my perspective, the subject of youth justice matters is still controversial and the media is determined to cover all aspects of a planned new youth justice philosophy. What about the Youth Criminal  Justice Act caught the media's attention?  " N e w A c t would Jail Parents for Children's C r i m e s " .  228  The National Post covered the  new act 5 days before its actual release. The article was on the front page and most o f it is concerned with the fact that parental neglect can be an indictable offence and punishable by up to two years' prison time, and that the new act is going to get tougher  Norm Ovenden, National Post (6 March 1999) Al and A7.  93  on crime. Others changes to the Y O A are only mentioned in a subordinate clause. The article also states that the imposition of tough penalties is the result of efforts by victim's rights crusaders.  The day after the release o f the new act the headlines were as follows: "Crime B i l l aims to Reduce Rate o f Incarceration"; "For Victims of Violence, seeing w i l l be believing"; "Canada tops at jailing Youth, Official says"; and "Youth-crime B i l l a Canny Balance".  The articles describe the new legislation as a "something-for-everyone  strategy". The articles deal with the political side of the reform process, " M c L e l l a n tries to steal Political M i d d l e Ground on Justice from Reform"; and the actual reform-process trying to describe the changes to the Y O A , that has almost been discredited from the implementation process.  Journalist Edward Greenspon states in his article that  M c L e l l a n wants to get tougher on the most violent of offenders and more liberal towards mere wayward youth.  These extracts from newspaper articles indicate that the new Youth Criminal  Justice Act  w i l l get a lot of attention in the near future.  B.  The New Youth Criminal Justice Act  In this section I w i l l outline the major changes in the new legislation with respect to young offenders.  Erin Anderssen, Edward Greenspon and John Saunders, The Globe and Mail (12 March 1999) A4.  94  B.l.  Declaration of Principle  Section 3, the "Declaration o f Principle", is intended to guide judicial interpretation o f the Youth Criminal Justice Act.  3.(1) The following principles apply in this Act: (a) the principal goal of the youth criminal justice system is to protect the public by (i) preventing crime by addressing the circumstances underlying a young person's offending behaviour, (ii) ensuring that a young person is subject to meaningful consequences for his or her offence, and (iii) rehabilitating young persons who commit offences and reintegrating them into society; (b) the criminal justice system for young persons must be separatefromthat of adults and emphasize the following: (i) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (ii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, and (iii) a greater emphasis on rehabilitation and reintegration; (c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of young persons with special requirements; and (cf) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights andfreedomsin their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.  95  The paramount goal is protection o f society and the public. (Section 3 (1)(«)). That is achieved through crime prevention, ensuring meaningful consequences for the range o f youth crime and rehabilitation, (Section 3 (1) (i, i i and iii)). Another core principle is separate treatment from adult offenders, (Section 3 (1) (b)). The youth justice system should  emphasize  accountability,  enhanced  procedural  rights  and  intensified  rehabilitation. Within the limits o f fair and proportionate accountability, measures to deal with youth crime should address the offending behavior o f the youth, repair harm done to victims and society, reinforce respect for societal values, respect gender, ethnic and linguistic differences, involve the family and be responsive to the circumstances o f youth with special requirements.  Furthermore, due process rights are emphasized, as well as  the parents' and victims' role in the youth justice system.  The role o f the victim,  particularly, is underscored in Section 3 (1) (d) (ii and iii). In Section C.2., I w i l l discuss the statement that the new declaration o f principle has "sent a clear message that a new youth justice regime w i l l be established."  B.2.  231  Children's' Rights  Under the new Youth Criminal  Justice Act, due process for young offenders is still  important. The same protections outlined i n the Y O A , which prevent any discretionary power i n the process, are also repeated in the new Act.  B.3.  1  Other Changes  http://www.canada.justice.gc.ca/News/Discours/sl 10399_en.html  96  A t the press conference held on M a r c h 11, 1999, the Minister o f Justice outlined the following provisions: •  232  allow an adult sentence for any youth 14 years old or more who is convicted o f an offence punishable by more than two years i n j a i l , i f the Crown applies and the court finds it appropriate in the circumstances;  •  expand the offences for which a young person convicted o f an offence would be presumed to receive an adult  sentence from murder,  attempted  murder,  manslaughter and aggravated sexual assault to include a new category o f a pattern of serious violent offences; •  lower the age for youth who are presumed to receive an adult sentence for the above offences to include 14- and 15-year-olds;  •  permit the publication o f names o f all youth who receive an adult sentence. Publication o f the names o f 14- to 17-year-olds who receive a youth sentence for murder, attempted murder, manslaughter, aggravated sexual assault or repeat serious violent offences w i l l also be permitted;  •  allow the Crown greater discretion i n seeking adult sentences and publication o f offenders' names;  •  create a special sentence for serious violent offenders who suffer from mental illness, psychological disorder or emotional disturbance that w i l l include an individualized plan for custodial treatment and intensive control and supervision;  http://www.canada.justice.gc.ca/News/Communiques/1999/yoa_en.html  97  •  promote a constructive role for victims and communities, including ensuring they receive the information they need and have opportunities to be involved in the youth justice system;  •  give the courts more discretion to receive as evidence voluntary statements by youth to police;  •  require all periods o f custody to be followed by a period of controlled supervision in the community to support safe and effective reintegration;  •  permit tougher penalties for adults who wilfully  fail to comply with an  undertaking made to the court to properly supervise youth who have been denied bail and placed in their care. This responds to a proposal made by Chuck Cadman, M . P . (Surrey North) in a private member's b i l l ; •  permit the provinces to require young people or their parents to pay for their legal counsel in cases where they are fully capable of paying;  •  allow for and encourage the use of a full range o f community-based sentences and effective alternatives to the justice system for youth who commit non-violent offences; and  •  recognize the principles of the United Nation Convention on the Rights o f the C h i l d , to which Canada is a signatory.  These provisions are being described as major changes to the Y O A , but as I w i l l argue in Section C.2., the changes might not be as significant as is stated and could easily create confusion instead o f clarity.  98 B.4.  Sentencing  The purpose and principles o f sentencing are outlined in Part 4, Section 37ff. o f the Youth Criminal Justice Act. The main purpose is still to protect the society. The sentencing principles ensure that consequences for young people who commit crimes w i l l be in proportion to the seriousness o f the offence. "This principle o f proportionality represents a major restructuring o f the system. Sentences that fit the seriousness o f an offence w i l l have more meaning to youth and w i l l encourage accountability."  233  234  In the sentencing process, new provisions w i l l be made in order to: •  expand the offences for which a youth is expected to be given an adult sentence to include a pattern o f convictions for serious, violent offences;  •  extend the group o f offenders who are expected to receive an adult sentence to include 14- and 15-year olds;  •  create an intensive custody sentence for the most high-risk youth who are repeat violent offenders or have committed murder, attempted murder, manslaughter, or aggravated sexual assault;  •  permit victim impact statements to be introduced in youth court;  •  where appropriate, encourage community-based sentences such as compensation or restitution to the victim or community; and  •  add a number o f other sentencing options to deal with the full range o f youth crime, including intensive support and supervision and imposing conditions that the youth would have to meet i n the community  2 3 3  http://www.canada.justice.gc.ca/News/Communiques/1999/yoafact3_en.html  99  Again, in Section C.l.  I w i l l question the clarity and functionality  of these new  provisions.  C.  A Comparison of Some Provisions of the Y O A and the Youth Criminal Justice Act  In this section I w i l l delineate a comparison o f the Y O A and the Youth Criminal Act.  Justice  The comparison w i l l be two-fold: From the politicians' point of view and my own  point of view. C.l.  The Politicians' Comparison  235  Youth Criminal Justice Act DECLARATION OF PRINCIPLE  •  •  •  Provides clear statement of goal and ; principles underlying the Act and youth justice system. Includes specific principles to guide police, prosecutors, judges and others at various stages of process. Highlights protection of society, accountability, social values, proportionality of sentences, rehabilitation and reintegration, protections for rights of youth and respect  Young Offenders Act •  •  Contains some of the same themes as the YCJA. Lacks clarity: • does not identify the principal goal of the system; •  •  Table 3, http://www.canada.justice.gc.ca/News/Communiques/1999/yoafactl_en.html  contains inconsistent and competing principles; and is not supplemented by more specific principles at the various stages of the youth justice process.  100  due victims. MEASURES OUTSIDE T H E C O U R T PROCESS  I  •  f  •  l  •  Y O U T H SENTENCES  • | j [ | j  •  \  Permits alternative measures but does not authorize police and prosecutorial discretion to use other types of alternatives to the court process. Provides much less guidance on appropriate use of alternatives and what their objectives should be.  •  •  j f \ 1  ' ;  Purpose and Principles: • N o statement of purpose of sentencing. • Inconsistent and competing principles. Sentencing Options: • N o requirement for community supervision following custody. • Does not permit Y C J A options like N e w options added to reprimand, intensive encourage use of nonsupport and custody sentences supervision, or where appropriate and custody and support reintegration. supervision order for serious violent creates intensive offenders. custody and supervision order for serious violent offenders. Youth justice courts empowered to impose adult sentences, eliminating transfer  ; \  (  Purpose and Principles: • Clearly describes purpose of youth sentences: to hold youth accountable. • Includes other specific principles, including need for proportionate sentences and importance o f rehabilitation. Sentencing Options: •  ADULT SENTENCES  Encourages measures other than court proceedings when adequate to hold a young person accountable. Authorizes use of warnings, police cautions, referrals to community programs, and cautions by prosecutors. Sets out objectives, such as encouraging repair of harm done to victims, and provides guidance on use.  •  Lengthy transfer hearing prior to trial.  •  Age limit for presumptive offences  j j  ; i j  1  ;  \ ^ j  \  101  1  •  •  PUBLICATION  \  ] i  i  VICTIMS  hearing. A g e limit lowered to 14 for presumption of adult sentences. Presumptive offences extended to include pattern of repeat, \ violent offences.  Permitted if: < • an adult sentence is imposed; • a youth sentence is imposed for a presumptive offence unless the judge decides publication is inappropriate; or • youth is dangerous and at large. •  •  •  •  Concerns of victims recognized in principles of A c t (first time in federal legislation). Victims have right to access to youth records.  16. Pattern of serious repeat offences not subject to adult sentences.  | 1 |  •  Prohibits publication [ i f young person has \ received a youth 1 sentence, even i f convicted of a presumptive offence.  •  N o mention o f victims in principles. Victims must ask for \ access to youth , records. \ N o formal recognition ; of victims' role.  •  •  l  Role in formal and informal communitybased measures encouraged. Establishes right of victims to information on extrajudicial measures.  VOLUNTARY  •  Can be admitted into evidence, despite technical violations of the statutory protections for young persons.  j INVOLVING PARTNERS j (CONFERENCES)  •  A l l o w s advisory groups or "conferences" to  STATEMENTS TO POLICE  •  A n y violation of statutory protections prevents a statement from being admitted into evidence.  •  N o provision.  j  |  102  •  •  CUSTODY  AND  •  REINTEGRATION  •  •  •  advise police officer, judge or other decision-maker under the Act. M a y include parents of the young person, victim, community agencies or professionals. Conferences can advise on: • appropriate informal measures; • conditions for release from pretrial detention; • appropriate sentences; and • reintegration plans. Provincial and territorial corrections ; officials have more discretion to determine custody issues, resulting in more efficiency. A l l youth with custody sentences w i l l also serve period of supervision in community. Youth can be returned to custody through misbehaviour.  •  •  •  Custody level determined at time o f sentencing by the youth court. Decisions to transfer to a different custody level also made exclusively by youth court. Most youth with custody sentence released directly into the community, without supervision j or support.  Department o f Justice Canada  This comparison o f the Y O A and the Youth Criminal Justice Act gives one the impression that the Youth Criminal Justice Act differs dramatically from the Y O A .  103  C.2.  My Comparison  In this section I w i l l address the differences mentioned above and compare them to both the criticism raised against the Y O A and the statements made about the Youth Criminal Justice Act. The report entitled A Strategy for the Renewal of Youth Justice outlines the main criticisms made against the Y O A and also describes why we, according to the politicians, are i n need o f new legislation.  C.2.1. Declaration of Principle A Strategy for the Renewal of Youth Justice states that the principles set out i n the Y O A are not clear and sometimes even appear to compete with one another.  236  With a new  statement o f principles the Minister o f Justice intended to send a clear and precise statement of the principles and the objectives.  Does the new Section 3 redeem the promise o f predictability and clearness?  From m y perspective, the new Section 3 does not add any clearness to the guiding principles.  Minister o f Justice Anne M c L e l l a n wanted to send the Canadians a clear  message with the new legislation.  "The proposed legislation contains a preamble and  Declaration of Principle that make clear the purpose of the youth justice system."  A Strategy for the Renewal of Youth Justice, supra note 2 at 2. http://www.canada.justice.gc.ca/News/Communiques/1999/yoaback_en.html  237  104  L o o k i n g first of all at length o f the new section, the "old" Section 3 consisted of 10 items while the new Section 3 consists of 4 sections with 15! subsections. considerable extension.  That is a  From my point of view, it is difficult to overestimate the  importance of simplicity and clearness in a section that requires a lot of reading.  A  declaration of principle should, in my opinion, be instrumental, in the sense that it should be helpful and o f assistance to the people who read the legislation.  Secondly, the new act states that the principal goal of the youth criminal justice system is to both "protect the public" and to "rehabilitate young persons who commit offences and reintegrate them into society." The act also states that the criminal justice system for young persons must "be separate from that of adults because o f their reduced level of maturity", but also that the young persons should be accountable for their offences. Furthermore, Section 3 mentions that the consequences for the young offender should be "meaningful" without further elaboration on the matter, (Section 3 (l)(a)(ii)), and that the measures taken against young persons who commit offences should be meaningful for the individual young person, (Section 3 (l)(c)(iii)). The new Section 3 is, in my opinion, full of ambiguities and contradictions.  This is further evident in Table 3. There, it is  mentioned under the new A c t that Section 3 contains specific guidelines for the actors involved in a process against a young person at various stages. It also "highlights protection  o f society, accountability,  rehabilitation  and reintegration,  social values, proportionality  protections  for  rights  o f sentences,  of youth and respect due  105  victims-"  238  If the new declaration o f principle is supposed to give a clear statement, it is  o f no use to put in specific guidelines for the different actors.  Thirdly, another criticism can be raised against the new Section 3. A s in the Y O A , youth justice philosophies get mixed. The new section mentions protection o f the public and accountability o f the young offender, but also mentions reintegration in society.  It is  emphasized that we must look at the offender's underlying behavior. But we must also look at the seriousness o f the offence, and let the young offender be accountable. These philosophies embrace both the child welfare model and the due process model - the clash between the classical and positivist school o f criminology. M y conclusion must be that the new Section 3 is not clear, precise and predictable. Indeed, it is full o f contradictions and competing philosophies. I would go so far as to say that the new Section 3 is, to a great extent, a paraphrase o f the " o l d " Section 3 under the Y O A . A g a i n , look at Table 3. It even declares that the "old" Section 3 contains some o f the same themes as the Youth Criminal Justice Act.  Indeed, it does. Section 3 under the new Youth Criminal  Justice  Act is still a "catch-it-all" statement; perhaps even more than under the Y O A . There is "something-for-everyone,"  E v e n the victim's role o f importance is outlined in the  Section 3.  C . 2 . 2 . A l t e r n a t i v e Measures The new act emphasizes the importance o f measures outside the court process. These measures were known as Alternative Measures under the Y O A . The provisions under the  See table 3. See supra note 229.  106  Youth Criminal  Justice Act are very instructive and encourage the use o f measures  outside court proceedings. These measures already existed in. a limited form under the Y O A (Section 4) and could be widely used as diversion from the court proceedings. The new legislation wants to encourage community-based sentences where appropriate, such as compensation or restitution to the victim, community service or probation.  These  sentences were also possible with Section 4 under the Y O A . Therefore,, my conclusion must be that the measures outside o f court proceedings were as much a possibility within Section 4 under the Y O A . The use o f measures outside the court proceedings has merely become more descriptive under the Youth Criminal Justice Act.  C.2.3. O t h e r Changes In my comparison I w i l l describe three major changes brought about by the Youth Criminal  Justice Act and describe my conclusion regarding these matters.  change is the possibility o f adult sentences.  The first  The new Youth Justice Criminal A c t  emphasizes that youth justice courts are empowered to impose adult sentences, eliminating transfer hearings, that the age limit should be lowered to 14 for presumption of adult sentences; and that presumptive offences should be extended to include patterns o f repeat, violent offences.  M y conclusion must be that the adult sentences are  considered to be one o f the ways to hold young offenders accountable. A s described by Beaulieu, the transfer provision was adopted in 1908 under the J D A and it survived into the Y O A . "The extent o f its use has, i n my estimation, always been a barometer o f the level o f confidence i n the youth-justice s y s t e m . "  Beaulieu, supra note 195 at 132.  240  If that is the case, our belief in the  107  youth justice system has decreased a lot with the new provision for imposing adult sentences.  Another change is the publication of names o f a young convicted offender.  This had  been prohibited in both the J D A and the Y O A , but is now permitted under certain circumstances.  It is quite clear that the Minister of Justice has chosen to follow the  recommendation made by the Standing Committee in  1997.  The debate about  publication is surrounded by two legitimate and competing values: the need to encourage rehabilitation by avoiding the negative effect of publicity on the youth versus the need for greater openness and transparency in the justice system, which contributes to public confidence in an open and accountable justice system.  241  B y allowing publication, the  Minister of Justice has considered the public and victims' need to be the most important factor. In that case, rehabilitation and reintegration can be difficult for a young offender. Furthermore, the young offender receives a punishment and a possibility o f getting his or her name published.  The last change I want to mention relates to the serious, violent and repeat offenders. Some of the changes for those offenders have been mentioned above, and they include an intensive custody sentence for the most high-risk youth who are repeat violent offenders or have been convicted o f the most serious, violent offences. These measures are intended for offenders with extreme psychological, mental or emotional illness or disturbances.  242  http ://www. canada.justice. gc. ca/News/Communiques/1999/yoafact6_en. html http://www.canada.justice.gc.ca/News/Communiques/1999/yoafact7_en.html  108  Sentences for these young offenders are getting tougher, and originate from the perceived belief in protecting the public from young offenders with a troubled behavior-pattern.  C.3.  Conclusion  In this chapter I have tried to delineate the differences and similarities between the Y O A and the Youth Criminal  Justice Act.  I have described the politicians' perception o f the  new legislation and my own perception. From the analysis done by comparing the two Acts, my conclusion is that the Youth Criminal  Justice Act does not provide the youth  justice system with anything that it did not have under the Y O A . Only few changes in Section c.2.3. mention some differences, but they also express lack o f confidence in the youth justice system.  In Chapter 6 I will enlarge on other significant changes within the youth justice philosophy.  I w i l l focus on the shift o f paradigms i n youth justice philosophy with a  referral to the change model developed by Thomas K u h n in the 1960's.  Kuhn, supra note 8.  243  109  CHAPTER 6 P A R A D I G M SHIFTS IN Y O U T H JUSTICE: PARADIGMS AND PARADOXES  I have argued in Chapters 2 to 5 that a shift in youth justice philosophy seems to have occurred with the enactment of the Y O A in 1984. M y conclusion has been that the shift in youth justice philosophy is based on historical, socio-economic, political and intellectual changes. The interaction between these changes led to legal changes.  In Chapter 6 I w i l l enlarge on the shifting of youth justice philosophy by analyzing this shift with reference to the change model developed by Thomas K u h n in the 1960's , as 244  Kuhn's model of change has proven to have a widespread impact on not only sciencedominated areas but also other academic areas, such as political science, history and religion.  245  field of l a w  A s described on page 3, Aultman & Wright adopted Kuhn's theory into the 246  , and Chapter 6 will continue in the spirit of this article. I thereby hope to  continue the evaluation of change in youth justice that Aultman & Wright commenced in 1982, and be able to describe changes in youth justice philosophy from a scientific perspective as well.  2 4 4  Ibid.  See generally Gary Gutting, ed., Paradigms and Revolutions: Appraisals and Applications of Thomas Kuhn's Philosophy of Science, (Notre Dame, Ind.: University of Notre Dame Press, 1980). 2 4 5  110  Chapter 6 will consist o f a description o f Thomas Kuhn's model, a discussion o f the possible changes in youth justice philosophy with the J D A and the Y O A , a discussion o f the possible change in youth justice philosophy with the Youth Criminal  Justice Act, and  an analysis o f the paradoxes in using the theory o f paradigms. I thereby hope to be able to fulfill the main tasks as described by K u h n in a metaphorical sense:  Concerned with scientific development, the historian then appears to have two main tasks. O n the one hand, he must determine by what man and at what time each contemporary scientific fact, law, and theory was discovered and invented. O n the other, he must describe and explain the congeries o f error, myth, and superstition that have inhibited the more rapid accumulation o f the constituents o f the modem science text. 247  Chapters 2 to 5 have described the evolution o f the legislation i n the context o f young offenders, and also described the myths and problems regarding youth justice legislation. N o w , the task is to configure this information into a scientific explanation o f changes in youth justice philosophy.  I.  KUHN'S MODEL OF CHANGE  A.  Definition of Paradigm  Aultman & Wrigth, supra note 202. Kuhn, supra note 244 at 3.  Ill In order to describe paradigm shifts in youth justice philosophy, I have to define a "paradigm".  