Open Collections

UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Juvenile delinquents, young offenders and young persons in conflict with the law: a study of Juvenile.. Wolfson, Lorne H 1976-02-10

You don't seem to have a PDF reader installed, try download the pdf

Item Metadata

Download

Media
831-UBC_1976_A64 W64.pdf [ 18.44MB ]
Metadata
JSON: 831-1.0077647.json
JSON-LD: 831-1.0077647-ld.json
RDF/XML (Pretty): 831-1.0077647-rdf.xml
RDF/JSON: 831-1.0077647-rdf.json
Turtle: 831-1.0077647-turtle.txt
N-Triples: 831-1.0077647-rdf-ntriples.txt
Original Record: 831-1.0077647-source.json
Full Text
831-1.0077647-fulltext.txt
Citation
831-1.0077647.ris

Full Text

I JUVENILE DELINQUENTS, YOUNG OFFENDERS AND YOUNG PERSONS IN CONFLICT  WITH THE LAW: A STUDY OF JUVENILE DELINQUENCY LAW REFORM IN CANADA by LORNE HOWARD WOLFSON L.L.B., Osgoode Hall Law School, 1974 A THESIS SUBMITTED IN EARTIAL FULFILMENT OF  THE REQUIREMENTS FOR THE DEGREE OF  MASTER OF LAWS in the Faculty of Law We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA September, 1976 (75) Lome Howard Wolf son, 1976 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the Head of my Department or by his representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia 2075 Wesbrook Place Vancouver, Canada V6T 1W5 ABSTRACT On July 31, 1975, the Solicitor-General of Canada received from a Committee appointed by him a report containing proposals for new legislation to deal with young persons in conflict with the law and to replace the present Juvenile Delinquents Act. Since that date, consultations' with professionals involved in the field of juvenile justice, provincial officials and interested members of the public has yielded a wide range of reactions and suggestions. At the present time, it is expected that a Bill based on that report will be placed before Parliament in the fall of 1976. The purpose of this paper is to explore, from a number of perspectives, both the recent proposals and the legislation which they are meant to replace. To that end, this paper is divided into two major Parts. Part I consists primarily of a retrospective analysis of the first 100 years of the juvenile court movement in Canada. Chapter 1 traces its orgins from the inherent equitable jurisdiction of the Courts of Chancery and from the earliest legislative initiatives in the United States to the creation of this nation's first Juvenile Delinquents Act in 1908, and concludes with a discussion of the effect that attacks based on constitutional and Bill of Rights grounds have had upon its development and continued viability. Chapter 2 examines the demands for reform that had arisen by mid-century and compares and contrasts in detail the federal government's three major reform efforts to date: the Department of Justice Report (1965), Bill C-192: The Young Offenders  Act (1970), and the Young Persons in Conflict with the Law Act (1975). In evaluating any reform efforts in this field a number of — ii *-distinct areas of concern can be identified. The scope of the legis lation, diversion and other pre-trial procedures, practice and procedure in the juvenile court, the dispositional alternatives, appeal and other methods of dispositional review, and the consequences of juvenile convictions are all equally important facets of delinquency law reform today. In Part II of this paper we focus on two of those areas-namely, the scope of the legislation and practice and procedure in the juvenile court-considering in detail the development of the law to date, the issues that are currently facing reformers, and the way in which those issues have been dealt with in each, of the three primary reform documents. Chapter 3 discusses the various jurisdictional issues that will determine the future role of the juvenile court: geographical scope, minimum and maximum age limits, offence jurisdiction, and finally, the complex problem of waiver. Chapter 4 examines another area of prime concern to lawyers, the rules governing practice and procedure in the juvenile court. Such topics as the right to counsel, publicity and private hearings, notice and duty to attend, and the conduct of the proceeding itself are considered and both judicial developments and the statutory reform proposals are described and evaluated. In Chapter 5 a number of other issues not discussed here but still requiring attention are identified. Finally, in the two Appendices, the problems of legislative reform in this field are considered from a different perspective, that of the individual provinces of British Columbia. After briefly summarizing the various sections of provincial legislation that affect the operation of the. federal Act, the major trends suggested by the recent federal report are compared to and contrasted with those found in the recent - iii -reports of the B.C. Royal Commission on Family and Children's Law. - iv -In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the Head of my Department or by his representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of Law The University of British Columbia Vancouver 8, Canada Date - V -TABLE OF CONTENTS CHAPTER 1 THE J.D.A. IN PERSPECTIVE A. Background to Reform 2 B. The First Juvenile Court 7 C. The Juvenile Delinquents Act . ... 12 D. The Constitutional Framework 19 E. The Impact of the Bill of Rights 31 CHAPTER 2 THE SEARCH FOR A NEW ACT A. Demands for Reform 42 R. The Department of Justice Report 48 C. Bill C-192: The Young Offenders Act 61 D. The Young Persons in Conflict with 73 the Law Act PART II TWO ASPECTS OF REFORM: JURISDICTION AND PROCEDURE IN THE JUVENILE COURT CHAPTER 3 THE SCOPE OF THE LEGISLATION A. Geographical Scope 85 B. . Nomenclature 90 C. Minimum Age Jurisdiction 94 D. Maximum Age Jurisdiction 103 E. Offence Jurisdiction Ill F. Waiver of Jurisdiction 120 - vi -CHAPTER 4 PRACTICE AND PROCEDURE IN THE JUVENILE COURT A. General 140 B. Counsel 5 C. Publicity and Private Hearings 164 D. Notice and Duty to Attend 174 E. The Conduct of the Proceedings 183 (i) The Information 184 (ii) Arraignment and Plea 188 (iii) Determination of Age 192 (iv) The Presentation of Evidence 197 CHAPTER 5 CONCLUSIONS . .. . 207 CA. Obstacles to Delinquency Law Reform 208 B. Finances: The Forgotten Issue 211 C. Other Areas of Concern 214 FOOTNOTES . .. 218 BIBLIOGRAPHY . . 299 APPENDICES Appendix A A Summary of Relevant Provincial Legis lation ^09 Appendix B A Comparison of Recent Proposals by the B.C. Royal Commission on Family  and Children's Law and the Solicitor- General's Committee on Young Persons in Conflict with the Law ....317 - 1 -PART I - FROM J.D.A. to Y.P .1 .C..W.T.L. A. - 2 -CHAPTER 1 - THE JUVENILE DELINQUENTS ACT IN PERSPECTIVE A. Background to Reform A proper understanding of the modern problems in the field of juvenile delinquency requires a basic familiarity with the history of the juvenile court itself. As is the case with so many fields of Canadian law, our historical roots are closely inter twined with and dependent on both English tradition and American legislative initiatives. The heritage begins with the English Court of Chancery which, from earliest times, has exercised an undefined supervisory juris diction in respect of infants. In the 18th Century, the Court of Chancery expanded this jurisdiction into a broad scheme of protection for the rights and interests of children. Although the origin of this equitable jurisdiction has not been clearly established, the prevailing modern opinion has it that it was 1 founded on the prerogative of the Crown as parens patriae, the 2 exercise of which was delegated to the Chancellor. The nature of the Court's inherent equitable jurisdiction'was described by 3 Kay, L.J., in The Queen v. Gyngall: ...the jurisdiction...arising as it does from the power of the Crown delegated to the Court of Chanceryis essentially a parental jur isdiction, and that description of it involves that the main consideration to be acted upon in its exercise is the benefit dr.. welfare of the Child.' Again, the term "welfare" in this connection must be read in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration, and the Court must do what under the circum-stancesa wise parent acting for the true interests of the child would or ought to do. 4 - 3 -More recently Ungoed-Thomas, J., remarked: The jurisdiction regarding wards of court which is now exercised by the Chancery Division is an ancient jurisdiction deriving from the prerogative of the Crown as parens patriae. It is not based on the rights of parents, and its primary concern is not to ensure their rights but to ensure the welfare of the children. Although it is an ancient jurisdiction it serves a modern need, which has perhaps increased rather than diminished. 5 There were, however, significant limitations on the Court of Chancery's power to aid children in need. Initially, the Court's jurisdiction was exercised almost exclusively on behalf of infants whose property rights were jeopardized, on the theory that it lacked the means with which to provide for impoverished, neglected 6 infants. When the scope of the Court"' s activities was later broadened to include protection of infants in danger of personal as well as property injury, although it did apply to neglected, destitute and dependent children, it still did not extend to 7 children accused of criminal law violations. In addition, the Court was still limited by its lack of any means of investigating the child's social situation. Even today, the debate over the scope of the inherent equitable jurisdiction remains a contentious issue. As Pennycuick, 8 J. commented in the recent English case of In Re X: It may well be, and I have no doubt that it is so, that the courts, when exercising the parental power of the Crown, have, at any rate in legal theory, an unrestricted jurisdiction to do whatever it considered necessary for the welfare of a ward. It is however, obvious that far-reaching limitations in principle on the exercise of this jurisdiction must exist. 9 While few would dispute the proposition that such limitations must exist, the precise nature of those limitations still remains a matter of considerable uncertainty. - 4 -At common law, children under the age of seven were considered 10 incapable of possessing criminal intent. There was also a pre sumption, rebuttable by evidence that the child had sufficient moral discretion and understanding to appreciate the wrongfulness of this act, that a child between the ages of seven and fourteen was 11 incapable of committing a crime. Subject to these two limitations, children were subjected to arrest, trial, and in theory to punish ment like adult offenders. The absence of Chancery jurisdiction over infants charged with criminal offences, combined with the harshness of the existing criminal justice system allowed the criminal courts'harsh and cruel treatment of errant children_to continue unabated throughout most of the 19th Century. In 1801, for example, a thirteen-year-old boy was publicly hanged for stealing a spoon. In 1831 a nine-year-old boy was hanged for setting fire to a house, as was another boy of the same age in 1833 for 12 stealing an object valued at two cents. These occurrences were not rare, isolated incidents, but rather were typical of a system in which the fundamental aim of criminal jurisprudence was punish ment, both as retribution and as a deterre'rit to others, rather'"than 13 reformation. Nor were these the only deplorable consequences. In addition to the harsh punishments meted out by the system, great numbers of reform-minded citizens began to deplore publicly the abominable prison conditions, the indiscriminate intermingling of adults and infants in the prisons, jails, and criminal courts, as well as the frequent application of the criminal law and procedure -14 to children below the lawful age of criminal responsibility. 1 It is not suprising, therefore, that reform of the ways in which children were treated was an early goal of the resulting movement to - 5 -humanize the criminal law. Many other social conditions prevalent in North America in the 19th Century gave impetus to the juvenile law reform movement. The rapid urbanization caused by industrialization and immigration brought with it, among other things, tremendous increases in vice and crime, truancy and delinquency. As the public became more aware of the dangers of exposing children to tobacco, alcohol, pornography, and similar vices ,increased attention was given to the problem of rescuing wayward youth. In addition, demands for social justice reflected an increasing concern over official treatment of children. Ultimately, philanthropists, feminists, penologists, and other social reformers joined forces and, aided by their recently gained knowledge of the behavioural sciences, succeeded in obtaining public recognition of "the greater vulner-15 ability and salvageability of children", and later in establishing separate institutions and separate probationary supervision for children, foster homes for destitute, neglected and orphaned children, and finally, the right for children to be tried and diagnosed in a completely separate court. This new court was to be not only physically separate from the adult courts but also based on a new and distinct philosophy, one that placed greaterfflempliasis-"on achieving socialized justice and less on following the procedural 16 technicalities of the criminal law. Seen in this context, the juvenile court movement was clearly more than just a stage in the evolution of the criminal law. As one commentator wrote: [The reformers'] concern for children extended beyond the criminal and incorrigible. They wished to protect and redeem those boys and girls who were victims of vicious environments, unfortunate - 6 -heredity and cruel treatment at the hands of parents, guardians and employees. Therefore, the juvenile court movement was but a fraction of their whole crusade in child-saving. The call for change was but a part of a social movement to clear slum tenements, to enact and enforce humane factory laws, to. ameliorate prison conditions and save future generations from misery, pauperism and crime. 17 - 7 -B. The First Juvenile Court Although the first juvenile court in the United States did not come into existence until 1899, numerous individual reforms in a number of states preceded and led to its creation. Houses of Refuge were established in New York City (in 1825) and in Pennsylvania (in!1826) to house children who were deemed incorrigible or in violation of the criminal law and to provide them with care, 1 discipline and training rather than punishment. Although these institutions still subjected children to what we would consider to be harshaand cruel treatment, they did merit the distinction of being the first to achieve the separation of children from adult criminals. In 1847, Massachussetts established the first of many state reform and industrial schools for juveniles in which attempts were made to teach young offenders discipline as well as an honest 2 trade. In the city of Chicago, the power to dispose of minor charges against juveniles by means of probation or reform school was given to a specially appointed commissioner in 1861, and to the 3 judges of the normal criminal courts six years later. In 1869, legislation was passed in Massachusetts authorizing a "visiting agent" to attend hearings and to advise the court regarding the disposition of juvenile offenders, as well as to arrange foster home placements and tormake subsequent home visits in cases where 4 such treatment seemed appropriate. Further Massachusetts legisla tion in 1870 and 1872 provided for the separation of juvenile trials and court records as well as the appointment of a State official whose duties were to investigate juvenile cases, attend trials, 5 and protect children's interests. In 1892, New York followed suit by establishing separate trials, dockets and records, as did Rhode - 8 -6 Island in 1898. In addition, throughout these later years, more and more judges began to experiment with the use of probation, in lieu of imprisonment, as a means of preventing further criminality. Thus, by 1899, the concept of a separate court for juveniles had already received widespread recognition and acceptance in many areas of the United States, and the stage was thereby set for what Dean Roscoe Pound of the Harvard Law School would later call "one of the most significant advances in the administration of justice since the Magna Carta": the establishment of the first juvenile 7 court. The first official legislative recognition of a separate state-wide court for children was contained in the Juvenile Court "8 9 Act enacted by the State of Illinois in April, 1899. The original Act and the subsequent amendments to it gave the court jurisdiction over cases of dependency, neglect and delinquency involving children under the age of sixteen. The Act provided for informal, private hearings, confidential records, separate detention facilities for children, as well as a separate probation staff appointed to work 10 exclusively on juvenile matters. In addition, the traditional terminology of criminal procedure was reformed in order to reflect. the civil, rather than criminal, nature of the proceedings: complaint was replaced by petition, warrant became summons, arraignment was now initial hearing, conviction was instead finding of involvement and sentence became disposition. Even the physical surroundings were changed so as to bear less resemblance to a courtroom: the judge (no longer gowned) was now seated at a desk attabtable-beside the youth rather than towering above him behind a huge, imposing 11 bench. Finally, since the proceedings were viewed as civil, rather - 9 -than criminal, and designed to be helpful and rehabilitative to the offender rather than punitive or aimed at retribution, it was thought to be in the interests of all children to define delinquency in the broadest of terms. Accordingly the definition of "delinquency" in the Act went ibeyond just criminal conduct to include any behaviour which suggested the need for the court's intervention in order to prevent the child developing further criminal traits in his later 12 years. According to the terms of the Illinois Act, its objective was to ensure that "the care, custody and discipline of a child shall approximate as nearly as may be that which should be given by 13 his parents". The philosophy underlying the Act was that society should not try to ascertain whether or not the child was "guilty" or "innocent", but should instead concentrate on determining "What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a 14 downward career". According to this view, the child was essentially good and should be made to feel that he is the object of the state's "care and solicitude," and not that he was under arrest or on 15 trial. The role of the court in this context was therefore one of investigating, diagnosing and prescribing treatment, rather than 16 adjudicating guilt or assigning blame. The court's focus was shifted from the facts surrounding the "offence" to the background of the "offender", the theory being that the youth's specific conduct was important more as evidence of the need for the court's assistance than as a prerequisite to the court's exercise of jurisdiction. Since the sole objective of the court proceeding was the determination - 10 -of the most suitable treatment plan for the child, the rules of criminal procedure were deemed inapplicable and lawyers and their adversarial techniques were considered to be unnecessary, if not harmful. Instead, the responsibility for guiding the court in its exercise of disposition and developing a suitable scheme for treat ment was assigned to the increasingly popular psychologists and psychiatrists. In fact, it has been said that the entire scheme of the juvenile court was largely based on the view that delinquency was little more than a disease,one that could be diagnosed and treated adequately by specialists. This philosophy (today labelled by many as too idealistic and simplistic) is apparent in the following quotation from Judge Ben Lindsay, a well-known juvenile court judge of the time, who wrote that the aim of the juvenile court: ...was to bring into the life of the child all of those aids and agencies that modern science and education have provided through the experts in human conduct and behaviour; in a word, to specialize in the causess of so-called bad things as doctors would in the cause of disease. 17 At the same time that Illinois was enacting this historic statute, the state of Colorado was also in the process of creating its own legislative scheme to deal with the problem of juvenile delinquency. In 1899, a new amendment to Colorado's "school law" provided that: Any child between the ages of eight and fourteen years, and every child between the ages of fourteen and sixteen, who cannot read and write the English language or is not engaged in some regular employment who is an habitual truant from school..., or who is in attendance at any school, and is incorrigible, vicious or immoral in conduct, or one who habitually wanders about the streets and public places during school hours, having no business or lawful occupation, shall be deemed a juvenile disorderly person and be subject to the provisions of this act." 18 The Act gave jurisdiction to the County Court over any cases arising under these "truancy" provisions, although it is unclear whether or not juveniles who were suspected of committing specific crimes 19 were also dealt with by the Courts under this Act. In 1901 the administrative machinery for a juvenile court was set up in Denver and by 1903 this juvenile court received legislative approval. Once given this initial legislative recognition, the juvenile court concept spread with tremendous speed. By 1910, twenty-two states had followed Illinois' example, and by 1925 there were juvenile courts in every state but two. As of 1967, there was a Juvenile Court Act in every American jurisdiction, with approximately 20 2,700 courts hearing children's cases.. - 12 -C. The Juvenile Delinquents Act Many of the same factors that gave rise to the juvenile court movement in the United States were also present in Canada in the late 1800's. The first major legislative initiative in this country 1 was the enactment of the Children's Protection Act by the Ontario Legislature in 1893. This Act provided for the establishment of children's aid societies and for the commitment to them of dependent and neglected children. In addition, the Act provided specialized measures in relation to children who violated provicial statutes. The Act provided that where a complaint was made against any boy under the age of twelve years or any girl under the age of thirteen years for an offence against provincial laws, the court having jurisdiction and was to give notice of the charge to the local children's aid society who would then investigate the background of the child and the circumstances of the case and submit a report 2 containing that information to the judge. If, after a tria'l and' conviction on the offence charged, it appeared to the judge that "the public interest and the interest of the child will be best subserved thereby," the judge was authorized to make an order for the return of the child to his parents or guardian, or an order directing the children's aid society to place the child in a foster home for any length of time until the child reaches the age of twenty-one, or 3 impose a fine, or suspend sentence for a definite or indefinite period. The judge was also empowered, where the child was found guilty of the offence charged or where the court found the child to be "wilfully wayward and unmanageable", to ecommdt the child to an industrial 4 school or provincial reformatory. In addition, section 28 authorized any judge, in )lieu of committing to prison any child under the age of - 13 -fourteen years convicted before him of any provincial offence, to hand over custody of such a child to a children's aid society, home for destitute and neglected children, or industrial school whereupon the officials receiving such custody would have complete authority 5 to arrange for the child's adoption by some suitable person. The Act also dealt with the juvenile trial itself as well as the care and custody of children both before and after trial. It provided that no child under the age of sixteen being held for trial or under sentence in a jail or other place of confinement was to be placed or allowed to remain in the same cell or room with 6 adult prisoners. It also established certain conditions that were to apply only in cities and towns with a population of more than ten thousand, incases where children under the age of sixteen years were charged with provincial offences or were brought before a judge for examination under any provision of the Act. These conditions 7 included separate facilities for pre-trial detention, a requirement that the trial or disposition of such a case be conducted, where 8 practicable, in premises other than the ordinary police court premises, and a direction that the judge shall exclude from the room where the trial or ^.examination is being held "all persons other than the counsel and witnesses in the case, officers of the law or of any children's aid society and the immediate friends orrelatives of the child or 9 parent." The major inadequacy of the Children's Protection Act was that it did not extend to cover the great number of cases of children violating federal laws (for example, the Criminal Code). The only provision governing trials of juveniles for federal offences in 10 existence at that time wa  section 550 of The Criminal Code, 1892 - 14 -which provided that: The trials of all persons apparently under the age of sixteen years shall, so far as it  appears expedient and practicable, take place without publicity, and separately and apart from that of other,accused persons and at suitable times to be designated and appointed for that purpose, [emphasis added] As one can see from the words emphasized above, the application of the above provision was left to the discretion of the local authorities. This defect was remedied by the enactment by Parliament in 1894 of 11 An Act Respecting Arrest,Trial and Imprisonment of Youthful Offenders: which made it mandatory that all trials of young persons under the age of sixteen years for alleged violations of federal legislation be private and separate from those of adults (the words emphasized 12 in the erex"c:eftp.tl quoted above were simply deleted) and also required ii that prior to the trial, those alleged offenders be detained 13 separately from adults. In addition, the Act provided that where children were charged -in the Province of Ontario with offences against federal legislation, the presiding judge would have avail able to him powers of disposition almost identical to those avail able to the judge under the Children's Protection Act, 1893 in the 14 case of offences against provincial legislation. It is noteworthy that no mention was made a>n the Act of any provision of such special powers of disposition in trials of federal offences in provinces other than Ontario. One can only speculate as to whether Parliament was content to keep juvenile offenders in such cases subject to the same punishments imposed in adult court, or whether the provinces other than Ontario were simply not yet prepared to provide the additional facilities and support services necessary to make an expanded range of dispositions of this nature practicable. - 15 -On July 20th, 1908, Parliament enacted Canada's first Juvenile 15 Delinquents Act. Subsequent amendments were made in 1912, 1914, 1921 and 1924 and, finally in 1928, the Minister of Justice called a conference in Ottawa, to which interested persons from all over Canada were invited, to discuss the practical experience under the 16 Act and to make recommendations as to possible changes in the statute. Fifty persons (including representatives from every province except Prince Edward Island) attended the conference and, after three days of discussion, a draft bill was endorsed and submitted to the Minister of Justice. This bill was subsequently adopted by Parliament and 17 brought into force on June 14th, 1929. The resulting legislation, 18 known as The Juvenile Delinquents Act, 1929, is substantially the same as the Juvenile Delinquents Act currently in force in Canada 19 today. Although there have been several minor amendments of the 20 Act since 1929 (most of which have been merely improvements in detail), the principles and major provisions of the 1929 Act have remained unchanged. For this reason, we shall not deal separately here with the Acts of 1908 and 1929 (Sxcept when differences from the present Act are particularly worthy of comment) but will restrict our discussion to the present Act - namely, the Juvenile Delinquents Act, R.S.C. 1970, c.J-3. (hereinafter referred to as "the J.D.A."). The J.D.A. is basically the product of, a merger of the earlier Canadian and American legislative initiatives. In fact, most of the comments made earlier regarding the philosophy and objectives underlying the Juvenile Court Act of Illnois, as well as the role of the juvenile court envisioned by that Act, are 21 equally applicable to the J.D.A.. Since the remainder of this - 16 -paper will involve a detailed consideration of the J.D.A., its weaknesses and its proposed successors, we will not at this point embark upon a detailed review of its provisions. Instead, we shall confine ourselves to highlighting briefly what some consider to be 22 the J.D.A.'s four major features. The J.D.A.'s first and most important feature is undoubtedly the separation of child offenders from adult offenders at all stages in the criminal process. Subject to the court's discretion to raise certain cases to the adult courts, the juvenile court is given 23 exclusive jurisdiction over offences committed by juveniles. Similarly, the J.D.A. provides that juvenile offenders awaiting 24 trial are to be detained separately from adults awaiting trial. The second major feature is the very wide definition given to the concept of "delinquency". Because the draftsmen of the J.D.A. believed that the intervention of the juvenile court would always be in the child's best interests, a court appearance came to be regarded as a good thing for its own sake whenever circumstances suggested that a child might be in moral danger. As a result, the offence of delinquency was defined in very broad and general terms and the.juvenile court was given jurisdiction over a very wide age range. For example, the J.D.A. provides that "delinquency" _ includes not only criminal behaviour but also many other forms of 25 problem-oriented behaviour. In addition, the minimum age for 26 27 liability under the J,D.A. is seven and the maximum age is 16 -(although each Province has the option of raising the maximum as 28 high as eighteen)), although jurisdiction, once obtained, can continue 29 until the child's twenty-first birthday. The J.D.A.'s philosophy of intervention, articulated in - 17 -sections 3(2) and 38, is its third major feature. A child who has committed a delinquency is to be dealt with "not as an offender, but as one in a condition of delinquency and therefore requiring 30 help and guidance and proper supervision." In addition, the J.D.A. also directs that: ...the care and custody and discipline of a juvenile delinquent shall approximate as nearly as may be that which should be given by his 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 assitance. 31 A child who has committed a delinquency is therefore not to be treated merely as a young criminal, but rather as one being "in a condition of delinquency." Implicit in the passages quoted and in other provisions contained in the J.D.A. is the belief that delinquency can be best considered and treated as a manifestation of some psychological illness suffered by the child. Once one accepts the concept of "delinquency as illness", it seems unreasonable for a child to be held legally or morally responsible for his behaviour, and accordingly.the J.D.A. places little or no emphasis on the 32 concept of responsibility or accountability for one's actions. Similarly, given this view and tb/e^ce'va'dgliag^wi'ewtoTfk-tfae^fjWen-ile court acting as "parens patriae", it would have appeared desirable, in the eyes of the draftsmen, to place as few restrictions as possible on the court's power to intervene in the life of the child in order to do what it deems necessary for the child's best interests. It is therefore understandable why the J.D.A. allows proceedings to 33 34 be conducted in private, in an informal manner, in the absence of the child's parents or of counsel, and without most of the procedural protections available to an accused in the adult courts. - 18 -The fourth and final feature of the present J.D.A. is the provision of a wide range of reformative sentencing dispositions 35 focussed primarily on the welfare of the individual offender. The juvenile court judge's powers of disposition include suspension of final disposition; adjournment of the hearing or disposition; imposition of a modest fine; committal to a probation officer; supervision by a probation officer while child is in its own home or in a foster home; committal to the Superintendent of Child 36 Welfare; and committal to an industrial or training school. The judge is given virtually unlimited power to impose any one or combination of these dispositions, subject only to a single restric tion in section 25 regarding committal to training schools and to the general requirement that "the action taken shall, in every case, be that which the court is of opinion the child's own good 37 and the best interests of the community require." - 19 -D. The Constitutional Framework It has been no secret that copies of most of the juvenile court acts at the time in force in the United States and the Children's Act then before the British House of Commons, were examined prior to the drafting of the J.D.A. 1 of 1908. In fact, a careful examination of the present J.D.A. reveals the significant influences the early Illinois and Colorado statutes had upon the Canadian draftsmen. For example, the statement of the philosophy of the J.D.A. contained in section 38 is in part an exact duplication of section 21 of the 2 Illinois Act of 1899. However, differences between the American and Canadian constitutional structures prevented the Canadian legislators from completely adopting any of the early American statutes. Unlike the American constitutional structure, wherein the individual states have power to enact both social welfare and criminal legislation and can therefore both act as "parens p&triSie" and treat acts of delinquency as non-criminal matters, the Canadian constitutional system allocates exclusive legislative power in relation to criminal(law(excluding the creation of courts of criminal juris diction, but including the procedure in criminal matters') to the federal 3 Parliament but gives to the provincial legislatures exclusive jurisdiction in relation to the administration of justice within the province.(including the constitution, maintenance and organization of provincial courts of criminal jurisdiction*),civil rights within the province, all matters of a purely local or private nature, as well as the enforcement of provincial 4 legislation. Therefore, although Parliament has the power to define delinquency and the dispositions available to a judge upon a finding of delinquency, the provincial legislatures have sole responsibility for the actual administration of justice, which includes the police, the juvenile courts, and general social welfare services. As a result, the "parens patriae" - 20 -of children in any province is the Crown in right . of that province rather than the Crown in right of the federal government. Furthermore, since the power to legislate regarding welfare matters is within exclusive provincial jurisdiction, the federal government is therefore, if it is to legislate at all within this 5 field, forced to deal with delinquency in a criminal-law format. Accordingly, in the J.D.A., delinquency is defined not as a state or condition (as was the case in most of the early American statutes), but rather as a distinct act, 6 and is in many respects treated as a criminalsorquasi-criminal offence. The attempt to apply the American juvenile court concept in the context of the Canadian constitutional system has resulted in at least two unusual features of the present pattern of the J.D;A. One of these features is an apparent inconsistency at the heart of the J.D.A.'s philosophical approach to the problem of delinquency. For example, the J.D.A. adopts (for the reasons discussed above) a criminal law approach, whereby criminal conduct (violations of federal, provincial, or municipal statutes or regulations) and certain types of non-criminal behaviour are classified as acts of 7 delinquency and can result in the imposition of various degrees of restraint 8 on the offender's liberty. At the same time, however, the J.D.A. still 9 purports to embrace the same benevolent and non-punitive philosophy that was originally developed by American legislators for use in a basically non criminal, civil proceeding, in which the court was to act more as a mere adjunct of the social welfare system, not doing things t£ the child but rather for the child. Another unusual feature resulting from the division of constitutional jurisdiction is that the J.D.A., although federal legislation, depends almost exclusively on provincial participation and resources for its effective application. For example, the J.D.A. itself can only be proclaimed with respect to those provinces that have already established their own juvenile courts and detention facilities for children"^(subject to certain - 21 -exceptions in section 43); the judges of the juvenile court are appointed by the province and paid by the province or by the province and the municipality which the court serves; and, most importantly, the resource facilities upon which the court relies (e.g. diagnostic services, child welfare services, probation services, and numerous types of institutions for children) are 11 controlled and usually financed by the provinces. These two features - the conflict between an essentially non-criminal philosophy and its criminal-law context and the dependance of federal legislation on provincial facilities and resources - have resulted in many of the problems that have arisen in practice under the J.D.A. and also give rise to many crucial issues that must be resolved before any attempt at juvenile law reform can be successful. As a result, we shall have occasion to return to these two topics at various stages during the course of this paper. After half of a century of operation without a single attack on its 12 validity, it is rather surprising to note that in recent years proceedings under the J.D.A. have suddenly given rise to a number of important constitu tional issues. One of the first cases to deal with the issue of the constitu-13 tional basis for the J.D.A. was Re Dunne. In this case, the Ontario High Court held that section 20(2) of the J.D.A., which provides that an order for the payment of money towards the support and maintenance of a child adjudged to be a juvenile delinquent may be made against the parents of such child or upon the municipality to which it belongs (whereupon the latter could recover the same from the parents), is intra vires the Parliament of Canada. The court held that such legislation, although it may affect provincial rights in respect of municipal institutions and property and civil rights, is not legislation in relation to such rights, but rather, is valid as being ancillary and necessarily incidental to the carrying out of the provisions of the J.D.A. under the criminal law powers of the federal government. - 22 -There seems to have been little doubt that Parliament can, on the basis of the federal criminal law power, exercise control over juveniles as a consequence of their breaches of the Criminal Code and other federal statutes 14 creating criminal offences. A more contentious question has been whether federal authority extends to the supervision of juveniles on the broader basis of violation of provincial or municipal legislation, or of immoral conduct 15 16 that is not in itself illegal. In Regina v. Kelleher this question was raised and answered in favour of the federal claim. The court, in quashing a magistrate's conviction of a juvenile under provincial motor vehicle legislation on the grounds that such an offence constituted a delinquency over which the juvenile court had exclusive jurisdiction, gave obiter approval to Re Dunne and to the view that the J.D.A. fell within Parliament's criminal law 17 jurisdiction. 18 This constitutional issue arose again in A.-G. B.C. v. Smith in the context of a fact situation virtually identical to that in Kelleher. The accused Smith, a juvenile, had been convicted in Magistrate's Court pursuant 19 to the provisions of the provincial Summary Convictions Act for the offence 20 of speeding contrary to the Motor-Vehicle Act. On an application for a writ of certorarj.,the trial judge, relying on the obiter in Kelleher, ordered the ewrit to issue and quashed the conviction. This decision was subsequently affirmed by a three to two majority judgment of the British Columbia Court of 21 Appeal. Before the Supreme Court of Canada, the major argument was not that the J.D.A. per se was ultra vires Parliament, but rather that sections 2(1)(h), 3(1), and 4 were ultra vires to the extent that they purport to apply to children who have violated "any.y provincial statute, or ... any 22 by-law or ordinance of any municipality." The problem before the court 23 could be stated in the form of two questions: - 23 -1. Is the J.D.A. intra vires Parliament under S.91(27) of the B.N.A. Act (i.e. legislation in relation to the criminal law), or is it ultra vires on the ground, (a) that it is legislation relating to the welfare of children, within the scope of the Reference Re Adoption Act case, 24 or (b) that collectively ss. 2(l)(h), 3(1), and 4 infringe the provincial jurisdiction under the B.N.A. Act, S.92(15) to impose punishment for enforcing any law made in the province in relation to any matter within the scope of its legislative competence? 2. Assuming that the J.D.A. is held to be intra vires, does S.4 of the J.D.A. operate to prevent a juvenile from being prosecuted under the provisions of the Summary Convictions Act for an offence under the Motor-Vehicle Act or any other offences validly created in the province? In his judgment on behalf of a unanimous seven-man court, Mr. Justice Fauteux held, with respect to question (1), that the impugned sections of the J.D^A. were intra vires Parliament under S.91(27) of the B.N.A. Act. Although he conceded that the primary legal effect of the J.D.A. was the effective substitution,.in the case of juveniles, of the provisions of the J.D.A. for the enforcement provisions of the Criminal Code or of any other federal or provincial statute, he went on to state that the true nature and character of an Act cannot always be conclusively determined by the mere consideration 25 of its's primary legal effect. On the contrary, he stated, the preamble (appended to the original 1908 J.D.A.), the interpretation section, and the main operative provisions of the J.D.A. clearly demonstrate that the substitution of the provisions of the J.D.A. for the enforcement provisions of other laws was merely a means adopted by Parliament in order to achieve "an end, a purpose or object^wMch, in itss true nature and character, identifies this Act as being genuine legislation in relation to criminal 26 law," that "end,.purpose or object" being to prevent juveniles from - 24 -becoming prospective criminals and to assist them in being law-abiding . 27 citizens. Nor does it matter that there is a lack.of uniformity in the application or operation of the J.D.A.; in the court's view, desirable as uniformity may be in criminal law, it is not per se, a dependable test of 28 constitutionality. In summing up the scope of the J.D.A., Fauteux J. concluded that: [T]he Act deals with 'juvenile delinquency' in its relation to crime and crime prevention, a human, social and living problem of public interest, in the constituent elements, alleviation and solu tion of which jurisdictional distinctions of constitutional order are obviously and genuinely deemed by Parliament to be of no moment. 29 In regard to the second question before the court, it was held that a child within the meaning of the J.D.A. cannot be charged with speeding under the Motor-Vehicle Act because the provisions of that Act, so far as they purport»to relate to such a child, are rendered inoperative under the 30 31 paramountcy doctrine by the provisions of the J.D.A., and further, that the Motor-Vehicle Act was not a statute intended for the protection or benefit of children within the meaning of S.39 of the J.D.A. and was not, as a result, thereby excepted from the operation of the substitutional provisions 32 of the J.D.A. Smith has been followed in at least two reported cases. In R. v. 33 Prescott, Dohm, Co. Ct. J. had to deal with the case of a juvenile who was the subject of a "traffic© report" under section 126A of the Motor-Vehicle 34 Act. It was argued before him that the J.D.A. was ultra vires as it relates to section 126A in that this section merely provided the procedure for the operation of a point system to regulate the posession of a driver's licence in that province, and did not, in any way, deal with a criminal offence. The court rejected the argument that Smith should be read narrowly, so as - 25 -only to authorize the substitution of the J.D.A.'s provisions for those violations of provincial or municipal legislation that expose the offender to the possibility of criminal sanctions. Instead, it held that the Smith decision, like the J.D.A. itself, is to be interpreted broadly, and, based on that view, ruled that the J.D.A. was intra vires and was applicable in the 35 present case. Smith was also rappJIiedid in Regina v. M., a case to which we shall refer at a later stage. The reasoning and the result in the Smith case have been questioned 36 by a number of writers. It has been argued that if one focuses on the subject-matter of the legislation, as opposed to its alleged object or 37 purpose (which Fauteux, J. seized on), the finding that the J.D.A. is, in pith an£i substance, in relation to criminal law, becomes more difficult to 38 justify. For example, aside from the single reference to delinquency as 39 constituting an "offence", there is no statement in any other sections, either explicitly or implicitly, that the J.D.A. purports to be an exercise of the criminal law. On the contrary, the language of the J.D.A. (that a 40 juvenile delinquent is to be fcr-.eafcea "not as an offender" and "not as a 41 criminal" ) seems to disclaim quite clearly any intention to deal with 42 the problem of delinquency in a criminal law context. In addition, there are numerous features of the J.D.A. which depart from the traditional elements of criminal law and which, although when considered individually are not of great significance, when viewed collectively give weight to the argument that the actual character of the statute is other than criminal law. These include the facts that the J.D.A. is not a law of general 43 application, either in terms of territorial operation, acts or conduct 44 45 proscribed, or categories of persons dealt with; that delinquency itself was not a crime known to the common law; and that many of the types of conduct covered by the defintion of delinquency involve not only no mens rea - 26 -or moral turpitude.but also only a very remote connection with "criminal" 46 conduct. It is worth noting that all of the above arguments were accepted as valid in the two dissenting judgments in the British Columbia Court 47 of Appeal. Similarly, the Supreme Court's conclusion that the J.D.A. relates more to the federal criminal law power than to either of the competing provincial heads of power (namely, the jurisdiction over welfare matters and the power to impose sanctions for the violation of provincial legislation) can be subjected to some thought-provoking criticism. There is no doubt that the field of welfare legislation is committed to provincial jurisdiction by the combined operation of sections 92(13), (14) and (16) of the B.N.A. A Act, or even that such provincial legislation may have as one of its objects that of "controlling 48 social conditions that have a tendency to encourage vice or crime." In light of the tenuous relationship between the types of conduct that can bring the J.D.A. into operation and the reasonable scope of the criminal law power, is it not, one might argue,more consistent with common sense to conclude that, in fact, the subject-matter of the J.D.A. is more closely related to 49 matters of welfare concern? Similarily, can it not be argued that if S.92(15) is to have any substantial meaning it must have the effect of limiting the scope of S.91(27) so as to preclude the federal government from imposing its own set of sanctions for the violation of provincially prescribed standards of conduct? Surely the fact that Parliament has, in the context of this legislation, merely attached its own tag of "delinquency" to such violations and has restricted its intervention to a limited class of case cannot strength the claim that S.91(27) justifies the J.D.A.'s imposition of special penalties for the violation of provincial or municipal laws 50 by juveniles. - 27 -51 Finally, it has been suggested that if one adopts the view of.the paramountcy doctrine that when the doctrine is invoked, provincial competence with respect to matters dealt with in the federal legislation is completely suspended (rather than just temporarily suspended), it can be argued that the referential incorporation adopted in the defintion of delinquency in the 52 J.D.A. is unconstitutional to the extent that it is ambulatory. The argument is that, based on this view of the paramountcy doctrine (a view which, one might note, is not widely accepted), any amendments to the provincial or municipal provisions after the initial incorporation by the J.D.A., so far as they purport to apply to juveniles, will be without support from any persisting head of provincial competence, since the J.D.A. must be assumed to have occupied the relevant field. According to this view, the independent legal validity of the incorporated legislation is a condition precedent to the validity of an ambulatory referential incorporation. Consequently, it has been argued, the J.D.A. must be held to be ultra vires in that it attempts to incorporate in its scope provincial legislative changes in matters in respect of which the provinces have lost their competence by the very enact-53 ment of the incorporating legislation. This rather esoteric argument was not considered by any of the courts din. the Smith case, and it is submitted here that its utility is rather questionable in light of the many doubtful premisses on which it is based. In light of the fact that the Smith case has resolved the issue of constitutional validity, at least with respect to the basic scheme of the J.D.A., it would seem that further consideration of the soundness of the Supreme Court of Canada's decision and its effect on the limits of Parliament's criminal law power would best be left to the constitutional law commentators. Furthermore, as we shall soon see, the proposed legislation to replace the J.D.A. no longer purports to incorporate violations ofc provincial or - 28 -municipal legislation or the commission of "status offences" within the scope of the federal Act; as a result, if these proposals become law, the specific issue in Smith will then have little practical relevance. However, our examination of the constitutional issues in this case has not been a useless exercise, for it has served to highlight in a most practical context the continuing conflict inherent in the Canadian approach to the problem of delinquency. The point that is amply illustrated by the dissenting judgments in the Court of Appeal and the criticisms of the Supreme Court's decision that we have discussed is that the issue of the basic character of the J.D.A. is not as clearly defined as the judgment of Fauteux J. might suggest. The reality of the matter, it is'submitted, is that regardless of whether one focuses on its subject-matter or its object and purpose, the true character of the J.D.A., in pith and substance, is equally concerned with and directed towards matters of criminal law and child welfare. As was shown earlier, in our discussion of its historical heritage, the J.D.A. was the product of the attempt to reproduce the American juvenile court in the context of the Canadian constitutional system. As a result, the J.D.A. does take the form of a comprehensive criminal code for children - one which covers all breaches of statute or bylaw as well as any form of immoral behaviour - but one that prescribes humanee and compassionate treatment and rehabilitation, based on the needs of the individual offender, rather than punishment and retribution geared to the severity of the offence. To the extent that the J.D.A. follows the format of the Criminal Code, it is undoubtedly criminal in nature: the creation of the "offence" of delinquency, the establishment of a separate court and procedure for the prosecution of such offences, and the provision of a series of dispositions ranging from fines and probation to indefinite institutional incarceration are all elements that contribute to the criminal law character of the legislation. However, other features including the 54 stated philosophy and prescribed method of treatment, that portion of the definition of juvenile delinquent which goes beyond the mere violation of federal statutes, the dependence on provincial participation and resources, as well as other features discussed earlier, reflect the J.D.A. 's preoccupation and dedication to essentially welfare concerns. As unsatisfactory- as it may be to the constitutional analyst,.the conclusion that the J.D.A., as it has existed from 1908 to date, is substantially based on,two distinct heads of power - one provincial and one federal - is perhaps the one answer that best accords with reality. Such a constitutional quagmire must obviously have implications for the future of juvenile law reform. As Graham Parker noted in 1969: The remarks of Fauteux, J. to the effect that the Juvenile Delinquents Act is a criminal statute may have simply been a constitutional skirmish but, on the other hand, this characterization of the act may well return to haunt the juvenile court. 55 As we shall see in later chapters, in recent years there have been growing demands for a further decriminalization of the juvenile justice system. What lessons can be learned from the above by the draftsman who sits down today, with such a goal in mind, to write our new delinquency legislation? He would undoubtedly agr,ee,; that new legislation should not, because of the character and extent of the problem with which it deals, and could not, because of the central role that the federal criminal law power must play, at least in certain cases, be established and administered solely by the provinces. However, the experience to date under the J.D.A. shows the inevitable difficulties that Parliament would face in dealing with this problem^ in anything but a strictly criminal-law format. At the same time, the law is clear that however sympathetic one may be to the aims of the - 30 -draftsman and the theory of the legislation, the practical necessities or inherent logic of a comprehensive base of regulation cannot be used to allow 56 either level of government to exceed its sphere of legislative competence. lf"r as it seems, such legislative objectives could not be accomplished by either level of government without involving an illegal exercise of legislativ power, then perhaps the only answer lies in a compromise: complementary legislation by both levels of government, each within its own constitutional 57 limits. As suggested by the Department of Justice Committee on Juvenile Delinquency approximately ten years ago, it seems that any attempt at delinquency law reform, in order to be successful, will require " 'co-operativ 58 federalism' of the highest order." At a later stage in this paper we shall consider how successful to date attempts at such "co-operative 59 federalism" have been. - 31 -E. The Impact of the Canadian Bill of Rights A related issue that has also arisen before the courts in recent years is the extent to which provisions contained in and procedures conducted under the J.D.A. may lawfully infringe upon the civil rights of juveniles. We are not concerned here with the details of the procedure of the juvenile court established by the J.D.A. : that we propose to deal with in a later chapter of this paper. Nor are we focusing for the time being on the many reported cases dealing with the recognized rights of a juvenile before a juvenile court: although some aspects of this area will be touched on later, this 1 topic has been adequately dealt with elsewhere. What we shall attempt to provide is a brief review of the reported cases in which the Canadian Bill 2 of Rights has been used to challenge the validity of specific provisions in the J.D.A. in order to determine what issues have been raised in the past and what issues we might expect to be raised in the future. Furthermore, since this paper deals primarily with proposals for new legislation to replace the J.D.A., and since the Canadian Bill of Rights can have significant effects on the interpretation or even validity of a federal enactment, it may prove valuable at later stages in our study to have determined the results of the application of the Canadian Bill of Rights to Canadian delinquency legislation to date. Before turning to the recent Canadian developments, let us look for a moment at the comparable American experience. The Fifth and Fourteenth Amendments to the Constitution of the United States provide that "no person shall... be deprived of life, liberty, or property without due process of law." In the last ten years, a series of leading cases handed down by the Supreme Court of the United States have established that juvenile court proceedings must comply with the essentials of "due process". - 32 -3 In Kent v. United-States, a case of a 16-year-old charged with • housebreaking, robbery and rape, the U.S. Supreme Court considered the requirements for a valid waiver of the exclusive jurisdiction of the Juvenile Court of the District of Columbia so that a juvenile could be tried in the adult criminal court of the District. Although the court's decision turned upon the language of the statute, it emphasized the necessity that "the basic requirements of due process and fairness" be satisfied in such 4 proceedings. 5 In the landmark case of In Re Gault the Supreme Court took the matter one step further and attempted to ascertain the precise impact of the due process requirement onithe1Mjuaieati^on stage of a delinquency hearing. Gault concerned a 15-year-old, already on probation, committed in Arizona as a delinquent after being apprehended upon a complaint of having made lewd telephone calls. If Gault had been an adult convicted of the same offence he could only have been fined $500 or imprisoned for two months; however, because he was a juvenile, he was committed to confinement in Arizona's Industrial School until he reached the age of twenty-one. Reaffirming its view that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone," the U.S. Supreme Court granted habeas corpus on the grounds that the due process requirement of the Fourteenth Amendment had not been complied withiin that the child and parents were not given proper notice of the hearing, they had not been advised of their right to counsel, either retained or appointed, and that the right to cross-examine and to be confronted with one's accuser had been denied. The court also held that the privilege against self-incrimination was available to a juvenile, but refrained from deciding whether a State must provide appellate review in juvenile cases or a transcript or recording of the hearings. - 33 -7 In Re Winship concerned a 12-year-old charged with delinquency for having taken money from a woman's purse. The court held that "the Due Process Clause protects the accused against conviction except upon proof 0 beyond a reasonable^ doubt of every fact necessary to constitute the crime 8 with which he is charged," and then went on to hold that this standard was 9 applicable, too, during the adjudicatory stage of a delinquency proceeding. Finally, in the 1971 case of McKeiver v. Pennsylvania^the U.S. Supreme Court indicated the limitations on the extent of procedural revision it was prepared to undertake in holding that trial by jury in the juvenile court's adjudicative stage was not a constitutional requisite of due process of law. In Canada, the development of the law regarding civil rights in juvenile courts has not been as rapid or dramatic as it has been in the United States. However there have been a number of reported cases in recent years that may suggest the direction in which our courts are pointed . Even prior to the enactment of the Canadian Bill of Rights, it was suggested in a number of reported Canadian cases that juvenile court proceedings must be conducted according to due process of law and consonant 11 12 with fairness and fundamental procedural safeguards. In Re Miller Disbery, J., in considering an application for leave to appeal under S.37 of the J.D.A., stated that: It is essential for due administration of justice that an accused be tried according to law, and that he should have a fair trial and not be deprived of any of his rights. 13 In R. v. T_?"^irlson, J. quashed a juvenile court conviction on the grounds of a series of procedural defects during the trial and explained: I am not concerned with barren trivialities, but with fundamental rights - rights which we provide for the sorriest scoundrel tried in - 34 -our criminal courts, and should accord with double handed generosity to an immature lad. 15 16 Similarly, comments in a number of other cases have reinforced the view that although young persons in juvenile court may not be entitled to all of the rights granted to adults in the context of the adult criminal justice system, the former should at least be entitled to a trial in accordance with the principles of due process of law. What effect has the Canadian Bill of Rights had on the J.D.A. or on proceedings thereunder? To date, arguments based on the Canadian Bill of Rights have been raised in only three reported cases under the J.D.A. as well as in tone case dealing with an'analogous piece of legislation. In each of these cases the argument made was that a specific provision of the Act in question had the effect of denying all juveniles or a certain group of juveniles the right to "equality before the law" as guaranteed by S.l(b) of the Canadian Bill of Rights. 17 In Regina v. 0_. a juvenile, convicted under the J.D.A., sought leave to appeal that conviction notwithstanding the fact that the time period provided in S.37(3) of the J.D.A; for an application for such leave had elapsed. In rather brief reasons, Mclntyre, J. of the British Columbia Supreme Court rejected the applicant's argument for extension of time, and held that there is no denial of equality before the law contrary to the Canadian Bill of Rights even where the combined effect of section 37(3) of the J.D.A. and sections 603 and 750(2) of the Criminal Code is to deny all juveniles a right guaranteed by. the Criminal Code to all adults charged with the same offence - namely, the right to apply for an extension of time for leave to appeal. He declined to attempt to define the expression "equality before the law," but did suggest that such exceptional treatment for juveniles was justified because the J.D.A. provides special benefits - 35 -and protection to juveniles and because it "applies to all citizens of Canada regardless of race, national origin, colour, religion or sex when they fulfil the condition of being a juvenile, a state into which all citizens 18 are born but from, which all who survive emerge at a fixed time." One might well question the validity of the latter statement as a rationale for upholding the presence of equality before the law in this case, especially in light of the fact that the J.D.A. does not, in fact, apply to "all citizens of Canada." but only to those who reside in areas of the country where the J.D.A. has been proclaimed, and that the "fixed time" at which all citizens are said to emerge from the state of being a juvenile can, in fact, vary up to two years depending on the province in which one happens to be. 19 In Regina v. M., a 15 1/2 year-old boy was charged with four separate counts of delinquency, two based on charges of breaking, entering and theft and two based on allegations of rape. In answer to the Crown's motion under section 9 of the J.D.A. that the accused be proceeded against by indictment in the ordinary courts, it was argued that section 9 violated the Canadian Bill of Rights and was therefore inoperative because it created an inequality in that it did not apply to all juveniles but only to a limited class, namely 20 those over the,age of fourteen. Felstiner, Prov. Ct. J. acknowledged that "equality before the law" in S.l(b) means that no individual or group of 21 individuals is to be treated more harshly than another under the law, and concluded that the waiver provision in the J.D.A. does not permit a 14 or 15-year-old boy to be treated more harshly than others before the law, since the particular standard of treatment which is relevant for such a comparison is that pertaining to adult criminals, and if he is transferred from the 22 juvenile to the adult court, he is not thereby treated more harshly than they. He went on to express grave concern that if the impugned section was held to be invalid',',, numerous other provisions involving benevolent discimination - 36 -on the basis of age, both in the J.D.A. and in other legislation, would be 23 placed in jeopardy. Finally, he held that since Parliament clearly had the power to allocate jurisdiction over 14 and 15-year-olds to either the juvenile 24 or the adult courts and could have done so by an all inclusive rule, it cannot validly be argued that by choosing instead to vest jurisdiction in the Juvenile Court Judge to transfer some juveniles where the good of the child and the community so requires, Parliament has denied to any juvenile 25 equality before the law. 26 The appeal to the Ontario Supreme Court was dismissed. Houlden, J. adopted the narrow interpretation of "equality before the law" laid down by 27 Ritchie J. in the Lavell case and held that the provisions of S.9(l) of the J.D. A.ddo;an6t violate the Canadian Bill of Rights in that they: do not deprive children between the ages of 14 and 16 of equality of treatment in the  enforcement and application of the Juvenile  Delinquents Act before the law enforcement authorities in the ordinary courts of the land. If Parliament can validly divide adults from children for the purpose of criminal legis lation, I can see no reason why it cannot further subdivide the classification of children when the reason for such subdivision is the benefit and the protection of the children so subdivided. 28 One question raised, but not answered by Felstiner, Prov. Ct. J. was whether or not S.2(l) of the J.D.A., which permits the Governor General in Council to raise the age limit for juveniles in any province to 18 years from time to time, denies equality before the law. Such an issue subsequently 29 arose in Regina v. Dubr>ufe. In this case a 16 1/2-year-old boy was charged with non-capital murder under the Criminal Code, the J.D.A. not being available since no order extending the juvenile age beyond 16 years of age had been made in that jurisdiction (the Northwest Territories). It was - 37 -argued on behalf of the accused that the failure to treat the boy as a."child" under the J.D.A. would constitute an infringement of the Canadian Bill of Rights in that it would be unfairly disciminating and improper to treat someone as subject to the full rigours of the criminal law in the Northwest Territories, when he would not necessarily be so treated in at least some of the other provinces. De Weerdt, Magis. held that he had proper jurisdiction under the Criminal Code and that the J.D.A. had no application here, since the accused was assured of equality with all others in his position in the same jurisdiction and the court cannot substitute its discretion for that of the Governor in Council. Although his decision was affirmed by Morrow, J. for slightly 30 different reasons , it is worth noting that, in his judgment, the learned Magistrate placed considerable emphasis on the fact that, for historical and constitutional reasons, it is doubtful that "equality before the law" requires complete legal parity between persons in the provinces and persons in the 31 Territories of Canada. Accordingly, in light of his judgment, one might well wonder whether Regina v. Dubhile would have been decided differently if the same fact situation arose in a province where the maximum age was still 16, rather than in the Territories. A final case of relevance in our consideration of the effect of the Canadian Bill of Rights on the J.D.A., although not dealing specifically with 32 the J.D.A., is Regina v. Burnshine• In this case a 17-year-old boy was convicted in the adultccourts for causing a disturbance, the maximum sentence for which was six months under the provisions of the Criminal Code. Following a pre-sentence report, the accused was sentenced to a term of three months definite and two years less one day indeterminate pursuant to section 150 of 33 the Prisons arid Reformatories Act, which permits such definite and indeterminate sentences for young offenders who are under the age of 22 years and are convicted in British Columbia for an offence against the laws of - 38 -Canada. An appeal by the accused from his sentence on the ground that this provision violated the Canadian Bill of Rights and that the sentence was therefore illegal, was allowed by the British Columbia Court of Appeal and the indeterminate portion of the sentence was set aside. On further appeal by the Crown to the Supreme Court of Canada, it was held by a six to three margin that the appeal should be allowed. In the Supreme Court of Canada the respondent argued that he had been denied the right to equality before the law in that section 150 permits a British Columbia court to impose upon him a punishment greater than that which would have been imposed: (i) by a court in any other province of Canada, except Ontario (since there was also a comparable section in the 34 Prisons and Reformatories Act applicable to Ontario); or (ii) upon a person not within the age group defined in section 150 in any province, including 35 British Columbia, other than Ontario. Mart-land, J. speaking for the majority, concluded that section 150 did not infringe the respondent's right to equality before the law under section 1(b) of the Canadian Bill of Rights and, inddoing so, he adopted a very narrow view of the meaning and scope of the Canadian Bill of Rights. He held that the Canadian Bill of Rights merely declares and continues existing rights and freedoms and that in 1960, when it was enacted, the concept of equality before the law did not and could not include the right to insist that all statutes apply to everyone in all areas of Canada. After noting that the purpose of the legislation is to reform and benefit persons within a younger age group, and that its application was made limited because of the existence of the necessary institutions and staff in the provinces, he concluded: In my opinion, it is not the function of this Court, under the Bill Of Rights, to prevent the operation of a federal enactment, designed for this purpose, on the ground that it applies only to one class of persons, or to a particular area. In my opinion, in order to succeed'in the present case, it would be necessary for the respondent, at least, to satisfy this Court that, in enacting S.150, Parliament was not seeking to achieve a valid federal objective. This was not established or sought to be established. 