I w i l l expound the academics' definition o f the term "paradigm".  Kuhn  defines paradigms as "universally recognized scientific achievements that for a time provide model problems and solutions to a community o f practitioners. "  2 4 8  K u h n uses  the term "paradigm" to suggest that some accepted examples o f actual scientific practice provide models from which spring particular coherent traditions o f scientific research.  249  Or, as suggested by Aultman & Wright: " K u h n is simply suggesting that we use the term "paradigm" to denote the currently accepted approach within a discipline for addressing the issues with which that particular discipline is concerned."  250  What is interesting is that K u h n explicitly states that the concept o f paradigms w i l l often be a substitute for a variety o f familiar notions. K u h n delineates these notions. Let me examine two o f these notions that will be important to my analysis o f paradigm shifts in youth justice philosophy: acquisition o f a paradigm is a sign o f maturity in the development o f any given scientific field , and to be accepted as a paradigm, a theory 251  must seem better than its competitors, but need not explain all the facts with which it can be confronted.  2 4 8 2 4 9 2 5 0 251 2 5 2  252  Ibid, at x. Ibid, at 10. Aultman & Wright, supra note 246 at 14. Kuhn, supra note 249 at 11. Ibid, at 17  112  Other academics have tried to find better definitions. The critique has been that Kuhn's use of the term "paradigm" is too loose and variable.  253  But as stated in Gary Gutting's  book: "In my reading, however, I have found K u h n surprisingly consistent and precise in his use of this key t e r m "  254  A s Gutting clearly notes, K u h n explicitly states that the term  "paradigm" may refer to one or more items or rules. Despite some ambiguities in the use of the term, Gutting concludes "at the heart of his analysis is always the idea that all these rules are relevant to the practice of science only to the extent that they are embodied in some concrete scientific achievement and that this achievement is not reducible to the rules implicit in it."  255  Ritzer offers another definition of the "knotty  concept of paradigm", which is also described in Aultman & Wright's article:  A paradigm is a fundamental image of the subject matter within a science. It serves to define what should be studied, what questions should be asked, and what rules should be followed in interpreting the answers obtained. The paradigm is the broadest unit of consensus within a science and serves to differentiate one scientific community (or subcommunity) from another. It subsumes, defines, and interrelates the exemplars, theories, and methods and 256  instruments that exist within it.  Thereby, Ritzer dismisses Kuhn's own use of the term "paradigm" as "the entire constellation o f beliefs, values, techniques, and so on shared by the members o f a given community."  257  In relation to discussing paradigm shifts in youth justice philosophy it is  See for example Margaret Masterman, "The Nature of a Paradigm", in Lakatos and Musgrave, eds., Criticism and the Growth of Knowledge, (Cambridge: Cambridge University Press, 1970) at 59-89, where she catalogues 21 different meanings of the term "paradigm" shefindsin Kuhn's book. Gutting, supra note 245 at 1. Ibid. George Ritzer, Sociology: A Multiple Paradigm Science, (Boston: Allyn and Bacon, 1980) at 7. Ibid, at 5. 2 5 3  2 5 4 2 5 5  2 5 6  2 5 7  113  important to recognize these various definitions o f the term "paradigm" in order to provide an effective starting point for explanations of paradigm shifts.  B.  258  The Nature of Normal Science  K u h n elaborates a great deal on the articulation o f "normal science", describing it as a puzzle-solving process. K u h n states that because a paradigm is "at the start largely a promise o f success discoverable in selected and still incomplete examples" , the 259  paradigm "is an object for further articulation and specification under new and more 260  stringent conditions".  A s described in Section A , paradigms provide models from  which spring particular coherent traditions o f scientific research, and that is what K u h n calls "normal science".  261  "Normal science", to Kuhn means, "research firmly based  upon one or more past scientific achievements, achievements that some particular scientific community acknowledges for a time as supplying the foundation for its further 262  practice."  It should now be clear that paradigms and normal science are closely  related. "Normal science" consists largely o f "mopping-up operations", depending on the actualization of the promise o f the paradigm "by extending the knowledge o f those facts that the paradigm displays as particularly revealing, by increasing the extent o f the  2 5 8  2 5 9  2 6 0  2 6 1  2 6 2  Aultman & Wright, supra note 250 at 14. Kuhn, supra note 252 at 23 ff. Ibid. Ibid, at 10. Ibid.  114  match between those facts and the paradigm's predictions, and by further articulation o f the paradigm itself."  263  Ritzer defines "normal science" as the "period o f accumulation o f knowledge in which scientists work and expand the reigning paradigm."  264  The period o f "normal science" is  entered when "a specific paradigm has gained hegemony within a s c i e n c e . "  265  Ritzer  claims that the activities within the "normal science" period are subsumed under what K u h n calls "puzzle solving", as described above, and he finds that this expression is "a trademark o f normal science." textbooks.  267  The achievements o f "normal science" are recorded i n  "Most o f the life o f a science is spent in periods o f normal s c i e n c e . "  268  The production o f normal science is therefore an important tool in the discussion o f youth justice philosophy + its paradigms.  C.  Anomaly and the Emergence of Scientific Discoveries  From time to time there is a deviation from the common rule, and that is known as an "anomaly". That w i l l happen in normal science. K u h n defines "anomaly" through his attempt to explain the discovery o f new and unsuspected phenomena.  269  H e states that  Ibid, at 24. See generally D u d l e y Shapere, "The Structure o f Scientific Revolutions" i n Gary Gutting, ed., supra note 255 at 27. Ritzer, supra note 257 at 4. Ibid, at 7. Ibid, at 8. Ibid. Ibid. Aultman & Wright, supra note 258 at 15.  2 6 3  2 6 4  2 6 5  2 6 6  2 6 7  2 6 8  2 6 9  115  [djiscovery commences with the awareness o f anomaly, i.e., with the recognition that nature has somehow violated the paradigm-induced expectations that govern normal science. It then continues with a more or less extended exploration o f the area o f anomaly. A n d it closes only when the paradigm theory has been adjusted so that the anomalous has become the expected. 270  Ritzer describes anomalies as findings that are uncovered and are at variance with a dominant paradigm in the normal science.  271  These findings appear to play a key role in  979  the  advent  o f scientific  revolutions  ,  and produce  "the  complements to the tradition-bound activity of normal science."  273  tradition-shattering  K u h n also states that  awareness o f anomaly plays a role in the emergence o f new phenomena. Therefore, this awareness is prerequisite to all acceptable changes of theory , and precipitates a crisis. 274  D.  Crisis and the Response  A s mentioned above, some o f these anomalies cause shifts i n paradigms and crisis, and 9 7 S  it can therefore be said that these shifts are a result o f the invention o f new theories. K u h n states that the emergence o f an anomaly (new theory) is generally preceded by a period o f pronounced professional insecurity, but that scientists do not renounce the dominant paradigm that has led them into a crisis, and they do not treat anomalies as counter-instances. 2 7 0 2 7 1 2 7 2 2 7 3 2 7 4 2 7 5 2 7 6  276  Scientists w i l l try to assimilate the anomaly into the structure o f  Kuhn, supra note 263 at 52-53. Ritzer, supra note 268 at 9. Ibid. Kuhn, supra note 270 at 6. Ibid, at 67. Ibid, at 66. Ibid, at 77.  116  the  dominant  paradigm,  and " w i l l  devise numerous  articulations  and ad  hoc  modifications" o f the normal science theory , because "there is no such thing as 277  research without counter-instances."  278  Anomaly can therefore lead to modifications o f  a dominant paradigm.  Kuhn's conclusion is that " i f an anomaly is to evoke crisis, it must usually be more than just an anomaly."  279  So even though a persistent and recognized anomaly does not  always induce a crisis, some anomalies call into question "explicit and fundamental generalizations o f the paradigm."  280  When a paradigm is being questioned and there is a loosening o f the rules i n normal science, which leads to crisis, this crisis can be resolved or closed with the emergence o f a new candidate for a paradigm based on a new theory.  Therefore, "[t]he decision to  reject one paradigm is always simultaneously the decision to accept another, and the judgement leading to that decision involves the comparison o f both paradigms with nature and with each other."  281  Consequently, the response to anomalies has more than one solution in accordance with Kuhn's theory:  2 7 7 2 7 8 2 7 9 2 8 0 2 8 1  Ibid, at 78. Ibid, at 79. Ibid, at 82. Ibid. Ibid, at 77.  117  1) When a theory has achieved dominant paradigmatic status, "it is not discarded 989  simply because it does not exhibit empirical  fit."  The response to this situation  can be modifications to the dominant paradigm; and 2)  a theory -and thereby a paradigm- is only rejected when another theory is created which is "deemed to be preferable."  283  A n d then we have a paradigm shift.  Ritzer describes the same pattern in the occurrence o f anomalies, but argues that "[a] new paradigm, in order to emerge, must have a number o f other characteristics i n addition to its perceived ability to explain anomalies", and "the new paradigm must be different from its predecessor in the sense that it seems to explain demonstrably more than the one before it."  Ritzer also states that the crisis occurs as the number o f anomalies increases, and "it becomes more and more difficult to accommodate these anomalies within the existing paradigm."  285  If the paradigm does not stand up to this challenge, a scientific revolution  might occur. What is interesting in Ritzer's book is the omission o f Kuhn's analysis o f the emergence o f new theory, which seems to be o f great importance in Kuhn's book. The role o f new theory will also be o f importance in my analysis o f paradigm shifts i n youth justice philosophy.  E. 2 8 2 2 8 3 2 8 4  The Nature and Necessity of Scientific Revolutions  Aultman & Wright, supra note 269 at 15. Ibid. Ritzer, supra note 272 at 9.  118  Finally, another relevant element o f Kuhn's theory is the nature o f revolutions, which often w i l l lead to a replacement o f the dominant paradigm.  When it is determined that anomalies have led to a crisis, the possible response can be a scientific revolution, as described in Section D. K u h n defines scientific revolutions as "those non-cumulative developmental episodes in which an older paradigm is replaced 286  in whole or in part by an incompatible new one."  But scientific revolution is more  complex than just a replacement o f a paradigm. K u h n makes a parallel between political and scientific revolutions i n order to describe his argument. Political revolutions are inaugurated by a growing sense, often restricted to a segment o f the political community, that existing institutions have ceased adequately to meet the problems posed by an environment that they have in part created. In much the same way, scientific revolutions are inaugurated by a growing sense that an existing paradigm has ceased to function adequately i n the exploration of an aspect o f nature to which that paradigm itself had previously led the way. In both political and scientific development the sense o f malfunction that can lead to crisis is prerequisite to revolution.  A pre-revolutionary stage, namely the stage i n which new theory is being explored, is crucial to Kuhn's theory. Thus, the first step is to recognize that the dominant paradigm has ceased to be effective.  The second step is suggested to be the necessity for  competing factions to exist before a revolution can be initiated.  2 8 5 2 8 6 2 8 7 2 8 8  Ibid. Kuhn, supra note 281 at 91. Ibid. Aultman & Wright, supra note 283 at 16.  988  K u h n states that "a  119  new theory does not have to conflict with any o f its predecessors", and that "the new 289  theory might be simply a higher-level theory than those known before"  , but as  anomalies continue to attack the dominant paradigm, eventually a conflict must occur between the "paradigm that discloses anomaly and the one that later renders the anomaly law-like."  290  The choice between two paradigms constitutes the nature o f revolution,  and the invention o f new theories.  K u h n claims that there are only three types o f  phenomena about which new theory might be developed:  291  1. Phenomena already well explained by existing paradigms. 2. Phenomena whose nature is indicated by existing paradigms but whose details can be understood only through further theory, and 3. The recognized anomalies whose characteristic feature is their stubborn refusal to be assimilated to existing paradigms. This type alone gives rise to new theories.  Then the revolution occurs, followed by a paradigm shift.  "The normal-scientific  tradition that emerges from a scientific revolution is not incompatible but often actually incommensurable with that which has gone before." described by K u h n to be the changes o f worldview.  The importance o f revolutions is 293  That means that a paradigm shift  makes scientists see their work and the world o f their research differently than before.  2 8 9 2 9 0 291 2 9 2 2 9 3  Kuhn, supra note 287 at 94. Ibid, at 96. Ibid. Ibid, at 102. Ibid, at 110.  120  K u h n states that in order to close scientific revolutions, one has to understand that revolutions of nature have been invisible in the sense that there is a tendency, after the revolution, to make the history o f science look linear or cumulative. . 294  This is  exemplified by the impact o f textbook presentations upon the image o f scientific development. A t the start, the new emerging paradigm may have few supporters, but the support w i l l increase as the fight continues.  "Gradually the number of experiments, 295  instruments, articles, and books based upon the paradigm w i l l multiply."  Then the  scientific revolution w i l l be closed.  Is there progress through revolution?  "In its normal state, then, a scientific community is an immensely efficient instrument for solving the problems or puzzles that its paradigms define. Furthermore, the result o f solving those problems must inevitably be progress."  296  Ritzer offers a simplified description o f the Kuhnian concept o f the necessity for revolutions: " A crisis stage occurs i f these anomalies mount, which ultimately may end in a revolution."  291  Thereby, Ritzer gives no recognition to the fact that "anomalies may  not subsequently result in revolution nor to the fact that when they do, the process involves a development of new theory prior to the revolutionary state."  Ibid, at 138. Ibid, at 158. Ibid, at 165. Ritzer, supra note 285 at 5.  298  121  A s stated by Aultman & Wright, Ritzer assumes that the new paradigm, which replaces the dominant paradigm, is "bom out of revolutions."  299  Aultman & Wright  find  evidence for their statement in the following argument made by Ritzer:  The reigning paradigm is overthrown and a new one takes place at the centre o f the science. A new reigning paradigm is bom. The stage is set for the cycle to repeat itself. It is during the period of revolution that great changes in science take p l a c e . 300  Therefore, a state o f crisis does not need to end with the revolutionary overthrow of the existing paradigm, because it may be brought to an end with the solution of the "crisisprovoking problem" on the basis o f the existing paradigm. But i f there is no "shelter" from the existing paradigm, a crisis may o c c u r .  301  N e w theory and revolutions are therefore important ingredients in paradigm shifts.  9 0 1  Aultman & Wright, supra note 288 at 16. Ibid. Ritzer, supra note 297 ibid, [hereinafter diagram 1] Alan E. Musgrave, "Kuhn's Second Thoughts" in Gary Gutting, supra note 263 at 43ff.  122  F.  Depiction of the Change Process in Paradigm shifts  302.  Ritzer represented Kuhn's model o f scientific changes as follows  Paradigm I  =>  Crisis =>  Normal Science Revolution  => =>  Anomalies  =>  Paradigm II  This description suggests that anomalies occur within normal science creating a crisis, which leads to revolution and ultimately the emergence o f a new paradigm. described above, K u h n actually offers other occurrences in the changing process:  Paradigm I  =>  Normal Science  But as 303  Anomalies  Modifications of Paradigm  OR  Paradigm I New Theory  3 0 2 303  Normal Science Revolution  Anomalies Paradigm II  Ritzer, supra note 297at 3. Aultman & Wright, supra note 299 at 17. [hereinafter diagram 2]  Crisis  123  I agree with Aultman & Wright's concluding statement that the above diagram is a more accurate translation o f Kuhn's perspective in that it notes that "anomalies may result i n activities o f paradigm modification rather than leading automatically to the stage o f crisis which involves paradigm change. The diagram also acknowledges the role played by new theory i n turning a stage crisis into a revolution by a competitive faction."  304  I w i l l use the interpretation described in Diagram 2 in my analysis o f changes in youth justice philosophy.  II.  T H E " R E F O R M A T I V E " PARADIGM  Having described Thomas Kuhn's theory o f paradigm shifts leads me to the next step i n my analysis o f youth justice philosophy in Canada: Actually utilizing Kuhn's scientific perspective on changes in paradigms.  This section will consist o f a description o f the "reformative" paradigm that has been a part o f youth justice philosophy since the youth justice system was initiated i n 1908 with the enactment o f the J D A , as described in Chapter 3, Section II. this paradigm in the context o f Kuhn's model o f change.  305  I intend to describe  It w i l l be my thesis that  changes in youth justice philosophy are compatible with Kuhn's model.  Ibid. The term "reformative paradigm" is used in Aultman & Wright's article at 19.  124  A.  The Philosophy under the JDA  Aultman & Wright have characterized the philosophy under the J D A as "reformative". The rise o f youth justice philosophy and the reformative paradigm was developed i n the 19 century in Canada. A s described in Chapter 3, the historical aspects o f youth justice th  delinquency legislation demonstrate that concern for children and youth has existed for a long time. But why do Aultman & Wright call the philosophy "reformative"?  The explanation is found i n their description o f the youth court and the parens patriae doctrine, which was implemented with the enactment o f J D A in 1908. Aultman & Wright are aware that the philosophy under the J D A has been called numerous names, but they make a persuasive argument, in my opinion, regarding the importance o f maintaining the term "reformative".  "What is described i n the present writing as the "reformative paradigm" is a theme 307  synonymous with what has been termed by some as the "rehabilitative ideal."  I w i l l discuss the "rehabilitative ideal" later. The creation o f youth court had been under way for several years before its implementation in the beginning o f the 2 0 century. The whole society was involved in th  125  the concern for children.  Volunteer organizations and individuals were intensely  concerned with youth problems in the increasingly industrialized society.  The  paramount goals for both organizations and individuals were to improve youth welfare and to control youth b e h a v i o r .  308  Leon described it as follows The concern for children without parents, and more specifically, without fathers, was also extended to children with 'inadequate' parents. Dr. Charles Duncombe, an early advocate o f prison reform in Canada, was distressed by the number of Toronto children in 1836 with a "ragged and uncleanly appearance", using "vile language", and displaying "idle and miserable habits". Their misbehavior was due to a lack of control, with the blame being placed on their parents, who were "too poor, or too degenerate to provide them with clothing fit for them to be seen in school; and know not where to place them in order that they may find employment, or better cared f o r . . . 309  This statement reveals both the cultural diversities in society and the importance of controlling youth behavior patterns. It also shows that welfare-philosophy was known even before the enactment of the J D A in 1908.  A s I concluded in Chapter 3, the  development in 19 century legislation in the context of young offenders was based on a th  welfare-model. The concern for young people and their behavior made it clear that it was not so much a question o f the young offender's accountability for his or her  Ibid, at 19. See e.g. An Act to Amend the Law Relating to Apprentices and Minors, 1851, 14 & 15 Vict., c. 11 (Can.) and An Act to Incorporate the Boy's Industrial School of the Gore Toronto, 1862, 25 Vict., c. 82 (Can.). Leon, supra note 70 at 75ff, with citationsfromL. Johnson, History of the County of Ontario, 16151875 (Whitby, Ont.: Corporation of the County of Whitby, 1973) at 158. 3 0 7  3 0 8  3 0 9  126  behavior as much as a question about how to treat, control, care for and rehabilitate the young offender.  So, in the 19 century problems with youth had been recognized and were considered to th  be overwhelming. It was the general assumption among politicians and social reformers that youth living in the city were very much in need of guidance from parents and the educational system in order to survive as non-criminal subjects in the cities.  If it is environment in childhood that counts in the making of criminals, the true and only way to cope with crime is to improve the environment, and when that cannot be accomplished, to remove the children to better surroundings. 310  Urban disenchantment and changes in the family units made the challenge of steering the youth toward socially acceptable modes of behavior more pressing than before. Different factions used extensive political and financial power to implement their reforms regarding the protection of society and the reformation o f the young offender.  Thus, in the beginning of the 2 0  th  century there was a public perception that society  needed protection from young offenders and that a reform o f the young offenders was needed.  This belief was in accordance with the positivist school of criminology, as  described supra in Chapter 3.  Scott, supra note 172 ibid.  127  The purpose of creating the youth court system must be considered in the context mentioned above.  U n t i l the beginning o f the 2 0  th  century there had been no legal  machinery by which young offenders could be handled. The youth court was, therefore, the legal response to the problem o f young offenders.  This was in keeping with the  social tendencies: "the increase in the complexity of social relationships, the growth o f humanitarianism, and the rise of social sciences."  311  Because of the growing acceptance  o f public responsibility for the protection and care of children, there was a need for such legal machinery as the youth court. The youth court was given exclusive jurisdiction in cases o f delinquency, and trials were to be conducted summarily, separately, and without publicity.  But because the purpose of the youth court was to reform the young offenders, an informal method for handling these offenders was another characteristic o f the youth court. In drafting the J D A ,  [t]he reformers undertook the delicate task of attempting to design new procedures which promoted simultaneously the welfare and best interest of the children through a philosophical approach similar to that of the parens patriae doctrine and prevented and controlled the misbehavior o f children in a criminal law context.  312  I have elaborated on the parens patriae doctrine in Chapter 3, and w i l l therefore only mention that the discretionary power given to the youth court under the J D A allowed the  311 3 1 2  Robert G. Caldwell, supra note 189 at 494. Leon, supra note 309 at 72.  128  court to intervene in the life o f the young offender and o f his or her family i f necessary. 313  Thereby, the J D A conceptualized the youth court's role as that o f a surrogate parent.  The tendency i n youth justice philosophy can therefore be summarized i n the following sentence from Caldwell:  The resulting tendency has been to picture juvenile delinquency as symptomatic o f some underlying emotional condition, which must be diagnosed by means o f the concepts o f the concepts and techniques o f psychiatry, psychology, and social work, and for which treatment, not punishment, must be administered through the efforts o f a team of psychiatrists, psychologists, and social workers. Surprisingly enough, the legal profession, also, has contributed to this tendency through important court decisions regarding the juvenile court that have stressed its social service functions and minimized its legal characteristics. 314  W i t h the J D A the emphasis on the treatment o f the individual was increased, and this, ironically, led to a decrease o f the young offenders' rights within the criminal justice system because "the implied intent o f dispositions under this philosophy was not to punish or pursue revenge, but to rehabilitate i n the most current and successful fashion."  315  The role o f the youth court was described by academics in the early 2 0 century i n the th  following way: the attitude o f the youth court was supposed to be "benignant, paternal,  3 1 3 3 1 4 3 1 5  Bolton, et al., supra note 199 at 946. Caldwell, supra note 311 at 497. Aultman & Wright, supra note 307 at 18.  129  salvatory, and for these reasons more efficiently corrective" , and the spirit of youth 316  court should also be "that o f a wise and kind, though firm and stem father."  