36 Laskin, J. (as he then was), with whom Spence and Dickson, J.J. concurred, agreed with the majority of the British Columbia Court of Appeal that so far as section 150 provided for the imposition of a greater punishment of the accused in British Columbia then elsewhere in Canada (except Ontario) 37 for the same offence it denied to him as an individual equality before the law. However, rather than hold that the Canadian Bill of Rights therefore rendered section 150 inoperative, he chose instead to adopt a construction of section 150 that was compatible with the former-namely, that the combined fixed and indeterminate sentences are to be limited in their totality to the maximum term of imprisonment prescribed for the offence - and thereby accommodate 38 section 150's rehabilitative purposes within an equality of maximum sentence. On this view, he concluded, "the age factor in section 150 does not amount to a puhitivea element in that provision but rather redounds to the advantage 39 of an accused who is within the age group." t It has been suggested that three provisions of the J.D.A. might possibly conflict with the Canadian Bill of Rights and thereby be rendered inoperative, namely - the scheme whereby the same penalty may be imposed for all wrongs, the possibility of indefinite periods of incarceration, and the "resentencing" 40 (under section 20(3) ) of a former juvenile who has already been "punished". According to this view, a juvenile might argue that, as a result of one or more of the above provisions, he, as a juvenile, has been: (a) deprived of - 40 -41 his liberty other then by due process of law; (b) subjected to cruel and 42 43 unusual treatment or punishment; or (c) denied equality before the law, in that he has been "penalized" more than an adult whot, committed the same 44 offense. As we have seen, there are no reported cases dealing specifically with the first two arguments, but there have been a number of recent cases dealing with the third, namely the right to equality before the law, and these cases have consistently rejected the argument that this right is violated by benevolent legislation such as the J.D.A. notwithstanding the fact that it is applicable only to t&se1,persons in a particular class, as defined by their age and/or place of residence. Although one might successfully argue that 45 46 47 Regina v. 0., Regina v. K., and Regina v. Dubrule should not be taken as a general endorsement of the J.D.A., in that they deal only with restricted aspects of its operation - namely, applications for leave to appeal, transfer applications, and proceedings in the Northwest Territories, respectively -it will be very difficult, it is submitted, for any juvenile attacking the J.D.A. on the grounds of violating equality before the law, to overcome the 48 implications of the Burnshine decision. Although Burnshine does deal with a different piece of legislation, and perhaps can therefore be distinguished on that ground, the,majority's narrow and restrictive view of the effect of the Canadian Bill of Rights (particularly the requirement that in order for a statutory provision to be rendered inoperative it must first be established 49 that it was not enacted prusuant to a valid federal objective ) on legislation very similar in intent and jfinformat to the J.D.A. would seem to render it extremely unlikely that any attack on the J.D.A. on the grounds of S.l(b), even one based on any of the three provisions noted in the preceding paragraph, could be successful. As for the two grounds for attack based on sections 1(a) and 2(b) of - 41 -the Canadian Bill of Rights, it would seem, although there is no authority directly on point, that the narrow approach taken iii Bufnshine and other recent Supreme Court of Canada decisions dealing with the Canadian Bill of 50 Rights will in the future have the effect of greatly limiting the utility of the Canadian Bill of Rights in restricting or rending inoperative legislative provisions such as those contained in the J.D.A. What significance does this current state of affairs have for proposed new juvenile delinquency legislation? In light of the fact that recent judicial interpretations have significantly weakened the once-hoped-for clout of the Canadian Bill of Rights, it would seem that the draftsman of new legislation, assuming that he can create an Act that is clearly within the accepted range of valid federal objectives, need have little concern as to the possible limiting effects of the Canadian Bill of Rights. On the other hand, if-the draftsman'is desirous of protecting the civil rights of juveniles, it will be interesting to see whether he finds it necessary to specify in the legislation what civil rights of juveniles are to be recognized and how they are to be guaranteed, rather than rely on the device of judicial interpretation, aided by equitable doctrines and the Canadian Bill of Rights, to see that these rights are, in fact, protected. - 42 -CHAPTER 2 - THE SEARCH FOR A NEW ACT A. Demands for Reform [T]he great hopes originally held for the juvenile court have not been fulfilled. It has not succeeded significantly in rehabilitating delinquent youth, in reducing or even stemming the tide of juvenile crim inality, or in bringing justice and compassion to the child offender. 1 With these words, the 1967 Report of the U.S. President's Task Force on Juvenile Delinquency launched into a critical reassessment of the expe rience of the juvenile court in the half-century of its operation. Such official criticism was not the first, nor the last, to be heard during that decade. In 1960, a major report tabled in the British House of Commons reached similar conclusions and recommended substantial reform of the English 2 delinquency legislation, greatly restricting the role of the juvenile court. In 1964, a committee in Scotland, reviewing that country's juvenile legisla tion, chose to scrap the juvenile court altogether and proposed a completely 3 new approach to the problem. Finally, in 1966, a Committee of the Canadian Department of Justice issued a major report entitled Juvenile Delinquency in Canada, containing a series of one hundred recommendations regarding both preventive and legal aspects of juvenile delinquency, and including proposals 4 for significant revisions in the J.D.A. What had led to these broad demands for reform throughout the Anglo-American world? How had the juvenile court failed to fulfil its objectives? In Canada, criticism of the J.D.A. did not emerge suddenly in the 1960's, but had arisen over the years as experience was gained with its administration. It is interesting to note that despite the traditional disinterest of lawyers and legal scholars in the field of juvenile delinquency law, a number of these 5 criticisms were first formally voiced in articles appearing in legal journals. Since many of these criticisms will be discussed in greater detail elsewhere, we will not undertake a detailed analysis of them here. Instead, we shall only - 43 -note some of the major criticisms of the J.D.A. and of the Canadian juvenile justice system most frequently heard in the last twenty years. These can be briefly summarized as follows: (1) The juvenile justice system has developed many of the very same character istics of the adult criminal process that the former was created to avoid. Such elements as deterrence, punishment, detention and the resulting stigma have surfaced in the juvenile justice process despite initial intentions to the 6 contrary. (2) As a result of a lack of financial resources^the juvenile court and its related support services have been frustrated in their attempts to fulfil the treatment intent expressed in the J.D.A. and the needs of many children have 7 continued to be unsatisfied. (3) The scope of the legislation (and, therefore, the court's jurisdiction) is much too wide. As a result, the J.D.A. and the juvenile court have been required to deal with many types of problem behaviour (e.g. "status" offences, municipal bylaw infractions, "unmanageability" and "incorrigibility") and with offenders of widely varying ages (as young as seven and as old as seventeen years of age, in some provinces) for which they are not designed or equipped to deal adequately. Regarding the age jurisdiction, it is said that very young offenders should not be prosecuted at all; regarding the offence juris diction it is said that the young should not be prosecuted for conduct that is not an offence in the case of adults nor should the same range of disposi-8 tions be available for all types of prohibited conduct. C4) The absence of sufficient substantive and procedural safeguards in'-the juvenile justice process allows for many unjust infringements on the rights and liberties of young persons. The absence of counsel, the lack of legally-trained judges and the restrictive appeal provisions in the J.D.A. only serve 9 to aggravate this serious problem. - 44 -(5) The absence of any meaningful restrictions or guidelines applicable to the judge's power of disposition has in some instances allowed punitive sen-10 tencing practices to develop. (6) The rules restricting publicity of and attendance at juvenile court proceedings have obstructed community input and public awareness and under standing of the juvenile justice system. (7) The present juvenile court philosophy and the range of dispositions available to the juvenile court judge do not have the effect of encouraging child ren to act responsibly nor of adequately protecting the community. Aside from these specific criticisms, many took the view that the fact that an Act so dependent on progress in the behavioural services had remained substantially unchanged for over half a century was itself a persuasive reason 11 for a reassessment of its objectives and performance. Why did the juvenile court fail? Although the professionals in the juve nile justice process - the judges, the lawyers, the social workers, and so on -might disagree as to the validity of one or more of. the above criticisms or as to which is the most pressing ground for reform, it is likely that nearly all would agree that the juvenile court both in Canada and elsewhere, has generally failed to achieve the lofty objectives originally held for it. Many of the professionals - particularly the social workers and others involved in the treatment side of the court's functions - have tended to place the blame for the juvenile court's failure (to the extent that they will admit that it has failed) chiefly at the feet of the community arguing that it has been the community's unwillingness to provide the court with the necessary services -the staff, the facilities, and the concern - that has prevented the court from realizing itsxpotential and resulted in it taking on many of the undesirable features of the adult criminal courts. Undoubtedly, there is some validity to this argument: the efforts of the juvenile court certainly haven't been - 45 -aided by the generally low status of the court and of juvenile court judgeship, many judges' general lack of education, training and expertise in juvenile matters, the lack of highly trained probation staffs, the scarcity of assess ment services, and the generally limited range of resources (both programs and facilities) available on disposition. However, the lack of these resources is clearly not the only explanation. Rather, it is submitted that the primary reason for the juvenile court's failure to live up to its rehabilitative and preventive goals was the extremely unrealistic nature of those goals based as they were upon the overoptimistic view of the court's earliest proponents as to what was and what could be known about the phenomenon of juvenile criminality 12 and as to what even a fully equipped juvenile court could do about it. There is no doubt that the problem of delinquency has proved itself to be infinitely more complicated than the 19tlx Century reformers thought. Not only has the attempt to develop effective rehabilitation programmes met with only very 13 limited success, but even the causes of delinquency itself have remained substantially a mystery. Despite the great numbers of theories that have been put forward regarding the etiologyof delinquency and the enormous body 14 of research literature (mostly American) accumulated over the past forty years, it is clear that the development of a workable theory of delinquency, if one is possible at all, is still many<iyears away. Although most social scientists will agree that a myriad of sociological, psychological, hereditary and other factors all play a part in producing anti-social behaviour, little is known about the importance or weight that should be attached to each in order to 15 understand and cope with juvenile delinquency. As the U.S. President's Task Force frankly concluded: "Study and research, tend increasingly to support the view that delinquency is not so much, an act of individual deviancy as a pattern of behaviour produced by a multitude of pervasive societal influences well beyond the reach of the actions of any judge, probation officer, correctional 16 counsellor, or psychiatrist." - 46 -The importance of this dichotomy between the ideal and the actual regard ing both what is known and what can be done about delinquency cannot be over emphasized, for it can be seen as the basis for many of the major criticisms of the juvenile court noted earlier. It can be argued that the early reformers' faith in and reliance on official action, both in the juvenile court proceeding and in the subsequent disposition, has tended until recent years to obscure the 17 dangers of labelling and stigma often inherent in that action. Similarly, it is not surprising that, as a result of the inability of strictly rehabilitative dispositional efforts to stem the rising tide of juvenile crime, elements of retribution, condemnation, deterrence and incapacitation have gradually crept 18 into the juvenile dispositional process. The failure of the rehabilitative ideal is also reflected in the current objections to the broad jurisdiction given the juvenile court by the J.D.A; obviously judicial intervention on the grounds of relatively minor matters of morals and misbehaviour can only be justified if the court is actually able to identify the seeds of future delin-19 quency and then act effectively to prevent their growth. Finally, the rejection of the conception of "delinquency as illness" (or, at least, as one that can be readily diagnosed and treated) has substantially weakened the justification for informality and privacy of proceedings and has given rise to the current demands for the establishment of procedural safeguards, the imposition of limitations on the judicial power of disposition, and a re laxation of the bars against public attendance at and publicity of juvenile 20 court proceedings. It was obviously such considerations that prompted Mr. Justice Fortas of the United States Supreme Court to comment, in words that have since been repeatedly cited and adopted not only by American jurists and commentators but also by many in this country as well: There may be grounds for concern that the child receives the wiorst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children. 21 - 47 -In assessing the results of the "juvenile court experiment" after over half a century of operation, we are drawn towards the following view expressed by The President's Task Force in its 1967 Report: What emerges, then, is this: In theory the juvenile court was to be helpful and rehabilitative rather than punitive. In fact the distinction often disappears, not only because of the absence of facilities and personnel but also because of the limits of knowledge and technique. In theory the court's action was to affix no stigmatizing label. In fact a delinquent is generally viewed by employers, schools, the armed services—by society generally—as a criminal. In theory the court was to treat children guilty of criminal acts in noncriminal ways. In fact it labels truants and runaways as junior criminals. In theory the court's operations could justifi ably be informal, its findings and decisions made without observing ordinary procedural safeguards, because it would act only in the best interest of the child. In fact it frequently does nothing more nor less than deprive a child of liberty without due process of law—knowing not what else to do and needing, whether admittedly or not, to act in the community's interest even more impera tively than the child's. In theory it was to exercise its protective powers to bring an errant child back into the fold. In fact there is in creasing reason to believe that its intervention reinforces the juvenile's unlawful impulses. In theory it was to concentrate on each case the best of current social science learning. In fact it has often become a vested interest in its turn, loathe to cooperate with innovative programs or avail itself of forward-looking methods. It is our submission that the above passage, harsh as it may be, has come to be equally applicable to the Canadian juvenile justice system. The extent to which the federal government of Canada has recognized the validity of these criticisms and the ways in which, it has, as a result, attempted to revise and re-focus its approach to the problem of delinquency shall be the central topic addressed in the remainder of this, and subsequent chapters. - 48 -B. The Department of Justice Report In 1960, recognizing the need for reform, the correctional planning committee of the Department of Justice recommended that the existing J.D.A. be overhauled and reorganized and that a new integrated approach to delin-1 quency be adopted. Accordingly, the following year, the Minister of Justice announced the appointment of a departmental committee whose primary respon sibility would be "to make recommendations concerning steps that might be taken by the Parliament and Government of Canada to meet the problem of 2 3 juvenile delinquency in Canada." The five-member Justice Committee com menced its study in January, 1962, and completed its 377-page Report in June, 1965. In the 3 1/2 years it took the Committee to research and prepare its Report, it visited 27 juvenile training schools and seven detention centres across Canada, attended sittings of the Juvenile and Family Court in eight different cities, and received and considered a total of 77 briefs from a broad range of interested individuals, professional associations and 4 agencies from across the country. Because of the Report's length and the great number of issues with which it dealt, we do not propose to review here all 100 of its recommendations. Instead, we shall confine our discussion to a general review of the philosophical and practical approach it adopted in dealing with the problem of delinquency. In its Report, The Committee reviewed the nature and extent of delin-5 quency in Canada in the years preceding 1962, and predicted a marked increase 6 in the amount of juvenile crime in coming years. Although it too recognized the lack of agreement among the experts as to the causes of delinquency, it clearly did not consider such a limitation to be a sufficient ground for 7 avoiding the problem. Instead, it proposed a philosophy and design for a new juvenile court which, although modelled substantially after the tradi tional juvenile court, at the same time also took into account many of the - 49 -philosophical and practical limitations of the traditional approach that had become obvious in recent years as well as most of the specific criticisms noted earlier in this paper. The Committee commenced its inquiry by rejecting outright the argument that Parliament should leave the field of delinquency to be defined and dealt with by the provinces under child welfare legislation. Taking the view that delinquency is only a welfare problem in the same sense that adult crime is, and that the benefits of a system of uniformity of legal sanctions against uniformly prohibited conduct would generally outweigh any 8 advantages of a welfare treatment by the provinces, the Committee adopted the approach that delinquency legislation should merely be the counterpart of ordinary criminal legislation, but modified for a specialized group defined 9 by age. In so doing, the Committee reaffirmed its commitment to the criminal-law context followed in the J.D.A. and implicitly rejected among other possible alternatives, the adoption of a non-criminal welfare approach of the sort that had been approved shortly before by similar committees in England and 10 Scotland. Having thus chosen the desired format for new legislation, the Committee then proceeded to reduce the scope and soften the impact of that legislation. Citing such considerations as the desire to achieve uniformity, to avoid wher ever possible the dangers of stigma and labelling, and to use quasi-criminal legislation to achieve welfare purposes only where those purposes cannot be achieved by non-criminal legislation, the Committee recommended: that the 11 new legislation apply uniformly throughout Canada, that the federal govern ment establish standards of service and provide necessary financial assistance 12 to the provinces to see that those standards are met; that the term "juvenile 13 delinquent" be replaced by less stigmatizing nomenclature; that the minimum 14 age of juvenile court jurisdiction be raised and that the variable maximum 15 age be abandoned in favour of a uniform maximum age; that the offence - 50 -jurisdiction be substantially narrowed, abandoning the general offence of delinquency in favour of specific offences and applying only to conduct that 16 also constitutes an offence for adults; that controls be introduced to 17 limit the judge's discretion regarding waiver; that definite limits be 18 placed on the length of institutional committal and other dispositions; 19 and that procedures for the periodic review of dispositions be adopted. Dealing with practice and procedure in the juvenile court, the Committee expressed its agreement with the essential philosophy contained in section 17 of the present Act - that is, that proceedings should be as informal as the circumstances will permit, provided that they remain consistent with a due 20 regard for the proper administration of justice. However, in its view, the "proper administration of justice" required a closer adherence to the tradi tional rules of criminal procedure, at least in the adjudication stage of the proceedings, than had been the practice under the J.D.A. Accordingly, it recommended: restrictions on the admissibility of statements by juveniles; 22 strict limitations on the use of detention before and during trial; tighter 23 rules regarding privacy and publicity of proceedings; the provision of 24 . counsel at public expense for those unable to obtain a lawyer; clarification and expansion of the right of the child's parents or guardians to notice of 25 any proceedings that may affect their child's liberty; clarification of the law in relation to the taking of pleas and to the privilege against self-26 * 27 incrimination; limitations on the practices of informal disposition; and 28 expansion of the rights of appeal from juvenile court decisions. The view taken by the Committee towards disposition also reflected the ways in which modern criticism of the juvenile court has required modification of the original juvenile court approach. To a certain extent, the Committee continued to adhere to traditional principles - namely, that the goal of the juvenile court should be to ensure that the juvenile offender becomes a law-abiding citizen, that treatment, institutional or otherwise, should be - 51 -exclusively designed to further the juvenile's education and readjustment, and that the question of whether a particular measure is to be applied should 29 depend not on what he has done but on what is necessary and useful for him. At the same time, however, it recognized that the experience of the juvenile court has shown that a significant qualification has to be placed upon the traditional philosophy. It admitted that although rehabilitation may be the primary goal of the juvenile justice system, it can't be its only goal: other values, such as deterence, must also be recognized as important and 30 inevitable factors in the dispositional process. The actual extent to which deterence is presently involved in the dispositional process is a moot point; not only is it often very difficult to determine whether a particular disposition is designed as treatment or punishment by the judge (since his 31 intentions are often not revealed by his objective conduct), but one is also faced with the reality that in the eyes of the juvenile (and, for that matter, those of his family and the community generally) most dispositions, regardless 32 of their intent, will be seen as punishment. The important point is that the Committee recognized that the dispositional process does not, in practice, nor could it ever, involve solely rehabilitative considerations, but that other factors such as deterrence (and, possibly, retribution and incapacitation) must always enter into many of the court's decisions and that it is unrealistic to pretend that they do not. In light of this conclusion, one may be surprised to note that the Committee then went on to indicate its agreement with the philosophy of the J.D.A. as set out in s.38, a philosophy which, although somewhat vague, clearly emphasizes rehabilitation over deterrence or any other factors, and to express the view that "the difficulty has not been in the basic philosophy of the Act but in the failure of society to give to the juvenile court adequate resources with which to fulfil the aims of that philo-33 sophy." Because of the brevity with which the Committee dealt with the - 52 -mattery it is very difficult to ascertain whether or not this view is con sistent with its earlier conclusions. However, there does seem to be some inconsistency between its recognition of the limitations of treatment and of the traditional rehabilitative approach and the latter view that, given the availability of adequate resources, the original juvenile court philo sophy could still be successful and its goals attained. This problem aside, the Committee's actual recommendations regarding disposition refLected elements of all of these consideration's: starting with the basic system established by the J.D.A., they generally involved the addition of certain procedural prot-ections for the rights of the juvenile, the provision of a number of additional dispositional alternatives, and the encouragement of various means of providing greater resources for the court's use. For example, the Committee recommended: 34 mandatory use of pre-sentence reports in certain cases, and disclosure of 35 their contents to the child's counsel; the creation of new dispositional 36 37 alternatives including informal disposition, absolute discharge, adjust-38 39 ment to allow short-term counselling, and restitution;, minor revisions 40 41 to the existing dispositions of fine, probation, foster home placement, 42 3 committal to a children's aid society, and training school committal; and assorted other provisions relating to such matters as transfer to adult 44 45 46 47 institutions, after-care, orders for support, and other facilities. The final three parts of the Justice Report dealt with matters beyond the scope of this paper. Suffice it to say that in those three parts, the Committee made a series of recommendations relating to the criminal liability 48 of parents and other adults in relation to juvenile matters, the field of 49 50 prevention, the need for research, and the possible roles of the federal 51 government in prevention, research, staff training and resource development. Although the Justice Committee's Report was completed and submitted to the government in June, 1965, it was not tabled in Parliament and made public - 53 -until Fehruary, 1966. In September, 1967, a First Discussion Draft of a 52 proposed Children's and Young Persons' Act, prepared by the legal staff of the SolicitorLGeneral's Department and based substantially on the recomm-53 endations in the Department of Justice Report, was circulated to various professional groups for comment, the Department's intention being that 54 legislation could be put before Parliament in the spring of 1968. In January, 1968, a federal-provincial conference was held in Ottawa to con sider the Discussion Draft. In attendance at the conference were senior officials of the Solicitor-General's Department as well as senior represen-55 tatives of provincial Corrections and Attorney-General's Departments. Although no public report was ever issued concerning the results of the conference, it is generally known that the provincial representatives did not give the Draft Act a warm reception. One of the major objections heard was from those provinces for whom the Draft Act would have required a raising of the existing maximum age of juvenile court jurisdiction, who argued that the higher age would place unreasonable demands on their already over-crowded juvenile courts 56 and services. Following the conference, nothing more was ever heard of . 57 the proposed Act. Despite the Justice Report's broad scope - the federal government's first major study of the entire field of delinquency since the adoption of the present J.D.A. in 1929 - its timeliness - coming at a time of relatively high interest in juvenile court reform - and the potential importance of its recommendations for lawyers, social workers, judges, criminologists, and numerous others, the Report drew surprisingly little formal response from these professionals. Aside from two short articles written prior to the completion of the Report and concerned primarily with the establishment and 58 membership of the Committee, a brief response by the Canadian Corrections 59 Association, and two articles directed at the Discussion Draft based - 54 -60 thereon, the delinquency literature in the five years following its publi cation is totally devoid of any serious attempt to analyze all or even part 61 of the Justice Report. Not until the flurry of articles following the introduction, in the fall of 1970, of Bill C-192 was there any further discussion of the Report; even then, references to the Report's recommendations were only made for comparison purposes, invariably without any consideration of the Committee's philosophical premises or of the reasoning which led to its 62 conclusions. Notwithstanding this paucity of critical comment, it seems, according to the view of at least one commentator, that the Report was gener ally well-received by most professionals involved in this field and that most of these persons looked forward to legislation based on its recommendations. What has been the importance of the Justice Report in the development of juvenile delinquency legislation in Canada? As one will recall from our 64 earlier discussion, it seems that the 1960's represented a major cross-roads in the history and development of Anglo-American juvenile justice legislation. In 1961 the Inglehy Committee in England recommended substantial restrictions on the prosecutory functions and corresponding increases in the child welfare 65 functions of the juvenile courts; eight years later, the Children and Young 66 Persons Act, 1969 gave effect to those recommendations. In 1964, the Kilbrandori Committee in Scotland recommended the abolition of the juvenile court and its replacement by a new system of children's panels for those "in 67 need of compulsory measures of care"; four years later, the Social Work 68 (Scotland) Act did just that. In the United States, the President's Commission on Law Enforcement and the Administration of Justice recommended in 1967 that only the most serious cases of delinquency be referred to the juvenile court and that all others be dealt with in a welfare context by a 69 local Youth Services Bureau; in that same year, the U.S. Supreme Court 70 handed down its historic decision In Re Gault. In light of the contrasting - 55 -directions taken by law reform bodies in those countries, it is submitted that the most significant aspect of the Justice Report, and its major con tribution towards the development of Canadian delinquency legislation, was its firm re-affirmation of the validity and viability of the traditional juvenile court concept. In the words of the Committee, it concluded that "the present juvenile court process, in its essential features, [is] the 71 preferred approach to the problem of the juvenile offender." Granted, the Committee did recognize that experience under the J.D.A. had substanti ated a number of difficulties that had to be remedied: accordingly, it recommended a narrowing of the juvenile court's jurisdiction in terms of age of the offender, and nature of the offence; the introduction of legal safeguards to protect the rights of the young person exposed to the juvenile justice process; the recognition of other social objectives, such as deter rence, that the juvenile court must also attempt to satisfy while it pursues its primary goal of rehabilitation; and the provision of greater and more effective resources for both prevention and treatment of delinquency. However, none of these recommendations were designed to have the effect of substantially modifying the role of the juvenile court nor its central position in the traditional scheme of the juvenile justice system. One might tend to downplay the significance of the Justice Report's re-affirmation of the traditional juvenile court by arguing that, as a result of the division of legislative power under the B.N.A. Act the Committee could not possible have recommended any radical change from the present criminal-law format for handling delinquent youth. We would argue, on the contrary, that if it saw fit the Committee could have endorsed any one of a number of alternative approaches including, for example: the establishment of a high minimum age of criminal responsibility, above which offenders would be dealt with under the Criminal Code either in the adult or juvenile court and below - 56 -which, they would be dealt with under provincial legislation in a non-criminal 72 context; a procedure whereby all offenders with special needs, regardless of age, could be given special treatment by a judge of either the juvenile or adult court; a system involving the separation of the adjudication and disposition stages of the proceedings, whereby the two would be dealt with either in different courts or under different legislation; or, perhaps, a scheme, obviously requiring the joint action of both levels of government, for the handling of both protection and delinquency cases by lay welfare panels. Similarly, although one might be tempted, in light of the paucity of critical response to the Report, and the Discussion Draft based thereon, to conclude that the Report was generally either read and forgotten or not read at all, or that whatever potential impact it had was lost when the Discussion Draft was abandoned, it seems that such a conclusion is not justi fied by later developments. As