317  Because the role o f the youth court was portrayed, in this manner, the young offenders were not accorded a due process protection i n the form o f traditional rights when being accused in the criminal justice system.  The reason could be the one suggested by  Aultman & Wright: "The reasoning behind such denial is the contention that the child does not need to be protected from his/her protectors."  318  It can be summarized that the underlying themes o f the youth court have been the ones delineated by Caldwell: the superior rights o f the state (the right to intervene, for example), individualization o f justice (the recognition that people are different and should be treated differently), the status o f delinquency ("something less than crime"), non-criminal procedure (in order to give primary consideration to the interests o f the child), and a remedial, preventive and non-punitive purpose (in order to save the child and to prevent him from becoming a criminal).  319  Let me elaborate on the term "rehabilitative ideal", as mentioned on page 124. It is evident that the term is itself a complex o f ideas, but Francis A . A l l e n articulates the modem expression o f the term as b e i n g :  3 1 6 3 1 7 3 1 8 3 1 9  Scott, supra note 310 at 894. Ibid. See supra note 315 ibid. Caldwell, supra note 314 at 499.  320  130  •  That human behavior is the product of antecedent causes and that knowledge o f the antecedents of human behavior makes possible an approach to the scientific control of human behavior. The modem spin on the term "rehabilitative ideal" is therefore the rise of scientific disciplines concerned with the study o f the antecedents o f human behavior, and  •  That measures employed to treat the convicted offender should serve a therapeutic function and that measure should be designed to effect changes in the behavior of the convicted person in the interests of his own happiness, health, and satisfaction and in the interest of social defense. Again, the modem spin on the term "rehabilitative ideal" is the evaluation of treatment to the highest level of concern in the field of criminal justice.  It has to be understood that youth justice philosophy and the "rehabilitative ideal" are  th closely connected to the positivist criminology, emerging at the end of the 19  century.  The positive criminology contributed the following elements to youth justice: 1. A concept of criminal and troublesome behavior determined by a complex o f biological and social causes. 2. The medical analogy o f diagnosis and treatment. 3. The idea that all troubled people suffered from basically similar maladies; and  Francis A. Allen, supra note 194 at 226-227.  131  4. The belief in the need for active intervention in people's lives to prevent misbehavior before it occurred.  321  This positivistic aspect o f the "reformative paradigm" leads to an "interest in causes o f delinquent behavior with an underlying belief that delinquency is a type o f social phenomenon distinct from non-delinquent behavior.  H o w is the description o f the "reformative paradigm" consistent with Kuhn's theory o f paradigm shifts?  B.  Normal Science  Let me brush up Kuhn's definition o f normal science: "Normal science", according to K u h n , is "research firmly based upon one or more past scientific achievements, achievements that some particular scientific community acknowledges for a time as supplying the foundation for its further practice."  322  In the context o f the "reformative paradigm", normal science w i l l mean research based on past achievements that a scientific community acknowledges. Research i n the early th  20  century was directed towards two general concerns. From my description o f the  historical evolution o f youth justice philosophy 321 3 2 2 3 2 3  Faust & Brantingham, supra note 136 at 4. Kuhn, supra note 296 at 10. See supra Chapter 3.  323  and the youth court  324  it should be  132  evident that scientists in the late 19 and early 2 0 century were conducting research in th  th  the field of causes of delinquent behavior in the society. Within this tradition, research scientists tried to assess why young people especially would be more likely than others to commit crimes. Another area of research within the "reformative paradigm" was the issue of treatment and how to design special treatment-programs in order rehabilitate the offender.  This research (achievements) was acknowledged within the legal community, and would therefore supply the 1 9  th  century's legislative measures concerning with the perceived  need to protect children from themselves or their dysfunctional families and the need to protect the society from the children. The interests o f the research mentioned above weighed much more in the political debate than research on civil rights and legal protection o f the young offender. Jeffery noted this in the following statement:  If we follow the positive school, we place emphasis on scientific determinism, the rehabilitation of the criminal and the protection o f society. We have not found a way to rehabilitate the offender after the offence occurred, and the rehabilitative ideal has meant sacrificing individual rights as well as reducing the effectiveness of criminal law.  C.  Anomaly  See page 127ff.  133  A s described earlier, the youth justice philosophy under the J D A survived for almost 75 years, and it was not until the 1950s that "anomalies" started to occur, in the sense that a growing dissatisfaction with the J D A became more and more visible.  A s is also  explained earlier in this thesis, the dissatisfaction was mainly substantiated by the failure o f scientific results within the theory of the "reformative paradigm".  The dominant  paradigm had not been able to provide answers to the correct approach towards reforming criminals. Francis A l l e n describes this as the debasement of the rehabilitative ideal.  326  A n explanation could be that "[t]he real significance of an idea as it evolves in  actual practice may be quite different from that intended by those who conceived it and 327  gave it initial support."  A l l e n has also called attention to the fact that "experience has  demonstrated that, i n practice, there is a strong tendency for the rehabilitative ideal to serve purposes that are essentially incapacitating rather than therapeutic in character".  328  Another important factor in the discontent with the J D A was the lack of civil rights and due process protection for young offenders in conflict with the criminal justice system. During the 1950s and the 1960s it became more and more apparent that the rehabilitative ideal was often "accompanied by attitudes and measures that conflict, sometimes seriously, with the values of individual liberty and v o l i t i o n . " youth justice system in the 2 0  th  329  Therefore, a study of the  century especially regarding the J D A "is most  fundamentally a study in the exercise of political power".  But it is worth pointing out  C. Ray Jeffery, Crime Prevention through Environmental Design, (Beverly Hills: Sage, 1971) as mentioned in Aultman & Wright, supra note 318 at 20. Allen, supra note 320 at 229. Ibid. Ibid. Ibid, at 230. Ibid. 3 2 5  3 2 6  3 2 7  3 2 8  3 2 9 3 3 0  134  that exercise o f political power must be considered i n the context o f socio-economic, 331 intellectual and social changes.  If we look at Kuhn's definition o f anomaly, I think it is safe to conclude that anomalies have occurred, because the solutions offered within the framework o f the J D A no longer provided adequate answers to the questions raised.  K u h n states that "[djiscovery commences with the awareness o f anomaly, i.e., with the recognition that nature has somehow violated the paradigm-induced expectations that govern normal science. It then continues with a more or less extended exploration o f the 139  area o f anomaly."  D.  Modifications of a Dominant Paradigm or Crisis  A s noted earlier, paradigmatic revolutions do not always follow in the wake o f anomalies. What happened to the "reformative paradigm"? D i d the anomalies lead to modifications o f the dominant paradigm, or did a crisis occur?  The anomalies were not dangerously close to creating a revolution until the late 1960s. Until then, the research was directed towards attempts to explain delinquent behavior. The various research projects often recognized the ineffectiveness o f treatment-models  1 2  As described supra in Chapter 3. Kuhn, supra note 322 at 52-53.  135  in rehabilitating offenders offender.  333  , and each of these projects had a solution for reforming the  These attempts were considered to be modifications of the "reformative  paradigm" as they tried to answer the questions raised by the anomalies within the dominant paradigm  But events in 1970 led to a change in the status of the anomalies.  "The failures of  normal science within this paradigm were not given dramatization until the 1970s."  334  More and more negative findings could not continue to be applied as modifications to the "reformative paradigm". Critiques of the dominant paradigm would not tolerate the anomalies as modifications.  Because of the overwhelming criticism of the dominant  paradigm, the scientific enterprises o f the "reformative paradigm" reached a state of crisis."  335  Aultman & Wright give the following explanation of why the crisis stage was  reached, and pay particular attention to two factors:  336  •  The increased visibility of anomaly in the "reformative paradigm", and  •  The reduced tolerance for positivistic anomalies.  In accordance with Kuhn's theory of paradigm shifts, the role of new theory is important in the response to crises, and is inevitable in the emergence of a paradigmatic revolution.  333 334 3 3 5 3 3 6  See generally Allen, supra note 330. Aultman & Wright, supra note 325 at 21. Ibid, at 22. Ibid  136  The role of new theory emerged with a perspective which Aultman & Wright described as the "fairness paradigm".  E.  The "Fairness Paradigm"  The new theory consists o f two separate perspectives on youth justice, which are connected ideologically.  338  In Chapter 4,1 describe the reform-process o f the J D A , and the "fairness paradigm" is closely related to this reform-process. The first perspective on youth justice philosophy was initiated by politicians' and academics' concern about the lack o f legal rights within the J D A and the discretionary power entrusted to the judges i n youth court. Supreme Court decisions, Kent v. U.S. , and In Re Gault 339  340  Two U S  supported the concern  about the lack o f legal rights.  The second perspective emerged in the 1960s, and was mainly the academics' contribution to the critique of the J D A . I have already mentioned Francis Allen's article; allow me to refer to it again as it reveals the other perspective o f the "fairness paradigm".  Academics called attention to the fact that there was an unintended  consequence of the application o f the rehabilitative ideal in the J D A .  338 339  Ibid. Ibid.  383 U.S. 541 (1966).  137  "Surprisingly enough, the rehabilitative ideal has often led to increased severity o f penal measures."  341  A l l e n claims that this tendency may be seen in the operation o f the youth  court, because the youth court is "authorized to intervene punitively i n many situations in which the conduct, were it committed by an adult, would be wholly ignored by the law or would subject the adult to the mildest sanctions." tendency for the rehabilitative  342  Therefore, there was a  ideal to encourage increasingly long periods o f  incarceration for the purpose o f reforming the offender.  A l l e n also stated that the "reformative paradigm" led to a narrowing o f scientific interests.  343  The "reformative  paradigm" dictated which questions were to be  investigated, "with the result that many matters o f equal or even greater importance have been ignored or cursorily examined."  344  This has led to a lack o f concern for the idea o f  deterrence, and A l l e n calls attention to the fact that "[i]t must surely be apparent that criminal law has a general preventive function to perform in the interests o f public order and o f security o f life, limb, and possessions."  345  This set o f ideas presented by A l l e n i n  1960 was adopted by other academics i n the 1970s, and can be seen as reminiscent o f the classical principles. classical.'  3 4 0 3 4 1 3 4 2 3 4 3 3 4 4 3 4 5 3 4 6  347  346  The arguments by these academics have been called 'neo-  This movement within the youth justice philosophy directed their research  387 U.S 1 (1967). Allen, supra note 333 at 229. Ibid. Ibid, at 227. Ibid. Ibid. For example, Norval Morris, The Future of Imprisonment (Chicago: The University of Chicago Press,  1974) and David Fogel, We are the Living Proof: The Justice Modelfor Corrections (Cincinnati: W. H.  Anderson, 1975). Aultman & Wright, supra note 338 at 22.  3 4 7  138  towards guidelines and more determinate sentences, the increase o f legal protection for young offenders and the importance o f earlier classical principles.  348  The two perspectives outline the new theory i n accordance with Kuhn's theory.  As  stated by Aultman & Wright: "It is important to explore these trends because i f a paradigm revolution is completed, many more facets o f the broad procedural network o f juvenile justice would require change than yet have been affected."  349  Having described the "fairness paradigm" it can be concluded that anomalies led to a crisis in youth justice philosophy, and that two perspectives in particular could be taken into consideration as "new theory".  It can also be concluded that the term "fairness paradigm" refers to the attention paid to the issue o f "fairness" in the two described perspectives; "fairness" i n the sense that young offenders should be assured a due process when involved in a criminal justice conflict and that they should not be subjected to longer sentences for the purpose o f rehabilitation.  Aultman & Wright's article was written in 1982, two years before the enactment o f the YOA.  Consequently, their article had to conclude that a paradigmatic revolution was  not the response to the crisis that set i n with the "fairness paradigm". " A paradigmatic revolution would require a restructuring o f the legal order, modification o f informal  See the description of the classical school of criminology, Chapter 3, section I, C. 1. Aultman & Wright, supra note 347 at 23.  139  procedure, and the establishment o f various mechanisms for ensuring total adherence to fairness concerns."  350  This had not yet happened in 1982. They claimed that the  "fairness paradigm" had not been sufficiently conclusive and persuasive to result in a revolution.  Aside: Reflecting on the discussion o f "new theory" in Kuhn's model o f change, Aultman & Wright recognize that in the discussion o f paradigm shifts in the youth justice philosophy, "the term "theory" must necessarily be used very loosely.  The  usefulness o f the concept is i n its representation o f a cohesive and interrelated set o f ideas or philosophical constructs."  351  A l s o in this chapter, I w i l l discuss the paradoxes in  and the barriers to using Kuhn's model o f paradigm shift.  F.  Revolution and Conclusion  Significant changes happened between 1982 and 1984. The role o f the new theory as described in the "fairness paradigm" outgrew the "reformative paradigm", and in 1984 the Y O A was enacted.  A s noted earlier, Aultman & Wright concluded that "[a] paradigmatic revolution would require a restructuring o f the legal order, modification o f informal procedure, and the establishment  Ibid. Ibid.  o f various  mechanisms for ensuring total adherence to fairness  140  concerns."  352  In light of this quotation I w i l l refer to my analysis of the reform-process  of the J D A . A restructuring of the legal order - the J D A - had been under way for more than 20 years; in 1962, the Canadian Government conducted a survey regarding juvenile 353  delinquency.  The report was the result of the survey, and this became the starting  point for reforming the youth justice philosophy.  Consequently, the enactment o f the Y O A in 1984 started a restructuring of the legal order, and the first step of the revolution began.  The next step suggested by Aultman & Wright is modification of informal procedure that was a major part o f the J D A and the basis for the procedure in youth court. Reading through the various sections of the Y O A makes it clear that informal procedures in youth court have been abandoned and replaced by more strict regulations on how to proceed.  Section 14 of the original J D A , which stated that at the trial of a child the  proceedings should be as informal as the circumstances permitted, was eradicated. Another dramatization of the crisis and new theory had occurred. (See Diagram 2).  According to Aultman & Wright, the last step needed to create a revolution in the context of Kuhn's model of change is the establishment of various mechanisms for ensuring total adherence to fairness concerns. From my perspective, this is a rather bland statement, primarily because fairness concerns is a rather ambiguous term, and secondly because it is used differently by advocates from the due-process movement and  See supra note 177.  141 the neo-classical movement, as described in. But various mechanisms were established to ensure "fairness concerns". This is mostly evident in the Declaration o f Principle in Section 3 under the Y O A and the subsequent sections on children's rights and freedoms.  The political environment was very supportive o f the legal framework that the Y O A represented, and the federal government therefore maintained a facade o f unanimity. That further ensured the consideration o f "fairness concerns".  In my opinion, the  enactment o f the Y O A with its descriptive sections on children's rights and freedoms and its guidance on judicial interpretation i n the Declaration o f Principle is the clearest example o f the "establishment o f various mechanisms for ensuring total adherence to fairness concerns".  354  Aultman & Wright state that "[t]he "fairness paradigm" does not pretend to have the answers to the causes o f delinquency and the need for effective treatment methods, but rather it substitutes the different sets o f concerns."  355  According to K u h n , a new  paradigm does not need to have all the answers to problems raised i n the wake o f the old dominant paradigm.  Therefore,  when K u h n  defines  scientific  revolutions  as "those  non-cumulative  developmental episodes i n which an older paradigm is replaced i n whole or in part by an incompatible new o n e "  356  See supra note 352 ibid. Ibid, at 23. Kuhn, supra note 332 at 91.  , and I compare this definition to Aultman &  Wright's  142  interpretation of this model in a youth justice philosophy setting, I w i l l have to conclude that a paradigmatic revolution occurred in 1984 with the enactment of the Y O A .  In conclusion it can be noted that in line with the political, socio-economic and intellectual changes that were happening in society, scientific changes also occurred in youth justice philosophy.  III.  THE  FAIRNESS  PARADIGM  AND  NORMAL  SCIENCE, OR, P A R A D I G M II  A.  Normal Science  Normal science enterprises under the "fairness paradigm" are specifically directed toward the analysis of two important concerns, as noted earlier.  First, the Y O A contains a catalogue of the most fundamental and basic rights that a young person has when in conflict with the criminal youth justice system. The "fairness paradigm" is therefore concerned with extending legal rights to young offenders. Procedural safeguards attained crucial importance in the Y O A .  Furthermore, the  legislation formalizes many o f the procedures that are to be followed in various proceedings.  143  Secondly, the issue of the neo-classical approach toward young offenders created an area for research within the tradition o f the "fairness paradigm", as already described by Francis A l l e n in 1960 on page 133.  The Y O A created a scientific milieu, that according to K u h n , consisted o f the actualization of the promise o f the 'fairness paradigm' "by extending the knowledge o f those facts that the paradigm displays as particularly revealing, by increasing the extent o f the match between those facts and the paradigm's predictions, and by further articulation of the paradigm itself."  357  Research within the "fairness paradigm" w i l l , according to K u h n , often lead to the discovery o f new and unsuspected phenomena, which w i l l be named anomalies.  B.  Anomaly  With a reference to my description o f the critique of the Y O A in Chapter 2, Section II, it soon became clear that the Y O A failed to deliver the results hoped for by politicians and others involved in the reform process. The Y O A was exposed to abundant criticism almost from the time o f its enactment in 1984, and the failure of scientific results, such as a coherent and predictable legislative framework for young offenders, made it clear that the Y O A could not give the required support to the "fairness paradigm".  The  growing dissatisfaction with paradigm II, or the new dominant paradigm, made  Ibid, at 24.  144  researchers in the field o f law explore other ideologies o f legality and justice in the context of young offenders. That is consistent with Kuhn's model o f change.  Due to the failure or the anomalies o f the "fairness paradigm", normal science wanted to provide answers to critical questions that the paradigm had raised. This is especially apparent i n Renewing Youth Justice and A Strategy for the Renewal of Youth Justice. Academics and politicians were eager to comply with the criticism raised against the YOA.  Following Kuhn's model o f change, anomalies w i l l lead either to modifications o f the dominant paradigm and/or crisis.  C.  Modifications of the "Fairness Paradigm" or Crisis  A s already stated by Aultman & Wright, "anomalies do not necessarily lead to paradigmatic revolutions; nor do they have a direct causal impact upon the ultimate appearance of a revolution."  A s noted earlier in Diagram 2, anomalies can lead either to modification o f the dominant paradigm and/or crisis. A s described i n Section B , anomalies within the tradition o f the "fairness paradigm" were a reaction to the bias that many critics o f the Y O A had called attention to. Were the reactions - or anomalies - so persistent that they could precipitate  Aultman & Wright, supra note 355 at 21.  145  a crisis? Or, to use an expression used by K u h n , was the character o f the anomalies so stubborn that it could have a direct impact "upon the ultimate appearance o f a revolution"?  359  Some of the problems with the "fairness paradigm" demonstrated that the term "fairness" did not apply very well to the dominant paradigm.  Thus, what scientifically and  theoretically seems to be advisable input to a legislative framework i n the context o f young offenders may not always work in practice.  Renewing Youth Justice and A Strategy for the Renewal of Youth Justice made an effort to convince the public, the academics and the politicians themselves that the time had come for a paradigm shift i n Canadian youth justice philosophy, and they expounded that 'readiness' i n B i l l C-68, the Youth Criminal Justice Act, which was mainly a response to the public's lack of confidence in the Y O A .  A s noted earlier, Minister o f Justice Anne M c L e l l a n stated on the day o f the release o f the B i l l C-68: " W e are responding to calls for necessary changes to the law, but we are doing much more than that. Our new youth justice strategy looks beyond legislation and even the youth justice system itself to explore ways to society as a whole can address youth crime and associated factors such as poverty and child abuse."  But did the new youth justice actually create a new paradigm shift?  3 5 9  Ibid.  3 6 0  A Strategy for the Renewal of Youth Justice, supra note 2 at 1.  360  146  D.  The "Clearness Paradigm"  A new perspective emerged which I have chosen to describe as the "clearness paradigm".  The term refers to several statements made by academics and politicians  indicating, that the Y O A lacks clearness and predictability, most notable in the Declaration of Principle, Section 3.  I am using the "clearness paradigm" term only to describe the intended paradigm shift in the context o f young offenders, and not to suggest that a new paradigm actually has been b o m through revolution.  It w i l l become apparent that the "clearness paradigm" is  merely a hypothesis rather than reality.  The "clearness paradigm" consists of three rather separate bodies of ideology. The first describes the renewed philosophy in the youth justice system, and consists of a new Declaration of Principle that is clearer and more predictable, according to the politicians. The legislators acknowledged that in order to make the youth justice philosophy more transparent, the legislative framework had to be more clear and predictable.  This  argument is, in my opinion, comparable to the neo-classical approach to the criminal justice system.  The second element is an emphasis on "meaningful consequences" for young offenders. I have noted earlier that "meaningful consequences" w i l l lead to harsher sentences for a  147  certain group o f young offenders; namely, the repeat violent offenders.  Thereby,  politicians try to respond to the perceived public belief that the Y O A is "too soft on crime".  The third element is a rephrasing o f the parens patriae doctrine. A s noted earlier, the federal government emphasizes the importance o f measures outside the courtroom. This is clearly reminiscent o f the alternative measures described i n Section 4 under the Y O A , which is known as the "old paternalism" section.  361  This catalogue o f the various aspects o f the "new" youth justice philosophy represented in the Youth Criminal  Justice Act clearly reveals the fact that the "clearness paradigm" is  a mixture o f the philosophy chosen within the tradition o f the "reformative paradigm" and the "fairness paradigm", respectively.  It can be concluded that the anomalies emerging within the tradition o f the "fairness paradigm" did not lead to the discovery o f new and unsuspected phenomena , and are 362  therefore only counter-instance to the dominant paradigm.  