we shall soon see, the two pieces of legis lation proposed by the federal government on five and ten years, respectively, after the completion of the Justice.Report, tend to follow in many respects, both the philosophy and the actual recommendations of that Report. It does not seem unreasonable to conclude that in drafting these two proposed Acts the draftsmen in the Solicitor-General's Department were substantially influenced by the approach taken by the Department of Justice Committee in its 1965 Report. Next to the Committee's retention of the juvenile court per se, the second most important contribution of the Report may well have been its emphasis on the importance of and need for federal-provincial cooperation in this field. Recognizing the problems that have arisen out of the alloca tion of legislative jurisdiction relevant to this field, the Committee refrained from making final recommendations regarding a number of important issues, choosing instead to leave the final decision to be made through - 57 -73 federal-provincial consultation. To this end, the. Committee recommended that the federal government sponsor a series of federal-provincial conferences to discuss delinquency law reform, to which should be invited representatives of the major private agencies and provincial and municipal government branches 7 concerned with the administration of justice and with the welfare of children. Similarly, emphasizing the crucial importance of provincial services and res-. ources under the proposed new legislation, the Committee recognized the federal government's responsibility to ensure, by means of financial assistance to the provinces, that a uniform standard of treatment and services are provided to 75 children regardless of where in Canada they reside. As the Committee stated, "the remedy for the defects and deficiencies outlined in many sections of our Report will require what has been called "co-operative federation" of the 76 highest orderrbefore a solution will be found." The federal-provincial con ference regarding the Discussion Draft obviously was an attempt at such co operation; unfortunately, as we have seen, the experiment resulted in failure. When we turn to our consideration of Bill C-192 and the most recent reform proposals, it will be interesting to see the nature and extent of the role co operative federation has played in their.development. There is no doubt that the Department of Justice Report, the first major study of its kind evep- in Canada, was a document of major importance in the evolution of new Canadian delinquency legislation. However, it should not be inferred that the Report is beyond criticism. On the contrary, a careful reading of the Report suggests that one significant deficiency was perhaps Its failure to adequately explain and justify a number of the basic philo sophical and practical premises upon which its recommendations were based. Given the critical atmosphere out of which the Report was borne and the divergent approaches being adopted at that time by the nations to which Canadian legislators normally look for guidance, one would have thought 77 that the Report would have initially addressed and considered in depth two principal questions: (1) Is the traditional juvenile court concept still viable today? (2) If it is viable, is it the best approach to be adopted in this country in light of the extent and nature of the delinquency problem in Canada and the existing state of social science knowledge? It is unfortunate that the Committee did not deal specifically with these two issues nor did it give even a cursory examination or consideration of the alternatives to the traditional juvenile court being developed elsewhere. Indeed, one expecting a thoughtful re-evaluation of the juvenile court con cept would have generally been rather disappointed; instead, the Committee 78 seems to have assumed, withi'little or no question, the continuation of the traditional juvenile court process in generally the same form as it exists today, and concerned itself primarily with responding to specific criticisms of the J.D.A. and individual problems that had arisen in practice? As a prominent official in the Solicitor-General's Department recently commented, in reading the Justice Report "one can sense the pragmatic approach of a comm ittee that is trying to propose .solutions to concrete legislative problems 79 without challenging the basic orientation of Canadian juvenile courts." It is perhaps not unfair to say that the Report as a whole tends to avoid broad philosophical questions and policy issues and that where such issues are discussed they are usually dealt with in the relatively narrow context of a specific practical problem. The fact that out of a 377-page Report less than twenty pages are addressed to basic questions of philosophical 80 direction tends to support such a comment. Similarly, although the Report generally deals quite thoroughly with the legal considerations bearing on most issues, it tends to give rather short shrift to the relevance and impli-- 59 -cations of social science research. As one expert has noted: "Its approach was that of jurists interested in legislation more than that of social scientists focusing their attention on how social organization works ... [The Report] will 81 never rank among the classic works of the sociology of delinquency?" Although such conclusions may he regrettable, it can't be said that they are surprising, for the membership of theJJustice Committee would seem, at least to some extent, to have pre-determined both the nature of its approach as well as its ultimate conclusions. In light of the fact that all five members of the Committee were senior staff of the federal Department of Justice, it should not be surprising that it declined to endorse any scheme involving a substantial abdication of federal jurisdiction. By the same token, the f act that none of the Committee members had any previous experience in juvenile matters, nor in any related fields such as that of child welfare, could not help but have had an effect on the nature of their inquiry and their conclusions; the more time and effort that was required merely to familiarize the members of the Committee with the operation and problems of the existing system, the less one would expect such a group to propose a radical reorganization or restructuring of the existing 82 system. Similarly, the professional background of the members (four were lawyers, one a psychiatrist) cannot be ignored for it helps to explain a number of the Report's features, including the Committee's great concern regarding legal rights and procedural safeguards, its decision to retain ultimate jurisdiction in a quasi-criminal judicial body, its tendency to place great reliance on the 83 briefs presented to it by certain professionals in other disciplines, as well as its general reluctance to consider new and different approaches to diversion or treatment, or even to undertake a more detailed evaluation of the relative 84 success or failure of existing programmes. One might well wonder what effect the choice of a Committee more representative of the various disciplines involved in the field of juvenile delinquency and more experienced in delinquency - 60 -matters might have had on the nature '.of its eventual Report and recommendations. - 61 -C. Bill C-192; The Young Offenders Act On November 17, 1970, a full five years after the publication of the Justice Committee Report and two years after the demise of the proposed Child ren's and Young Persons Act, then Solicitor-General George Mcllraith intro duced in the House of Commons "An Act respecting young offenders and to repeal the Juvenile Delinquents Act," more commonly referred to as Bill C-192 or the 1 Young Offenders Act. The Bill did not receive a warm reception, either in the House or in the press. In fact, by the time the Bill was introduced for second reading on January 13, 1971, it had already been harshly criticized by judges, social workers, psychologists, psychiatrists, provincial Ministers, and in fact, just about everyone except the Canadian Bar Association which 2 gave the Bill its approval in principle. Notwithstanding these views, and to the surprise of many, the new Solicitor-General, Jean-Pierre Goyer, resolved 3 to press on with second reading. However, if the Minister thought that* the Bill could be quietly pushed through the House, he was quite mistaken; instead, opposition critics joined forces to insist that the Bill be withdrawn, alleg ing that the Bill was "the most punitive, enslaving, vicious and tyrannical 4 piece of legislation that has ever come out of the legislative grist mill," and demanding to know who was responsible for "this criminal law monstrosity, this caveman's approach to young people, this bill of rights for social wrongs, 5 this simplistic Spiro Agnew approach to young people's problems." Following 6 this extensive verbal barrage in the House, the Bill was referred to the Standing Committee on Justice and Legal Affairs for more detailed study (and, 7 inevitably, more criticism) for the balance of the year. In November, 1971, the Government announced that it had decided to let the Bill die on the order paper. A month later, the Commons Justice Committee recommended that it be 8 scrapped altogether. As a result, the federal government had, once again, failed in its bid to revise the venerable J.D.A. - 62 -To this writer, the moat unusual aspect of the chronology described above is the fact that, although, the Bill was almost unanimously condemned by the so-called "experts" in the delinquency field, neither its stated objectives nor its substantive provisions varied all that substantially from those endorsed in the recommendations of the Justice Committee, recomm endations which., as we have noted, received general (albeit largely tacit) 9 support from the same professional community. For example, in addition to the Bill's continuation of the traditional juvenile court concept first embraced in the J.D.A. and subsequently endorsed by the Justice Committee, the goals allegedly sought to be achieved through the Bill are all consistent with recommendations in the Justice Report. As noted by one commentator, the four major policy objectives underlying the Bill, as revealed by.the Minister's second reading speech, were: (a) the redefinition of the grounds upon which a child may be tried in juvenile court; (b) the modification of the age group over which a juvenile court has jurisdiction; (c) the elimination of arbitrary treatment in the trial process; and (d) the continuation of emphasis on social rehabi litation of juvenile offenders. 10 11 As we have seen earlier, all of these objectives were advocated by the Juvenile Committee in its Report. But, one might argue, these objectives are all very general in nature; could not the two documents vary greatly in the way in which each seeks to implement them? Although they could, it is submitted that they don't; on the contrary, the specific reforms contained in Bill C-192(with the exception of a few isolated and clearly severable 12 provisions to be discussed later) generally parallel identical or similar recommendations in the earlier Report. It may be helpful at this stage to summarize the major reforms proposed by the Bill. According to one published - 63 -account, they were as follows: the raising of the minimum age to ten; the change in designation from "juvenile delinquent" to "young offender"; the exclusion of the status offences and the abolition of the general offence of delinquency; the abolition of the offence of contributing to delinquency; the provision of the right to counsel; the expansion of the right of appeal; the granting to the judge of limited diversionary powers; the creation of the new dispositions of absolute discharge, restitution and compensation; the increase in the maximum amount of fines; the establishment of a three year maximum term for committals to training schools; the new guidelines for the exercise of the transfer power; the new procedures for arrest by summons or warrant and for release following arrest; the section making mandatory the attendance of parents in juvenile court; and a special provision for the re-sentencing of delinquents 13 in adult court at age 21. A careful review of the Justice Committee Report will show that, with the exception of the last proposal (which, it is submitted, is clearly severable from the remainder of the Bill), each of these reforms was recommended therein. It is not suggested that the statutory language used to effect all of these reforms coincided in all cases with that envisioned by the Justice Committee, nor is it suggested that all of the provisions in the Bill are also reflected in the Report or vice-versa; clearly that is not the case. However, it does seem fair to conclude that in many respects the Bill did follow the general approach and indeed reflect the specific recomm-14 endations contained in the Justice Report. In light of this conclusion, it is hard to give much weight to many of the exaggerated criticisms popular at the time, such as those of one provincial Minister who claimed that the Bill's approach was "foreign to all accepted principles of child care" and that the Bill itself "would set the treatment of children back to the beginning of the 15 century." Aside from the general similarities between Bill C-192 and the Justice - 64 -Report, it is also important not to forget that many of the major reforms in the Bill were widely applauded at the time by various authorities in the field, including some of the Bill's most vocal critics. Among the reforms receiving support from various commentators were the limitations on the powers 16 17 of arrest and pre-trial detention, the broader appeal provisions, the 18 restrictions on the dissemination of information from juvenile court records, 19 the abolition of the offence of "contributing to juvenile delinquency," the provision for trial in juvenile court of criminal offences primarily affecting 20 family members, the abolition of the general offence of delinquency in favour 21 of charges based on specific offences, the restriction of the legislation 22 to only federal, offences, the requirement that a juvenile be notified of 23 his right to counsel, or,in the absence of counsel, that he may be represented 24 by a parent or some other adult, the elimination of the provision encourag-25 ing informality of procedure, the adoption of limitation periods similar to 26. those applicable to adults, the clarification of the practices to be adopted 27 on arraignment and on the taking of pleas, the provisions restricting the admissibility of pre-disposition reports or of other statements during the 28 adjudicatory stage of the proceedings, the provision allowing for an 29 30 absolute discharge, the raising of the minimum and maximum age limits, 31 the requirement that parents attend proceedings involving their children, 32 and the provisions allowing attendance by representatives of the press. In reconsidering the strengths and weaknesses of the Bill, it is important that one resist the tendency to ignore the widespread support attracted by many of the above proposals. If, as we have suggested, the. Bill was generally consistent with the Justice Report and many of its specific provisions were favourably received, why did it fail? The answer to this, question involves many factors. To begin with, some critics took the view that, for reasons unknown (although probably - 65 -the result of provincial pressure) the Bill failed to give full effect to a 33 number of the Justice Report's more important recommendations. For example, although the Bill attempted to follow the Justice Report by introducing a provision to officially authorize and regulate the disposal of cases without court hearings, the restrictions the Bill placed on that provision would probably have had the effect of limiting, rather than expanding, the already 34 existing informal diversionary practice. Dealing with the use of juvenile court convictions, the Bill would have provided that such a conviction is not to be considered a criminal conviction for the purposes of any criminal pro ceedings subsequently brought in adult court; regret was expressed by a number of critics that the Bill declined to go further to protect against any discri mination in any form (e.g.- by potential employers) on the basis of a juvenile 35 court record. Similarly, although at least four sections of the Bill require 36 that a juvenile be given notice of his right to counsel, there is no section that guarantees him the right of legal representation at public expense, as 37 advocated by the Justice Committee. Finally, dealing with training school committals, although the Bill adopted the Report's recommendations that such, commi-tals be made only after consideration of a pre-disposition report and only for a maximum period of three years, it failed to set forth the requirement, found in the Discussion Draft (in relation to all young offenders) and even the present J.D.A. (in relation to children under 12), that every effort first 38 be made to treat the child in his own home. A second major criticism of the Bill was that it contained, in the words of one commentator "punitive provisions which would have the effect of stig matizing juvenile offenders and undermining the traditional separation of 39 juvenile from adult offenders." What were these so-called "punitive prov isions?" The most blatant and most publicized example was undoubtedly the provision in sections 30(l)(k) and 30(4) whereby a juvenile found to have - 66 -committed an offence for which, he might, if he had been tried on indictment, have been sentenced to death or to imprisonment for life as a minimum sentence (i.e.- capital or non-capital murder) could be committed to a training school until age 21, whereupon he could then be taken before an adult court for further sentencing "as if he had then and therebeen convicted of the offence... 40 and as if he were thereupon liable to imprisonment for life." Not only did this provision fly clearly in the face of the Justice Committee's recommenda tion regarding a three year maximum for all training school committals as well as its warnings as to the serious detrimental effects of long-term confinement on juvenile offenders, but it also smacked of extreme harshness (in effect, permitting a ten-year-old child to be imprisoned for life) and injustice (allow ing what would clearly have been prohibited as double jeopardy in the case of adults) and was, as a result, unanimously (and rightly, it is submitted) de-41 plored by virtually every critic of the Bill. A second such provision was that allowing a juvenile court judge to order that a juvenile may be finger-42 printed and photographed.- Although there has been and continues to be con-43 siderable controversy over whether or not the Identification of Criminals Act 44 applies to charges under the J.D.A., many critics, fearful of the likely stigmatizing effects of such a process, have opposed granting the police such 45 powers at all or except for limited purposes and under strictly controlled 46 conditions. Finally, objections on similar grounds were also made to the provisions allowing the transfer of juvenile offenders from training schools 47 to adult correctional institutions and the detention of child witnesses 48 who refuse to be sworn or to testify. Closely related to the previous criticism, although much broader in its implications, was the argument that the proposed legislation,through its specific provisions and general format, rejected the treatment-oriented philosophy of the J.D.A. in favour of a more punitive criminal-law approach. - 67 -This was the view expressed by the Canadian Mental Health. Association in its letter and pamphlet to the members of Parliament wherein it stated: "The Bill is, in fact, a criminal code for children, which, is distasteful in its 49 terminology, legalistic in its approach, and punitive in its effect. Although the phrase "Criminal Code for Children" became a rallying cry of sorts for critics of the Bill, few took the opportunity to analyze what was meant by this phrase. In its brief, the C.M.H.A. cited the provisions allowing for re-sentencing of juvenile offenders at age 21, allowing the court to permit fingerprinting and photographing, limiting the term of probation orders to two years and training school committals to three years, abolishing the general offence of "delinquency" in favour of specific changes based on specific offences, as well as the legalistic format of the Bill as proof that the proposed new Act treated juveniles as little criminals, rather than as child-50 ren in need of treatment. Leaving aside the first two provisions, inserted as a result of pressure from provincial law enforcement departments and easily severable from the remainder of the Bill, it is clear that the remaining three provisions were all deliberately inserted by the legislators as an expression of their concern to eliminate arbitrary treatment of juveniles in the trial process and reduce the juvenile court's scope for interference in their lives. In recent years the concept of indeterminate sentences, the general concept of "delinquency" and the loose and informal drafting of the J.D.A. had all come in for substantial criticism at the hands of lawyers, 51 judges, and others. Clearly, in the eyes of this latter group of critics these reforms were valid and desirable;;in fact it is reasonable to assume that they would not have objected to the comparison made between the proposed Act and the Criminal Code. In summary, it seems that the debate over the desirability of a "Criminal Code for children" comes back to the basic contro versy between the "parens patriae" and "due process" approaches. In light - 68 -of the support given to the views expressed in the C.M.H.A. brief, it is clear that in the case of this particular issue the "parens patriae" view (as advo cated by the C.M.H.A.) prevailed over the argument for "due process" (as supported by the Canadian Bar Association). A fourth major factor in the demise of the Bill was the same factor that is generally believed to have led to the death of its predecessor, the Children and Young Persons Act, two years earlier, namely, the enormous pot-52 ential costs to the provinces of implementing the proposed legislation. Much publicity was given to the complaint by Ontario Minister of Correctional Services Allan Grossman that increasing the maximum age from 16 to 17 would mean that his Department would have to provide four~or five more training schools at a capital cost of around $20 million and an annual operating cost 53 of about $3 million. Similarly, many provinces complained bitterly that the increased pressures on provincial services and facilities that would result from the revised minimum age and the narrowing of the Act's offence jurisdiction would be impossible to bear without additional federal financial assistance which, contrary to the urging of many, the proposed new legislation failed to provide. The brief of the Canadian Association of Social Workers, typical of many presented to the House Committee on Justice and Legal Affairs, criticized the government's failure to deal with the problem of the lack of resources and, in particular, the absence of cost-sharing provisions in the Bill. As one commentator concluded: "Thus, in the end, the real complaint to be lodged against the Young Offenders Bill relates not to what is included but to what is omitted, namely, a section amending the Canada Assistance 54 Plan." In addition to these major objections, a number of other factors also played a part. There was resentment expressed by many of those who were involved in the Justice Committee's deliberations and whose comments were - 69 -sought regarding the 1967 Discussion Draft, that they were not consulted in 55 relation to Bill C-192. This attitude extended to provincial government officials as well as to professionals in the child care field, since, con trary to the suggestions of some government representatives that the Bill was the result of extensive consultations, &nd contrary to the Justice Comm ittee's emphasis on the need for "co-operative federalism of the highest order") it seems that there were no federal-provincial discussions relating 56 to the Bill before its introduction in the House. Secondly, there was general agreement among both lawyers and non-lawyers that, aside from the question of legalistic versus informal approach, the Bill was in many areas poorly drafted, containing much unnecessary detail and obscure and technical language, and that the wording of many sections, particularly the Forms 57 appended to the Bill, could have been substantially improved. Another significant factor was the brief, referred to earlier, presented by the C.M.H.A. to members of Parliament prior to the Bill's second reading in the House. This document, although not in itself a particularly thorough or sound analysis, proved itself to be, as a result of its timely presentation and its rather quotable rhetoric, a handy tool for Opposition M.P.s bent on criticizing the Bill, particularly those who did not have the timeeor interest to actually read the Bill and consider its contents before joining the debate. Finally, in dealing with the contribution of the Opposition critics who spoke on the matter during the debates in the House and subsequently in Committee, we would be remiss if we did not state the obvious factor apparent from even the briefest consideration of the transcripts of those debates - namely, that the majority of these M.P.s appear to have been more interested in exploiting the Bill as an opportunity to embarrass the Government and to attract personal publicity than in suggesting workable alternatives to the legislation proposed. In answer to the question "why did Bill C-192 fail?" one must acknowledge that all of the factors and considerations cited above played a role. A more complex question is what implications the Bill's failure had for the develop ment of delinquency legislation in Canada. Clearly a number of the difficulties the Government encountered in this ill-fated law reform attempt could have been avoided. The failure to consult with provincial officials or with the professionals in the delinquency field before introducing the Bill in Parlia ment simply reflected poor political strategy; rather than silence the potential critics in these two groups, such an approach merely fanned the flames of their discontent. Secondly, as suggested earlier, the Bill's poor drafting immediately alienated many individuals who otherwise might have been more sympathetic to its aims; there is no reason why the Bill's objectives could not have been achieved through the use of less confusing, technical, obscure, and at times threatening language than that found in the Bill. Lastly, it must be admitted that a number of the Bills provisions were validly open to the criticism either that they failed to give full effect to desirable reforms proposed by the Justice Comm ittee or that they constituted a harsh and primitive method of dealing with certain problems. These provisions point up even more dramatically the valuable role that;.prior public consultation could have played. Either public hearings or the submission of briefs from interested professionals or government groups would surely have sensitized the officials in the Solicitor-General's Department as to which provisions might be re-thought and which ought to be discarded altogether. By following such an approach (in effect, the same procedure tried in the case of the Discussion Draft a few years earlier) the Government might have avoided a large number of the objections subsequently raised. Because it chose to act otherwise, a relatively small number of objectionable provisions attracted an inordinate amount of critical attention and publicity, obscured the many progressive reforms in the Bill, and ultimately led to the Bill's withdrawal. Although, it would have been convenient to end our consideration of theo Bill on that note, and leave the impression that, had the Government avoided these three practical and political pitfalls, the Bill would have been warmly received and readily adopted, such a conclusion would be very misleading, for it seems that even if the problems noted above had been avoided, a much broader and more critical one would still have remained. It is submitted that the most significant result of the entire Bill-C-192 fiasco may well have been its revelation that there currently exists in Canada two conflicting views, each with a large, articulate, and qualified group of supporters, as to the proper role of the juvenile court in the juvenile justice system. On the one hand, there appears to be a large number of professionals in the child welfare field, including judges, social workers, probation officers, academics and others, who still favour the broadly-defined, treatment-oriented, paternalistic approach of the J.D.A. and who staunchly oppose such proposed reforms as the abolition of indeterminate sentences, the replacement of the general offence of delinq uency with charges based on specific offences, the restriction of the broad discretionary powers of the juvenile court judge, and the introduction of more formalized procedural safeguards traditionally associated with the adult criminal justice process. r.On the other hand, there are many who are prepared to argue that the traditional paternalistic view advocated by the 19th century child-savers is no longer (if it ever was) justifiable, and advocate instead a system more akin to the adult criminal process, involving narrowly-defined offences, adjudication based on the principles of due process, and determinate dispositional alternatives. This group (in which the legal profession would be very well represented) would suggest that the expertise in assessment and disposition upon which the paternalistic approach is based has failed to develop in practice, and that even if such expertise could be developed, society now recognizes that juveniles are individuals entitled to - 72 -rights and liberties no less than those, accorded to adults, central among which are the rights to substantive and procedural safeguards in any adjudi cation process and, in the course of the disposition process, to be subjected only to the least restrictive treatment consistent with their own interests and the protection of the community. The conflict between these two views was recognized by one commentator who, in concluding his analysis of Bill C-192, noted: The overall pattern of critical response... symbolizes the gulf which separates those who contend that, in dealing with juvenile delinquency, the state should assume and maintain coercive power over the misbehaving child, primarily by reference to his or her apparent need for care, protection or treat-, ment, and those, on the other hand, who would limit the state's criminal jurisdiction over children to cases in which the commission of a substantive criminal offence can be demon strated. 58 It seems, therefore, that underlying the entire debate over Bill C-192 there was a crucial and fundamental difference in philosophy that would have prevented unanimity over the Bill's provisions even if the practical and political problems we have noted had been overcome or avoided. Unfortunately, however, because of these other problems, attention tended to be focussed on relatively minor issues, and as a result, the Bill came and went without a meaningful and thorough discussion, either by the Members of Parliament or by the professional community, of the relative merits of these two views or of the possible grounds for compromise between them. - 73 -D. The Young Persons In Conflict With, the Law Act In December, 1973, following the withdrawal of Bill C-192,. two committees were formed. One, dubbed the Federal-Provincial Joint Review Group, was estab lished at the Conference of Corrections Ministers in Ottawa to study the posi tions adopted by the provinces on various corrections matters. The other, a committee of the Ministry of the Solicitor-General, was given the task of formulating proposals aimed at developing a replacement for the J.D.A. This latter body was composed of ten members, six of whom were jurists, three persons trained in the social sciences, and one from the field of administration. In September, 1975, this Committee issued its Report entitled Young Persons in 1 Conflict With the Law, in which it presented a series of 108 recommendations for the reform of Canada's existing juvenile delinquency law, both in the form of a lengthy discussion of issues, alternatives and recommendations and in the form of a draft piece of legislation to be known as the Young Persons in Conflict 2 with the Law Act. Like the Justice Report and Bill C-192 before it, the Solicitor-General's Committee endorsed the continued validity and viability of the traditional juvenile court concept. Rather than turn to radically different models for the juvenile justice system, the Committee, like its two predecessors, chose instead to direct its efforts towards remedying the various weaknesses of the 3 present system pointed out by the critics in recent years. Accordingly, one can find many similarities between this Report and the two earlier documents. 