Consequently, the anomalies within the "fairness paradigm" are modifications o f the dominant paradigm", and w i l l in my opinion not evoke a crisis that will lead to a paradigmatic revolution.  1 2  Beaulieu, supra note 240 at 138. Aultman & Wright, supra note 359 at 15.  148  The "clearness paradigm" w i l l remain a hypothesis.  E.  Conclusion  K u h n states that awareness o f anomaly plays a role in the emergence o f new sorts o f 363 phenomena  . H e claims that scientists w i l l try to assimilate the anomaly into the  structure o f the dominant paradigm, and "will devise numerous articulations and ad hoc modifications" o f the normal science theory.  364  This happened with the anomalies emerging within the tradition o f the "fairness paradigm". The anomalies question the "fairness paradigm", but do not have any new answers to provide, and are therefore not influential to an occurrence o f crisis in accordance with Kuhn's model o f change. What is particularly interesting is the fact that legal changes have been made to try to provoke a paradigmatic revolution. This proves that legal changes are not the only answer in paradigmatic revolutions, but that a complete restructuring o f the legal order would have to happen.  The legal changes  proposed in the Youth Criminal Justice Act do not restructure the legal order.  In my introduction to Section I, subsection A , I expounded two important notions in the definition o f a paradigm. These were:  Kuhn, supra note 357 at 77. Ibid, at 78.  149  •  Acquisition o f a paradigm is a sign o f maturity i n the development o f any given scientific field  •  , and  T o be accepted as a paradigm, a theory must seem better than its competitors, but need not explain all the facts with which it can be confronted.  366  If one compare the reform o f the process o f youth justice philosophy to the process o f reform in paradigms, I think it can be concluded that the Youth Criminal not have enough time to evolve as a new theory.  Justice Act did  A s noted earlier, the A c t was not a  result o f intellectual, socio-economic and historical changes, and the end-result was a legal response that made no legal changes. This situation is compatible with Kuhn's model o f change.  Consequently, it is not time to acquit the "fairness paradigm", and the philosophy behind the Youth Criminal behind the Y O A .  Ibid, at 11. Ibid, at 17.  Justice Act does not seem better than its competitor, the philosophy  150  IV.  PARADIGMS AND PARADOXES  In this section I w i l l discuss the paradoxes and barriers in using the theory o f changes i n paradigms. Section I V w i l l consist o f several academics' theories regarding Kuhn's model of change, and w i l l especially analyse how habits o f mind can govern scientific beliefs such as paradigm shifts.  A.  367  Kuhn's Reservation on Paradigms  K u h n was aware that the use o f paradigms might entail paradoxes. Using Kuhn's model o f change in this chapter w i l l naturally lead me to delineate Kuhn's comments on his reservations regarding paradigm shifts.  A s noted earlier, Aultman & Wright warned "that in the discussion o f a shift in juvenile paradigms, the term "theory" must necessarily be used very l o o s e l y . "  368  A n d Kuhn  himself was aware o f the danger in over-theorizing the model o f change within paradigms.  In his book, K u h n draws a parallel between political and scientific development, and he describes one aspect o f the parallelism in the following way:  Margolis, supra note 15. Aultman & Wright, supra note 362 at 22.  151  Political revolutions are inaugurated by a growing sense, often restricted to a segment o f the political community, that existing institutions have ceased adequately to meet the problems posed by an environment that they have in part created. In much the same way, scientific revolutions are inaugurated by a growing sense that an existing paradigm has ceased to function adequately in the exploration o f an aspect o f nature to which that paradigm itself had previously led the way. In both political and scientific development the sense o f malfunction that can lead to crisis is prerequisite to revolution. 369  But K u h n states that the parallel has a second aspect.  He describes the political  revolution's aim to change political institutions in ways that those institutions themselves 370  prohibit/'" "Their success therefore necessitates the partial relinquishment o f one set o f institutions i n favor o f another, and i n the interim, society is not fully governed by institutions at a l l . "  371  In his description o f the emerging o f revolutions within the political tradition, K u h n calls attention to the fact that revolutions have had a vital role in the evolution o f political institutions, and that revolution is about a reconstruction o f society in a new institutional framework.  The political institutions might not respond i n a predictable way, because  political institutions have various constellations. A t that point, the society is divided into competitors, "one seeking to defend the old institutional constellation, the others seeking to institute some new o n e . "  369  Kuhn, supra note 366 at 56. Ibid, at 92. 371 Ibid. 372 Ibid. 370  372  K u h n therefore acknowledges that the political  152  institutions themselves can be insurmountable obstacles not sympathetic to paradigm shifts.  Because they differ about the institutional matrix within which political change is to be achieved and evaluated, because they acknowledge no suprainstitutional framework for the adjudication of revolutionary difference, the parties to a revolutionary conflict must finally resort to the techniques of mass persuasion, often including force. Though revolutions have had a vital role in the evolution of political institutions, that role depends upon their partially extrapolitical or extrainstitutional 373  events. A little further in his book, K u h n claims that "[i]f authority alone, and particularly i f non-professional authority, were the arbiter of paradigm debates the outcome of those debates might still be revolution, but it would not be scientific revolution"  374  because  "[t]he very existence o f science depends upon vesting the power to choose between paradigms in the members o f a special kind of community."  375  Let me refer to the  conclusion in Chapter 5: I concluded that a paradigmatic revolution did not occur with the Youth Criminal  Justice Act, because the A c t was merely political lip service rather  than reality. Kuhn's explanation could be that because authority alone (the politicians), were the "arbiters" o f legal changes in the new A c t , they would not be able to succeed because other factors have to be involved in the process, as explained in Chapter 3.  A t the end of his book, K u h n raises the question o f why paradigm changes should produce an instrument more perfect than those previously known, in order to answer the  3 7 3  374  Ibid. Ibid, at 166.  153  question: "What must nature, including man, be like in order that science be possible at all"?  376  Kuhn's conclusion is that this question is still an open one, and that his  description o f the development and structure o f scientific revolutions is his attempt to contribute to answering questions within science.  " A n y conception o f nature compatible with the growth o f science by proof is compatible with the evolutionary view o f science developed here.  Since this view is also  compatible with close observations o f scientific life, there are strong arguments for employing it i n attempts to solve the host o f problems that still r e m a i n . "  B.  377  The Academics' Reservation  This section w i l l consist o f a discussion o f several academics' concern and critique o f Kuhn's model o f change.  Gary Gutting elaborates on the central concept o f Kuhn's theory, which is the definition o f the paradigm. Gutting states that "[a]lmost all commentators agree that Kuhn's use o f this concept is extremely loose and variable."  378  He examines the history o f science, and  reflects that Kuhn's book and his theory o f paradigm shifts could have become a paradigm o f the interpretation o f the results attained by that history, but concludes "historians o f science are not currently very interested in general  3 7 5 3 7 6  ibid. Ibid, at 172.  interpretative  154  schemata."  379  But Gutting's major concern is the "puzzle-solving" process within the  tradition o f normal science.  380  But where is the failure that makes it so difficult to distinguish art and science on a Kuhnian analysis? M y suspicion is that it lies in one of Kuhn's central assertions about science that we have not yet discussed: his claim, put forward in the concluding chapter of The Structure of Scientific Revolutions, that puzzle-solving rather than truth is the primary aim of science. 381  Dudley Shapere followed Gutting's discussion o f scientific revolution and the history o f science.  Shapere analyses the perplexities that are generated by Kuhn's view that  paradigms cannot, in general, be formulated adequately.  382  Shapere has problems with  the lack of clearness in Kuhn's theory, as described in the following sentence where he elaborates on the term "meaning" used by K u h n : "Kuhn has offered us no clear analysis o f "meaning" or, more specifically, no criterion of change of meaning; consequently it is not clear why he classifies such changes as changes of meaning rather than, for example, as changes o f application."  383  Ian Barbour analyzes paradigms in science  384  and summarizes the four major points o f  criticism raised against Kuhn's theory. There have been criticisms:  3 7 8 3 7 9 3 8 0 381 3 8 2 3 8 3 3 8 4  385  Gutting, supra note 301 at 1. Ibid, at 3. The "puzzle-solving" process is mentioned supra at 114. Gutting, supra note 379 at 16. Shapere, supra note 263 at 30. Ibid, at 34. Ian Barbour, "Paradigms in Science and Religion", in Gutting, supra note 381 at 223ff.  155  1) o f the definition o f "normal science", 2) o f the definition o f "scientific revolutions".  Critics have questioned the sharp  contrast between normal and revolutionary science that K u h n delineates in his book, 3) o f the paradigm-dependence o f observations, and 4) o f the paradigm-dependence o f criteria.  These are some of the major concerns delineated by academics' critique o f Kuhn's model of change.  Yet, all academics acknowledge Kuhn's contribution and effort to explain paradigm shifts, and they claim that Kuhn's theory o f changes has had a wider academic influence than any other book in the  C.  field.  386  Political Reservations  This third, and final, section o f my description o f paradigms and paradoxes w i l l consist o f a description o f the barriers that could impede the political progress o f paradigm shifts. K u h n has described how the institutional matrix in which political change is to be achieved and evaluated can be a hindrance to evoking a revolution or a paradigm shift. Therefore, political changes may be developed through a slow process or not at a l l .  Ibid, at 226. Gutting, supra note 381 at v.  387  156  It should be evident by my analysis of youth justice philosophy that political changes occur when socio-economic, historical and intellectual changes have interacted. Therefore, these changes w i l l have an effect on political theories.  Consequently, the  process of reform is slow, which is apparent as only one paradigmatic revolution regarding youth justice has occurred since the beginning of the 2 0 century. th  A s noted above, the causes for this delay in "revolutions" can be found in the institutional matrix within the political tradition.  The political theory and agenda in  Canada has not had a tradition of "crisis" or "revolutions".  388  In my opinion, this is  partly due to the fact that Canada has become more and more conservative in areas related to youth justice. A s noted earlier, the public is yearning for harsher punishment o f young offenders, as the politicians try to reinforce restorative justice philosophy in the youth justice system. There are simply too many barriers to break down to create a crisis or revolution.  Another kind o f political barrier that a paradigmatic crisis w i l l have to surmount is the governing of scientific beliefs by habits o f m i n d .  389  Margolis states that the habits-of-  mind claim implies the possibility of the paradigm shifts and that a particular, identifiable habit of mind is critical to the emergence of the new theory evolved from crisis.  390  The habit o f mind can be stronger within political institutions, because the  In Chapter 7 I will try to look behind the rhetoric of the Youth Criminal Justice Act and see if the approach toward crime-solutions has become more restorative than with the YOA. See generally Steven Jay Gold, ed., Paradigms in Political Theory, (Iowa: Iowa State University Press, 1993). Margolis, supra note 367.  3 8 8  3 8 9  157  political matrix needs to consent to accepting a new theory. "It is the robustness o f the habits of mind that block the path to the new idea, relative to the habits o f mind that help the new idea, given the evidence and argument available to support it."  391  Margolis  elaborates on the term 'habit-of-mind', and explains that a new theory or crisis has to break trough two barriers: first, the new theory must be so strong that it can weaken an existing theory and thereby "make a previously robustly entrenched habit o f mind 392  vulnerable."  393  Secondly, the new theory has to have "striking breakthrough effects".  Consequently, the habit-of-mind also has to be taken in consideration when we are discussing political reservations regarding Kuhn's model o f change as it can "govern scientific beliefs."  V.  CONCLUSION  In this chapter I enlarged on the shifting of youth justice philosophy with reference to the change model developed by Thomas K u h n , and it was my intention to continue the evaluation of change within youth justice philosophy which Aultman &  Wright  commenced in 1982.  After a description of Kuhn's theory on paradigm shifts, I delineated the tradition within the "reformative" paradigm that has been a part o f youth justice philosophy since the  391 392 393  Ibid, at 31. Ibid, at 38. Ibid, at 39.  158  enactment of the J D A in 1908. I then used K u h n ' s model o f change to evaluate the development of youth justice philosophy up until 1984 when the Y O A was enacted. The Y O A was created within the tradition of the "fairness paradigm".  After analyzing the underlying values of the "fairness paradigm" I concluded that a paradigmatic revolution occurred in 1984 with the enactment of the Y O A .  According to Kuhn's model of change, anomalies w i l l automatically evolve within normal science.  That also happened within the "fairness paradigm", which has been  exposed to abundant criticism.  The anomalies consisted, to a certain extend, of  discontent with the Y O A , and a replacement has been tabled - the Youth Justice Act.  Criminal  The replacement promises to provide the answers to problems with young  offenders in the criminal justice system and to extend beyond the youth justice philosophy itself.  Following Kuhn's model of change makes it obvious that the Youth Criminal  Justice Act  has not evolved new theory and consequently is not a threat to the existing dominant paradigm. The anomalies were not "stubborn" enough to fight the dominant paradigm, and do therefore not operate as predicted by K u h n :  •  Acquisition of a paradigm is a sign of maturity in the development o f any given scientific f i e l d  Supra note 365.  394  , and  159  •  To be accepted as a paradigm, a theory must seem better than its competitors, but need not explain all the facts with which it can be confronted.  395  A s a conclusion, it can be noted that in line with the political, socio-economic and intellectual changes that happened i n society in the 1960s and the 1970s, scientific changes also occurred in youth justice philosophy.  These factors were not permitted  with the legal change o f the Y O A till the Youth Criminal  Justice Act.  Therefore, a  paradigmatic revolution did not occur with the new B i l l C-68.  In Section I V I presented several paradoxes o f the theory on paradigms, as I find it important to expound both the positive and negative aspects o f the theory o f paradigm shifts.  I have analyzed the reservations regarding Kuhn's model o f change.  described the reservations made by K u h n himself in his own work. also been concerned with Kuhn's theory and have critiqued it.  I have  Academics have  The lack o f clarity in  Kuhn's work has been particularly criticized. I also felt that political reservations had to be presented in order to explain why so few revolutions happen in Canadian youth justice philosophy.  It seems as i f there is no tradition for crisis in Canadian political  science, which could be influenced by political theory.  Another reason could be the  barriers created by habit-of-mind.  It can be concluded that even though K u h n has had a widespread impact on academic and political areas, it is important to be aware of both the paradigms and the paradoxes.  Supra note 366.  160  In Chapter 7 I w i l l examine some of the statements made by the politicians which indicate that politicians try to reinforce restorative justice philosophy in the youth justice system. In light o f Chapter 6 I w i l l try to look behind the politicians' rhetoric in the debate on the new Youth Criminal Justice Act and analyze i f there are simply too many barriers to break down to create a crisis or revolution.  That could be a hindrance to  reinforce restorative principles in Canadian youth justice philosophy.  161  CHAPTER 7  RESTORATIVE JUSTICE ANDT H E Y O U T H CRIMINAL JUSTICE A C T  In this chapter, divided into two sections, I w i l l explore the potential impact o f restorative principles' on the Youth Criminal  Justice Act, and expound the existing alternative  measures that are available when young offenders are in conflict with the criminal justice system. I w i l l examine some o f the statements made by the politicians that indicate that politicians try to reinforce restorative justice philosophy in the youth justice system.  Therefore, this chapter on restorative justice and youth justice philosophy w i l l round off my discussion o f the new Youth Criminal  Justice Act and Canadian youth justice  philosophy, as discussed i n the previous 6 chapters. Thereby, I w i l l go beyond the terms o f the legislation, and I hope to provide a useful insight into the rhetoric behind the new Act, and to encompass all aspects o f youth justice philosophy in my discussion.  I.  RETRIBUTIVE VERSUS R E S T O R A T I V E  162  A.  RETRIBUTIVE JUSTICE  In Section I o f this chapter, I w i l l delineate the difference between retributive and restorative justice.  It is necessary to define these theories in order to understand the  underlying value o f alternative measures. Furthermore, I hope to give a useful insight into problems that the criminal justice system is struggling with, such as: Should we implement retributive or restorative principles?  Society is calling for severe punishment o f young offenders, and people want to be secure in their communities and at home.  Due to the abundant controversy the Y O A has  generated, its critique has become an integral part of A Strategy for the Renewal of Youth Justice and the Youth Criminal  Justice Act.  The criticism o f the Y O A is based on  descriptions o f the shortfalls o f the present legislation with respect to young offenders.  396  In Chapters 2 to 6 I have delineated the theoretical structure o f youth justice philosophy and criminal justice i n Canada, and it is evident that the J D A , the Y O A , and also the Youth Criminal  Justice Act are pieces o f legislation established in retributive principles.  In order to understand the raison d'etre o f such a statement I w i l l have to delineate the underlying theory o f retribution. What is "retribution"?  Please refer to Chapter 2 and Chapter 5. In these chapters the YOA and the Youth Criminal Justice Act are described in detail.  163  Retribution in criminal justice, i n its broadest context, refers to "punishment based on the theory which bears its name and based strictly on the fact that every crime demands payment in form o f punishment."  397  Retribution is also considered to be one o f the oldest responses to deviant behaviour retribution meaning punishment for the sake o f punishment or revenge.  398  Another view, put forth by Immanuel Kant, among others, claims that 'retribution' is a moral framework encompassing a theory o f justice that demands punishment o f a transgressor because a common sense o f justice demands it.  399  Faust & Brantingham  suggest that the theory o f retribution has as its basic tenets the following:  1.  the criminal act must be a voluntary and morally wrong act;  2.  punishment must fit the offence; and  3.  punishment must represent a return o f suffering to the wrongdoer for his morally wrong a c t .  400  According to the retributive theory o f justice, there is no place in criminal law for negligence, strict liability, or other doctrines by which responsibility is separated from the mental state o f the offender. Mens rea, or the mental condition o f the criminal at the time o f the crime, is crucial to this philosophy, and any excusing condition such as infancy, accident, mistake, or insanity served to negate  Black's Law Dictionary 914 (Abridged 6 edition). Rogers & Mays, supra note 129 at 391-392. Faust & Brantingham, supra note 321 at 7. As cited in Faust & Brantingham, ibid,fromH. L. A. Hart, Punishment and responsibility (New York: Oxford University Press, 1968) at 231-232. th  3 9 8  3 9 9 4 0 0  164 criminal responsibility. Since the retributive theory looks backward to the mental state o f the defendant, not forward to his future behaviour, there is no place for a discussion o f retribution i n a theory o f crime control. 401  A n d yet, as described i n the previous chapters, the principles o f retribution have been adopted as an underlying theory o f legislation through decades and used as crime control, even though several scholars claim that retribution is ineffectual in the battle to control  Therefore, retributive criminal justice ideology is based on the idea "that punishment makes sure that wrongdoers suffer i n proportion to their moral iniquity and thereby give up any unfair advantage over others their wrongdoing may have won over them", and "[t]he retributive theory o f punishment, speaking very generally, is a theory that seeks to justify punishment, not i n terms o f social utility, but in terms o f this cluster o f moral concepts: rights, desert, merit, moral responsibility, justice, and respect for moral autonomy."  403  Jeffrie G . Murphy's closing argument on retributivism is as follows:  "Thus the retributivist seeks, not primarily for the socially useful punishment, but for the just punishment, the punishment that the criminal (given his wrongdoing) deserves  Ibid, at 8. ^ Ibid. See Jeffrie G. Murphy, " Retributivism, Moral Education and the Liberal State", in More Essays in the Philosophy of Law (Holland: Kluwer Academic Publishers, 1992) at 15 and 21. Originally printed in (1985) 4 no. 1 Criminal Justice Ethics, at 3-11. 4 0 1  4 0 3  165  or merits, the punishment that the society has a right to inflict and the criminal a right to demand."  404  In 1990, Dr. Howard Zehr defined retributive justice as follows:  Crime is a violation o f the state, defined by lawbreaking and guilt. Justice determines blame, and administers pain in a contest between the offender and the State directed by systematic rules. 405  A former Ph. D. student at Cambridge University, Sveinn A . Thorvaldson, has described retribution as follows:  This a i m postulates that an offender should be punished in accord with what he is considered to deserve. What he 'deserves' is determined by the extent o f 'harm' to others entailed i n the offence and the extent to which he is deemed to have intended to cause the harm, his wilfulness or his moral ' w i c k e d n e s s ' . 406  The definitions mentioned above are instrumental in providing a useful insight into the underlying principles o f Canadian youth justice philosophy.  The criminal justice  system has worked by these definitions for years. The result is a formal and legalistic setting for criminal proceedings. Questions often asked i n retributive justice are: 1) which law has been broken, 2) what the offender did; and 3) what the offender deserves.  404  Ibid, at 21 Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (Scottsdale, Pennsylvania: Herald Books, 1990), at 181. [hereinafter Changing Lenses] 4 0 5  166  In discussing sentencing under the Y O A - and whether the A c t embodies a retributive philosophy -1 w i l l delineate principles o f sentencing as described i n the Supreme Court o f Canada decision R. v. M. (J.J.), , 407  and the provisions for review o f disposition, as  described i n Sections 28ff. o f the Y O A .  In R. v. M. (J. J.) the Supreme Court o f Canada settled some controversial issues regarding sentencing young offenders under the Y O A .  4 0 8  The Supreme Court upheld a  two-year sentence o f open custody that was imposed on M. (J.J.) for property-related offences.  The Court concluded that "each disposition should strive to recognize and  balance the interests o f society and young offenders" , and that "[i]n the long run 409  society is best protected by the reformation and rehabilitation o f a young offender."  410  The dispositions established under Sections 20 and 24 range from an absolute discharge to a form o f custody. A s previously mentioned in Chapter 2, Section 3 o f the Y O A "is designed to balance a social welfare approach to sentencing with the competing value o f public safety."  411  The approach taken by the Youth Court and the Supreme Court o f Canada in the case o f R. v. M. (JJ.) is that the goals and objectives o f sentencing young offenders are reform  Sveinn A. Thorvaldson, The Effects of Community Service on the Attitudes of Offenders, originally presented as the author's thesis (Ph.D.), (Research and Evaluation Unit, Policy Planning Division, Ministry of Attorney General, B.C., 1978). [1993] 2 S.C.R. 421. [Hereinafter/?, v. M. (JJ.)]. See Jones, supra note 14 at 61, 74 and 98, and Bala, supra note 206 at 50. At 493. At 492. 4 0 6  407  4 0 8  4 0 9 4 1 0  167  and rehabilitation as well as protection of society. The Supreme Court o f Canada also emphasized the special needs pertaining to young offenders, and diminished the importance o f general deterrence and the principle o f proportionality between the offence and the punishment. The Supreme Court o f Canada stated that the principle o f proportionality is o f greater significance for adult offenders than for young offenders.  While R. v. M. (J. J.) required "a balancing or compromise approach to ameliorate the effects of a strict application o f either philosophy, it is ironical that M . (J.J.) likely received a longer sentence than an adult in the same circumstances otherwise would... "  4 1 2  , based on the fact that M . (J.J.) came from a dysfunctional family.  I agree with Jones' conclusion that "[i]n this way, helping and punishing are often confusing cross-purposes in the mind of the young being sentenced."  In this leading case, the young offender's special needs resulted in a longer punishment. The Supreme Court of Canada stated that 'reform' and 'rehabilitation' of the young offender is best for society.  These terms have functioned in a retributive setting for many years.  Another example is the review procedures described in Section 28ff. of the Y O A . There are no automatic reductions o f a youth sentence in contrast to the legislation that operates to reduce an adult offender's sentence.  Section 28 o f the Y O A provides the legal framework regarding release from custody before the contemplation of a sentence for young offenders.  1  Jones, ibid, at 70.  168  Section 28 outlines review procedures, including but not limited to, mandatory review (Section 28 (1)), optional review (Section 28 (3)), the grounds for review (Section 28 (4)), and additional information (Section 28 (8)).  The review provisions are very  detailed. Once the young offender is sent into custody, the provincial correctional staff decides where the young offenders should be placed. The provincial officials have the authority to transfer the young offender from open to secure custody facilities. (Section 24.2. (11)), and vice-versa (section 24 2. (10)).  The grounds for optional review include circumstances where:  •  sufficient progress by the young offender justifies a change  •  circumstances are changed materially  •  new services or programs are available  •  there are more opportunities for rehabilitation within the community; or  •  the youth court considers other grounds appropriate.  B a l a suggests that "[t]he review provisions are intended to give youths in custody an incentive to "mend their ways" by participating in rehabilitative programs and changing their behaviour and attitude."  2 3  Ibid, at 18. Bala, supra note 408 at 248.  413  'Rehabilitation' and 'reform' o f the young offender may  169 also determine the length o f the custodial sentence. Once the young offender has been sent into custody, he/she is dependent on a decision based on the grounds mentioned in Section 28 (4) whether he or she can get a reduced sentence. A s mentioned above, that is not the case with adult offenders. The result can be a longer sentence i f the young offender is not willing to for example participate in rehabilitation programs. This is the characteristic o f a criminal justice system that is functioning i n a retributive setting.  However, there is another aspect to be considered with respect to review procedures.  Section 28 (4) states that the youth court can take into consideration that the opportunity for rehabilitation of the young offender is greater in community. This is in line with the intention behind Section 4 of the Y O A , and the philosophy of restorative justice, as I w i l l discuss later on.  Section 28 (17)(c)(ii) outlines the procedure for a conditional-supervision option in review cases. A young offender who is to be released from custody can be placed on "conditional supervision", where there is a wider authorization for probation staff to monitor the young offender in the community. "There is ample evidence that the period following release from custody is vitally important for the long-term rehabilitation of young offenders who have been placed in custody."  414  B a l a concludes, that conditional  supervision might have a positive effect on the young offender's chance of re-offending, because the young offender is more likely to reintegrate in society successfully with the supervision.  Ibid, at 250.  170  "This makes the custody-review and conditional-supervision provisions of the Y O A highly significant for the protection of society in the long r u n . "  415  The provisions use a  terminology based on both retribution and restorative justice philosophy.  The A c t  therefore sends out mixed signals concerning the underlying sentencing rationales of the Act. From my point o f view, Sections 24 and 28 describe the ambivalence within the YOA.  In many ways, the Y O A embodies a retributive philosophy. But it is also evident that the A c t is trying to reconcile itself with a new philosophy, as I w i l l describe in Section CandD.  The criminal justice system, having functioned in a retributive setting for many years, has shown shortcomings. This is reflected in the criminal statistics, which demonstrate that, despite a decrease in youth crime, young offenders keep offending. reflected in the criminal justice system's way o f dealing with victims.  416  It is also  The current  system relegates the victim to the role of 'witness', thus denying the victim's true role. The system focuses on the relevant legal facts of the offender's actions. Consequently, the victim is not allowed to talk about the impact the offence had on him or her, and many victims feel alienated within the current system.  These aspects of retributive justice have been recognized in A Strategy for the Renewal of Youth Justice and the Youth Criminal Justice Act to a further extent than under the current legislation - the Y O A . Nevertheless, Section 4 under the Y O A expresses the  4 1 5  Ibid.  171 importance o f alternative measures, and outlines the legal framework for programs for alternative measures, and is therefore to be considered the first attempt at reconsidering retribution.  The principles o f retribution have changed during the past 3 decades, and academics have focused on and turned to the principles o f restorative justice in order to deal with young offenders in conflict with the criminal justice system.  Next, I w i l l offer an  explanation o f the lack o f confidence in the theory o f retribution shared by academics in order to understand the new strategy for youth justice philosophy.  B.  RESTORATIVE JUSTICE  The restorative justice theory has a strong rhetoric, as w i l l be made clear in this section.  In order to illustrate the parameters o f restorative justice theory I have to refer to some definitions o f the term 'restorative justice'.  Restorative justice, in its broadest context, refers to "[a]n equitable remedy under which a person is restored to his or her original position prior to loss or injury, or placed in the position he or she would have been, had the breach not occurred... A n act o f making good or giving an equivalent for or restoring something to the rightful owner."  6  Please refer to Table 1 on page 5.  417  172  Rogers & M a y s describe restorative justice as:  "[conceptually, restitution is the act of  restoration or making well by offering the approximate value o f any loss or damage to the victim. Restitution is used by some juvenile court judges as an alternative to, or as a condition of, probation. It may be used also in diversionary programs."  418  Tony Marshall defines restorative justice as  ... .a way o f dealing with victims and offenders by focusing on the settlement of conflicts arising from crime and resolving the underlying problems which cause it. It is also, more widely, a way of dealing with crime generally in a rational problem solving way. Central to restorative justice is recognition of the community, rather than criminal justice agencies, as the prime site of crime control. 419  Wright describes the aims of restorative justice as being support and reparation for the victim, with mediation being used i f necessary; reparation to the victim or the community; and co-operation in rehabilitation by the offender, with limited use of restrictions and detention.  420  Gustafson and Bergen delimit restorative justice theory negatively:  4 1 7  4 1 8  4 1 9  Black's Law Dictionary 910 (Abridged 6 Edition). Rogers & Mays, supra note 398 at 573. Tony Marshall, " The Search for Restorative Justice." A paper presented on a speaking tour of New th  Zealand, May 1995. [Unpublished]. As cited in Promising Models in Restorative Justice: A Report for the Ministry of Attorney General of B.C., (February 1998) (Dave Gustafson and Sandi Bergen) at 5[hereinafter  Promising Models in Restorative Justice]. 4 2 0  Martin Wright, "Can Mediation be an Alternative to Community Justice" in J. Hudson, et al., eds.,  Family Group Conferences: Perspectives on Policy & Practice (Australia: The Federation Press, 1996) at 17ff.  173  Restorative justice is a philosophy; a value-based approach which needs, in part, to be defined by what it is not, or at least in contrast to retributive justice, its antithesis. Restorative justice is not a program. Restorative justice is not to be equated with diversion. Restorative justice is not about escape from responsibility, natural consequences or sanctions. Restorative justice is not limited i n its applicability to minor or first time offenses. Restorative justice is not "soft on crime" (in fact, some offenders find their experience o f taking responsibility in a face-to-face encounter with their victims to be the most difficult thing they have ever done). Restorative justice has little to do with technique, and a great deal to do with human relationships. Those who view crime from a restorative justice perspective see crime as harm done which creates a branch, a "rent" in the fabric of the community. 421  In Changing Lenses, restorative justice is described in the following way:  Crime is a violation o f people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance. 422  Instead of asking "Which law has been broken?', restorative justice asks "Who has been hurt?".  Instead o f asking "What does the offender deserve?", restorative justice asks  "What can be done to repair or restore the relationship?".  Restorative justice is about holding offenders accountable for their actions, in the sense that the offender must understand what he or she has done, and then take full responsibility.  423  421  Promising Models in Restorative Justice at 5-6.  4 2 2  Zehr, supra note 405 at 181  John Hogarth, "The Principles o f Sentencing: Ouimet Revisited", in Sentencing: Cases and Materials for Law 5 JO (Vancover: University o f British Columboia, 1992) 4 2 3  174  Dr. M a r k Umbreit has also elaborated on the concept o f accountability with respect to young offenders:  The definition o f accountability i n the restorative justice paradigm is based on the recognition that when an offense occurs, the offender incurs an obligation to the victim. This definition o f accountability has both a cognitive meaning (understanding impact o f their behavior on the victim) and a behavioral meaning (taking action to make things right). 424  In structural terms, Umbreit describes accountability within retributive and restorative paradigms as f o l l o w s :  425  RETRIBUTIVE ACCOUNTABILITY  RESTORATIVE ACCOUNTABILITY  Wrongs create guilt  Wrongs create liabilities and obligations  Guilt absolute, either/or  Degrees o f responsibility  Guilt indelible  Guilt removable through repentance and reparation  Debt is abstract  Debt is concrete  Debt paid by taking punishment  Debt paid by making right  "Debt" owed to society i n the abstract  Debt owed to victim first  Accountability is taking one's "medicine"  Accountability is taking responsibility  Assumes behaviour chosen freely  Recognizes differences between potential and actual realization o f human freedom  Free w i l l or social determination  Recognizes choices  role without  of  social denying  context  of  personal  responsibilities  See Mark Umbreit, "Holding Juvenile Offenders Accountable: A Restorative Justice Perspective", Juvenile and Family Court Journal (Spring 1995) /Vol. 46, No. 2, at 32.  175  Therefore, it is important to understand that both victim and offender are expected to participate actively, rather than passively, in the restorative justice system.  C.  F R O M RETRIBUTIVE T O RESTORATIVE?  A s noted in Chapter 3, The historical evolution of youth justice, the description o f earlier legislation in youth justice matters clearly reveals that the criminal justice system has, up till now, been firmly established in retributive principles.  A l s o noted earlier, an opening within the legislative framework, the Y O A , has appeared in Section 4 ( 1 ) , which outlines instances in which alternative measures can be used. In 426  order to delineate the change from retributive to restorative justice theory, allow me to expand upon Sections 3 and 4 under the Y O A :  The Y O A recognizes that young offenders have special needs and that because o f their age, they cannot be held accountable in the same way as adult offenders would be. But section 3(1) and section 4 under the Y O A state that the young offender should bear responsibility for his or her contraventions towards society, towards the victim, and towards him/herself.  A s a means of placing responsibility, Section 4 under the Y O A  expresses the importance of alternative measures, and thereby outlines the legal framework for programs for alternative measures.  Table 5 is described in the same article as mentioned supra note 424.  176  A s described in Section 4, alternative measures are methods other than prosecution in youth court o f dealing with youths who have committed offences.  Some o f these  programs are known as " diversion". Some o f the programs in Section 4 under the Y O A are offered on a pre-trial basis, which means that the program can be completed before a charge is laid in youth court. Some o f the program models for alternative measures are based on post-charge. A s described in Section 4 (c), the young offender must fully and freely consent to participate i n the alternative measures program, which is also a prerequisite for participation in the mediation process. A l s o , the young offender must accept responsibility for his or her act.  The majority o f cases referred to victim-offender mediation are first time, non-violent, minor offences.  427  The provincial authorities responsible for juvenile correction  establish the eligibility criteria for referral to alternative measures. Some jurisdictions allow young repeat offenders to enter a victim-offender mediation program, but "[m]ost do not accept cases that involve violent or persistent antisocial behaviour patterns on the part o f the y o u t h . "  428  In most jurisdictions, the referrals are based upon either the characteristics o f the offender or the offence.  429  Only the Attorney General can authorize alternative  measures programs, according to Section 4(1) under the Y O A . Furthermore, there must  See for a further description of section 3 and 4 of the YOA; Chapter 2. Mark Chupp, "Reconciliation Procedures and Rationale" in M. Wright and B. Galaway, eds., Mediation andCriminalJustice: Victims, Offenders andCommunity (London: Sage Publications, 1989) at 57. See generally K. Pate and D. Peachey, 'Face to Face: Victim-Offender Mediation under the Young Offenders Act", in Hudson, Hornick & Burrows, eds., Justice and the Young Offender in Canada (Toronto: Wall & Thompson, 1988). Ibid. 4 2 6 4 2 7  4 2 8  4 2 9  177  be sufficient evidence to proceed with the prosecution o f the offence, and law must not in any way bar the prosecution o f the offence. Once the case is referred, a new process begins, which w i l l be described on page 184ff.  In A Strategy for the Renewal of Youth Justice and with the Youth Criminal  Justice Act,  the door towards restorative seems to have been opened even more. Let me summarize the intentions behind the new youth justice strategy:  A s already mentioned, the Strategy for the Renewal of Youth Justice emphasizes the importance o f three areas related to youth crime: •  Promoting crime prevention and effective alternatives to the formal youth justice system.  •  Ensuring that youth crime is met with meaningful consequences; and  •  Emphasizing rehabilitation and reintegration.  These three areas related to youth crime have proven important in the drafting o f the Youth Criminal  Justice Act. This is quite evident when one looks at the news regarding  the Act, released on the Department o f Justice web-site on the day o f the tabling. (Please refer to Table 3 on page 99).  A s effective alternatives to the formal youth court, the A c t encourages measures other than court proceedings when adequate to hold a young person accountable; authorizes the use o f warnings, police cautions, referrals to community programs, and cautions by  178 prosecutors; and sets out objectives, such as encouraging repair o f harm done to victims, providing guidance on use.  Ensuring that youth crime is met with meaningful consequences and emphasizing rehabilitation and reintegration is also inscribed in the new A c t :  4 3 0  Youth sentences should include purpose and principles that clearly describe the purpose o f youth sentences as a need to hold youth accountable. This includes other specific principles, such as the need for proportionate rehabilitation.  sentences and the importance  of  A n example o f meaningful consequences is the sentencing options that  add new options to encourage use of non-custody sentences where appropriate and support reintegration.  Another important aspect of the new A c t is the acknowledgement of victim's concerns, which for the first time in federal legislation is recognized in principle. The victims w i l l have the right to access youth records, and they are encouraged to play a role in formal and informal community-based measures. The A c t also establishes the right o f victims to information about extrajudicial measures.  That w i l l , according to the policymakers,  ensure meaningful consequences for the young offenders and their reintegration into the community.  Reintegration is also ensured by involving partners, who may include parents of the young person, the victim, community agencies or professionals, to "conferences" on the  179  young offender's case.  The act allows advisory groups or "conferences" to advise the  police officer, judge or other decision-maker under the A c t on appropriate informal measures, conditions for release from pre-trial detention, appropriate sentences, and reintegration plans.  The new approach is an alternative, community-based range of programs.  The new  legislation w i l l put a stronger emphasis on the development o f a full range o f alternatives to custody, which emphasize the young offender's responsibility to the victim and community.  D.  T H E COST-SHARING ASPECT OF T H E CANADIAN SYSTEM OF Y O U T H JUSTICE  O n page 23,1 mentioned the cost-sharing aspect o f the implementation o f the Y O A . The cost-sharing agreements between the federal and the provincial governments have made the implementation o f the Y O A very difficult.  The implementation o f alternative  measures mentioned in Section 4 o f the Y O A have been exposed to debate, and have proven difficult to implement.  I w i l l examine the federal government's role in  implementing young offender legislation to determine the reason for these difficulties.  One o f the key-aspects o f the Canadian system of youth justice is that the federal government has jurisdiction and broad power to enact legislation in the area o f youth  Please refer to Table 3 described on page 99.  180  justice and young offenders. The provincial governments have jurisdiction to administer justice, and can therefore influence the implementation of the legislation. That means that the provincial governments have to pay for "all o f the legal, judicial, correctional, and social services required for youths."  431  B y entering in cost-sharing agreements, funds  provided by the federal government have funded some o f the provincial programs. This financial arrangement is vulnerable in the sense that it is highly dependent on the cooperation of the provincial governments. The Y O A added more items to the list of costshareable items. These included: post-adjudication detention, alternative measures, bailsupervision programs, probation and predisposition reports.  "However, because the federal contribution was determined by how much the provinces and the territories would spend on various programs, nearly three-quarters o f the federal contribution was directed to custody and custodial programming, which resulted in proportionately less federal support for provinces with lower custody rates."  432  A s noted on p. 23, federal funding was frozen at $156 million in 1989. This has led to a fall in overall federal share o f eligible provincial costs to an average o f approximately 30  The implementation and cost-sharing of youth justice legislation is important to the discussion o f the Y O A and restorative justice.  Provincial politicians are unable,  unwilling and i l l prepared to pay the increase o f costs a new philosophy might introduce.  431 432  Bala, supra note 4,15 at 12. See also Jim Coflin, supra note 159 at 37ff. Renewing Youth Justice, supra note 3 at 6.  181 "The federal government has provided some financial support for young offenders services, but the amounts are diminishing while federal conditions for providing funds are increasing."  434  This problem was acknowledged i n Renewing Youth Justice: "we realize  that negotiating cost-sharing agreements when federal financial support has diminished over the past several years is a major challenge. A priority in the negotiation will be to encourage the development o f a wide range o f alternatives to courts and incarceration."  435  Extra federal funding is planned being spent o n assisting with start-up costs for new programs in the provinces. The recommendation described in Renewing Youth Justice was supported in A Strategy for the Renewal of Youth Justice.  I do not believe that the Youth Criminal  Justice Act actually constitutes a substantial  change. The changes are to be found beyond the rhetoric o f the legislation and behind the terms o f the Act. These changes lay in the implementation and the new cost-sharing agreements relating to the new Act. This is where the Youth Criminal  Justice Act can  constitute a further advance, and introduce restorative justice.  A key-aspect o f the new Youth Criminal  Justice Act is the flexibility for provinces in  choosing options in areas that allow them to address the unique needs and problems i n their community, particularly in reintegration programs.  It is expected that federal  funding o f such programs w i l l ensure provincial governments support the implementation o f the Act.  Bala, supra note 431 at 13.  182  Additional federal resources will support provincial investments i n new communitybased programs. It is obvious that the implementation of the new A c t involves partners at every level of the federal and provincial governments, and within the community. Therefore, "[t]he federal government w i l l also make additional resources available to support implementation o f the Youth Justice Strategy and review its cost-sharing agreements with the provinces and territories to ensure stability and equity."  436  The federal government thereby hopes to ease the implementation o f the Youth  Criminal  Justice Act. The Minister o f Justice has delineated the financial funding:  The Youth Justice Strategy will be implemented i n close co-operation with the provinces and territories. N e w resources were allocated in the 1999-2000 Federal Budget ($206 million over the first three years) to support provincial and territorial efforts to meet the objectives o f the Strategy and to provide greater stability and equity in federal funding. 437  The federal government has promised a significant shift i n resources from custodial institutions to community-based services and it is negotiating new financial agreements that w i l l reflect the importance o f restorative justice.  This shift i n resources and cost-sharing agreements reflect another important objective o f the Youth Criminal  Justice Act - namely crime prevention through social development.  Renewing Youth Justice, supra note 432 at 8. http://www.canada.justice.gc.ca/News/Communiques/1999/yoafactl_3 at 5. http//www.canada.justice.gc.ca/News?communiques/l999/yoafac _en.html at 2.  183  Section 3 (l)(a) o f the Y O A recognizes the importance o f a crime-prevention strategy based on social development.  However, as noted above, the federal funding did not  specifically financially support restorative justice initiatives. the strategy behind the Youth Criminal  It is therefore argued that  Justice Act is linked to other federal, provincial  and territorial initiatives, such as the National Strategy on Community Safety and Crime Prevention and the National Children's Agenda, both o f which address the broader factors linked to youth crime.  The Safer Communities Initiative is administered by the  National Crime Prevention Centre, and was launched in 1998 as part o f the national strategy.  "This initiative is aimed at developing community-based responses to crime,  with a particular emphasis on children and youth, Aboriginal people and women. The government has committed $32 million annually to assist communities across Canada in developing programs and partnerships that w i l l help prevent c r i m e . "  The strategy behind the Youth Criminal  439  Justice Act also supports the National Children's  Agenda and the involvement o f a broad range o f organizations that work with young people. The strategy behind the terms o f the new A c t attempts to address the broader factors in youth crime, and thereby indirectly restorative justice philosophy. The answer to a successful implementation o f the new A c t is additional federal funding, renegotiation o f cost-sharing agreements, and co-operation between the youth criminal justice system and other child welfare organizations.  