4 In fact, nearly all of the eight "main thrusts" of the Report reflect identi cal or similar trends found both in the Justice Report and Bill C-192. For example, four of the eight main goals articulated in the YPICWTL Report are nearly identical, both in theory and in actual implementation to tne f°ur major 5 policy objectives we noted earlier underlying Bill C-192: the proposal to abolish the concept of delinquency and to limit the juvenile court's offence jurisdiction solely to federal offences is virtually the same as that found - 74 -in Bill C-192; the proposal to raise the minimum age and adopt a higher, uniform maximum age continues the trend begun with, the Justice Report, advanced by Bill C-192, and further developed by Bill C-192's critics; the proposed safeguards to protect the rights of young persons in the juvenile court process mirror substantially similar reforms found in Bill C-192; and finally, the emphasis on social rehabilitation first adopted in the J.D.A., continued in the Justice Report and Bill C-192, is re-affirmed once again in the new Draft Act. Similarly, three of the four remaining "main thrusts" in the Report - those provisions requiring mandatory assessments in cases where open or secure custody or probation is being considered, those promoting more active participation of the young person in the juvenile process, and those establishing a judicial and administrative review procedure - reflect themes discussed and supported in the Justice Report, although developed to a somewhat lesser extent in Bill C-192.. Only the proposals for the establishment and operation of a formal screening agency designed to divert juveniles from formal judicial proceedings represent a totally new step, one not foreshadowed by either the Justice Report or Bill C-192. However, even in the case of the screening agency, recommendations for similar reform could be found in at least one paper written in response 6 to Bill C-192. As a result, it seems fair to say that n.onti of the major reforms in the Solicitor-General's Report constitute radically new or un precedented innovations in the field. The majority of the proposals represent an extension of views and trends reflected both in the Justice Report and in Bill C-192, and even the most innovative of the proposals has some pre cedent in recent years. Despite the similarity of many of the objectives articulated by the Solicitor-General's Committee to those advocated earlier by the Justice Commi ttee and by the supporters of Bill C-192, some confusion has been expressed regarding the philosophical, sociological, and psychological premises under-lying the proposed new legislation. While some professionals in the field have viewed the Draft Act as reinforcing the J.D.A.'s emphasis on treatment and rehabilitation, others have seen it as a step in the direction of the adult criminal process because of its references to "the age of criminal 7 responsibility" and to the concept of "accountability." In its Report, the Solicitor-General's Committee recommended that the new legislation incor porate a preamble "as a declaration of the philosophy, spirit, and intent of 8 the legislation and as a guide to its administration." Accordingly, the Draft Act included in the Report contains a preamble consisting of some seven paragraphs. We shall now examine the preamble and the commentary regarding the same contained in the YPICWTL Report, and thereby attempt to ascertain more clearly the "philosophy, spirit, and intent" underlying the proposed new Act, particularly in comparison to that of the J.D.A. At the same time, we shall attempt to briefly summarize the major reforms proposed in the Draft Act. For purposes of convenience, we shall deal with the preamble under a series of headings, each representing a major principle articulated therein, (a) Specialized treatment for children In its Report the Committee states that: "We believe the preamble should state that young people who are in conflict with the law should ... be dealt 9 with separate from and in a manner different than adults". Although nowhere in the preamble does it in fact state that young people should be dealt with separate from adults (perhaps it was thought to be too obvious a principle to require stating), it is specifically declared in the first paragraph of the preamble that they should "not be held accountable ... in the same manner, or 10 suffer the same consequences ... as adults". Why are young persons entitled to such special treatment? According to the preamble, the reason is that "because of their state of dependency and level of development and maturity, [young persons] have special needs." This principle - that young people, - 76 -because of their age and level of maturity, should be treated differently than adults - is by no means novel. The J.D.A. follows the same philosophy, albeit implicitly. For example, the J.D.A. states that "where a child is adjudged to have committed a delinquency he shall be dealt with, not as an 11 offender, but as one in a condition of delinquency", and further, that "as far as practicable every juvenile delinquent shall be treated, not as a criminal, 12 but as a misdirected and misguided child." It seems, therefore, that the J.D.A.'s principle of specialized treatment of child offenders has been continued unchanged in the proposed new legislation, (b) Responsibility for one's contraventions One clause that is somewhat novel is that found in the opening words of the preamble: "Young persons in conflict with the law should bear responsi bility for their contraventions." Although this view is immediately qualified by the words "but should not be held accountable therefor in the same manner, or suffer the same consequences thereof, as adults," it is still worth noting in that it introduces into the proposed legislation a concept that had no explicit recognition in the juvenile justice scheme created by the J.D.A.-that is, the concept of a child being responsible for his actions. In the scheme of the J.D.A., wherein the child was found to be "in a condition of 13 delinquency" and delinquency was considered to be a psychological or social 14 illness, little significance was attached to the child's responsibility for his own actions. Instead, the J.D.A. concentrated on removing or counter acting those anti-social or destructive influences that led the child to demonstrate the behaviour he had shown (by punishing the parent who encouraged or allowed the behaviour, by removing the child from the pernicious environ ment in the home, by allowing a probation officer to become involved with the child, etc.). The reoccurrence of the concept of responsibility, albeit in this limited and qualified form, may be the result of a number of influences. - 77 -It may reflect current disenchantment with, the behaviourist psychology and positivist philosophy that had become so widely popular at the turn of the century when the original juvenile courts were formed. Alternatively, it may represent an attempt by the draftsman to appease those critics who have in recent years deplored the failure of the J.D.A. and of the present juvenile justice system to instil a sense of responsibility in those children that 15 come in contact with them. Similarly, it may be a reflection of the recent renaissance, both in professional and lay circles, of the classical (i.e. punishment and deterrence) school of thought, which has come about not because of any recent evidence that punishment is, in fact, an effective deterrent, but rather because the treatment-rehabilitation ideal of the juvenile correct ional system has been viewed as failing. Whatever the reasons the draftsman had for its inclusion, the ultimate effect and significance of the principle of responsibility for one's contraventions in theory and in practice under the proposed legislation still remains to be seen, (c) Individualized treatment We have established that offenders under the Draft Act are to be held responsible for their anti-social conduct, but in a different way and with different consequences than adults. But how, in fact, are they to be dealt with by the juvenile court? According to the preamble, they are to be given "aid, encouragement and guidancesand, where appropriate, supervision, discipline and control." These words are nearly identical to those in the J.D.A.which provide that the young offender should be treated as one requiring "help and 16 guidance and proper supervision" and needing "aid, encouragement, help and 17 assistance." In fact, the range of dispositions available to the juvenile court under the Draft Act is, with certain notable exceptions, very similar to that available under the J.D.A. The dispositions proposed, with the com parable dispostion, if any, under the J.D.A. appearing in brackets, are as - 78 -18 follows: adjournment for up to eight days (adjournment for any definite 19 20 21 or indefinite period); absolute discharge (suspension of final disposition); 22 23 4 fine of up to $200 (fine of up to $25); community service order (no 25 comparable disposition); compensation or restitution (no comparable dis-26 27 28 position); probation (same); committal to open or secure custody (place-29 30 ment in foster home, committal to children's aid society or Superintendent, 31 32 or committal to industrial school); and imposition of ancillary conditions 33 (same). Other proposed provisions contain limitations or restrictions on the Court's disposition power. Briefly, these include the requirement of an assessment report whenever the imposition of a restrictive disposition such 34 as probation or open or secure custody is being considered; a maximum term 35 of three years for any disposition; and the creation of a comprehensive 36 procedure for judicial and administrative review of all dispositions, (d) Prosecution as a last resort According to the preamble, prosecution of young persons should only be utilized "when their acts or omissions cannot be adequately dealt with other-37 wise", or, as stated elsewhere in the Report, "when other alternatives, 38 whether social or legal are inappropriate." These statements suggest a significant redefinition of the role of the juvenile court from that estab lished by the J.D.A. They echo the view first suggested in the 1965 Depart ment of Justice Report that the court should only be used as a last resort and only as one of a number of alternative methods of providing treatment, as opposed to the J.D.A.'s approach wherein the court itself was the central feature of the entire juvenile justice system and the court process was often a prerequisite for obtaining access to needed treatment. They also represent a recognition of certain limitations of the juvenile court process, many of 39 which were cited earlier in Section A of this Chapter. Many of the new reforms proposed in the Draft Act reflect this restricted and less optimistic - 79 -(some would say more realistic) view of the role of the formal court proceed ings. For example, the narrowing of the offence jurisdiction and the raising of the minimum age are rationalized on the grounds that status offences, offences against provincial and municipal legislation, and those offences committed by children under the age of fourteen years can best be handled, not in the context of quasi-criminal legislation of this nature, but rather under the provisions of provincial child welfare, youth protection and juvenile 40 correctional legislation. Similarly, the rationale for the creation of a 41 formal screening process is based on the view that young persons should, if possible, be spared the "stigmatizing effects" that are characteristic of the 42 present judicial system, and that the use of various community resources in lieu of that system would in many cases be more beneficial to the young 43 person, his family and society. While discussing the screening process, it is relevant to note that one of the three factors (the other two are the preamble and the facts of the case) to be considered by the screening agency in deciding whether or not to recommend to the Attorney-General that an information should be laid, is the principle that no information should be laid against a young person "unless there are clear indications that the needs and interests of the young person and of the public cannot be adequately served without the use of procedures and facilities that are available to 44 the court." Finally, the exclusion of offences or trials for adults in 45 the juvenile courts constitutes further recognition of the limited role envisioned for the juvenile court under the proposed new system, (e) Rights and freedoms of young persons Unlike the draftsmen of the J.D.A., who believed that informal proceed ings were in the best interests of young persons and that there was no need for the procedural and substantive safeguards characteristic of the adult criminal justice system, the Solicitor-General's Committee has agreed with - 80 -the modern "due process" view that the State shouldn1t intervene in a young person's life as a result of an offence until it is proved, beyond a reason able doubt and within proper legal safeguards, that the young person has, in fact, committed the offence. According to the preamble, young persons are to have all of the rights and freedoms available to adults, including the right to special safeguards and assistance in the preservation of those rights and freedoms; a right to be heard and to participate in the proceedings; that affect them; a right to be informed as to what their rights and freedoms are; and finally, and perhaps most importantly, "a right to the least invasion of privacy and interference with freedom that is compatible with their own inter-46 ests and those of their families and of society. How has this so-called "due process" approach been incorporated into the proposed legislation? The Draft Act contains provisions declaring a young 47 person's right to representation by counsel or by a responsible person (al though it does not go so far as to require that legal services be made avail able to young persons unable to make their own arrangements for such assistance); 48 restrictions on the admissibility of statements made by young persons; res-49 trictions on the court's power to accept admissions of guilt; limitations on 50 the use of detention; restrictions on the taking and use of fingerprints and 51 52 photos; provisions outlining the assignment and duties of youth workers; provisions relating to the creation, maintenance, and access of youth court 53 4 records; limitations on the length of adjournments permitted; requirements 55 of notice to parents upon arrest or detention and prior to appearance in court; the requirement that written reasons be given by the judge in cases where a 56 disposition of probation or of committal to open or secure custody is ordered; 57 and finally, expanded rights of appeal. One particular right quoted above from the preamble deserves special comment. The recognition of the right of young persons to "the least invasion of privacy and interference with freedom that is compatible with their own - 81 -interests and those of their families and of society" is clearly a significant departure from the paternalistic "parens patriae" approach of the J.D.A. This statement implicitly recognizes that the process of the juvenile court in variably does constitute an "invasion of privacy and interference with freedom." Similarly, it suggests what has long been recognized by many of those involved in the child welfare field: that notwithstanding the noble and lofty goals of the juvenile court, in practice the intervention of the court is not always compatible with the interests of the young persons it attempts to serve. Finally, it acknowledges the reality that there are three separate.and, in many cases, conflicting interests which the court must ultimately attempt to serve—namely, the interests of the young.person, of his family and of society. (f) Limitations on removal from the home The last principle set out in the preamble represents the logical extension of the "least invasion of privacy and interference" principle. It provides that young persons should only be removed from the care of their parents when all other measures are inappropriate. Furthermore, in those cases where it is necessary for their removal from their home, the State is given the responsibility to see that they are dealt with "as if they were under the care and protection of wise and conscientious parents." The best examples of this principle are the restrictions the Draft Act imposes upon the use of open and secure custody. According to section 16(9), open custody may only be ordered if the judge is satisfied that it is necessary in light of the factors listed in section 9(4). Similarly, section 16(10) provides that secure custody may only be ordered if the judge is satisfied that it is necessary in light of section 9(4), or is necessary to prevent the young person from doing harm to himself or another, or because he would be likely to escape if placed in a place of care and open custody. - 82 -Turning from the specific provisions of the preamble to a broader con sideration of the legislation as a whole, there are two other philosophical 58 considerations that should be noted. As suggested earlier, central to the development of the original juvenile justice system and the reform attempts of recent years has been the continuing tension between two contrasting views -that of a paternalistic, parens patriae approach on the one hand and that of a quasi-criminal, due process approach on the other. Generally these two views have been characterized by the concepts of the "state of delinquency" (as typified by the J.D.A.) and the "Criminal Code for Children" (as reflected in Bill C-192)»respectively. We also noted at the outset of this discussion the conflicting views that have been expressed as to which of those two 59 approaches have been adopted in the Draft Act. Having reviewed the prin ciples enunciated in the preamble as well as the "main thrusts" of the legislation, it is our submission that the focus found in the Draft Act reflects features of both of these two philosophies. Although many provis ions in the proposed legislation (for example, the title of the Draft Act, the abolition of the offence of delinquency, the references in the preamble to "accountability", the procedural safeguards added to the adjudication process, the limitations imposed an the court's powers of disposition', the expanded rights of appeal, and the provision for judicial and administrative t reviews of disposition) tend to suggest a swing towards a quasi-criminal, due process philosophy, other provisions (for example, the statement of the treatment philosophy in the preamble, the procedure and criteria involved in decisions regarding screening, transfer to adult court, disposition, and review of dispositions, etc.) continue to place considerable emphasis on the "state" and "special needs" of the young person. As a result, the only con clusion that one can draw is that the philosophy underlying the Draft Act is still a somewhat schizophrenic one, involving elements of both of the'se two - 83 -60 approaches. A second consideration that should be noted is the Committee's recognition of the fact that the conflict arising out of a young person's conflict with the law often involves the interests of parties other than just the young person and the State. In the past, the entire juvenile justice system, like the adult justice system, has been geared towards the punishment or treatment of the offender and little attention was paid to the needs of the victim or of the community in terms of reparative measures. The YPICWTL Report, fhrough its introduction of such dispositions 61 62 as community service orders and compensation or restitution orders, has taken a first step towards recognizing the needs and interests of the community in the treatment of young persons in conflict with the law. - 84 -PART II - Two Aspects of Reform: Jurisdiction and Procedure in the Juvenile Court - 85 -CHAPTER 3 THE SCOPE OF THE LEGISLATION A. Geographical Scope As mentioned, earlier, the J.D.A. does not, by its terms, automatically apply throughout Canada. Instead, it contains a scheme whereby it can be put in force by proclamation of the Governorr-iri Council, provided that either of two conditions precedent are satisfied. It can be put in force in any province or part tjhe.rie.Gff provided that that province has previously enacted legislation establishing a 1 system of juvenile courts and detention homes. Alternatively, in the absence of such provincial legislation, it can be proclaimed in any city, town or other portion of a province -if the Governor in Council is satisfied that sufficient facilities are available in 2 that area. The reasons why this piecemeal system was incorporated into the original J.D.A. of 1908 are threefold. First of all, because the establishment of juvenile courts was clearly a matter of provincial 3 jurisdiction, it was considered necessary that appropriate provincial legislation be enacted before the J.D.A. was put into force in any 4 province. Secondly, the disposition of probation, the "keystone in 5 the arch of the modern juvenile court" was practically unknown in most areas of Canada in 1908, and it was therefore thought that if the J.D.A. were immediately made operative throughout the country it might have been ignored or condemned as a failure without having been 6 given a fair trial. Finally, because of the shortage of facilities and personnel at the time, it was believed that a gradual introduction of the J.D.A. would be more practical than its immediate universal 7 application. At the present time the J.D.A. is in force in all 8 major metropolitan areas of Canada. It is not, however, in force in - 86 -Newfoundland, as a result of the terms of union between that province 9 and Canada. In its Report, the Department of Justice Committee on Juvenile Delinquency rejected the piecemeal approach of the J.D.A. and recommended that any new Act operate equally throughout Canada and 10 be available for the benefit of all Canadian children. The Committee took the view that the shortage of facilities and personnel should not restrict the Act's operation, on the ground that such legislation shouldn't be available only for thoseliving in the more affluent areas of the country; that the problem of the provision of court services in remote areas could be solved by the adoption of a circuit court system; and that if the provinces were unable to finance the establishment of detention facilities and other ancillary services.in remote areas, then the federal government should consider 11 providing subsidies for this purpose. There have been cases in which courts have experienced difficulty in determining whether or 12 not the J.D.A. has been brought into force in a particular area; such a problem obviously could not arise if the Act were made applic able throughout Canada. The proposed Young Offenders Act (Bill C-192) did not specific ally deal with the issue of its geographical scope. The two sections of the Bill that do have relevance to this question are section 2(1), which defines the term "juvenile court", and section 5(1), which establishes the juvenile court's exclusive jurisdiction. Section 2(1) defines "juvenile court" as: a court established or designated by or under an Act of the legislature.of the appropriate province or designated by the Governor in Council or by the Lieutenant Governor in Council of the appropriate province for the purposes of this Act. - 87 -Section 5(1) provides, in part that: Notwithstanding any other Act, every young person who is alleged to have committed an offence...shall be dealt with as hereinafter provided and...a juvenile court has exclusive jurisdiction in respect of every such offence. Based on these two provisions, it seems reasonable to infer that the Bill was intended to apply throughout Canada, or at least wherever a juvenile court, has already been, or shall.be, established. The Draft Act proposed in the.Report of the Solicitor-General's Committee follows the very same approach taken in Bill C-192. In fact, the definition of the juvenile court (renamed the "youth 13 court") and the delineation of its exclusive jurisdiction are described in sections 2 and 4(1) respectively in virtually identical language (aside from the differences in the court's age limits) to that found in Bill C-192 and quoted above. There would appear to be little reason for disagreement with the view that federal legislation of this nature should apply equally throughout Canada. Regardless of whether one characterizes such legislation as criminal law or as.more related to child welfare concerns, it is clearly undesiraM'ee that a child should be defied, the resources and specialized treatment of the juvenile court because the Act has yet to be proclaimed in the particular area in which the offence was allegedly committed. Furthermore, it goes without saying that many of tire reasons behind the adoption of the piecemeal system are no longer t" as persuasive as they were seventy years ago when the J.D.A. was first framed. However, while it may be commonly agreedi that new legislation should attempt to establish uniformity in the treatment, of juvenile offenders, it is not quite so clear that the Draft Act has achieved this desired goal, for although the Draft Act provides that the youth - 88 -court has exclusive jurisdiction over all "offences" (as defined in the Act) committed by "young persons" (as defined in the Act), it does not require that youth courts be established in areas where they do not presently exist. If, for example, a province refuses to establish a youth court in a given area for financial or other reasons, the federal government could, through the Governor in Council designate an existing court to be a "youth court" for the purposes 14 of the Act. However, that is as far as the federal government's powers extend. The other powers necessary to put the Act into effect - those of appointing youth court judges, designating places of detention and of open and secure custody, appointing or designating a person as a provincial director or as a youth worker - all rest with either (or, in some cases, both) the legislature or the Lieutenant Governori±nCouncil of the province in question. Clearly, this is not an example of poor legislative drafting, but rather a reflection of the province's exclusive legislative power under the B.N.A. Act 15 in relation to the administration of justice within the province. But what is the effect of the Draft Act on those areas in which the provincial authorities do not choose to establish youth courts? It would seem that, in such cases, not only could young offenders not be prosecuted in a youth court (since such a court would not exist) but they also could not be dealt with in adult court (because of the exclusive jurisdiction given to the youth court by section 4), and, as a result, the only route for treatment of any sort would be under provincial child protection legislation. Clearly, such treatment would be very inappropriate in many cases, particularly those of older offenders and of more serious offences. Thus, although a province seems to retain a discretion under the Draft Act to refuse to - 89 -establish a youth court, and thereby to frustrate the goal of uniformity in the application of the Act, by doing so it runs the risk of seriously limiting its own powers to deal with young offenders. One additional matter deserves brief comment. As mentioned earlier, as a result of the terms of the union between Canada and Newfoundland, the J.D.A. has never been brought into force in that 16 province. However, as we noted above,- the effect of section 4(1) of the Draft Act would be to Vest exclusive jurisdiction over offences and offenders within the scope of the Act in the "youth court" for the particular area in which the offence allegedly occured. It would seem that the effect of section 4(1) would be to preclude the operation of Newfoundland's existing juvenile court 17 system and to force that province either to establish a "youth court" and thereby come under the scope of the Draft Act or to deal with all such offences and offenders under its child welfare legislation. Quaere whether it was intended that Newfoundland be affected by the provisions of the Draft Act and if so, whether that 18 province has agreed to be subject to the federal legislation? - 90 -B. Nomenclature As the title of this paper suggests, the selection of an appropriate term to designate those young persons who contravene criminal or quasieeriminal legislation has not been without contro versy. Similarly, considerable debate has arisen concerning the suitability of various alternative titles proposed for any new legislation. In its Report, The Department of Justice Committee considered some of the major objections that have been voiced regarding the use of the term "juvenile delinquent" in the context of legislation entitled the Juvenile Delinquents Act. One of the most frequently heard criticisms of the terminology found in the J.D.A. is that the use of the term "juvenile delinquent" tends to "stigmatize" or "label" the child, a process which often leads to harmful results to the child. It is argued, for example, that because of the strong emotional connotation that the term has acquired, many police officers will be reluctant to brand a child as a "juvenile delinquent" in order to enforce the law and therefore will never lay charges against children for minor offences; secondly, that by "labelling" a child as a"juvenile delinquent", society is generating pressures that push the offender further in the direction of anti-social behaviour (ie. the "self-fulfilling prophesy"); and that, in certain cases, the "label" is worn by the child "not as a 1 derogatory label, but as a badge of merit". Although the "stigma" argument has been made by many critics of the system in recent years, there still is ,however, little in the way of social science research (particularly in Canada) to prove conclusively that such a thing as "stigma" exists, or if it does exist, that it arises in the context of our juvenile justice system and that it thereby has a detrimental 2 effect on young persons who are dealt with by the system. Further more, it can be argued that changes in terminology will not have a significant beneficial effect because whatever stigma there is attaches not to the term "juvenile delinquent", but rather to the juvenile court proceeding itself, being as it is a formal response to anti-social conduct, and because any new designation "can become as infamous as "delinquent", a term that was itself, after all, 3 designed to protect against the stigma of 'criminal.'" In addition to the stigma aspects of the term "juvenile delinquent", objections have been made to the various connotations that have, over the years, attached to therterm. It has been said that the true meaning of the term has been obscured by the tendency o.f doctors and behavioural scientists to use the term in a descriptive sense (wherein the delinquent act is viewed merely as a symptom of specific underlying behavioural problems) rather than according to the meaning given it by lawyers (concerned more with the specific 4 conduct that gives rise to a finding of delinquency). Similarly, some have thought that the term tends to imply a course of conduct or a delinquent pattern of behaviour, while in fact the child may hase committed only one such unae'sifcabUre act and has no;: habit or pattern of anti-social behaviour;in such a case there is the danger 5 that the child may be "pre-judged by title". After considering these and other arguments pro and con, the Department of Justice Committee recommended: (1) that the term "juvenile delinquent" be abandoned as a form of legal designation in favour of the terms "child offender" and "young dffender"; and (2) that the title of the 6 J.D.A. be changed to the "Children and Young Persons Act". Bill C-192 attempted to follow the general approach, although not the precise terminology, recommended by the Department of Justice Committee. The Bill changed the designation of the offending child from "juvenile delinquent" to "young offender" and changed the title of the legislation to the"Young Offenders Act". However, critics of the Bill argued (justifiably, it is submitted) that the nomenclature chosen was no better than and was open to the same objections as that in the. J.D.A.. It was suggested by some that 7 the "Youth Offences Act" or "Social Work Act" would be. preferable. As might be expected, the Solicitor-General's Committee was not satisfied with any of the names proposed above. It agreed with the view expressed earlier that the term "juvenile deliquent" has, as a result of misuse and misinterpretation, became a label with serious negative effects and that therefore the terms "juvenile delinquent"and "Juvenile Delinquents Act" should not be used in the new legislation. However, it felt that all of the titles that had been considered previously were undesirable either because they tended ( as did the J.D.A.) to create a specific class of offender and to stigmatize that offender by means of a label or because they failed to provide a clear definition of the persons and the kinds 8 of offences to which it applies. Instead, it recommended that the new legislation be entitled the "Young Persons in Conflict with the Law Act" and that the persons to whom the legislation applies 9 be designated accordingly. In the absence of convincing social science research on the point, it is very difficult to evaluate or to comment constructively on the pros and cons of the nomenclature debate. Undoubtedly there will be those who will maintain that the proposed changes in termin ology will remove all traces of stigma from the juvenile justice system. On the other hand, there will be others who will argue that, just as "a rose by any other name would smell as sweet", a child who has broken the law, whether he be called a "juvenile delinquent", a "young offender", or a "young person in conflict with the law", Williinevitably experience some degree of stigma by virtue of his contact with the juvenile justice system. Perhaps the most satisfactory blend of optimism and realism lies in a middle ground between the two extremes. It is submitted that if, in fact, there is no special significance to the term "juvenile delinquent", then there should be no strong reason in favour of retaining such a designa tion, particularly since it was orginally the product of American legislation over three-quarters of a century ago. Secondly, although it is possible that, in time, the proposed new terminology will also take on certain elements of stigma, at least at the outset it has the advantage of being more objective and less emotionally charged than many of the terms formerly proposed. Finally, the view that we are suggesting is not dissimilar to that expressed in the following passage from the Department of Justice Report: Undoubtedly an element of stigma will continue to accompany an appearance in juvenile court, regardless of any change in descriptive language that is made. It is perhaps not unreasonable to hope, however, that terminology less open to confusion, or burdened by acquired meanings, will hot attract quite the same degree of stigma as has come to be associated with the words 'juvenile delinquent'. 10 - 94 -C. Minimum Age Jurisdiction At common law and today under the Criminal Code a child under the 1 age of seven years is not criminally responsible for his conduct, nor can a child be convicted for an offence committed between the ages of seven and fourteen, unless it is proven that he or she had the capacity to know the nature and consequences of the conduct and to appreciate that it was 2 wrong. These minimum age limitations apply not only to proceedings under the Criminal Code, but also to charges under other federal legislation 3 including the J.D.A.. In practice, however, very few offenders under the age of twelve are charged under the J.D.A.; instead, most are dealt with 4 under provincial child welfare or youth protection legislation. In recent years it has often been suggested that Parliament should leave the matter of delinquency in the very young to be dealt with by the provinces under their child welfare legislation. In its Report, the Justice Committee discussed the various arguments that have been put forward in favour of raising the minimum age limit: (1) The .juvenile court procedure is not appropriate for the very young  offender because: (a) the child is unable to participate actively in the adversarial  process envisioned by the J.D.A., and (b) the court proceedings themselves tend to confuse the child 5 and have no positive value in terms of his behavioural problem. Although the Committee acknowledged that the problem of a young child's participation in a delinquency hearing is a very real one, it doubted whether dealing with the matter under provincial protection legisla tion would substantially improve the situation. Similarly, it noted that there has been no research to show whether or not juvenile court proceedings have a positive value in terms of a child's behaviour problems nor is there any reason to believe that proceedings under provincial welfare 6 legislation would be any more beneficial, or less confusing, to the child. - 95 -The Committee was also unsympathetic to the suggestion that court proceedings could be avoided altogether by the referral of very young offenders and their families to child welfare agencies. Its view was that in those cases where the public interest might require an interference with parental rights or the liberty of the child, the agency should always be required 7 to justify its acts in a formal court hearing. (2) The quasi-criminal nature of the juvenile court proceedings result  in detrimentad! consequences to juveniles, including: (a) the denial of services to children in need (because of the desire to avoid the stigma of a court appearance and the inability of the prosecution to meet the high standard of proof), (b) the harmful "labelling" effect of a finding of delinquency, and 8 (c) a tendency towards puni.feivenesssinntheemakMggdfadispositions. Dealing with each of these points in turn, the Committee took the view that the denial of services is more a result of the lack of facilities and personnel in the juvenile court, a lack which exists equally in protection proceedings under provincial legislation; that stigma attaches not only because of the form of the proceeding, but also because of the possible consequences that flow from it, and that the improper use of a finding of delinquency can be avoided or lessened without the case being taken out of the juvenile court's jurisdiction; and finally, that the tendency to use the available dispositions as "punishment" could and should be prevented by the appointment of properly qualified judges together with the direction in section 3(2) of the J.D.A. as to how delinquents 9 are to be dealt with. (3) The quasi-criminal nature of the proceeding often leads the parties  before the court and the public generally to view the treatment ordered  as "punishment" for the original offence, and as an unduly harsh one where the offence is not very serious, thereby resulting in confusion  and feelings of injustice. 