4 3 8  4 3 9  Ibid, at 2. Ibid, at 1.  184 Even though it is my conclusion that the new A c t does not constitute a substantial change in terms o f the legislation, the federal government has decided to approach youth justice in a different way.  This approach might constitute a further advance in the system of  Canadian youth justice.  II.  ALTERNATIVE MEASURES  In this section, I w i l l delineate the options available within the criminal justice system that encourage measures other than traditional court proceedings. In order to understand the process of alternative measures, I w i l l have to delineate the principles in the process o f mediation. These principles are generally usable in dealing with young offenders in an informal setting, such as victim-offender mediation.  I w i l l expound the theories and principles behind alternative measures such as mediation (victim-offender mediation in particular), Family Group Conferences, Victim-Offender Reconciliation Programs, and Circle Sentencing. The description w i l l also contain a survey of the most common programs o f alternative measures used throughout Canada. In Section C , I w i l l look at mediation and the future.  A.  PRINCIPLES OF MEDIATION  A.l.  The Principles  185 Since the principles of mediation not are the major topic o f this thesis, I w i l l be brief regarding these matters.  What is 'mediation'?  Mediation is a "[pjrivate, informal dispute resolution process in which a neutral third person, the mediator, helps disputing parties to reach an agreement. The mediator has no power to impose a decision on the parties."  4 4 0  Originally, mediation and alternative dispute resolution were private methods  of  resolving disputes in private law matters, but they have in the last decade attracted interest in the area o f criminal law.  The idea behind mediation is to bring disputing people together.  441  The participants  undergo the mediation process on a voluntary basis, and the mediator, who is a neutral third party, has certain tools and techniques (known as micro-skills) to help the disputing parties to reach an agreement. For example, the technique may consist o f a special way of questioning and active listening in order to find the parties' underlying interests. Mediation is flexible, voluntary and effective. The mediator must strive to equalize the participant's skill at bargaining, and to solve the problem of asymmetrical personal 442  powers.  Black's Law Dictionary 981 ( 6 ed. 1990). Chupp, supra note 427 at 68. Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict, 2d.ed (San Francisco: Jossey-Bass Publishers) at 335. 4 4 0  4 4 1  4 4 2  th  186  Furthermore, it is o f great importance that the mediator understands the disparities between the parties.  These disparities reflect the cultural context o f the parties. The  disparity between the parties might consist o f age, wealth, education, social standing, language, and so forth.  443  The mediator should use objective criteria to find a fair solution  4 4 4  Objective fairness is  not the only factor. The mediator should also pay attention to and understand the parties' interests. If the subjective fairness is addressed, the parties w i l l be compelled to reach an agreement.  The control o f the outcome o f the mediation is high, as the parties are  negotiating face to face. Especially i n victim-offender mediation, where the offender is a juvenile, the tools and techniques mentioned above might be used successfully.  445  In  these cases mediation offers a situation i n which both parties can profit from an agreement - a so-called "win-win" situation.  A.2.  The Role of the Mediator  In this section, I w i l l examine the precautions a mediator should take before facilitating a case involving a young offender. These precautions w i l l also be o f great importance in dealing with young offenders in cases other than victim-offender mediation.  4 4 J  4 4 4  Ibid, at 211.  See generally R. Fisher & W. Ury, Getting to Yes: Negotiating Agreement Without Giving In (Boston:  Houghton Mifflin, 1981). See also infra Section I, A.2. In this Section, I describe the mediation process, and I hope to provide useful insight into the above-mentioned tools and techniques. 4 4 5  187  The mediator conducts the 'intake' procedures. 'Intake' means identifying and screening the case. The mediator analyses the case beforehand to identify the cultural context and the underlying interests o f the parties'. A s mentioned in Section I, Section A . L , the cultural context consists o f disparity in age, language , education, social standing, wealth, etc., and is also reflected in the victim's and offender's skill at bargaining. It is important that the mediator acknowledge the cultural context, because it might lead to an imbalance o f power between the parties. Understanding the cultural context will help to inform the mediator about whether there is anger or hostility between the parties, and whether this w i l l hinder a meeting.  In victim-offender mediation in the context o f a young offender, determination o f guilt is not the focus. The mediation w i l l therefore be interest-based, rather than value-based. The mediator needs to consider in advance what he or she is going to do, what he or she w i l l wear, what attitude she or he w i l l take with the various participants, and what words are to be spoken at the beginning to get the proceedings started.  These factors are  especially important in victim-offender mediation because the tension between the parties is often high. Consequently, the mediator must prepare his or her r o l e .  446  When the administrative process o f screening is finished, the mediator w i l l have preliminary meetings with the offender and the victim. Often the mediator w i l l start by introducing the mediation process. Then, the mediator w i l l listen to the parties' stories. In the preliminary session, the participants are allowed to express themselves and they  See Judge Lindsay G. Arthur, "A Manual for Mediators", Juvenile and family Court Journal, (Spring 1995)/Vol. 46, No. 2, at 63-73.  4 4 6  188  have a chance to be heard. After the introductionary stage, the mediator can suggest a joint meeting.  Some programs use role-play to prepare the young offenders to meet their victims, in order to minimize the anxiety the offender might experience.  447  It is important to  understand that mediation in criminal cases is quite different from the average Alternative Dispute Resolution-process. In victim-offender mediation, the participants do not know each other beforehand.  In the joint meeting, the mediator starts the process by explaining his or her role, and describing the communication patterns and the behavioural guidelines for the meeting. A n informal seating arrangement, an informal opening, and informal conversation might be appropriate when a young offender is involved. The informality is used to build trust and to encourage the parties to let their guard d o w n .  448  The mediator has certain tools and techniques to use in the mediation-process, as mentioned in Section I, A . 1.  After the opening, the mediator encourages the parties to exchange information about the offence and to express their feelings.  A t the end o f the mediation meeting, the  victim should understand why the young offender acted as he did, and the offender  See supra note 446 ibid. See Ira Schwartz & Laura Preiser, "Diversion and Juvenile Justice: Can We Ever Get It Right?" in Heinz Messmer and Hans-Uwe Otto, eds., Restorative Justice on Trial: Pitfalls and Potential of Victim-Offender Mediation-International Perspectives (Dordrecht: Kluwer Academic Publishers, 1992) at 279 ff.. 4 4 7  4 4 8  189  should understand the impact the offence has had on the victim.  Finally, the parties  might negotiate about the young offender's role in restoring the matter.  A n agreement may include a written or personal apology, restitution, personal service work hours (similar to community service), or participation i n educational programs designated as Alternative Measures Programs.  A.3.  Reconciliation  The meeting between victim and offender is often referred to as a 'reconciliation meeting'. In the mediation meeting, there is space for reconciliation; this means that feelings should be expressed, and a greater understanding between the parties can be gained.  A s M a r k Chupps explains:  Reconciliation comes about as the offender realize for the first time the human consequences o f her or his actions, the personal fear, trauma, loss, and anger that has resulted, and when the victim begins to see the offender as a person, rather than some violent monster he or she has conjured u p . 449  It is important that reconciliation not be forced upon the parties.  The mediator w i l l ,  however, ask the participants to express themselves freely. M a r k Chupp describes the impact o f reconciliation as being "based largely on breaking down stereotypes and the victim and offender arriving at a new understanding o f each other."  4 4 9  C h u p p , s u p r a n o t e 4 4 1 at 6 3 .  450  190  The mediator cannot impose settlements, but can assist the participants i n settling their own agreement. This agreement must be fair i n a subjective and objective sense, and must be reasonable, in order to "make it right" to the v i c t i m .  451  Throughout the whole process, the disputants have the ability to control the decisionmaking process.  B.  A L T E R N A T I V E MEASURES  In this section, I w i l l expound the theories and principles behind alternative measures such as Mediation (victim-offender mediation i n particular), Family Group Conferences, Victim-Offender Reconciliation Programs, and Circle Sentencing.  B.l.  The Kitchener Experiment  452  In section B.I, I w i l l describe the evolution o f mediation, starting with the Kitchener experiment. The Kitchener experiment is recognized as the forerunner o f victim-offender mediation; therefore, I consider the description to be significant.  Victim-offender mediation was initiated in 1974 i n Kitchener, Ontario, in the " E l m i r a Case".  The case involved two intoxicated teenagers who had vandalized property  Zehr, supra note 422 at 78 See Dean E. Peachey, "The Kitchener Experiment", in M. Wright and B. Galaway, eds.; supra note 427 at 14-26. 451  4 5 2  191  belonging to 22 victims. The judge asked the young offenders to meet with and arrange to compensate each o f the victims, after the suggestion o f the young offenders' probation officer, M a r k Yantzi. He reasoned that having to personally face their victims might have some therapeutic value for the young offenders, The concept gained enormous popularity because o f the positive reactions from both victims and offenders.  That was the beginning of victim-offender reconciliation programs.  What are the characteristics of the victim-offender mediation process?  •  Offenders meet with their victims face to face.  •  The parties' interests are identified, in contrast to court proceedings.  •  Both offender and victim are allowed to exchange information about the offence.  •  Both victim and offender have an impact on the resolution o f the matter.  •  They negotiate some kind of restitution.  The probation officer in Kitchener, M a r k Yantzi, had worked as a volunteer in a program sponsored by the Mennonite Central Committee ( M C C ) .  This committee has a strong  pacifist tradition, and one of its main goals is to reconcile relationships. Consequently, the Kitchener project  is based on the M C C ' s  aims and philosophies regarding  reconciliation. V i c t i m and offender must make peace and restore their relationship. The Kitchener project expanded, and developed to become an official program. Since 1975 it has been of significant importance, and has been known as V O R P  192  B.2.  V  O  R  P  V O R P stands for Victim-Offender Reconciliation Programme. V O R P was also initiated by Mennonite reformers in Canada and the States.  In 1975, the program was made  official, and the most important goals o f V O R P were, and are, 'reconciliation' and 'alternatives to incapacitation'.  453  Again, reconciliation means restoring the relationship  between the victim and the offender.  V O R P is based on a Christian theological  foundation, and on the results o f the Kitchener project.  During the '70s and the '80s, V O R P expanded and became a huge success. programs developed from the V O R P model.  Similar  V O R P is now operated by the Fraser  Region Community Justice Initiatives Association (Langley, B.C.), the Edmonton Victim Offender Mediation Project, V i c t i m Young Offender Reconciliation Program (Calgary), Saskatoon Mediation Services, Winnipeg Mediation Services, Community Justice Initiatives (Kitchener, Ontario), Windsor and Downesview (Ontario& Moncton, N e w Brunswick), and by the John Howard Society (Newfoundland and Labrador).  454  The purpose o f the program is to bring the victim and the offender together with a trained mediator to achieve a resolution which is satisfactory to both parties to the criminal event. The reconciliation seeks to:  See R. Coates and J. Gehm, "An empirical Assessment", in M. Wright and B. Galaway eds ibid at 251-263.  193  •  identify crime that can be successfully dealt with within the community;  •  involve community members in work with problems that normally lead into the criminal justice process;  •  facilitate the reaching of agreements between victims and offenders regarding restitution;  •  assist offenders in directing payment o f their "debt to society" to their victims (How to make things right),  •  effect reconciliation and understanding between victims and offenders.  It is important to understand that the mediator is required to take a training course i n mediation technique. It is a 36-hour-long course which includes basis resolution skills in victim-offender mediation, V O R P philosophy, and role playing. V O R P has now certified its mediators at one o f three levels - Level I, Level II, or Senior Mediator - depending on their mediation experience and attendance o f training courses.  B.3.  Family G r o u p Conferencing ( F G C )  4 5 5  F G C was originally developed in N e w Zealand and there is a long history of the concept, which is rooted in the traditional ways o f the Maoris. In 1989, N e w Zealand passed the Children,  Young Persons and Their Families Act, which departed radically from previous  law.  See generally Promising Models in Restorative Justice: A Report for the Ministry ofAttorney General of B.C., (February 1998) (Dave Gustafson and Sandi Bergen) [hereinafter Promising Models in Restorative Justice]. See generally Ian Hassel, "Origin and Development of Family Group Conferences" in J. Hudson et al., eds., supra note 420, Family Group Conferences: Perspectives on Policy & Practice (Australia: The Federation Press, 1996) at 17ff. 4 5 5  194  It placed primary responsibility with extended families for making decisions about what was to be done with their children and young people who had come to official notice. Families were to have the assistance of the police, in the case of young offenders, the child protection service, in the case o f children in need o f care and protection, and any others the family wished to be present at the meeting. 456  In short, the F G C is designed to acknowledge that the primary role i n caring for and protecting young offenders lies within the family, and to increase family participation in the decision-making process with respect to young offenders.  In a family  conference only the relevant people are participating, and the setting is informal.  group The  victim and the offender both participate actively, as they do in victim-offender mediation. The difference is the parental involvement. In F G C , the family of the young offender has the possibility o f obtaining a better understanding of why the offence occurred and what plan should be made to minimize the chance that the offender w i l l re-offend.  The conference is also very similar to mediation meetings.  457  Here, too, it is important to  recognize the power that lies in shaming the offender in order to produce outcomes. This is one of the attributes o f restorative justice. A conference normally progresses through the following steps:  458  •  Introductions o f parties present, and their roles;  •  A n explanation o f the procedure by the co-ordinator;  Please refer to Section I, A. 1. Promising Models in Restorative Justice at 34-35.  195  •  A presentation of the summary o f facts for the offence by the police;  •  A n opportunity for the offender to comment on the accuracy of the police statement;  •  A n opportunity for the victim (or victim's representative) to present his or her view i f the offender admits to the offence;  •  A general discussion o f possible outcomes;  •  A discussion o f options among the offender's family (usually in a private 'caucus');  •  The formulation o f a plan, response or outcome by the offender's family;  •  General negotiation concerning the terms and acceptability of the plan proposed;  •  Statement of agreement from the enforcement agency and victim;  •  Recording o f the agreed plan;  •  Conclusion and adjournment of the meeting.  B.3.1. F G C in Canada F G C has been implemented in Canada. In the 1990s the F G C emerged in B . C . , and was a result of Aboriginal advocacy based on the results from N e w Zealand.  A n evaluation o f family group decision-making in Canada was made i n 1 9 9 6  4 5 9  The  evaluation was based on preliminary findings from the Family Group Decision-making Project that was a trial implementation of family group conferencing in three culturally distinct regions of the Canadian province o f Newfoundland and Labrador. The project focused on family violence and operated with a federal grant.  The purpose of the  evaluation was to hopefully show that family group conferences could challenge child  196  welfare thinking "that focuses on the individual failings o f caregivers and, as a result, can promote a communal sense o f responsibility for child and family w e l l - b e i n g . "  460  The conferences i n this project mentioned above, strove to set up standards for caring, family shame, caring confrontation, supports for caring, and finally, family pride.  According to the statements made by Minister o f Justice Anne M c L e l l a n on the occasion of the release o f the Youth CriminalJustice  Act, family group conferences are intended to  become an important part o f the alternatives to traditional court proceedings.  B.4.  461  Circle Sentencing  Aboriginal community circles (peacemaking, healing and sentencing) are examples o f what communities can do to challenge the assumption that incarceration is the only currency in which an offender's obligations can be paid, and o f a situation in which restorative values are shared by the stakeholders.  462  Judge Barry Stuart has elaborated on the impact that the formal criminal justice system might have on communities disempowers  communities  4 6 3  He claims that the formal criminal justice system  and undermines  conflict  resolution  skills  within  Joan Pennel & Gale Burford, "Attending to Context: Family Group Decision-making in Canada" in J. Hudson et al., supra note 455 at 206ff. Ibid, at 207. Please refer to Chapter 5 and table 3 on page 99. Promising Models in Restorative Justice at 45. Judge Barry Stuart, "Circle Sentencing. Mediation and Consensus. Turning Swords into Ploughshares" in Accord, June 1995, at 48-51. For further information, see also Casebook in Law 479, Chapter 14. 4 3 9  4 6 0 461 462  4 6 3  197  communities, and robs them o f the invaluable building block o f any community - active involvement in constructively resolving conflict.  Judge Barry Stuart focuses on aspects o f the Circle Sentencing Hearing which describe the use o f consensus and mediation principles. The community is o f great importance in circle sentencing, as the community is a part o f the sentencing process. Despite the many different Circle processes, some similarities may be outlined:  •  Each community has established requirements governing acceptance into the Circle.  •  Preconditions for entering the Circle include an acceptance of responsibility by the offender, a plea o f guilty, a connection to the community, a desire for rehabilitation, concrete steps toward rehabilitation, support within the community for the offender, and the input o f the victim.  •  The circle sentencing deals with all kind of offences, even serious crimes.  •  The Circle is open to all, but the victim, the offender, Elders, and people with mediation skills have to participate. A l l parties in attendance have an influence on the process.  •  The hearing starts with a welcome, a prayer, introductions and explanations, all to promote a sense of working together to find a solution in a manner that respects all participants.  The most important differences in Circle Sentencing flow from empowering the offender, the victim and particularly the community to take primary responsibility for advancing their interests, to take ownership of the process, and to  198  develop solutions incorporating their values, objectives and 464  resources. From my perspective, Circle Sentencing goes beyond restorative justice. Sentencing is about how the community should deal with its own members.  Circle The  offender is a part o f the community, and in order to seek the best solution, the community has to deal with the offender as an equal member.  T o me, the most  significant indicators that Circle Sentencing goes beyond restorative justice are: 1) The participants: There are very rarely Justice professionals attending the circle sentencing; and 2) The process is not about shaming the offender, which can produce both positive and negative outcomes . In m y opinion, Circle Sentencing is superior to the shaming 465  process.  In Circle Sentencing, one defines oneself through the community, and the  community defines itself through how it deals with its outsiders.  The use o f Circle Sentencing Hearings have raised a number o f concerns, i n c l u d i n g :  466  •  Apparent insufficient attention to power imbalances;  •  The possibility o f powerful families stacking the circles so as to "fix" the outcomes and potentially render vulnerable victims even more vulnerable;  •  That the process is too "soft on crime"; that offenders who commit crimes against the person have to be punished (and punishment, in such cases seems to mean one thing: sent out o f the community to serve long terms i n prison); and  •  That "circles take too long a time."  As described in Section II, shaming is one of the attributes of restorative justice.  199  Critics have raised these concerns not only about Circle Sentencing, but also about other restorative justice initiatives.  Yet again, from the statements made by Minister o f Justice Anne M c L e l l a n on the occasion o f the release o f the Youth Criminal Justice Act, Circle Sentencing Hearings are intended to become an important part o f the alternative measures used i n youth criminal justice.  467  B.5.  A Survey of Victim-Offender Mediation Programs  Since the proclamation o f the Y O A , more than 30 mediation and reconciliation programs have been established in C a n a d a .  468  A l l the programs encourage young persons who have  committed offences to be accountable for their actions, i n the sense that the young offender must understand what he or she did, and then take full responsibility for the crime.  The 30 programs are not completely identical in their underlying aims and philosophies. However, a common theme seems to be the desire to increase a young offender's sense o f responsibility and accountability, and to have other positive effects on the young offender's behaviour.  469  The approach varies from program to program. The programs  Promising Models in restorative Justice at 45. Please refer to Chapter 5 and table 3 on page 99. See K. Pate & D. Peachey, supra note 429 at 104-121. A. & P. Schneider, "Policy Expectations and Program Realities in Juvenile Restitution", in Hudson & Galaway, eds., Victims, Offenders and Alternative Sanctions, (Toronto: Lexington Books, 1980). See also John Harding "Reconciling Mediation with Criminal Justice", in Wright & Galaway, supra note 453 at 31 ff. 466  4 6 7  4 6 8 4 6 9  200  also vary in number, in the training o f the mediators, and in the extent o f the involvement of victims and parents o f offenders.  The goals o f diverting selected cases from the legal system, fostering reconciliation and conflict resolution within the community, promoting restitution and dramatically reworking the criminal justice system are both competing and converging forces in growing popularity o f victim-offender reconciliation programs for young offenders. 470  In the "Directory o f Canadian Dispute Resolution P r o g r a m s " , an analysis concludes 471  that o f the 28 programs currently documented, 16 programs were established after the Y O A came into effect. (Please refer to sections 3 and 4 under the Y O A , which provide the legislative framework).  Evidently, mediation programs seem to be o f great importance in dealing with young offenders. Some o f the programs are pre-trial alternatives to court, and their goal is to divert the young offenders from entering the criminal justice system. This is in contrast to post-trial sentencing alternatives. (Performed by i.e., V O R P ) .  4 7 2  Most o f the programs are operated by non-profit, voluntary organizations, and only a few are administrated directly by provincial government departments and private organizations.  Pate & Peachey supra note 468 ibid. Peachey & Skeen, eds., (Kitchener: Network for Community Justice and Conflict Resolution, 1988) See Bullington, et al., "A Critique of Diversionary Juvenile Justice", in Crime and Delinquency, January 1978, at 59-71. The authors claim "that the atmosphere of juvenile justice systems today is charged with...diversion", and they argue that diversion might be potentially dangerous, and argue against expansion of diversionary juvenile justice. The development of diversionary service has proved otherwise, since diversion is a major political topic. 4 / u 4 7 1  4 7 2  201  Besides V O R P and F G C , I also have to mention a few other programs, such as the Community Dispute Resolutions Programs ( C D R P ) . number of jurisdictions.  This program operates in a  The goal is to settle conflicts in the local community with  minimal involvement o f police and without the involvement of the criminal justice system. In order to prevent disputes and to pursue a cost-efficient resource, the use of mediation has been very popular.  According to Promising  Models  in  Restorative  Justice, the feedback from the R C M P and Crown Counsel considered C D R P to be an effective, community-based crime preventive program.  Another program is V O M P . V O M P stands for Victim-Offender Mediation Program. It is run by the Fraser Region Community Justice Initiatives Association in Langley, B . C . . The program offers mediation in cases o f serious crime, and the goal is to promote the healing of both parties involved in the crime. discuss any relevant i s s u e s .  The program allows participants to  473  Also to be mentioned is Restorative Resolutions operated by the John Howard Society o f Manitoba. This program also offers a community-based alternative to incarceration. According to its statement in the Interim report, 1994 , the program promotes 474  restorative justice by providing an opportunity for offenders to be accountable to the  See Evaluation of the Victim Offender Mediation Project, Langley, B.C. Final Report for Solicitor General Canada (Tim Roberts, March 1995). The evaluation of the Langley Project reported strong supportfromboth victims and offenders. Also, the criminal justice system responded with strong support. Described in Promising Models in Restorative Justice, at 40 ff.  202  community, encouraging victim participation, addressing public safety and promoting peace.  B.6.  Evaluation of the Programs  A l l programs in Canada monitor agreements until their terms have been fulfilled.  475  Pursuant to Sections 4 and 5 o f the Y O A , youth court shall dismiss any charges against the young offender when the young person has totally complied with the terms and conditions of the alternative measures.  A n automatic evaluation is built into the system, whether the programs are pre-trial or post-trial programs.  What about the evaluation o f the quality o f these programs? I have touched upon some o f the concerns raised against restorative justice theory. A s this thesis is concerned with youth justice philosophy, I w i l l not be able to fully address all the problems regarding restorative justice, but w i l l only mention the key elements o f the criticism.  The problem with responding to this criticism is the increasing, albeit low, volume o f evaluation of programs that provides alternatives to traditional juvenile justice system procedures  476  See Pate & Peachey supra note 470 at 118. As noted by David Shichor & Dale Sechrest, "A Comparison of mediated and non-mediated juvenile offender cases in California" Juvenile and Family Court (Spring 1998)/Vol. 49, No. 2 at 38. 4  203  "In order to further examine the performance o f these programs more in depth studies are needed. These studies should look at future behaviour o f the juveniles, victim satisfaction with mediation, referral agencies' options/attitudes toward the program, impact on community relations, and cost-benefits."  477  Only then w i l l we be able to fully understand the effect that restorative justice theory might have on our society, and to respond to the criticism raised against the restorative theory.  C.  MEDIATION AND T H E F U T U R E  Cl.  Mediation - Qui Bono?  One should understand that there is enormous ambivalence among the population as to how young offenders should be dealt with.  T o what extent should society and  community be punitive or benign? It is all about identifying the forms o f justice that people desire.  478  C.l.l. What does mediation do for victims? Taking part in a mediation meeting asks a lot o f a victim, primarily because the victim has to participate actively in the process, and thereby have the ability to control the outcome o f the decision-making. The victim is allowed to express his or her feelings  204 and talk about the impact the offence had on him or her, rather than being used solely as a witness.  The victim has a say in the process and might therefore experience the  healing process, which is o f significant importance i n victim-offender mediation, more effectively. This effect might be a result o f mediation's identification o f the underlying interests o f both parties.  Some scholars are concerned that the victim might feel  pressured to take part i n mediation, and wonder whether the mediator can compensate for an imbalance o f power between the parties.  479  I do not think these concerns are o f  significant importance. The mediator is trained to deal with these situations. A good mediator will know how to balance the asymmetrical personal powers between the parties. The mediator can always stop the meeting i f the imbalance o f power between the parties is too pronounced. Furthermore, I think it is important to understand that very often the offender is the one who feels inferior at these meeting.  480  C . l . 2 . What does mediation do for the offender? The offender receives the opportunity to make good the wrong done. Also, the offender plays an active role i n the mediation meeting. The offender w i l l be able to exchange information about the offence, and to be a part o f the decision-making process. In this way, the offender w i l l be able to take full responsibility for his or her actions. In the mediation meeting, the young offender avoids stigmatization, which is often a part o f the proceeding in youth court.  L i k e the victim, the offender might experience and  See Peachey, "Restitution, Reconciliation, Retribution: Identifying the Forms of Justice People Desire", in supra note 452 at 55 Iff. In this essay Peachey describes forms of justice, such as restitution' compensation, retribution, and forgiveness, as ways to restore relationships and justice. See Helen Reeves and Mark Chupp, supra note 450 at 44ff. and at 56ff. See Christopher Moore, supra note 443 in general.  4 7 9  205  understand the healing process more effectively than i n the formal system.  In  mediation, the offender is also compelled to show true remorse.  For the offender, as for the victim, there might be pitfalls. The offender may feel forced to participate in the program, and might feel that mediation is more demanding than punishment.  The latter concern is difficult to discuss. Regarding the first concern, I  rely on the mediator to deal with the asymmetrical personal powers. If the mediator fears that the young offender has been forced to participate, the mediator should end the meeting.  C.1.3. What does mediation do for the community? Mediation can contribute to the prevention o f crime, which automatically decrease crime rates. This has been acknowledged by the Department of Justice in A Strategy for the Renewal of Youth Justice. The report states that the involvement o f the community is regarded as an important feature of alternative measures such as mediation. However, i f the members o f the community are to participate i n "restoring relationships" between offenders and victims, we w i l l have to teach the community that the form o f justice they should desire is restorative justice. The community should take partial responsibility for the occurrence o f crime. This seems to be the paramount goal for politicians; also, as stated in A Strategy for the Renewal of Youth Justice:  "The new youth justice  legislation will put a stronger emphasis on the development o f a full range o f  206  alternatives to custody for young offenders that emphasize responsibility to the victim and community."  481  The Youth Criminal Justice Act also acknowledges this.  III.  CONCLUSION  In this chapter, I have looked at mediation and measures other than court proceedings in the context o f young offenders and their victims.  I have surveyed the theory o f youth justice in Canada in order to provide a useful insight into the regulatory framework with respect to young offenders and youth justice philosophy.  I have also delineated the importance o f the cost-sharing aspect o f the  Canadian youth justice system.  The legislative framework has introduced the term 'alternative measures' (Section 4 under the Y O A ) , and consequently the step from retributive to restorative justice, which is reflected in the theory and principles o f alternative measures.  Most o f the programs mentioned i n Section B . are possible under the Y O A . B u t the programs are likely to develop under the Youth Criminal Justice Act i f the federal government funds them.  4 8 1  See supra note 1 ibid.  A s mentioned above, the federal government has made that  207  promise.  The provincial governments are more likely to innovate and implement new  restorative,  community-based  programs  with  additional  funds  from  the  federal  government.  The Youth Criminal  Justice Act consists largely of rhetoric, as I w i l l conclude in  Chapter 8.  However, from my point o f view, it is important to understand that even though the new A c t does not add much to the current legislation which could not already be achieved with Section 4 under the Y O A , it is evident, when one looks beyond the rhetoric, that the intention is to expand the use of restorative principles in Canadian youth justice philosophy. The politicians have started paying attention to a theory that might change the adversarial youth justice system. This is emphasized by the federal government's promise o f shifts o f resources and re-negotiation of cost-sharing agreements between the federal and the provincial governments.  Therefore, I feel that a description o f the evolution of alternative measures and a description o f the principles would be appropriate, especially as  victim-offender  mediation programs increased after the enactment o f the Y O A . A l s o , I wanted to show the dynamics o f the different programs within mediation, because these programs have constructed an alternative vision of justice, as Circle Sentencing clearly shows, and because these programs are likely to develop under the Youth Criminal Justice Act.  208  In structural terms, the restorative models at various stages in criminal and community 482  stages are outlined in Table 6.  Corrections  , C O S - C i r c l e o f Support  Level Post Incarceration Mediation  Collaborative Sentence Planning Program or VORP or Circle Sentencing or Family Group Conference  Sentencing  Court Level  Trial  Alternate Sentence • Planning \  Not Guilty Plea Guilty Plea -  Alternate Sentence ^ Planning  Offender diverted to  \>  FGC/VOR  Diversion Level Offender Identified/Charged  1  CDRP 911 Calls  Schools/Peer Mediation Informal Conflict Resolution (utilizing community resources: the wisdom o f family members, respected elders or leaders in faith or community groups)  C O S : Circle o f Support; V O R P : V i c t i m Offender Mediation Program for Serious Crime; F G C : Family Group Conferencing; V O R P : V i c t i m Offender Reconciliation Program; C D R P : Community Dispute Resolution Program  Table 6: Community Justice Initiatives Association as described in Promising Models in Restorative Justice at 22.  209  W i t h A Strategy for the Renewal of Youth Justice and the Youth Criminal Justice Act, it seems as i f the politicians are seeking to play a progressive part in the deconstructing o f the adversarial criminal justice system.  The new A c t encourages measures other than court proceedings, when adequate to hold a young person accountable; authorizes use o f warnings, police cautions, referrals to community programs, and cautions by prosecutors; and sets out objectives, such as encouraging repair o f harm done to victims, and provides guidance on use.  Other intended changes can be found in Table 3 on page 99.  210 In structural terms, the youth justice system now operating i n Canada under the Y O A is outlined in Table 7a  483  Offending Behavior  Alternative Measures  Agreement  Completed  No Agreement  Court Disposition  Not Completed  Inspired byfigure7.1: Restructured South Australian Juvenile Justice System in Joy Wundersitz and Sue Hetzel, "Family Conferencing for Young Offenders: South Australian Experience" in J. Hudson, et al., supra note 459 at 114.  211  In structural terms, the youth justice system under the Youth Criminal outlined i n Table 7 b :  Justice Act is  484  Offending Behavior  _*  Police (Caution)  1r  Informal Caution  Alternative Measures  Formal Caution  Undertaking  Completed  Not Completed  Please compare to Table 3 on page 99.  Agreement  Completed  No Agreement  Not Completed  Court Disposition  212  In my opinion, restorative programs such as mediation could provide a better locus for resolving criminal cases involving young offenders, and it looks as i f the politicians are now ready to make a change. It w i l l be interesting to follow the replacement o f the Y O A with a new Youth Criminal Justice Act:  that w i l l put public protection first and that w i l l command respect, foster values such as accountability and responsibility, and make it clear that criminal behaviour w i l l lead to meaningful consequences;  and  w i l l encourage the development o f a full range o f community-based sentences and effective alternatives to the justice system for non-violent young offenders that foster respect, emphasize responsibility to the victim and community, help youth understand the impact o f their actions, and allow them to see clear connection between the offence and its consequences. 485  This is also in coherence with international legal standards.  486  Measures other than court proceedings, such as mediation, can do more than resolve conflicts between parties. Mediation can be about empowerment and recognition, and  ° See supra note 2 ibid. See UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985, at art. 5.1: "The juvenile justice system shall emphasize the well-being of the juvenile...." and art. 11.1: "Consideration shall be given...to dealing with juvenile offenders without resorting to formal trial." And The Council of Europe Recommendation on Social Reactions to Juvenile Delinquency, 1987, at art. R 20: "the penal system for minors should continue to be characterized by its objective of education and social integration", and the Council encourages "the development of diversion and mediation procedures., .in order to prevent minorsfromentering into the criminal justice system." 4!  4 8 6  213  consequently  be  a  dynamic  transformative mediation.  mixture  between  interest-based  mediation and  487  A Strategy for the Renewal of Youth Justice and the Youth Criminal Justice Act use words such as "rehabilitation" and "treatment" i n response to youth crime. firmly established i n retributive justice.  Those words are  The report and the new A c t also pursue the  emphasis on the young offender's role in righting the wrong he or she has done to the victim and community by using words like "accountability" and "responsibility". These concepts are likewise firmly established in restorative justice philosophy.  It w i l l be interesting to see whether the implementation o f restorative justice theory in Canadian youth justice philosophy w i l l be a result o f retributive  or restorative  accountability. A s noted earlier, the rhetoric i n the new A c t seems to m i x terms that are firmly established in both restorative and retributive justice, respectively.  A s long as the dichotomy between these values is not strictly clear, there might not be any substantive difference between retributive and restorative justice, and thereby, between the J D A , Y O A , and the Youth Criminal Justice Act:  ' See J.Folger & R. Bush, The Promise ofMediation: Responding to conflict Through Empowerment and Recognition (San Francisco: Jossey-Bass Publishers, 1994). At 84ff. the authors describe the 'transformative mediation' objectives as empowerment and recognition. When disputing parties experience a strengthened awareness of their own self-worth and their own ability to deal with whatever difficulties they face, empowerment is achieved. When the parties experience an expanded willingness to acknowledge and be responsive to other parties' situation and common human qualities, recognition is achieved. In my opinion, victim-offender mediation should be a mixture of the transformative and the interest-based approach. 4 8  214  Ultimately, the choice o f restorative versus retributive accountability is driven by the underlying values related to our understanding o f crime and delinquency. Without a strong grounding i n restorative justice values, old forms o f retributive accountability could take on a new appearance yet lack any substantive difference. 488  The difference is now the federal government's willingness to programs based on restorative justice principles.  Mark Umbreit, supra note 425 ibid.  financially  support  215  CHAPTER 8 CONCLUSION  M y intention in the previous 7 chapters has been to examine the rationale o f Canadian youth justice policy.  I wanted to explore the reason behind the federal government's  recent political initiative and look into whether the government's youth justice strategy w i l l accomplish its goals and make actual alteration to the existing legislation and justice system in the context o f young offenders.  Throughout the chapters I stated the importance o f historical, political, socio-economic and legal elements in the understanding of youth justice philosophy. The Y O A is still the current legislation as 1 write this thesis, and I conclude in Chapter 2 that a historical as well as an intellectual and political change in the 1960s and 1970s led to a new legislative framework in 1984.  To seek a deeper understanding of the Y O A I examined the historical evolution of youth justice philosophy in the 19  th  and 2 0  th  century.  Again, socio-economic, political and  intellectual changes made an impact on youth justice matters, and led to the 1908 enactment o f the J D A .  216 In Chapter 4 1 outlined the process o f reforming the J D A .  I think it is safe to conclude that whenever major changes such as The Industrial Revolution, have happened in society, legislative responses automatically occur. In the th  early 20  century, business leaders wanted to support a laissez-faire policy in order to  maintain control.  Therefore, in order to maintain control they decided to support the  child saving movement, of which the middle-class was the motivating power. The child saving movement wanted a theoretical structure to control young offenders' behavior, and found support in the positivist school of criminology.  Pressure was therefore put on  politicians as well. A legislative framework was composed - the J D A .  During the 1960s and 1970s new socio-economic changes occurred, and Canada became more conservative. The lack o f children's rights under the J D A became a major topic, as did the questioning o f the treatment and welfare-model of the Y O A . Due process and a focus on the offence and accountability became new issues. A legislative framework was composed - the Y O A .  N o w , at the end o f the 2 0 century, history is apparently repeating itself. The Minister of th  Justice has promised us new legislation that w i l l reform youth justice philosophy and even extend beyond it. But the new legislation is negotiated on previous criticism of the Y O A and the intellectual, historical and legal aspects are still the same as they were under the Y O A .  A s argued in Chapter 5, the Youth Criminal Justice A c t does not  provide anything substantially new to the present youth justice philosophy. In fact, the  217  confusion might just get worse with the new legislation. The guiding principles are still competing and ambiguous, using terms from both the J D A and the Y O A .  It can be  concluded that it is not enough that politicians have a perceived need to address criticism on youth justice matters.  The time has to be right and so does the interaction o f  historical, socio-economic and intellectual changes.  The new A c t shows that there still is a perceived need to protect society from young offenders and a perceived need to protect and save young offenders, as was the case at the time the J D A was drafted.  The following conclusion regarding the shift between the J D A and the Y O A therefore still exists regarding the new Act:  There are significant indications that a new system o f juvenile justice is emerging - a system which can preserve that advancements i n the behavioural sciences can be utilized i n the treatment o f troubled and troublesome youth, but only within a legal framework o f justice, that protects the individual rights o f such youth and precludes authoritative intervention i n their lives without a crucially important reason for doing s o . 489  The development in the youth justice system clearly reveals that no substantial changes have been made with the Youth Criminal Justice A c t , except that it is a little tougher on certain offenders. The new legislation, with all its good intentions, also shows that we do  Faust & Brantingham, supra note 402 at 252-259 where they conclude on the juvenile justice system.  218 not have faith in the youth justice system as the right forum for certain offences and offenders.  Furthermore, I wanted to extend my study beyond the perspectives mentioned above; I also wanted to describe the development i n youth justice from a scientific perspective. Chapter 6 includes a description o f Kuhn's theory o f paradigm shifts, and an analysis o f this theory in the context o f Canadian youth justice philosophy. Thereby, I extended the evaluation o f youth justice philosophy commenced by Aultman & Wright in 1982. It is my conclusion that Kuhn's theory is also highly applicable i n the field o f law.  In the same chapter, I delineated the paradoxes in Kuhn's theory.  This description is  important because it points out that Kuhn's theory may be applicable i n various areas, but that it cannot be adopted blindly and without questioning.  Finally, it could be suggested that a scientific revolution has occurred with the Y O A (and some would say with the Youth Criminal  Justice Act).  But the end result depends on  whether, beyond the theory and the rhetoric o f the new Act, real change has occurred.  That politicians seem to firmly believe that the Youth Criminal  Justice Act makes an  alteration to the current Y O A is thought provoking. The changes are few, as described in Chapter 5. Though it may be said no real change has happened with the new Act, when we go beyond the rhetoric, politicians seem eager to implement restorative justice in  219  Canadian youth justice philosophy.  Therefore, in Chapter 7 I have delineated the  possible step from a retributive to a restorative justice setting that the new A c t initiates.  In order to provide a useful insight to restorative justice, I expounded the various alternative measures available within the Y O A .  The step from retributive to restorative justice step has been made possible with a promise from the federal government to re-negotiate cost-sharing agreements between the federal and the provincial governments, and financially  fund  community-based,  restorative programs. It can therefore be concluded that the terms and the rhetoric behind the Youth Criminal  Justice  Act  could constitute a further advance than  hitherto.  However, an uncooperative provincial government could still destroy the federal plans.  I have tried to prove that socio-economic, political, intellectual, historical and scientific perspectives have an impact on legal changes in youth justice philosophy. However, I can only display what seem to be relevant and reasonable arguments in my interpretation of the impact of those perspectives on youth justice theory.  I cannot rigorously prove that I had a grandmother, or that you exist. Since I cannot formally prove even claims that no sane person doubts, I certainly cannot hope to prove a theory, which is about more shadowy stuff than facts, or prove that one theory is better than another. Even an analysis that displays what it takes to be relevant arguments and evidence to explain why some theory displaced another, or ought to displace another, needs to appeal to intuitions about what  220  looks reasonable and to intuitions about what looks relevant, not to formal proofs. 490  Margolis, supra note 393 at 187.  221  POSTSCRIPT  This postscript is intended to show the relevant similarities and differences between issues in Canadian and Danish youth justice legislation and youth justice philosophy.  In the 8 Chapters o f this thesis, I have analyzed youth justice philosophy in Canada, and tried to demonstrate the importance o f historical, socio-economic, political, and intellectual elements o f the legal aspect o f Canadian youth justice philosophy.  Analyzing the development o f Canadian youth justice philosophy made me realize that Canada is in many ways struggling with the same problems as Denmark regarding how to deal  effectively  with  young  offenders.  Reading academics' and practitioners'  contributions to the understanding o f youth justice philosophy i n Canada made me realize that Canada is considered to be a forerunner in the use o f alternative measures when compared to Denmark. Therefore, it is important for me - as a Danish prosecutor - to outline the general conclusions o f my analysis o f the Canadian youth justice system and philosophy, and compare them to the Danish youth justice system.  491  In this postscript I have decided only to focus on Danish criminal law and not the extraordinary criminal law in Greenland, which differs from Danish legislation in many ways. Further information can be obtained from an unpublished thesis by Lene Spang Dyhrberg Nielsen "Udviklingen I det Gronlandske Retsvaesen" (The Development in the Greenlandic Judicial System) (Aarhus University, June 1995)  222  Consequently, this postscript is primarily intended for my Danish employer, the Danish Department of Justice. A delineation of the similarities and differences between the youth justice system in the two countries might be important to the Danish system since we are in desperate need o f effective measures when it comes to dealing with and sentencing young offenders.  