10 The Justice Committee acknowledged not only that this difficulty exists, but also that it is inherent in any legislation that combines the - 96 -requirement of proof of a specified event or condition with a general in direction to have regard to the child's welfare. It doubted that a change in the nature of the procedure would have a significant positive effect; even if proceedings were brought under provincial protection legisla tion, the child and his parents would still consider the act leading to the court's intervention as an "offence" and the treatment ordered as 12 "punishment" for that offence. (4) The court would be better able to deal with a child's parents in a  civil proceeding than under the present system wherein its jurisdiction  over parents is dependent upon proof of fault onfch'eMxpart. 13 The Committee agreed that it is desirable to involve a child's parents as fully as possible in proceedings affecting the child but felt that this can adequately be done in the context of quasi-criminal 14 proceedings, although some element of compulsion may be required. (5) The distinction between a "neglected" and a "delinquent" child is  often an artificial one and raising the minimum age would partially  eliminate this source of unfairness. 15 Although it conceded that it is often a matter of chance whether a child is dealt with under the J.D.A. or under provincial child welfare legislation, the Committee defended the legal distinction between "delinquency" and "neglect". It argued that maintaining the distinction allows one to choose the appropriate proceeding to achieve a 4§§i,X&d result. In addition, in some cases the distinction is quite valid; for example, where a child engages in anti-social activities which are not the 16 result of any parental neglect. The main argument against raising the minimum age involves the problem of providing appropriate welfare services for those juveniles who would no longer be dealt with under federal legislation. It has been said that provincial welfare departments and children's aid societies do not have sufficient facilities to deal with some problem children under - 97 -the age of ten, nor do they have sufficient personnel or other resources to cope with increased numbers of problem children. Accordingly, provincial welfare authorities have argued that a higher minimum age should not be established unless provision is made for a substantial increase in financial 17 grants for welfare services. Although it admitted that raising the minimum age would have some effect upon existing child welfare arrangements in each province, the Committee felt that this argument did not carry great weight. Since, at the present time nearly all services rendered under the J.D.A. are financed by the provinces and the municipalities, what difference would it make, the Committee asked, if these same services are provided under provincial child welfare legislation rather than under the J.D.A.? The Committee ultimately concluded that the minimum age for juvenile court jurisdiction should be raised, primarily because it could not see how a very young child could be held responsible at all "on any reasonable 19 conception of the purpose and function of the criminal law". Having made this decision, however, the Committee then experienced difficulty in reaching agreement on what the actual minimum age should be. In its view, the age chosen should satisfy two major criteria: at that age a child's comprehension of events should be such that the adversary system can function effectively and more serious offences should occur with sufficient 20 frequency to require that criminal-type procedure be available. Based on these considerations it recommended: (1) that the minimum age of criminal responsibility under Canadian "law -lis and the minimum age of juvenile court jurisdiction under the Act - should be raised to ten or, at most, twelve; (2) that although it is preferable that a uniform age be adopted throughout Canada, the possibility of a variable or flexible age should not be excluded; and - 98 -(3) that the minimum age to be selected should be the subject of federal-21 provincial discussions before a final decision is made. The Committee also considered a number of practical and theoretical problems that have arisen regarding the rule - known as the doli incapax rule - that requires the prosecution, in the case of a child between the ages of seven and fourteen, to rebut a presumption that the child is incapable of committing a crime by showing that the child had sufficient moral discretion and understanding to appreciate the wrongfulness of his 22 act. Based on these considerations it concluded: 23 (4) that the doli incapax rule should now be abolished. Bill C-192 proposed the amendment of section 12 of the Criminal Code so as to raise the minimum age of criminal responsibility across Canada to ten years and the amendment of section 13 so as to make the doli incapax 24 rule apply only to those between the ages of ten and fourteen. In introducing the Bill, Solicitor-General Goyer gave no indication of the policy reasons behind the raising of the minimum age or why the age of ten was chosen. It is reasonable to suspect that in doing so, the Government 25 was merely adopting the Justice Committee's recommendations; however, if that is the case, it is hard to understand the reasons for the retention, contrary to the Committee's recommendations, of the doli incapax rule. The Draft Act proposed by the Solicitor-General's Committee defines 26 the minimum age of juvenile court jurisdiction as fourteen years, amends section 12 of the Criminal Code by substituting the age of fourteen 27 years for that of seven as the minimum age of criminal responsibility, 28 and abolishes the doli incapax rule. In the commentary accompanying the Draft Act, the Committee conceded that the selection of an appropriate age is a very difficult problem, one that cannot be solved by a purely 29 objective analysis of an empirical nature. It recognized the simple - 99 -fact that children develop at different rates and that there is no single point in a child's life when he automatically becomes capable of adhering 30 to society's behavioural standards. Notwithstanding these limitations, however, the Committee agreed that it was still necessary, as a practical matter, to specify a minimum age in the legislation in order to allow for 31 uniform and consistent application of the law. What, according to the Committee, is the proper criteria for choosing such an age? In its view, the proper age is that at which "it can be assumed that most children have matured sufficiently to be responsible for their conduct and to be held accountable for that conduct which contravenes provisions of the Code and 32 other federal laws". After considering various other alternatives, the Committee concluded that children under the age of fourteen should not be subject to the criminal law, but instead would be better cared for under the provisions of provincial child welfare, youth protection or juvenile 33 correctional legislation. It seems that the general consensus in recent years has been that very young children, for many of the reasons discussed above, should not 34 be treated under criminal legislation such as the J.D.A. If one examines recommendations made recently in other jurisdictions, one can see a general trend in favour of raising the minimum age of criminal responsibility. The major issue has, and continues to be, what is the proper minimum age? 36 Many different criteria have been used to justify various choices of age. 37 These include the age of puberty, the age at which a child begins high 38 39 school, the age at which compulsory schooling ends, or the age at 40 which a youth is regarded as able to marry and earn money; still others stress intellectual discretion, knowledge of right from wrong, and other 41 motivational factors. It is submitted, however, that generalizations of this nature are of little utility, since "maturity is not a concept for 35 100 -which a universally valid or precise definition can be formulated. It 42 is a derivative of age, but is not synonymous with it." Indeed, as the Justice Committee Report acknowledged, there is no age that can be said 43 to be the "right" age of criminal responsibility. Rather, as the Kilbrandon Committee noted, the "age of criminal responsibility" is itself an entirely artificial concept, in that it "is not a reflection of any 44 observable fact, but simply an expression of public policyU. Table No. 1 - Minimum Age Provisions Provision J.D.A. Justice Committee Report Bill C-192 Draft Act Minimum age for criminal responsibility 7 10 (or possibly 12) 10 , 14 Applicability of doli incapax rule 7 to 14 Abolished la io£'Eoii4 Abolished If, as we. have, suggested, the choice, of a minimum age is basically a public policy issue, what policy considerations or other influences account for the variations in the minimum age recommendations contained in the Justice Committee Report, Bill C-192 and the recent Draft Act (see Table No. 13)? Regarding Bill C-192 we can only speculate since, as mentioned earlier, in introducing the Bill the Government gave no indication of the objectives sought to be attained in raising the lower limits. The Justice Committee clearly saw the issue as one of weighing the effectiveness of the criminal law against other methods of social control, as a means of dealing with the problem of anti-social behaviour presented by different age groups. Indeed, as we have seen earlier, it was even able to specify certain minimum requirements that any age chosen would 45 have to satisfy. But how in fact did the application of these criteria - 101 -result in the ultimate recommendations that were made? To the extent that the Committee preferred that the decision be left to federal-provincial negotiations, it tended to avoid dealing with the issue. But even in its suggestion that the minimum age be raisedtto ten (or, at most, to twelve), the Committee failed to explain why, in its opinion, the age of ten was found to be the most suitable answer to the question, as framed. Clearly, no reasons were given as to why a ten-year-old's (but not a nine-or eight-year-old's) comprehension of events is such that the adversary 46 system could function effectively. Nor were any statistics cited, (although it is reasonable to assume that all existing statistics were made available to the Committee) to support its implicit conclusion that ten was the age at which more serious offences occurred with sufficient 47 frequency to require that criminal-type procedure be available. In fact, it has been argued that based on the actual numbers that would be excluded by this proposal, the raising of the age to ten would have a negligible 48 practical effect. In light of the above, one is led to conclude either that the Committee took into account other considerations.which it failed to articulate or that, having stated what it considered to be the relevant considerations, merely made a rough guess, based more on hunch than logic, as to what age would best satisfy those, same considerations. The report of the Solicitor-General's Committee is equally inadequate in that it fails to articulate the reasons why it chose the minimum age that it did. Although it does propose one criteria - namely ,the age at which most children have matured sufficiently to be responsible and accountable for bh§.iiaca£'tsfcp.ns,there is no suggestion as to why the age of fourteen was chosen to be the most suitable. Presumably, it merely reflects the subjective views - perhaps an average of the suggested ages - of the members of the Committee. Perhaps it merely reflects the Committee's - 102 -sensitivity to numerous criticisms that the age proposed in Bill C-192 49 was too low or its desire to follow provisions adopted on recent years 50 in other "progressive" jurisdictions. In light of the Report's emphasis on responsibility and accountability, it may be fair to say that the Committee chose the high age it did in order to ensure that any error in drawing the line would more likely be on the side of excluding sufficiently mature children, rather than including immature children, within the scope of federal criminal legislation. In making the above criticisms, we are not suggesting that the failure of the two Committees to explain in sufficient detail the reasons behind their decisions implies a lack of expertise or candour in either case. Gd#.enntheebbevi'ty of the Solicitor-General's Committee's Report, one could not expect a more detailed discussion in that case. Rather, it is suggested that the criticism reflected above may be of broader applica tion and might, in fact, be directed against many of the decisions made in the cqur-seof delinquency law reform: that because of the lack of social science research in those areas where research could be of value, and in other areas where the choices that have to be made depend on highly subjective considerations, not only are the decisions hard to make (since the making of hand decisions is inherent M any process of;*law reform), but also, once they are made, they are hard to explain and support in a logical and convincing manner and, as well, equally difficult to criticize in a meaningful and constructive way. - 103 -D. Maximum Age Jurisdiction The J.D.A. applies to any young person apparently or actually under the age of sixteen years, or such other age under eighteen as may be 1. designated in any province by the Governor in Council. As a result of the flexible age provision, there is no uniform age across Canada. At present, the maximum age in Saskatchewan, Ontario, New Brunswick, Nova Scotia, Prince Edward Island, the Yukon, and the Northwest Territories remains unchanged at sixteen years; Manitoba and Quebec have opted for the maximum of eighteen years; British Columbia (as noted earlier) has recently lowered its limit 2. from eighteen to seventeen; and Alberta has set its limit at sixteen for boys and eighteen for girls. In Newfoundland, where the J.D.A. doesn't apply, 3. the maximum age under provincial legislation is seventeen. A similar 4. diversity can be found in the juvenile legislation of other countries. The Justice Committee dealt in depth with the various issues that arose out of proposals to it to raise the maximum age of juvenile court jurisdiction. The three main arguments that were made against raising the maximum age were: that offenders over the age ,of sixteen are unsuitable for the juvenile court process, because of the seriousness of their offences and their behavior problems, the limitations of the juvenile court approach, and the problems that they present in terms of treatment resources and 5. programming; that the minimal resources available should be used with the younger juvenile offenders (ie - those under sixteen) where it is thought that there is the greatest chance of success; and that many of the types of conduct caught by the broad definition of delinquency in the J.D.A. (ie -6. the "status offences") were particularly inapplicable to older juveniles. On the other hand, those in favour of raising the maximum age argued that since adolescents aren't given the benefits of adulthood it would be unjust - 104 -to hold them responsible for their actions in the same way as adults; that teenagers have become an identifiable group in society and therefore should be dealt with together in a single specialized court; and that the benefits of the juvenile court approach (especially separation from adult jails and 7. adult criminals) should be extended to as wide a group of offenders as possible. After considering'these arguments the Committee recommended: 8. (1) that the juvenile age should be uniform throughout Canada; (2) that the maximum juvenile age should be seventeen (that is, the juvenile court's exclusive original jurisdiction would extend to all offenders sixteen years of age and under); 9. and (3) that there should be an intensive and detailed study of the problem posed by the older juvenile offender (ie - sixteen to twenty-four years of age) as part of the development of the criminal law policy of Canada. 10. The Committee gave three main reasons for its decision to raise the maximum age to seventeen. To begin with, it accepted the reasons set out above in favour of raising the age, particularly that dealing with the desirability of keeping as many sixteen-year-olds as possible out of adult 11. penal institutions. Secondly, it emphasized the practical consideration that an increase to seventeen would involve less administrative changes or adjust-12. ment from province to province than would an age of sixteen or eighteen. Finally, although it acknowledged that the age of seventeen is in some respects a compromise, the Report went on to state quite categorically that: ...we are firmly of the view that the juvenile age should not be set as high as eighteen. It seemed to us that there was something artificial about some of the juvenile court proceedings that we observed where older offenders were involved. Having regard to what we think are the inherent limitations of the juvenile court approach, and also to the problems presented from the point of view of treatment resources and programming, it is our conclusion that seventeensihould mark the upper limit for the operation of the juvenile court process. 13. - 105 -Bill C-192 followed the Justice Committee recommendations in part. 14. Although it adopted the suggested age of seventeen, it still preserved the 15. provinces' powers to increase that age to eighteen years. As in the case of minimum age jurisdiction, the government did not state its reasons for choosing the age it did and, as a result, one must assume that for reasons of convenience it merely adopted the recommendation of the Justice Committee Report. Its decision to retain the provincial option to raise that age limit by one year is more difficult to justify, not only because it constituted a rejection of the Justice Committee's recommendation as to uniformity, but also in light of certain comments made by the Solicitor-General while introducing the Bill in the House of Commons. After announcing that one of the Bill's major objectives was to redefine the age jurisdiction of the juvenile court in order to obtain uniformity across Canada, he stated that: ...since the definition of a juvenile is not uniform in all the provinces of Canada, a delinquent who is considered a juvenile according to law in one province may be tried as an adult in the neighbouring province, where the J.D.A. applies only to those under sixteen years of age. It is obvious that such inconsistencies are unacceptable and contrary to the concept of justice. 16. Given such a policy, it is hard to understand why the government bowed to what were undoubtedly vociferous provincial demands that it continue to allow them the right to raise the maximum age. By so doing, the government was clearly frustrating, rather than facilitating, the goal of uniformity, and the inconsistencies which the Solicitor-General called "unacceptable and contrary to the concept of justice" were allowed to continue, albeit within a narrower range for disparity. - 106 -Aside from the uniformity problem, a number of commentators attacked the Bill's choice of the maximum age of seventeen. Although some argued that the existing system should not be changed, since provinces that already had the age limit of eighteen would-.'then be forced to abandon special facilities which they had established, while those that still had the limit of sixteen would be forced to deal with older offenders for which they lacked 18. adequate facilities, most agreed that the existing age should be raised but 19. that eighteen would be better than seventeen. Since eighteen had already been accepted as the age of majority in most provinces it was thought to be a more logical limit, one which could achieve consistency with other 20. legislation as well as uniformity across the country under this Act. These criticisms were answered in the Draft Act proposed by the Solicitor-General's Committee. Not only did the Draft Act reiterate the view of the Justice Committee that in order to achieve consistency and avoid 21. discrimination a uniform maximum age should be adopted, but it also reflected the criticisms of Bill C-192 by rejecting the choice of seventeen as the 22. most suitable maximum age. As in the case of minimum age jurisdiction, the Committee acknowledged that the choice of a proper age is a very difficult question which does not allow for a completely objective assessment. Citing similar considerations to those that were taken into account in its 23. discussion of the minimum age, as well as the experience of other countries and the desire to extend the benefits of the juvenile court to as many young persons as possible, the Committee concluded that the age of eighteen 24. was the most suitable alternative. Other related proposals dealt with the juvenile court's jurisdiction over persons who have committed offences and 25. subsequently reached their eighteenth birthday, the provision of services 26. until the age of twenty-one, the retention of the court's power to transfer - 107 -27. certain young persons to the adult court, and the applicability of limitation 28. periods in other legislation. We find ourselves in general agreement with the Draft Act's proposals regarding maximum age jurisdiction. Dealing with the issue of uniformity, it is submitted that although a lack of uniformity in the application of a 29 federal criminal statute does not render it unconstitutional, considerations of fairness still require that, except in very unusual circumstances, the 30. application of the criminal law should be uniform across the nation. Similarly, although the choice of a maximum age limit of eighteen is admittedly somewhat arbitrary and (as in the case of the minimum age) based on many subjective (and, therefore, vague and undefinable) considerations, 31. it is consistent with that adopted in many other "progressive" nations, and is supported by recommendations in a number of recent studies including the 32. CELDIC Report and the Report of the British Columbia Royal Commission on 33. Family and Children's Law. Assuming that Parliament adopts the proposals of the Solicitor-General's Committee, two major problems will still have to be faced. The first involves the additional burden that the raising of the maximum age will place on provincial services and resources, and, in particular, on those provincial correctional authorities responsible for institutional care for juvenile offenders. There is no doubt that the proposed change would significantly increase the number of young persons likely to come into contact with the juvenile court. In those provinces where the maximum age is currently eighteen, those in the sixteen to seventeen-year range 34. constitute approximately 207» of all delinquencies, and there is no reason to doubt that similar figures would apply across the country once the age was lifted. In November, 1970, much publicity was given to a statement by - 108 -the Ontario Minister of Correctional Services that the raising of the maximum age to seventeen would require the building of four or five new training schools, at a capital cost of around $20-million and an operating cost of some $3-million a year, as well as the establishment of completely 35. new training programs for sixteen-year-old offenders. Quaere what the figure would be to-day for a maximum age of eighteen? Although the precise impact of the proposed changes on provincial budgets will vary from province to province, depending not only on what facilities (such as training schools) are already in existence, but also on what effect proposed diversionary procedures have and what alternative, community-based facilities can be developed to relieve the pressure on costly training school facilities, it is clear that these changes will undoubtedly have serious financial and resource implications for the provinces. In this context, the brief passing reference in the Report of the Solicitor-General's Committee to the resource implication 36. of its proposals is clearly not an adequate response on the part of the federal government. The demand for federal financial assistance for the development of necessary resources has become one of the key issues in this field and one of the major obstacles to sound delinquency law reform. The second unresolved problem, one that was discussed in the Justice Committee's Report but not in Bill C-192 or in the Report of the Solicitor-General's Committee, is that of the treatment of those offenders whose age is slightly above the upper limit of juvenile court jurisdiction. A number of reports, both in this country and elsewhere, have recognized the special needs of offenders in this category and have made various proposals regarding special legislation and correctional services (possibly including the creation of a new "young adult court") for those in between the proper 37. 38 . realms of the juvenile and adult courts. As we noted earlier, the Justice - 109 -Committee acknowledged that Canadian criminal and corrections policy must take into account the special needs of this older adolescent group, and although it rejected the concept of a separate court for these offenders, it did urge the development of diversified and adequate treatment resources for 39. this age group. However, once again, money is the great limiting factor. In light of the fact that finances and resources are inadequate for the needs of the juvenile court - the place where we purport to be concentrating our greatest efforts and resources - it would seem that, at least for the reasonably foreseeable future, or until there is a radical shift in government spending priorities, little funds will be available for the development of special services for those young offenders in this intermediate age group. Table No.2 - Maximum Age Provisions Provision J.D.A. Jus tice Committee Repor t Bill C-192 Draft Act Maximum age for juvenile court jurisdiction 16 17 17 18 Provincial power to raise maximum age ? Yes (to 18) No Yes (to 18) No A final comment. The development of the current proposals regarding maximum age jurisdiction are interesting also from the point of view of a student of the science of law reform. If one compares the existing law and the various recommendations made by the three bodies that have considered the matter in the last ten years (see Table No.2), it seems fair to say that law reform in this area appears to a large extent to be just a "hit and miss" process. One notes, for example, the striking contrast between the most recent age proposal (eighteen) and the very firm conclusion 40. of the Justice Committee quoted earlier that the upper limit should not exceed - 110 -seventeen. It is hard to believe that such a marked change in policy reflects a significant change in social science thinking over the past ten years. Similarly, onesearches in vain for a rationale behind the inconsistent policies towards the issue of provincial power to raise the age. Secondly, on reading the explanations given (either by Minister's statement or in commentary accompanying the proposals) for the recommendations made by the various law-making groups, one often notices the absence of any attempt to justify the conclusions drawn in light of previous inconsistent proposals. From this, perhaps one can conclude that law reformers in this country, or at least those in the field of delinquency law reform, tend not to place much weight or accord much respect to the reasoning and conclusions of their predecessors. Perhaps both of these reasons account, in part, for the apparent tendency of many of those involved in the field, whether in a practical or theoretical capacity, to approach new proposals with a great deal of skepticism and hostility, often even before the details of the proposals have been given a fair hearing. - Ill -E. Offence Jurisdiction The J.D.A.'s offence jurisdiction is established in sections 2 and 3, Section 2(1). defines "juvenile delinquent" as: any child who violates any provisions of the Criminal Code or of any federal or provincial statute, or of any by-law or ordinance of any municipality, or who is guilty of sexual immorality or any similar form of vice, or who is liable by reason of any other act to be committed to an industrial school or a juvenile reformatory under any federal or provincial statute. Section 3(1) provides that the commission by a child of any of the above-mentioned acts "constitutes an offence to be known as delinquency" and section 3(2) states that such a child "shall be dealt with, not as an offender, but as one in a condition of delinquency and therefore requiring help and guidance and proper supervision". A number of the important features of the J.D.A.'s offence juris-1 diction were discussed in our introductory chapter. It was noted that the J.D.A. creates an omnibus offence, known as "delinquency", which covers all forms of prohibited conduct by children, that the definition of such prohibited conduct is both very broad and rather imprecise, that the same definition includes conduct that isn't prohibited in the case of an adult, and that the offence provisions are directed more towards the offender's 2 state or condition than towards his prohibited conduct. We have also attempted to explain the reasons why this particular approach towards offence jurisdiction was adopted in the J.D.A. of 1908. We suggested that the present offence jurisdiction was the result of the attempt to adopt the philosophy of the early American juvenile courts despite the 3 constitutional limitations -under the B.N.A. Act. In recent years the existing offence jurisdiction under the J.D.A. has been the subject of growing criticism. It has been argued that the terminology in section 2(1) is very subjective, thereby making the finding - 112 -of delinquency depend to a large extent on the judge's subjective and moral views; that it violates the principle that criminal or quasi-criminal 4 legislation should not be vague or ambiguous in scope; that it allows for the oppressive substitution of minor offences where more serious conduct is suspected but can't be proved; and that it results in a wide 5 expansion of the scope of police powers. Other critics, noting that 6 "incorrigibility" charges often result from conduct such as truancy, running away from home, or resistance to a guardian'ts instructions, and that "sexual immorality" charges often result from acts which are generally regarded as normal expressions of childhood curiosity and immaturity, have suggested that such types of behaviour should not be dealt with under 7 criminal legislation at all. Furthermore, there is evidence of discrim ination in the application of the "sexual immorality" clause: statistics suggest that it tends to be applied more frequently to children in lower socio-economic classes, and much more often in the case of girls than with 8 boys. Finally, many have objected to the entire approach of the J.D.A. whereby the single finding of "delinquency" applies to all forms of prohibited conduct by children; they argue that it is unjust that every child who is found delinquent is liable to the same range of dispositions and that institutional commitment is possible for even the most minor offences. The Justice Committee made a series of recommendations regarding offencejurisdiction. Adopting the view that "as a matter of public policy quasi-criminal legislation should not be used to achieve welfare purposes 10 if those purposes can be achieved by non-criminal legislation," it concluded that children should only be charged with specific offences as 11 is the case in proceedings against adults. It noted that much of the conduct covered by the J.D.A. is not anti-social in nature nor does it - 113 -lead to anti-social adult behaviour and, furthermore, that other, less stigmatizing, non-criminal means are in many cases available to protect 12 children from possible detrimental influences. Although it acknowledged the historical and philosphical reasons why the J.D.A. directed its attention towards the underlying behavioural problem of the offender rather than on the offence itself and therefore adopted the all-inclusive offence of "delinquency", it took the view that today "a competing interest of public policy, namely, the protection of the individual against undue interference by the state requires some limitation upon the unrestricted 13 application of this principle " and, as a result, recommended the abolition of the corcep't of "delinquency". The Committee rejected suggestions that lesser offences be excluded from the federal Act and be left for treatment under provincial 14 legislation. Instead, it recommended that a distinction be made under the federal legislation between more serious and less serious offences. They suggestadthat any offence against the Criminal Code or cf such provisions of other federal or provincial statutes as are from time to time designated by the Governor in Council should give r>i=se to a finding that a young person is an "offender" and thereby bring into operation all of the provisions of the Act. Any other offence-, (ie. - against a federal or provincial statute, a municipal by-law, or a regulation or ordinance)5 would be considered an offence of a lesser degree, to be known as a "violation1.1 A person charged with a "violation" would be dealt with in generally the same manner as those charged with "offences", with the notable exception that it would not be permitted to commit him to a training school or, in the absence 15 of parental consent, remove him from the parental home. In addition to the above, the Committee also recommended: that most juvenile traffic cases should continue to be heard in the juvenile court, with the court - 114 -being given broader powers regarding transfer, disposition, and procedure 16 in such areas; that conduct within the non-offence categories (eg. incorrigibility, unmanageability, etc.) should not be included within the offence provisions of the federal Act, but should be dealt with under 17 provincial legislation; and that the law should make it clear that a finding that a person f?is*. a "young offender" is not to be regarded as a 18 ?OTLViictionfor a "criminal offence". Bill. C-192 showed a more radical response to the criticisms of the J.D.A.'s offence jurisdiction. According to the Solicitor-General, one of the aims of the legislation was "to cease SjCi'gmatriz"in'gcJdeviaiit,, >but non criminal behaviour in young persons and to recognize only offences for 19 which penalties are imposed when committed by adults. The Bill's attempt to decriminalize and destigmatize such "deviant but non-criminal" behaviour went even further in the direction of narrowing theAciVs scope than did the 20 Justice Committee recommendations. Like the Justice Committee, it excluded the non-offence categories from the scope of the Act and abandoned the concept of a single offence of delinquency in favour ofas system based on separate specific offences. However, instead of dealing with all violations of existing law together and on an equal basis (as in the J.D.A.) or in two separate classes, but still under the same legislation (as in the Justice Committee Report), the Bill proposed to restrict its applica tion only to federal offences, leaving to the provinces the responsibility for dealing with those juveniles who violate provincial or municipal laws or ordinances. Such a result was achieved by limiting the juvenile court's exclusive jurisdietienito;:.on to: ...an offence created by an Act of the Parliament of Canada or by an ordinance, rule, order, regulation or by-law made thereunder or a criminal contempt of court other than in the face of the court. 