Since Canada has a different approach to youth crime, it  might outline a new, restorative way of approaching youth crime in Denmark.  The current youth justice system in Denmark is as f o l l o w s  •  492  :  Youth courts do not exist in Denmark despite the fact that the historical element of Danish youth justice is similar to Canadian youth justice philosophy.  Young  offenders are tried in the same court as adult offenders.  •  Denmark does not have specific legislation within the criminal justice system dedicated to young offenders.  The Danish 'Straffelov' and 'Retsplejelov' (The  Criminal Code and the Code o f Proceeds o f Crime, respectively) include young offenders.  Therefore, Denmark has chosen not to have a separate criminal justice  system for the young offenders. In 'Straffeloven' and 'Retsplejeloven', a few sections deal specifically with offenders between the age of 15-18 years. The articles outline in details how and under what circumstances young offenders should be treated different than adult offenders.  See generally Vagn Greve, Straffene, (Denmark: Jurist- og Okonomforbundets Forlag, 1996).  223  •  There is only a limited possibility o f using alternative measures in the context o f young offenders in the Danish criminal justice system, when compared to Canada. The Canadian legislators have addressed and specified the issue o f alternative measures in the Y O A and the Youth Criminal Justice Act . 493  Consequently, young  offenders in Denmark do not have the opportunity to participate in programs officially designated to be a part o f alternative measures and sentencing.  •  One o f the more interesting political initiatives on youth justice philosophy happened in 1990, when the Danish Folketing (the Danish Parliament) passed a resolution on 'ungdomskontrakter'.  (Youth  Agreements)  4 9 4  The regulatory  framework  is  Retsplejelovens (the Code o f Proceeds o f Crime) section on withdrawing charges against a young offender. The young offender can choose to sign a youth agreement ('ungdomskontrakt'), i f the prosecution finds that the young offender meets certain qualifications for signing the agreement.  If the young offender  meets the  requirements, he or she can sign the agreement. B y signing the agreement, the young offender commit him- or herself to participate i n certain activities, such as, for example, going to work voluntarily every day, dressing formally, no socializing with former 'friends', and so forth.  If the young offender successfully completes the  agreement, the disposition w i l l not be registered on the criminal record. If the young offender does not successfully complete the agreement, the social services must report the 'break o f contract' to the police, and a further process w i l l take place i n the formal criminal justice system. The resolution on 'ungdomskontrakter' was enacted  Please refer to Chapters 2 and 5. Folketingstidende 1989-90 C sp. 821.  224  into legislation in 1994.  In my work as a prosecutor, I have not yet used  'ungdomskontrakter' in the sentencing process o f a young offender, and from my point o f view, both prosecution and the judges are reluctant to use this disposition.  •  Parallel with 'Straffeloven' (the Danish Criminal Code), is "Bistandsloven'. (The Danish Social Security A c t ) .  495  The A c t sets up a paradigm for young people who are  in a turbulent relationship with their parents. Thus, the Social Security A c t does not deal with the young people's criminal behavior. A social worker often attends a case involving a young offender (under 18 years old) in order to set up some goals for the offender when the offender is done 'serving his or her time'.  It is important to  mention the Social Security A c t in order to provide a useful insight into Danish legislation in the context o f young offenders. But it is also important to remember that the social security system is independent o f the criminal justice system.  A s noted above, Denmark does not have a tradition o f using alternative measures i n the sentencing process o f young offenders. Yet, from m y point o f view, Danish politicians have not paid attention to the possible effective usage o f alternative measures i n the struggle with youth crime and youth sentencing.  The Danish Department o f Justice has just recently started paying attention to the theories and principles o f victim-offender mediation, but has not been able to implement the theories.  B u t that does not mean that youth crime is not a controversial issue in  Lovbekendtgorelse nr. 1024 af 13. December 1994 med aendringer.  225  Denmark. On the contrary, the political agenda is very much concerned with youth crime and in changing young offenders' criminal behavior pattern.  In Denmark, we have a unified criminal justice system. That means we (the prosecutors, the defense lawyers and the judges) do not have many opportunities to outside the court proceedings.  496  Offending Behavior  Court Disposition  226  Within the system described in Table 8, prosecutors have permission to give formal warnings, but only with the consent o f the court. The police also have the possibility o f giving cautions and warnings, but in that case, no charges are laid against a young offender. The prosecutor also has the possibility o f dismissing the charge laid against the young offender before the case gets to court; for example, i f there is not enough evidence. But it is evident from Table 8 that as soon as a charge is laid, the case against a young offender continues within the ambit o f the formal criminal justice system.  In my analysis o f the Canadian youth justice system, I generally concluded that the historical, political, socio-economic and legal elements in the understanding o f youth justice philosophy were o f great importance.  The Minister o f Justice has promised the  Canadians a new legislation that will reform youth justice philosophy and even extend beyond it.  I concluded that the new legislation does not provide anything substantially new to the present youth justice philosophy, and that, in fact, the confusion might just get worse with the new legislation. I also stated that even though no real changes have occurred with the new A c t , politicians seem eager to implement restorative justice in Canadian youth justice philosophy. In my analysis I delineated the possible step from a retributive to a restorative justice setting that the new A c t initiates.  Table 8. Please compare to Table 7a and 7b in Chapter 7.  227 B y comparing Table 8, 7a, 7b and 6, it will become clear that, despite its weaknesses, the Canadian youth justice has more string to its bow than the Danish unified system. The development o f the Scandinavian youth justice system has been following worldwide development, from the strictly penalizing system to the rehabilitative  ideal.  The  rehabilitative ideal is still the main characteristic of the Scandinavian youth justice system.  It can be said that the intention behind the Danish legislation is to emphasize the wellbeing of the young offender and to rehabilitate the young person when the sentence is served. But looking at Table 8 shows that the Danish criminal justice system does not emphasize the notion of dealing with young offenders in a separate criminal justice system, and that we in Denmark should consider dealing with young offenders without resorting to formal trial.  Let me once again refer to the U N ' s Standard Minimum Rules for the Administration Juvenile  of  Justice : 491  Art. 5.1: "The juvenile justice system shall emphasize the well-being of the juvenile...." and art. 11.1: "Consideration shall be given...to dealing with juvenile offenders without resorting to formal trial."  According to The Council of Europe Recommendation Delinquency: * 49  on Social Reactions to Juvenile  228  Art. R 20: "the penal system for minors should continue to be characterized by its objective  of education and social integration", and the Council encourages  "the  development of diversion and mediation procedures...in order to prevent minors from entering into the criminal justice system."  These are just minimum-rules, but are an important aspect of Canadian youth justice philosophy.  In my opinion, it is therefore highly recommended that Denmark consider taking a closer look at Canadian youth justice philosophy and the Canadian youth justice system in order to proceed past the unified system described in Table 8.  4 9 8  Supra note 487. Ibid.  229  BIBLIOGRAPHY  BOOKS:  Bala, Nicholas, Young Offenders Law, (Ontario: Irwin L a w , 1997).  Beaulieu, Lucien A . , ed., Young Offender Dispostiions: Practice (Toronto: W a l l & Thompson, 1989).  Perspectives  on Principles  and  Beccaria, Cesare, On Crimes and Punishments (Indianapolis: Bobbs-Merril, 1963)  Cullen, F. T, & Gilbert, K., Reaffirming Rehabilitation (Cincinnati: Anderson, 1982).  Faust, Frederic L. & Brantingham, Paul J . , eds., Juvenile Justice Philosophy: Cases and Comments (St. Paul, M i n n . : West Publishing 1974).  Readings,  Fisher, R. & U r y , W . , Getting to Yes: Negotiating Agreement Without Giving In (BostonHoughton M i f f l i n , 1981).  Fogel, D a v i d , We are the Living Proof: The Justice Model for Corrections (CincinnatiW. H . Anderson, 1975).  Folger, J . & Bush, R., The Promise of Mediation: Responding to Conflict Empowerment and Recognition (San Francisco: Jossey-Bass Publishers, 1994).  Gillis, John R., Youth and History: Tradition and Change in European Age 1770-Present (New York: Academic Press, 1974).  through  Relations  230  G o l d , Steven Jay, ed., Paradigms in Political 1993).  Theory (Iowa: Iowa State University Press  Greve, V a g n Straffene, (Denmark: Jurist- og Okonomforbundets Forlag, 1996)  Gutting, Gary, Paradigms and Revolutions: Appraisals and Applications of Thomas Kuhn's Philosophy of Science (Notre Dame, Ind.: University o f Notre Dame Press, 1980).  Hogg, Peter W . , Constitutional Carswell, 1998).  Law of Canada,  Hudson, J . et al., Family Group Conferences: (Australia: The Federation Press, 1996).  1998, Student Edition,  Perspectives  on Policy  &  Hudson, J . & Galaway, B., eds., Victims, Offenders, and Alternative Sanctions Lexington Books, 1980).  (Toronto-  Practice  (Toronto:  Hudson, H o m i c k & Burrows, eds., Justice and the Young Offender in Canada (TorontoW a l l & Thompson, 1988).  Jeffery, C . Ray, Crime Prevention through Environmental Sage Publications, 1971).  Jones, Penny J . , Young Offenders and the Law, 2  n d  Design (Beverly Hills, C a l i f :  ed. (Ontario: Captus Press, 1997).  K u h n , Thomas, The Structure of Scientific Revolution, 2 of Chicago Press, 1962).  n d  ed. (Chicago: The University  Leschied, A l a n W . , Jaffe, Peter G . & W i l l i s , Wayne, eds., The Young Offenders Act: A Revolution in Canadian Juvenile Justice (Toronto: University o f Toronto Press, 1991).  Mannheim, Hermann, ed., Pioneers Patterson Smith, 1972).  in Criminology,  2  n d  ed. (Montclair, N e w Jersey:  231  Margolis, Howard, Paradigms and Barriers: How Habits of Mind can govern Beliefs (Chicago: The University of Chicago Press, 1993).  Scientific  Messmer, H . & Otto, H , eds., Restorative Justice on Trial: Pitfalls and Potential of Victim-Offender Mediation - International Perspectives (Dordrecht: K l u w e r Academic Publishers, 1992).  Moore, Christopher, The Mediation Process: Practical 2 ed. (San Francisco: Jossey-Bass Publishers).  Strategies for Resolving  Conflict,  Morris, Norval, The Future of Imprisonment (Chicago: The University o f Chicago Press 1974)  Murphy, J . G . , More Essays in the Philosophy Publishers, 1992)  of Law (Holland: K l u w e r Academic  Musick, David, An Introduction to the Sociology of Juvenile Delinquency (Albany: State University o f N e w York Press, 1995).  Peachey & Skeen, Directory of Canadian Dispute Resolution Programs Network for Community Justice and Conflict Resolution, 1988)  Piatt, Anthony M . , The Child Savers: The Invention of Delinquency, University o f Chicago Press, 1977).  (Kitchener:  2d ed. (Chicago:  Ritzer, George, Sociology: A Multiple Paradigm Science, (Boston: A l l y n and Bacon 1980).  Rogers, Joseph W., & M a y s , Larry, Juvenile Delinquency & Juvenile Justice (New York: John Wiley & Sons, 1987).  Thorvaldson, Sveinn A . , The Effects of Community Service on the Attitudes of Offenders (Research and Evaluation Unit, Policy Planning Division, Ministry o f Attorney General, B . C . , 1978) originally presented as the author's thesis (Ph.D.).  232  Williams, W i l l i a m Appleman, The Contours of American History (Chicago- Quadrangle Books, 1966).  Wines, Enoch C , The State of Prisons and Child-saving Institutions in the World (Cambridge, Mass.: Harvard University Press, 1880).  Civilized  Wright, M . & Galaway, B., eds., Mediation and the Criminal Justice: Victims, Offenders and Community (London: Sage Publications, 1989).  Zehr, Howard, Changing Lenses: A New Pennsylvania: Herald Books, 1990)  Focus for  Crime and Justice  (Scottsdale,  ARTICLES  A l l e n , Francis A . , "Criminal Justice, Legal Values and the Rehabilitative Ideal" (19591960) 50 The Journal o f Criminal L a w , Criminology and Police Science 226.  Anderssen, March 1999)  Erin, A4.  "For Victims o f Violence seeing w i l l be believing"  The Globe and Mail (12  Archambault, Omer, "Foreword", in Leschied, Jaffe & Willis, eds., The Young Offenders Act: A Revolution in Canadian Juvenile Justice  Archambault, Omer, "Young Offenders Act: Philosophy and Principles" Provincial Judges Journal (1983) 7 (2) 1.  Arthur, L., " A Manual for Mediators", Juvenile and Family Court Journal (Spring 1995) V o l . 46, no. 2, 67.  Aultman, Madeline G . & Wright, K e v i n N . , "The Fairness Paradigm: A n Evaluation of Change in Juvenile Justice" (1982) 24 Can. J . Crim. 13.  233  Barbour, Ian, "Paradigms in Science and Religion", i n Gutting, ed., Paradigms and Revolutions: Appraisals and Applications of Thomas Kuhn's Philosophy of Science 223.  Beaulieu, Lucien A . , " A Comparison o f Judicial Roles under the J D A and Y O A " in Leschied, Jaffe & Willis, eds., The Young Offenders Act: A Revolution in Canadian Juvenile Justice 128.  Bolton, Jane, et al., "The Young Offenders Act: Principles and Policy: The First Decade in Review" (1993) 38 M c G i l l L.J. 939.  Bullington, et al., " A Critique o f Diversionary Juvenile Justice", Crime & Delinquency, (January 1978), V o l . 24, 59.  Caldwell, Robert G . , "The Juvenile Court: Its Development and some Major Problems" (1960-1961) 51 The Journal o f Criminal L a w , Criminology and Police Science 493  Caputo, T . C . , "The Young Offenders Act: Children's Rights, Children's Wrongs" (1987) Canadian Public Policy X I I I (2) 125.  Christie, N i l s , "Conflicts as Property" (1977) 17 British Journal o f Criminology 1.  Chupp, Mark, "Reconciliation Procedures and Rationale" in M . Wright & B. Galaway, eds., Mediation and Criminal Justice: Victims, Offenders and Community, 56 at 68.  Coates, R. & Gehm, J . , " A n Empirical Assessment" in M . Wright & B. Galaway, eds., Mediation and Criminal Justice: Victims, Offenders and Community, 251.  Coflin, J i m , "The Federal Government's Role in Implementing the Young Offenders A c t " , in Hudson, Hornick & Burrows, eds., Justice and the Young Offender in Canada, 38.  Greenspon, Edward, "Canada tops at jailing youth, official says", The Globe and M a i l (12 M a r c h 1999) A 4 .  Hackler, Jim, "The Impact o f the Young Offenders A c t " , (1987) 29 (2) Canadian Journal of Criminology 205.  234  Harding, John, "Reconciling Mediation with Criminal Justice" in M . Wright & B. Galaway, eds., Mediation and Criminal Justice: Victim, Offender and Community, 31.  Hassel, Ian, "Origin and Development o f Family Group Conferences" in J . Hudson et al., eds., Family Group Conferences: Perspectives on Policy & Practice, 17.  Henderson, C . R., "The Relation o f Philanthropy to Social Order and Progress" in 26 (1899) Proceedings of the National Conference of Charities and Correction 1.  Hogarth, John, "The Principles o f Sentencing: Ouimet Revisited" in Sentencing: and Materials for Law 510 (Vancouver: University o f British Columbia, 1992).  Cases  Jeffrey, Ray, "Theoretical Structure o f Crime Control" in Faust & Brantingham, eds., Juvenile Justice Philosophy: Readings, Cases and Comments 9.  Leon, Jeffrey S., "The Development o f Canadian Juvenile Justice: A Background for Reform" (1977) 15 Osgoode H a l l L . J . 71.  Leonard, Clara T., "Family Homes for Pauper and Dependent Children" in Annual Conference of Charities, Proceedings (Chicago, 1879) 174.  Leschied & Jaffe, "Dispositions as indicators o f conflicting social purposes under the J D A and Y O A " in Leschied, Jaffe & Willis, eds., The Young Offenders Act: A Revolution in Canadian Juvenile Justice 158.  Lilies, Heino, "Beginning a N e w E r a " , Provincial Judges Journal, (1983) 7 (2) 21.  Marshall, Tony, "The Search for Restorative Justice." A paper presented on a speaking tour o f N e w Zealand, M a y 1995. [Unpublished]. A s cited i n Promising Models in Restorative Justice: A Report for the Ministry of Attorney General of B.C., (February 1998) (Dave Gustafson and Sandi Bergen).  235  Masterman, Margaret, "The Nature o f a Paradigm", in Lakatos and Musgrave, eds., Criticism and the Growth of Knowledge, (Cambridge: Cambridge University Pressl 1970)  M i l l , John Stuart, "Spirit of the A g e " in Essays in Politics Gertrude Himmelfarb, (Garden City, N . Y . : Doubleday, 1963) 3  and  Culture,  edited by  Morrison, T., "Reform as Social Tracking: The Case o f Industrial Education in Ontario 1870-1900" (1974) 8 J . of E d . Thought 88.  Murphy, Jeffrie G . , "Retributivism, M o r a l Education and the Liberal State" in J. Murphy, ed., More Essays in the Philosophy of Law, 15.  Musgrave, A l a n E., "Kuhn's Second Thoughts" in Gary Gutting, ed., Paradigms and Revolutions: Appraisals and Applications of Thomas Kuhn's Philosophy of Science 39.  Nasmith, A . Peter., "Paternalism Circumscribed" Provincial Judges Journal (1983) 7 (2)  Ovenden, N o r m , " N e w A c t would j a i l Parents for Children's Crime" National Post (6 M a r c h 1999) A l and A 7 .  Parker, Graham, "The Century of the C h i l d " (1967) 65 Canadian Bar Review 741  Pate, K. & Peachey, D., "Face to Face: Victim-Offender Mediation under the Young Offenders A c t " in Hudson, Hornick & Burrows, eds., Justice and the Young Offender in Canada, 104  Peachey, Dean E . , "Restitution, Reconciliation, Retribution: Identifying the Forms o f Justice People Desire" in Messmer & Otto, eds., Restorative Justice on Trial: Pitfalls and Potential of Victim-Offender Mediation - International Perspectives, 551.  Peachey, Dean E., "The Kitchener Experiment" in M . Wright & B. Galaway, eds., Mediation and Criminal Justice: Victims, Offenders and Community, 14.  236  Pennel, Joan & Burford, Gale, "Attending to Context: Family Group Decision-making in Canada" in J . Hudson et al., eds., Family Group Conferences: Perspectives on Policy & Practice (Australia: The Federation Press, 1996).  Piatt, Anthony, "The Rise o f the Child-Saving Movement: A Study i n Social Policy and Correctional Reform" i n Faust & Brantingham, eds., Juvenile Justice Philosophy: Readings, Cases and Comments 123.  R e i d , S. & Reitsma-Street, S., "Assumptions and Implication o f N e w Canadian Legislation for Young Offenders" (1984) 7:1 Can. Crim. Forum 1.  Rendleman, Douglas, "Parens Patriae: From Chancery to the Juvenile Court" in Faust & Brantingham, eds., Juvenile Justice Philosophy: Readings, Cases and Comments 73.  Saunders, John, "Youth-crime B i l l a canny act", The Globe and M a i l (12 M a r c h 1999) A4.  Schneider, A . & P., "Policy Expectations and Program Realities in Juvenile Restitution' in Hudson & Galaway, eds., Victims, Offenders, and Alternative Sanctions.  Schwartz, Ira M . , "The Death o f the Parens Patriae M o d e l " , in Leschied, Jaffe & Willis, eds., The Young Offenders Act: A Revolution in Canadian Juvenile Justice 146.  Schwartz, Ira & Preiser, Laura, "Diversion and Juvenile Justice: C a n W e Ever Get It Right?" in H . Messmer & H . Otto, eds., Restorative Justice on Trial: Pitfalls and Potential of Victim-Offender Mediation- International Perspectives, 279.  Scott, W . L . , "The Juvenile Delinquents A c t " (1908), 28 Can. L a w Times and Rev. 892.  Shapere, Dudley, "The Structure o f Scientific Revolutions" in Gary Gutting, ed., Paradigms and Revolutions: Appraisals and Applications of Thomas Kuhn's Philosophy of Science 27.  Shichor, D a v i d & Sechrest, Dale, " A Comparison o f mediated and non-mediated juvenile offender cases in California" Juvenile and Family Court (Spring 1998)/Vol 49 N o 2 at 38.  237  Stuart, Barry, "Circle Sentencing: Mediation and Consensus: Turning Swords into Plougshares" A c c o r d (June 1995), 48.  Thomson, G . M . , "Commentary on the Young Offenders A c t " , Provincial Judges Journal (1983)7(2) 27.  Umbreit, Mark, "Holding Juvenile Offenders Accountable: A Restorative Justice Perspective" Juvenile and Family Court Journal (Spring 1995) V o l . 46, no. 2, 31.  West, Gordon, "Towards a More Socially Informed Understanding of Canadian Delinquency Legislation", in Leschied, Jaffe, & W i l l i s , eds., The Young Offenders Act: A Revolution in Canadian Juvenile Justice 3.  Wright, Martin, "Can Mediation be an Alternative to Community Justice" in J . Hudson, et al., eds., Family Group Conferences: Perspectives on Policy & Practice (Australia: The Federation Press, 1996) at 17ff.  Wundersitz, Joy & Hetzel, Sue, "Family Conferencing for Young Offenders: South Australian Experience" in J . Hudson, et al., eds., Family Group Conferences: Perspectives on Policy & Practice (Australia: The Federation Press, 1996).  GOVERNMENT DOCUMENTS:  Minister of Justice and Attorney General o f Canada, A Strategy for the Renewal of Youth Justice, (May 12 , 1998). th  House of Commons, Canada, Thirteenth Report of the Standing Committee on Justice and Legal Affairs Renewing Youth Justice, (April 1997) (Chair: the late Shaughnessy C . Cohen).  Department of Justice, Report of the Department of Justice Committee on Juvenile Delinquency, (Ottawa: Queen's Printer, 1965).  238  Ministry o f the Solicitor General, "Young Persons in Conflict with the L a w " (Ottawa: Communication Division, 1975)  House o f Commons Debates (20. September 1994) at 1015 and 1115-1120  Promising Models in Restorative Justice: A Report for the Ministry of Attorney ofB.C by Dave Gustafson & Sandi Bergen (Februray 1998)  Evaluation of the Victim Offender Mediation Project, Langley, Solicitor General Canada by T i m Roberts (March 1995)  General  B.C. Final Report for  LEGISLATION:  Young Offenders Act, R.S.C. 1985, c - Y - 1 , enacted as S.C. 1980-81-82-83, c. 110.  B i l l C-68, The Youth Criminal Justice A c t , 1st Session, 36th Parliament, 46-47-48 Elizabeth II, 1997-98-99, The House o f Commons o f Canada  Juvenile Delinquents Act, S.C. 1908, c. 40  A n A c t to Provide for the Education and Support o f Orphan Children, 1799, 39 Geo. I l l , c. 3, s. 1 (Can.).  A n A c t to Provide for the Maintenance o f Persons Disabled and the Widows and Children o f such persons as may be killed in H i s Majesty's Services, 1813, 53 Geo III c 4 (Can.).  A n A c t to make remedy in cases o f seduction more effectual, and to render the Fathers o f illegitimate Children liable for their support, 1837, 7 W m . I V , c. 8 (Can.). '  Ontario Factories A c t (1884), 47 Vict., c. 39.  239  A n A c t to Amend the L a w Relating to Apprentices and Minors, 1851, 14 & 15 V i c t 11 (Can.).  c  A n A c t to Incorporate the Boy's Industrial School o f the Gore Toronto, 1862 25 Vict c 82 (Can.).  A n A c t for Establishing Prisons for Young Offenders, for the Better Government o f Public Asylums, Hospitals and Prisons, and for the Better Construction o f Common Gaols, 1857, 20 Vict., c. 28 (Can.).  A n A c t for the more Speedy Trial and Punishment o f Young Offenders, 1857 20 Vict c 29 (Can.).  A n A c t respecting Industrial Schools 1874, 37 Vict., c. 29 (Ont.).  A n A c t respecting Arrest, Trial and Imprisonment o f Youthful Offenders. S C 1894 c 58.  A n A c t respecting the Criminal L a w , (Criminal Code) S. C . 1892, c. 29.  Folketingstidende 1989-90 C sp. 821.  Lovbekendtgorelse nr. 1024 af 13. December 1994 med aendringer.  U N Standard Minimum Rules for the Administration Rules), 1985, art.5.1. & art. 11.1.  The Council o f Europe Recommendation 1987, art. R 20.  of Juvenile Justice (The Beijing  on Social Reactions to Juvenile  Delinquency  Canadian Charter o f Rights and Freedoms, enacted as a Part I o f the Constitution A c t , 1982, Schedule B o f Canada A c t 1982 (U.K.)  240  CASES:  R. v. M. (S.H)., [1989] 2 S.C.R. 446, 50 C . C . C . (3 ) 503, Madame Justice L'HeureuxDube. rd  Kentv. U.S., 383 U.S. 541 (1966).  In Re Gault, 387 U.S. 1 (1967).  R. v. M. (J.J.), [1993] 2 S. C. R. 421.  R. v. S. (D. M.) [1993] A . J . N o . 717 ( C A . ) ( Q L ) , Fraser C.J.A., Cote and McFayden JJ.A.  R. v. C. (R) [1996] A . J . N o . 909 (Prov. Ct.) at (QL).  R. v. O. (D.J, [1996] O.J. N o . 2703 (Prov. Ct.) (QL).  WEB-SITES:  http://wvvvv.canada.justice.gc.ca/News/Discours/sll0399_en.htmlIn.  http://www.canada.justice.gc.ca/News/Communiques/1999/yoa_en.html  http: //www. canada.j ustice. gc. ca/Ne ws/Communiques/1999/yoafact3_en. html  http://www. canada.j ustice. gc. ca/News/Communiques/1999/yoafact l_en. html  http://www. canada.justice. gc. ca/News/Communiques/1999/yoabacken. html  241  http://www.canada.justice.gc.ca/News ^^^ /  http: // www. canada.j ustice. gc. ca/News/Communiques/1999/yoafact7_en. html  

Cite

Citation Scheme:

        

Citations by CSL (citeproc-js)

Usage Statistics

Share

Embed

Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                        
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            src="{[{embed.src}]}"
                            data-item="{[{embed.item}]}"
                            data-collection="{[{embed.collection}]}"
                            data-metadata="{[{embed.showMetadata}]}"
                            data-width="{[{embed.width}]}"
                            async >
                            </script>
                            </div>
                        
                    
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:
http://iiif.library.ubc.ca/presentation/dsp.831.1-0077557/manifest

Comment

Related Items