21 - 115 -The proposals of the Solicitor-General's Committee regarding offence jurisdiction are, with one minor exception, identical to those contained in Bill C-192. Adopting the recommendations of the 1969 Ouimet Report in favour of increased decriminalization and destigmatization, the Committee 22 agreed that the status offences should be abolished. It also agreed that the Act should be restricted to offences against federal statutes and regulations and that provincial and municipal offences should be left to provincial control. As a result the definition of the juvenile court's offence jurisdiction-is virtually identical to that contained in Bill C-192, the only change being the specific exclusion of ordinances of the Yukon and 23 Northwest Territories. ./ In comparing the present law with the proposals made in the last ten years (see Table No. 3), there seems little doubt that the current trend is away from the paternalistic, quasi-criminal approach of the J.D.A. and towards a much narrower, and more carefully defined "criminal code for children". This phrase is not being used here in the derogatory sense that it has been in the past. On the contrary, such a result may in fact be the most reasonable and practical response to the criticisms of the juvenile justice system within the context of Parliament's constitutional limitations. Recognizing that the federal government's involvement can only be through the mechanism of the criminal law and that, by its very nature, the criminal law is not applicable to many types of deviant conduct, the legislators seem to be attempting to remove all but the most serious offences from the jurisdiction of the juvenile court. In addition, the principle that juveniles shouldn't be made liable to criminal prosecution for conduct that does not constitute an offence in the case of adults has, for the first time, been recognized in federal government policy. Similarly, the umbrella offence of "delinquency" has been abolished; - 116 -Table No. 3 - Proposals Regarding Offence Jurisdiction Department of Draft J.D.A. Justice Report Bill C-192 Act 1. Offence of Delinquency Yes ",;No No No 1 2. Status Offences Yes No No No 3. Criminal Code Yes Yes Yes Yes 2,3 4. Other Federal Statutes Yes Yes Yes Yes 2,3 5. Provincial Statutes Yes Yes No No 4 2 6. Federal Regulation Yes Yes Yes Yes 57. Territorial Ordinance Yes Yes Yes No 4 2 8. Provincial Regulation Yes Yes No No 4 2,6 9. Municipal By-Law Yes Yes No No 10. Criminal Contempt of Court Yes? No? Yes Yes Other Than On The Face Of The Court (what authority?) 1 - includes "sexual immorality", "any similar form of vice", or liability "by reason of any other act to be committed to an industrial school or juvenile reformatory under any federal or provincial statute" (ie. "'din'corrvigib'lli'ty" or "unmangeability" offences) 2 - classed as a "violation" - all provisions of federal Act apply, except that the juvenile court cannot commit the offender to a training school or, in the absence of parental consent, remove him from the parental home 3 - footnote 2 not applicable if so designated by Governo.r-sin-CCouncil 4 - includes ordinance, rule, order, regulation or by-law 5 ie. ordinance of the Yukon Territory or the Northwest Territories 6 - suggested that Act allow for transfer of certain juvenile traffic cases (including all of those involving operation of a vehicle) to ordinary Adudi.t: Courts - 117 -a child will, instead, be charged with a specific offence as he would be in adult court, although the trial procedure and the range of dispositions will be those more suited to his age and needs. Finally, as'.we shall see in a later chapter, new safeguards (many of them being protections traditionally provided to adults under the Criminal Code) have been incorporated into the juvenile court trial process. Thus, the label "criminal code for children" seems, in many respects, a valid and a 24 laudable one. A major question that arises as a result of these new proposals is that of their implications for the provinces: how will their provison of services and resources be affected and how will they respond to the onus of legislative responsibility suddenly cast upon them? Dealing with the first aspect, the provision of services and reasons, the Minister responsible for Bill C-192 acknowledged that the Bill "must be complemented by the formulation of social measures for which responsibility lies with the 25 proHinees". Similar statements can be found in the more recent Report. Unfortunately, although the federal government has been quick to point out the added demands the provinces will have^ to face ,it has been much more reluctant to provide any direct assistance towards the meeting of those demands. The issue of federal financial commitment -foethe.,financing of provincial services is a major question in this context, as it was regarding the issue of maximum age jurisdiction and we shall deal with the various problems involved therein at a later points" The second aspect of the problem, one that does not involve federal responsibility, but should interest us as observers of current law reform, is that of how young persons who are excluded under the federal Act1s t new, narrower age and offence jurisdiction are to be treated or handled by the provinces. In dealing with the raising of the maximum age, the - 118 -Solicitor-General's Committee suggested that children under fourteen "would be better looked after under provincial child welfare, youth 26 protection, or juvenile correctional legislation". Similarly, in its discussion of the restricted offence jurisdiction the Committee noted: Various opticngswould be openLto the provinces, such as dealing with the young person in adult court or under their youth protection legislation, child Welfare legislation or other special legislation that might adopt the procedures of the proposed legislation to deal with provincial and municipal offences. 27 It has been suggested that by giving the provinces a carte blanche to determine how to deal with those offenders excluded from the operation of the Act, Parliament is leaving open the possibility that a province may choose to deal with its offenders in apjuni.tivee or harsh manner or according to a philosophy inconsistent with that proposed <is the federal Act. In fact, some have even suggested that, in order to avoid the possibility of children being dealt with in adult court, the new Act should require that any judicial proceedings commenced against children under provincial laws should be within the exclusive jurisdiction of the provincial 28 family court. Aside from the possible constitional difficulties inherent 29 ' ' • in such a proposal, it is submitted that such an attempt to restrict the legislative options open to the provinces would have the detrimental effect of preventing provinces from developing independent policies and innovative programmes for the treatment of juveniles excluded from the operation of the federal Act. Although, admittedly, the initial response from the provinces has tended to be more concerned with the financial aspects of implementing the new Act than with the opportunities it offers 30 for creative legislating, it seems reasonable that the provinces should be given the opportunity, at least for a certain period of time, to attempt to develop viable alternative approaches for the treatment of those - 119 -offenders within their jurisdiction, and should not be forced to follow 31 the same route taken by the federal government. - 120 -F. Waiver of Jurisdiction In nearly every jurisdiction in which juvenile courts have been established, some method has been employed to sort out those offenders 1. thought to be inappropriate subjects for the juvenile court process. As we have noted earlier, the Canadian system is no exception. Section 9(1) of the J.D.A. provides: Where the act complained of is...an indictable offence, and the accused child is apparently or actually over the age of fourteen years, the Court may, in its discretion, order the child to be proceeded against by indictment in the ordinary courts in accordance with the provision of the Criminal Code in that behalf; but such course shall in no case be followed unless the Court is of the opinion that the good of the child and the interest of the Community demand it. Section 9(2) allows the juvenile court judge the power to rescind an order so made. Although both of these provisions appear to be relatively straight forward, there is no doubt that S..9. has been one of the most controversial sections of the entire J.D.A., as evidenced by both the number of reported 22. cases and the extent of scholarly comment. In this section we propose to consider a number of the issues that have arisen in regard to waiver, including the principles that are to govern the trial judge's exercise of 3. discretion and the effect of a waiver order, together with the recent reform proposals. A final aspect of the waiver problem, the procedural and evidentiary rules that apply to the waiver hearing itself, relates more to the topic of procedure than to that of jurisdiction, and for that reason will 4. be dealt with separately in the following chapter. Although S.9..(l) gives a juvenile court judge tremendous discretionary power, it also imposes certain limitations on the type of cases in which the waiver power can be exercised. According to that sub-section, waiver can only be ordered where: (1) the child has allegedly committed what, in the case of an adult, would be an indictable offence; (2) the child is "apparently or actually' - 121 -over the age of fourteen years; and (3) the judge is of the opinion that "the good of the child and the interest of the community demand it." While there never has been any doubt as to the meaning of the first of these three conditions precedent, the effect of the words "apparently or actually" in 5. the second condition has given rise to some uncertainty. However, the most controversial of the three has undoubtedly been the third requirement. Because the many reported cases prior tp 1970 have been exhaustively summarized ,6. and discussed elsewhere, we do not propose to undertake here a detailed review of the caselaw prior to that date. Instead we shall merely note two significant trends that are discernible in the numerous waiver cases reported between the years 1960 and 1970. The first trend was that the various 7. "cliches of waiver" - that is, the catch-phrases traditionally used by the appellate courts to justify the making of a waiver order - tended to be 8. 9. relied upon less frequently by the courts. Whereas the earlier reported cases regularly approved waiver on such diverse, vague, and questionable grounds as the "experimental" nature of the juvenile court, its suitability for trying only less serious offences, its lack of procedural protections, (including the absence of a jury, its "inability to evaluate technical defences", and its restrictive appeal provisions), the dangers of an in camera trial, and 10. the public's "right to know", a number of these grounds were specifically disapproved by many courts in the late 1960's. It was held, for example, that the propcsition that the "interest of the community" demands waiver of 11. all serious offences was no longer good law. Even in the case of a capital offence, where in the earlier cases waiver had always been required, it was held that "special circumstances" must be shown before it can be said that 12. the public interest automatically demands a .trial in open court. Further more, a growing number of courts refused to accept the argument that waiver - 122 -could be justified merely on the ground that the juvenile court is "experimental" or that it is unable to provide an accused with a fair trial. 13. In R. v. Liefso , Jessup J. of the Ontario Supreme Court stated that "the presumption must be that an accused will receive a fair trial before a Juvenile Judge and I do not think there can be any presumption that he will 14. have a better or fairer trial before a Supreme Court Judge and jury." 15. Similarly, in R. v. Sawchuk , Wilson J. held: ..Surely it is no longer necessary to refer to [the juvenile court] as an experimental court or to question the fairness to all concerned, delinquent and community alike, of its procedure. It is not for me to cast oblique doubts upon the capacity of the officers of another tribunal invested by Parliament with a duty to discharge functions which include what is now proposed. 16. A second major trend in the 1960's was the increasing emphasis on the type of treatments needed for the youth and the availability of such treatment in either the juvenile or adult court. Because the "cliches of waiver" had been primarily concerned with the type of trial available in either forum, the view was taken by some that a juvenile court judge, in exercising his discretion under S.B.. was limited to considering the relative advantages and disadvantages of the two alternative modes of trial in relation to the seriousness of the offence charged and the circumstances 17. alleged as to its commission. However, in R. v. Trodd (No.l.) it was decisively held that while these are undoubtedly considerations to be 18. taken into account, they are by no means the only relevant considerations. As Aiken J. noted in that case: Indeed, it is difficult to see how a Juvenile Court judge could reach any sensible conclusion as to what might be good for a juvenile and in the best interest of the community without care fully exploring the character and background of the juvenile, previous delinquencies, his response to previous corrective treatment and considering - 123 -the relative value, in the best interests of the particular juvenile, of the facilities for rehabilitation and correction available to a Juvenile Court judge and the facilities available to the ordinary Courts. 19. The leading case most often cited to support the "treatment-oriented" 20. approach suggested by Aiken, J. is R. v. Pagee(No.l.). Here, in considering the nature of the test laid down by S..9,. Bastin J. took the position that "the good of the child" must be taken to mean "the treat ment which will provide the eventual welfare by eradicating its evil tendencies and transforming its character" and that "community" must 21. refer to "society at large". Furthermore, in the course of his reasons for judgment, Bastin J. observed that the wording of S.9.. : ..emphasized the exceptional nature of such an order, which leads me to conclude that the opinion of the juvenile court judge must rest on cogent evidence as to the character of the juvenile. Logically, this will be ascertained from the circumstances of the indictable offence complained of, the school record and the record of past delinquencies of the juvenile, his family background and his state of maturity, so that the judge can intelligently answer the question: Is the limited treatment provided by sec. 20 of the Juvenile Delinquents Act of a nature to reform him or is he so mature or so incorrigible that his reclamation needs the harsher treatment provided by the Criminal Code, 1953-54, ch.51? 22. A great number of cases since Pagee have adopted Bastin J.'s "treatment-23. oriented" approach. While it is clear that waiver is only justified if 29. both the interests of the community and the good of the child require it, it has been held that "if there is a reasonable prospect of the reform of the offender his interest no less than that of the public requires that he 25. be dealt with in juvenile court." Do the post-1970 cases indicate further developments in the substantive law of waiver? In the province of British Columbia it seems - 124 -that the courts have continued to adhere quite closely to the 'treatment-26 oriented" approach laid down in Pagee. In R. v. Proctor, the juvenile before the court was almost eighteen years of age, had a long criminal record, and was charged with the serious offence of armed robbery. Not withstanding these liabilities, but primarily because of the unique offer by a police officer to take the accused into his home, Munroe, J. quashed the waiver order made in the court below. In his reasons for judgment, the 27. learned judge emphasized: (1) that a previous record and the serious nature of the alleged offence, although factors to be considered, are not conclusive and cannot alone justify waiver; (2) that the accused could be returned to the juvenile court any time before his 21st birthday if he should breach his probation; (3) the desirability, in the interest of both the accused and the community, of the accused avoiding a criminal record; 28. and (4) the inadequacy of the present adult penal system. In R. v. Bock a transfer order dealing with charges of theft, wilful damage, and murder was set aside on the ground of insufficiency of evidence to support that order. Citing R_j_ v. Pagee, Toy, J. reaffirmed the view that waiver must be justified by the good of the child as well as by the interest of the community and that J.D.A. , S.,9. does not require that the offence of murder be dealt in any different manner than any other indictable offence. Finally, 29. 30. in R. v. F., Meredith, J. quashed a waiver order, holding that "the principles governing applications for transfer from juvenile to adult court 31. are well expressed by Bastin, J. [in Pagee]" and that the key issue in any waiver application is whether, having regard to the accused's character, his reformation if convicted would be possible under the J.D.A. or could 32. only be achieved under the Criminal Code. Although there have been three other B.C. waiver cases reported since 1970, all of these deal primarily 33. with procedural issues and, consequently, have no bearing on this discussion. - 125 -In summary, it would seem that the view of the B.C. appellate courts as to this aspect of waiver has remained quite consistant over the past six years. All of the cases cited above adopt Pagee's "treatment-oriented" emphasis. In addition, the B.C. courts have deliberately placed less weight on the fact of previous delinquencies or the seriousness of the 34. offence, have insisted that the seriousness of the offence cannot by itself 35. justify waiver, and'-have emphasized, perhaps for the first time, both the importance of avoiding, if at all possible, a criminal record, as well as 36. the inadequacy of the treatment offered in the adult prison system. Finally, it is interesting to note that in all of the reported B.C. waiver cases since 1970 save one (and in that case the court was prevented by a 37. procedural obstacle from quashing the order) the appellate courts have set aside the waiver orders made by the lower courts. In Ontario, the three waiver cases reported since 1970 suggest the somewhat different direction in which the superior courts of that province 38. are moving. In R. v. Haig, the Ontario Court of Appeal overturned a juvenile court judge's refusal to order waiver on a rape charge and directed a trial on the merits in the adult court. The Court held that the juvenile court judge had erred in failing to recognize: (1) the importance of the type of the offence as well as the particular facts and circumstances surrounding its alleged commission; (2) the fact that protection of the public is an important factor in the "interest of the community"; (3) the principle that where a juvenile and an adult are jointly involved in the same offence, prima facie they should be tried together; and (4) the fact that the accused's age and the relevant provincial legislation would have precluded the juvenile court from sending the accused, if convicted, to a 39. training school. This last ground was clearly the dominant factor behind - 126 -the appellate court's decision: because the juvenile obviously needed supervision, training and treatment and because the disposition of training school would not be available through the juvenile court, the Court of Appeal was firmly of the view that both the interests of the community and 40. the long term good of the juvenile himself required that he be waived. An application for leave to appeal to the Supreme Court of Canada was 41. subsequently dismissed without written reasons. The two cases reported after Haig indicate the impact that that 42 decision has had on waiver practice in that province. In R. v. M. the judges of both the Juvenile Court and the Ontario Supreme Court approved the waiver of a 15-year-old on four separate delinquency charges, two involving breaking and entering and two involving rape. In the Juvenile Court, Felsteiner, J. cited Haig as to the importance of the nature and circumstances of the offence and held that waiver was justified both on the grounds of the community's interest (to protect citizens from such behaviour and to prevent similar occurrences) and the child's best interests (so "that he not have an opportunity to endanger his own liberty as well as the safety 43. of others until he can be helped to control his behaviour", and so that his 44. needs for psychiatric help and further education could be satisfied). As in Haig, the court's major concern was the inavailability of training school facilities. While Felsteiner, J. admitted that "the evidence...indicates that under either the juvenile or adult reformative system, there may be 45. glaring inadequacies in treatment for this boy," he still held that "since the training school authorities would have to release this boy in 26 months, 46. only the adult penal system has a chance to help him." In the Supreme Court, Houlden, J. , relying again on Haig, affirmed the waiver order made in the 47. 48. court below. In the most recent Ontario case, R. v. Chamberlain, a juvenile court judge's transfer order on a charge of attempted murder by a - 127 -15-year-old was first set aside by a judge of the Supreme Court and then re instated on a further appeal to the Court of Appeal. Although Schroeder, J.'s reasons were primarily concerned with the nature of the court's duty on an appeal from a transfer order, he did place considerable weight on the desirability of determining the accused's fate at the earliest possible date and the desirability of a public trial jointly with the co-accused in view 49. of the serious nature of the charge. Although none of these three cases contain any startling new approach to waiver, when viewed collectively they do yield some interesting features. To begin with, in contrast to the recent trend noted above in B.C., in all three Ontario decisions waiver orders were either restored or affirmed on appeal. Secondly, unlike the B.C. decisions reviewed above or even the 50. leading Ontario decisions of the 1960's, all of which downplay considerations such as the seriousness of the offence, these cases have tended to emphasize such factors as the serious nature and circumstances of the offence, the protection of the public, the importance of determining the accused's fate as soon as possible, and the desirability of trying joint charges together as reasons favoring trial in the adult courts. Finally, while the reasons for judgment in these cases still utilize the language of the "treatment-oriented" approach, one reading these reports is left with the feeling that this language may actually be little more than a judicial excuse to satisfy the "good of the child" requirement when in fact the court is more concerned with protecting the "interests of the community" (as determined by the seriousness of the offence and the possible threat to public safety). Although the decisions in both Haig and R. v. M.deal extensively with the accused's need for treatment and the inavailability of training school resources for the child before the court, one wonders why, - 128 -if the Courts were as concerned with the treatment available to the juvenile as they professed to be, they did not give any consideration to the other dispositions available in the juvenile court or even to the actual treatment facilities that would be available to the juvenile if convicted in the adult court. Surely, in,light of the "glaring inadequacies in treatment" 51. admittedly present in the adult penal system, a thorough evaluation of all of the treatment alternatives should be considered nothing less than a condition precedent to the making of any waiver order based, in whole or in part, upon the treatment needs of the child. 52. While the 1976 Saskatchewan case of Re C. indicates that that province seems to be following the same approach taken by the Ontario courts in Haig and R. v. M.,recent developments in Manitoba suggest that the courts of that province have embarked upon a third approach, one unlike either that of B.C. or Ontario. Five Manitoba decisions have been reported or referred to in reported cases since 1970. The two earliest ones are not particularly note-53. worthy for present purposes: in R. v. Mar tin the Manitoba Queen's Bench, relying on the principles in Pagee, quashed a transfer order; in 54. R. v. Woodhouse a judge of same court dealt solely with a procedural issue. 55. What is more interesting is the unreported 1972 decision of R. v. Cloutier and its subsequent treatment. In Clou tier the problem was the familiar one of whether or not to waive to the adult court a charge of non-capital murder against a 16-year-old. In the court of first instance, Johnston, Prov. Ct.J. applied the principles laid down in Pagee, Proctor, and Sawchuk and decided 56. to deny waiver. In the Court of Queen's Bench, Nitikman, J. allowed the appeal on the ground, inter alia, that the juvenile court judge erred "in failing to recognize that it was in the interests of the juvenile that he be 57. 5 transferred to adult court" and that transfer was required by the principle - 129 -58. laid down by Adamson, C.J.M. in Re Regina v. Paquin and De Tonnancourt that: [i] t is not in the interest of the accused nor in the public interest that the accused should be tried on a charge of juvenile delinquency by one man sitting in camera. What is said and done in such grave matters should not take place in camera: Scott v. Scott, [1913] A.C. 417. 59. Nitikman, J.'s decision was affirmed by the Manitoba Court of Appeal in a single sentence and leave to appeal to the Supreme Court of Canada was 60. subsequently denied. In the absence of a more complete report of the reasons for judgment in Cloutier, it is difficult to fully assess its significance. At the very least, it would appear to represent a rebirth in the Manitoba courts (and, perhaps, in the Supreme Court of Canada) of one of the oldest "cliches of waiver." The retrospective view of the trial judge in Clou tier suggests, however, that the case stands for a much broader principle. In his view: The law applying to transfer applications in this province appears to have shifted recently in a new direction. ... The Cloutier case, supra, seems to be a departure from the present standard to be arrived at in each case under s. 9 of the Juvenile Delinquents Act and suggests that in the case of serious offences  involving violence in the death of another or  grievous personal injury to the person of another, in such cases the good of the child and the interests  of the community both demand transfer to adult court albeit the power to transfer a juvenile to the ordinary courts is a discretionary one conferred upon the Juvenile Court judge. 61. 62 This view is not an isolated interpretation. In R. v. Edwards, Kopstein, Prov. J., after reviewing the caselaw including Cloutier, took the view that: ...in Manitoba the rule, or if notthe rule, at least the guideline which has emerged from the cases upon the issue of transfer is this: That where an application for transfer under s. 9 of the Juvenile Delinquents Act arises out of a charge, the facts pertinent to which suggest that the juvenile is implicated either actually or by operation of law - 130 -in a crime involving the infliction of violence of a cruel or vicious nature,- which violence has resulted in the death of another or in grievous personal injury to the person of another, the good of the child and the interest of the community demand that he or she be dealt with in the ordinary courts." 63. However, there are indications that not all Manitoba juvenile court judges 64. are content with this new "rule" or "guideline". In R. v. Mezzo, for example, Johnston, Prov. Ct. J. doubted the correctness of Nitikman, J.'s 65. reasoning in Cloutier and struggled to distinguish Cloutier and Edwards from 66. the case before him. Furthermore, his obiter comments on the last page of his judgment clearly indicate his dissatisfaction with the shift in emphasis which "the unenlightened" have urged the court to adopt and which, 67. presumably, he saw reflected in the Cloutier decision. Since reported cases represent only a minute proportion of those cases in which waiver has actually been considered and, at that, tend to represent more frequently the views of superior court judges than those of juvenile court judges themselves, one should hesitate to make any broad generalizations as to juvenile court practice on the basis of the cases considered above. However, on the assumption that, whether bound by precedent or not, lower court judges will generally follow the interpretations taken by the superior courts of that province, a number of observations can still be made. To begin with, it is particularly interesting to note that it has been the courts of Ontario and Saskatchewan, rather than those of B.C., that have been more inclined in recent years to order waiver because of the absence of training school facilities. In light of the fact that B.C. 68. has, since 1969, been without training schools entirely while both Ontario and Saskatchewan have had such facilities for offenders under certain prescribed ages, and the fact that, during that same period the maximum 69. juvenile court age in B.C. has been 18, and more recently 17, while that in - 131.,-70. the two other provinces has remained fixed at 16, one would have expected the B.C. courts, if any, to rely more frequently on this rationale for waiver. 71. Oddly enough, it appears that just the opposite has been the case. Secondly, there do appear to be certain very distinct differences in the approach taken by the superior courts of the various provinces surveyed. While the B.C. courts have seemed content with the treatment-oriented emphasis laid down in Pagee, the recent decisions in Ontario and Saskatchewan, although still citing treatment as an important consideration, have all tended to place greater weight on such factors as the seriousness of the offence and the protection of the community. Finally, although the ultimate impact of the recent unreported decisions in Cloutier and Edwards remains to be determined, the shift in emphasis suggested in those two cases cannot be ignored. While it should seem doubtful that Cloutier will be interpreted as laying down a hard and fast rule favoring the waiver of all serious offences involving violence 72. and resulting in death or grievous personal injury, the re-birth in Cloutier of some of the earlier "cliches of waiver" and the approval of Nitikman, J.'s decision by the Manitoba Court of Appeal and the Supreme Court of Canada may ultimately pose a serious threat to the present waiver philosophy of the courts in this province. In addition to the substantive law of waiver considered above and the procedural and evidentiary rules applicable to a waiver hearing considered 73. elsewhere in this paper, there is another aspect of the waiver process that has received some recent attention in the caselaw and merits comment here. While it has long been recognized that a juvenile court judge can transfer 74. on a lesser included offence and that once a transfer order has been made a 75. new charge must be laid to initiate the proceedings in the adult court, there has recently been some uncertainty as to whether the indictment in adult court may charge a juvenile with an offence different from that in respect of - 132 -76. which the order for waiver was made. In R. v. Goodfriend, the B.C. Court of Appeal held that where the Crown at the opening of a trial before a Magistrate withdraws the information charging the accused with the offence in which he was waived from the juvenile court (here possession of a narcotic for the purpose of trafficking), the Magistrate is without jurisdiction to accept a plea of guilty on a new information sworn before him charging another, though included, offence (here simply possession). However, one year later, in a case involving somewhat similar circumstances, 77. the same court took a very different approach. In R. v. Beeman, the Crown sought to prefer an indictment for counselling another person to commit gross indecency after he had already been committed for trial on a charge of attempted gross indecency. By a two to one majority, the Court of Appeal affirmed the decision of MacDonald, J. to the effect that: The Crown was entitled to prefer an indictment on a charge different from that which was the subject-matter of the order transferring the accused from the Juvenile Court. Once valid proceedings are begun in the ordinary Courts the accused is beyond recall to the Juvenile Courts. When an order is made under S.,9. of the Juvenile Delinquents Act its effect is that the accused is proceeded against in accordance with all of the provisions of the Criminal Code and not just aome of those provisions. 78. In upholding that decision, McFarlane J.A. indicated that the effect of the Goodfriend case ought not to be extended "beyond the precise matter there 79. decided." An application for leave to appeal to the Supreme Court of 80. Canada was subsequently refused. In the third case in this trilogy, Re 81. Woodhouse and The Queen, a juvenile was transferred on a charge of capital murder and discharged following a preliminary inquiry. When the Criminal Code was subsequently amended to alter the definition of capital murder, an indictment was preferred by the Attorney-General charging the accused with - 133 -non-capital murder. The Manitoba Queen's Bench dismissed the accused's application to quash the indictment, following Beeman and holding that the words "in that behalf" in S..9. are not to be construed as confining the transfer of jurisdiction to the strict form and language of the charge initially before the juvenile court. As was done in Beeman, the court distinguished Goodfriend on the ground that there "the power to amend had not 82. been invoked." Although, as has been pointed out elsewhere, the result in Goodfriend would seem to be more consistent with the language and intent of both S.9. and the J.D.A. itself, it would seem that Beeman and Woodhouse have, in effect, overruled that decision. Throughout the last twenty years, recommendations have frequently been made for changes in the law relating to waiver. Most notable among these have been the suggestions that certain cases should go initially to the adult courts subject thereafter to possible waiver to the juvenile court; that the discretion as to waiver might be better exercised by the crown attorney than 83. by the judge; or that the practice of waiver should be eliminated altogether. In recent years, encouraged by the decline in judicial popularity of many of the long-standing "cliches of waiver", some critics have again urged that the 84. waiver sections be deleted from any new legislation. Although the abolition of waiver would be a tempting step, we doubt that it is a practical one at 85. the present time. Rather, in light of the various alternatives, we are inclined to agree with the U.S. President's Task Force on Delinquency that it is "a necessary evil, imperfect but not substantially more so than its 86. alternatives." A number of factors would seem to make its retention inevitable. Even the most optimistic juvenile court supporters have recognized that many young offenders will fail to respond to the juvenile court's rehabilitative efforts, regardless of the extent of its available - 134 -87. resources. Similarly, the proposed raising of the maximum age will undoubtedly bring before the court many more older offenders charged with more serious crimes, thereby posing greater threats to public safety and security and placing even greater pressures on the court's time and available resources. It is probably because of these very considerations that the Dept. of Justice Committee, the draftsmen of Bill C-192, and the Solicitor-General's Committee all proposed the retention of the waiver procedure in substantially the same form as presently found in the J.D.A. v What changes do these three reform documents propose regarding waiver? To begin with, as can be seen from the summary of recommendations contained 88. in Table No. 4, all three have attempted to further restrict the type of cases in which waiver can be ordered. Both the higher minimum age for waiver and the narrower range of offences for which waiver can be ordered emphasize the exceptional nature of the procedure that is envisioned. In addition, attempts are made to remedy certain procedural defects under the existing legislation; the requirement of written reasons for judgment, the expansion of appeal rights, and the termination of a judge's further jurisdiction once he has considered a waiver application are all provisions aimed at clarifying uncertainty or filling gaps that have appeared in present practice. Of greatest importance, however, are the criteria proposed to govern the exercise of the discretion to waive jurisdiction to the adult court. In our discussion of the recent caselaw we suggested that in interpreting the J.D.A.'s test of "the good of the child and the interest of the community" most courts have fallen into one of two camps: those who base their waiver decisions primarily on the factor of "treatment potential" and others who are concerned primarily with the protection of the community. Focussing on both of these two key factors, the Justice Report's test would have allowed waiver either where the juvenile was "not suitable for treatment by any TABLE No.A - Waiver of Jurisdiction Provision* Re: (ft) Minimum Age (b) Types of offences (c) Test to be applied (d) Factors to be considered (e) Reasons for granting order (f) Variation of order (g) Miscellaneous J.D.A. 14 Any indictable Offences Judge must be of th< opinion that (i)The good of the child and the interest of the community demand waiver. , Judge must consider: (i) Background of the young person (ii) Circumstances of the offence [2. Judge may request and consider an assessment report. [RPT, pp.83] 1. Judge may rescind his own order. 2. Right of Appeal with leave, on special grounds Dept. of Justice Report 14 All Criminal Code offences plus those Federal or Provincial offences designated by Governor-In-Council [RPT, pp.82-83] Judge must find that: (i) Young person not suitable for treatment by any juvenile Ct. Facility , or (ii) Comnmnity's safety requires restraint for period longer than Juv. Ct. can order, *JRPT, pp.80-81] Judge mult give written reasons to adult court. rRPT, P.83] Right of Appeal 1. Parents' right to notice of waiver hearing. 2. Judge has additional power (which young person or crown can insist that he exercise) to transfer case to adult court for finding, subject to its return to juvenile court for disposi tion. [RPT, pp.81-82] 3. Suggestion of giving adult court judge power to waive to juvenile court offenders who are one year older than juvenile court's maximum age limi t. [RPT, pp.84-85] Bill C-192 14 All offences against Criminal Code or other Federal Statutes or Regulations [S.24(l)] Judge must find that: (1) Young person not suitable for commi ttal to any Juv. Ct. Fact 11 ty, (ii) Community's safety requires restraint for period longer than Juv. Ct. can order, and (iil)ll io in the interest, of the young person and the communf ty to make auch an order. * [S.24(2)1 1. Judge must consider: (i) Background of the young person (ii) Circumstances of the offence 2. Judge may request and consider an assessment report, 6.24(2)] judge must give written reasons If appeal filed. [S.24(5)3 Right of Appeal Judge who mikes or refuses waiver order loses jurisdiction over case. [S.24(3)(4^ Draft Act 16 All Federal offences that are indictable, except those listed la Code, S.483 and those also punish able on summary conviction. S.14(1)] ^ I ' • ' ' ' ' 1 Judge must be oi the opinion that: (i) Having regard to the needs and interests of the young person and of the public, the young person should be proceeded against in adult court. (S. 14.'!)] 1, Judge ciua 1 consider: (i) Seriousness of and circumstances surrounding alleged offence, (11) Young person's age, maturity, character, a tti tude and previous his tory, (iii) Adequacy of dispositions available] under code or other Act and this Act, (iv) Nature and effect of cousnuni ty services previously rendered, (v) Contents of a pre-diBposition report, (vi) Any repns, on behalf of young person or A-G S. 14f2) ] Just must file written reasons in youth court records. [S.14(4)J R ght of Appeal [S.42(2)1 Judgewlio makes order or examines pre-disposition report loses jurisdiction over case. [s.19] Judge has addi tional power to transfer case where so requested by young person over 16 yrs. of age if trial by judge and jury would be available in adult court. [S.14(3j Effect of transfer crder; suspends operation of act with respect to all other offences except those for which information already laid. [s.U(5)j *An additoo*1 condition precedent found in both the justice report's and Bill C-192's tests j that the juvenile is not subject to committal to a mental institution. Although an investigation as to sanity is not required as part of their waiver procedures, both the J.D.A. (through the relevant Criminal Code Provisions) and the Draft Act (through S.20) also provide special treatment for those found to be insane. - 136 -juvenile facility" or where "the community's safety requires restraint for 89. a period longer than the juvenile court can order." Bill C-192 adopted somewhat similar factors (plus the old test from the J.D.A.) but phrased them cumulatively rather than in the alternative, as was done in the Justice 90. Report. Finally, rejecting both of these approaches, the draftsmen of the YPICWTL Draft Act chose instead to rely on a test, virtually identical to that contained in J.D.A. S.9., based on "the needs and interests of the young person and the public", accompanied by a list of six factors that a 91. judge was directed to take into consideration. Do the Draft Act proposals represent an improvement over the waiver provisions in the J.D.A.? As suggested, the Draft Act's test is, for all practical purposes, identical to that in the J.D.A. The only significant change is the list in S.14(2) of relevant factors to be taken into account. Considering the latter first, it would seem that S.14(2) has retained all 92 93 of the more important factors suggested by the courts and the commentators while omitting those factors (especially those relating to the suitability of the juvenile court as a forum for trying serious offences) that are considered by most to be no longer justified. While we are generally in favor of this attempt to limit and guide the scope of judicial discretion, it should be noted that it still does not preclude a judge from taking into 94. account "any other factor that he deems relevant." As to the test proposed, we consider it unfortunate that the Solicitor-General's Committee saw fit to reject the more specific criteria suggested in the Justice Report and Bill C-192 in favor of such vague and indefinite terms as "the needs and 95. interests of the young person and of the public." If, as it seems, the only real grounds upon which juveniles should be transferred are the lack of appropriate facilities in the juvenile court or the community's need for - 137 -protection by providing longer periods of incarceration than are available in the juvenile court, it is hard to see why the test should not refer to these factors specifically, as was done in the Justice Report, instead of through vague and indefinite terminology which invariably permits uncertainty and other less relevant considerations to obscure the court's actual purpose. While some might argue that retaining language so similar to that in the J.D.A. will have the beneficial effect of perpetuating the applicability of the old caselaw, it is our opinion that the discrepancies in the interpretation of the old test that have arisen in recent years are not worth maintaining. Furthermore, just as applicable to-day as it was ten years ago is the Dept. of Justice Committee's warning as to the "danger... that without the direction and assurance that reasonably firm legislative guidelines provide, waiver of jurisdiction will tend to become an expression, not of any consistent policy, but of the predilections of individual 96. juvenile court judges or of local pressures upon them." As a result of these considerations, we see no reason in favour of the retention of the provision 97. in the J.D.A. which more than one judge has termed "poorly drafted". Instead, we would have preferred that the Committee adopt the more specific, two-pronged test suggested in the Justice Report. Another noteworthy provision is that relating to the effect of a transfer order on the juvenile court's jurisdiction over other offences committed by that young person. The Draft Act proposes that in such a case, provided that an information regarding the second charge is not laid before the transfer of the first charge, the transfer has the effect of suspending the operation of the Act with respect to that young person, and the Crown then has the option of either proceeding with the second charge directly in adult court or waiting until the suspension is terminated (ie - the first - 138 -charge is disposed of and any sentence has been completed) and then 98. proceeding in juvenile court. According to the Report, the reason behind this provision is to allow the adult court proceedings to be terminated and 99. to reduce the "multiplicity of proceedings and potential inconsistencies." It is submitted that this provision is manifestly unjust and that it has the potential for great abuse at the hands of the Crown. Merely because a juvenile court judge has seen fit to raise one particular charge to the adult court does not guarantee that a second, unrelated offence should also properly be waived. Clearly "the degree of seriousness of the alleged offence and the circumstances in which it was allegedly committed" (one of the factors noted in section 14(2) ) might not require transfer of the second char_ge. If the young person is not prepared to consent to waiver, he should not be forced to sacrifice his right to an independent assessment by a juvenile court judge for each offence with which he is charged. One province in which the Draft Act's proposals may give rise, to certain special problems is that of B.C. As a result of the provincial government's repeal of the Training Schools Act in 1969 so much pressure was placed on the juvenile courts and their other existing facilities that in 1973 the province found it necessary to reduce the maximum juvenile court age 100. from 18 to 17. If the Draft Act becomes law and the maximum age is again established at 18, one can expect that the problems that came to a head in B.C. in 1973 will be revived anew. While in any other province a substantial influx of 17-year-old offenders could simply be dealt with by the liberal use of the waiver power, such an approach would appear to be somewhat less practicable in B.C., where, as we have seen, both governmental and judicial policy frowns on the liberal use of that procedure. Furthermore, nothing in the wording of S.14 of the Draft Act would appear to necessitate any change - 139 -in this policy. As a result, it would seem that if and when the Draft Act becomes law, those involved in the administration of juvenile justice in that province will have a hard choice to make as to how the many older and more dangerous juvenile offenders are to be dealt with. On the one hand, if they are to be dealt with in the juvenile court, it would seem to be an absolute necessity that some sort of secure custodial facilities be provided. On the other hand, if they are to be treated in adult court, both the provincial government and the courts will be forced to make a radical shift from their current attitude towards waiver. While it is still too early to predict which route will ultimately be followed, recent policy statements by both politicians and law reformers in this province have suggested that the 101. former avenue may be the more likely alternative. - 140 -CHAPTER 4 PRACTICE AND PROCEDURE IN THE JUVENILE COURT A. General The one aspect of juvenile justice that is usually of most practical interest to lawyers is that of practice and procedure in the juvenile court. The relevant statutory provisions contained in the J.D.A. can be summarized quite briefly. The general rule regarding prosecutions and trials under the J.D.A. is that, except as provided in that Act, they are to be summary in nature and are to be governed mutatis mutandis by the provisions in the Criminal Code relating to summary convictions insofar as such 1 provisions as applicable. The major exceptions to this rule are found in subsections 17(1) and (2) which provide, respectively, that proceedings under the J.D.A. with respect to children, including the trial and disposi-2 tion of the case, "may be as informal as circumstances permit, consistent with a due regard for a proper administration of justice", and that no adjudication with respect to a child shall be quashed or set aside "because of any informality or irregularity where it appears the disposition of the case was in the best interests of the child". Other specific 3 provisions in the J.D.A. deal with the powers of the juvenile court judge, 4 the appointment, powers and duties of probation officers, the court's 5 power to waive jurisdiction to the adult court, the giving of notice of 6 proceedings to a child's parents or guardian, pre-trial detention, release 7 from detention, and adjournments, publicity and the admission of the 8 public to juvenile proceedings, the admission of evidence of children of 9 10 tender years, the procedure relating to appeals, and various other 11 housekeeping matters. The reasons why the first American juvenile courts, and subsequently the Canadian J.D.A., were drafted so as to encourage procedural informality - 141 -as opposed to traditional criminal law procedures were discussed in depth 12 at the outset of this paper. It will be recalled that the prevailing philosophy dictated that a child's only right was that of care and custody, 13 rather than that of liberty. With this in mind, the draftsman sought to create an informal and flexible procedure in which the judge, in the role of the kindly and protective father, would uncover the source of the child's difficulties and then prescribe the rehabilitative measures most likely to further the child's interests and welfare. In such a setting the requirements of traditional criminal procedure were considered not only unnecessary but also detrimental to the very objectives of the juvenile court process itself. They were considered unnecessary because the entire process was designed as a benevolent and therapeutic onef, one in which the court's sole objective was that of administering treatment for individual needs, rather than punishment for wrongdoing. They were considered destructive for a number of reasons. To begin with, a formal trial procedure was considered inevitably associated with the criminal law, the atmosphere and premises of which the juvenile court was determined to avoid. Secondly, it was thought that the rigid constraints of a formal and structured procedure would prevent the court from going beyond the particular offence which precipitated the hearing and delving, where it thought it appropriate, into a broad range of matters relevant to the child's background, including both his previous conduct and his associations. Finally, it was felt that the creation of a competitive, adversarial atmosphere would impede the court's attempts to encourage the child to ^14 co-operate with and to assist the court in its ir^h'ablDMtt^eiveffeff&rfcs. Despite the occasional criticism from the legal profession, the informal juvenile court procedure was generally endorsed and encouraged for most of the first half-century of its existence. In recent years, - 142 -however, an increasing number of critics concerned about the dangers of arbitrariness and unfairness arising from relatively unfettered judicial discretion, have deplored the traditional juvenile court's failure to provide safeguards for the legal rights of children. In the United States, the President's Task Force on Juvenile jDelinq.uencyoho.ted"'hot">ipng ago: Scholarly commentators have been virtually unanimous in decrying the injustices and harmfulness of completely abandoning procedural protections. Only rarely in recent years is a voice heard in praise of the old ways. Legislative studies in a variety of States reflect the 'same judgement. 15 A similar view has been expressed by a Canadian commentator: A decade of critics have questioned whether, in ministering to the rehabilitative needs;,of children, juvenile courts have perhaps lost sight of the obligation to do so with procedural fairness and in a manner which ensures that their factual determinations are accurate. 16 What are the reasons behind this widespread disaffection with the original philosophy of the juvenile court as to legal protections? To a certain extent, it might just be viewed as a reflection of the recent expansion of the post-World War Two American -S§Yr±l rights movement to encompass the rights of children, as it did blacks, native peoples, and women earlier. However, clearly there are other reasons more specific to the juvenile court. In recent years, it has been recognized that no judicial intervention can be successful unless it is based on an accurate determination of the facts, including both the facts of the conduct giving rise to the court's jurisdiction and also the facts likely to be relevant 17 for disposition. By the same token, many now argue that any State interference with the rights and liberties of individuals (which any juvenile court involvement invariably constitutes), no matter how beneficent and enlightened the underlying intent, can be morally justified only if - 143 -the State has firstestablished its right to intervene and then undertakes its intervention in accordance with and subject to the limitations of a formal, defined procedure consistent with what we know today as "due process". 19 Following the approach developed earlier in this paper, it may be argued that because the juvenile court has failed to develop the expertise necessary to accurately assess and rehabilitate delinquents, the entire basis for the court's reliance upon the parens patrtirae doctrine, and for the consequent informality of procedure in juvenile matters, has become question-20 able. Similarly, critics such as Fox have adopted the view that since a finding of delinquency has become nearly as stigmatizing as a criminal conviction, and since the juvenile courts of today, like the criminal courts, tend to rely greatly on the same traditional ways of protecting society (e.g. - de-ter.ren'ce, condemnation, and incapacitation) and on the same restrictive and stigmatic means of correctional treatment (e.g. - fines, probation, and constitutional commitment), it is hardly justifiable to trade 21 valuable procedural and substantive civil rights for debatable benefits. Finally, it has been suggested that the informality of the juvenile court may itself constitute an additional impediment to effective rehabilitation. Although there has been no conclusive evidence to support this position, it has been reinforced by a number of sociological studies ill.ustrating the 22 23 sense of injustice, the feelings of inadequacy and frustration, and the 24 attitudes of resentment and/or intimidation acquired by many children 25 as a result of their experiences in the juvenile courts. What has been the effect of this dissatisfaction on practice and procedure in the juvenile court? In the United States, as we have seen 26 earlier, the major initiatives for reform have arisen through a series of Supreme Court decisions dealing with such matters as the minimum 27 procedural requirements for a valid waiver proceedings, the procedural - 144 -28 safeguards to be applied in the adjudicatory stage of a delinquencyhearing, 29 the standard of proof applicable in juvenile court proceedings, and the 30 right to a jury trial in juvenile court. In Canada, in the other hand, although there have been statements in a number of cases to the effect that juvenile court proceedings must be conducted according to the principles of due process and in a manner consistent with fairness and fundamental 31 procedural safeguards and certain cases have suggested general minimum procedural standards and requirements that should be adhered to. at specific 32 stages in the juvenile court proceeding, the courts (and particularly the appellate courts) have generaMy.. been much more loathe to embark upon any 33 major restructuring of the informal proceeding envisioned by the J.D.A. However, the demand for procedural safeguards has not subsided. On the contrary, its influence has been apparent in both the Justice Report and Bill C-192 and most recently in the YPIQWTL Report. Indeed, as we noted in the preceding chapter, the elimination of arbitrary treatment in the trial process, by means of incorporating new substantive and procedural 34 safeguards into that process, has been a major theme in all three documents. In this chapter we propose to examine in greater detail some of the areas in which, the demands for due process for juveniles have in the past clashed with the J.D.A.'s traditional approach, how (if at all) the courts have attempted to resolve these conflicts, and finally the reform proposals contained in the Justice Report, Bill C-192, and the YPICwTL Act, and some of their implications. - 145 -B. Counse1 There is no single action that holds more potential for achieving procedural justice for the child in the juvenile court than provision of counsel. The presence of an independent legal representative of the child, or of his parent, is the keystone of the whole structure of guarantees that a minimum system of procedural justice requires. The rights to confront one's accusers, to cross-examine witnesses, to present evidence and testimony of one's own, to be free of prejudicial and unreliable evidence, to participate meaningfully in the dispositional decision, to take an appeal - all have substantial meaning for the over whelming majority of persons brought before the juvenile court only if they are provided with competent lawyers who can invoke those rights effectively. 1. As the above passage forcefully suggests, the presence of counsel has been the major issue in the attempts to reconcile the demands for due process with the philosophy and rehabilitative objectives of the juvenile court. In fact, the right to counsel actually comprises not one, but three distinct rights: the right to be represented by counsel at various stages of a proceeding, the right to have counsel appointed or provided by the court or the state when one is unable to retain counsel without such assistance, and 2. finally the right to be meaningfully advised of those rights. In the United States, the turningpoint in the establishment and recognition of all 3. three rights was undoubtedly In re Gault. In that case, the U.S. Supreme Court, dealing for the first time with the question of the minimum procedural safeguards that were to be accorded a juvenile in the adjudicatory stage of his hearing, held that he and his parents were entitled to be advised of his right to be represented by counsel; furthermore, if he or his parents were unable to afford legal counsel, he was entitled to have such counsel 4. appointed by the court. In Canada, although the juvenile courts have been faced with similar problems, the development and expansion of the right to - 146 -counsel has been, as one might expect, a much slower and more tentative process. For the same reasons that it was sought to avoid the formalities of criminal procedure, the draftsman of the J.D.A. did not wish to encourage the presence of counsel in juvenile courts. As one juvenile court judge has explained: "since at the heart of the juvenile court movement was the vision of the court as a benevolent parent dealing with his erring child, the view was widely held that legal counsel could serve little function...other than to obstruct and delay the providing of necessary diagnosis and treatment by 5. pettifoggery and technical obstructionism." As a result of this attitude, the J.D.A. does not contain a single reference to defence counsel. Instead, it assigns to the probation officer the responsibility of representing the 6. interests of the child at the hearing. In light of the above it would seem necessary to ask: does a juvenile, appearing in proceedings brought against him under the J.D.A., have the right to be represented by counsel? There seems to be little doubt that the answer is 'yes'. There would seem to be no reason to believe that sections 2(c)(ii) ("the right to retain and instruct counsel") and 2(e) ("the right to a fair hearing in accordance with the principles of fundamental justice") of the Canadian Bill of Rights would not apply to a juvenile in a delinquency proceeding. In addition, there is a reported decision of a single judge of the B.C. Supreme Court in which a transfer order was quashed, inter alia, on the ground that the juvenile was denied the presence of his counsel on the hearing of the merits of the 7. application to transfer. It would not seem unreasonable to assume that the same principle would apply during other stages (e.g. - adjudication, 8. disposition, etc.) of a delinquency proceeding. Perhaps most directly on point is section 737(2) of the Criminal Code which provides that "the... - 147 -defendant...may examine and cross-examine witnesses personally or by counsel or agent" and which is made applicable to juvenile court proceedings by 9. sections 5(1) and 35(2) of the J.D.A. Clearly this section would appear to be authority for the right to be represented by counsel, at least at the adjudication stage of the proceedings. Finally, although up until recent years lawyers have generally played a very minimal role in representing 10. children in the juvenile court, to-day the presence of defence counsel in a juvenile matter would by no means constitute an unusual or controversial occurrence. Unfortunately, there are still some juvenile court judges who actively discourage parents from retaining counsel, suggesting that it would 11. be a needless expense and would have little effect on the result of the case. Although there does seem to be a right to counsel in juvenile court proceedings, there does not appear to be any right to be given notice of that right. Although section 10(1) of the J.D.A. requires that the parents or guardian of a child be given "due notice of the hearing of any charge of delinquency," it does not specify that such notice must also advise of the 12 right to counsel. In the case of Smith v. The Queen ex. rel. Chmielewski, the Supreme Court of Canada quashed a finding of delinquency on the ground that section 10(1) was not complied with in that the notice given did not refer to the nature of the charge or to the time and place of the hearing that eventually took place. Although no notice of the right to counsel was given, nor did any counsel appear at the hearing, this deficiency was not raised as a ground of appeal nor was it referred to in any of the judgments 13. as a possible ground for invalidating the proceedings. As a result of the 14. narrow requirements of section 10(1) and the approach taken in Smith and a 15. number of similar decisions, one is led to believe that there is no right to advance notice of the right to counsel in delinquency proceedings. In 148 -practice, although most judges do usually advise parents of the right to obtain counsel, invariably it is not done until they appear in court, at which time the necessity of an adjournment to obtain counsel together with the resulting inconvenience and possible loss of another day's work has the 16. effect of discouraging most parents from exercising this right. Finally, the third aspect of the right to counsel, namely the provision of free legal counsel to those unable, for financial or other reasons, to obtain their own, has .long been and continues to be a serious and pressing problem, although it has been alleviated somewhat in recent years by the development and expansion of public defender, law guardian, and 17. legal aid programmes in certain jurisdictions. When the Department of Justice Committee turned its attention to the question of the need for counsel in delinquency proceedings, its first step was to declare that the J.D.A.'s allocation of defence-counsel responsibilities 18. to the probation officer was a "serious error". In its view, not only does the probation officer's heavy work load unvariably make the carrying out of this additional task impossible, but the provision is also unsound in principle, for the probation officer's primary responsibility must always be 19. to the court and not to the child. Nor is it reasonable to expect the juvenile court judge to perform the function of representing the child's 20. interests. As a result, the Committee took the view that a juvenile, like any adult, is entitled to be represented by counsel "in any proceeding where 21. [his] liberty or property may be affected," and that in the context of a juvenile court proceeding, the right can only be meaningful if notice of that 22. right is given well in advnace of the trial date. Accordingly, it recommended that the notice to a parent informing him of his child's appearance in juvenile court should contain a statement that the child is - 149 -23. entitled to be represented by counsel. The Committee was much more tentative in its recommendations in regard to the third aspect of the right to counsel, namely, the right to free legal assistance. Having accepted the proposition that every person has the right to the assistance of counsel, it agreed that the failure to provide counsel to indigent defendants is a violation of basic 24. human rights. However, rather than endorse any particular system for the delivery of appropriate legal services, it only went so far as to recommend that the legal profession should study, with a view to its introduction in Canada, the "law guardian" system contained in the then-recent New York 25. Family Court Act. Finally, because of the fact that many juvenile court judges were not legally trained, it suggested to the provincial authorities that there should always be a crown attorney or a similar officer, instead of an untrained police officer, representing the prosecution in all juvenile 26. court proceedings. Both Bill C-192 and the Y.P.I.C.W.T.L. Report followed the Justice Committee's first two recommendations but stopped short of implementing the 27. third. Bill C-192 would have required that a juvenile charged with an offence 28. must be notified of his right to engage counsel to represent him. However, rather than provide free legal counsel for those unable to afford their own, the Bill merely permitted a judge, in the absence of counsel, to allow a parent or other adult to represent a child, or, alternatively, to put 29. questions himself to witnesses ai the juvenile's behalf. Dealing with the related problem of admissions, the Bill provided that no admission by a juvenile would be admissible unless, before making the admission, the young 30. person was assisted by counsel, a parent, or some other person. The Y.P.I.C.W.T.L. Report followed generally the same approach. It made it clear that a young person was entitled to be assisted by a lawyer retained by or for him during all proceedings (including pre-trial and post-dispositional - 150 -31. proceedings) and that notice of this right was to be given to his parents 32. upon his arrest, detention, or otherwise prior to trial and to the young 33. person himself when he appears in court. It also provided that a juvenile could be represented by any responsible person at any stage of the proceedings, except at the trial itself (unless no lawyer is reasonably 34. available and the judge so permits) and that no written statement given by a young person would be admissible in evidence unless he had fiist been given 35. the opportunity to consult with a lawyer, parent, or adult friend. As in the case of its predecessor, the Report declined to require that free legal 36. services to be made available to those unable to obtain their own. The fact that so few changes were introduced in the Draft Act from that contained in Bill C-192 and the rather brief discussion of the right to counsel in the Y.P.I.C.W.T.L. Report might lead one to conclude that the Solicitor-General's Committee felt that there were no longer any contentious issues surrounding the provision of counsel in juvenile court. If that is, in fact, the view taken by the Committee, it would seem that it was mistaken, for there does appear to be a body of public and professional opinion that 37. still opposes any expansion of the use of counsel in juvenile court. Some, for example, have expressed the fear that lawyers will import into juvenile court proceedings the worst features of adult criminal procedure, including unnecessary emphasis on technicalities and legalisms, habitual reliance on delaying tactics, and preoccupation with "getting the client off" rather than 38. concern for the broader general welfare of the child. Another argument often heard is that lawyers are actually unnecessary in juvenile court because in the vast majority of cases the adjudication stage is substantially abbreviated by virtue of a guilty plea and because a lawyer can be of little assistance 39. to his client or to the court in the determination of disposition. Similarly, - 151 -it is sometimes suggested that by introducing defence counsel and creating a more adversarial atmosphere there is a danger that the prosecutor may tend to become more competitive, more aggressive, and less attuned to the welfare of 40. the child. Finally, it has been argued that "procedural protections...will seriously damage any attempt to reintegrate the juvenile and treat him within 41. the community" and that "every effort should be directed to oppose the advent of rigid adversary procedures that will bring hostility and social ostracism 42. to the juvenile." Although each of these arguments carry some validity and weight and therefore cannot be dismissed out of hand, it is suggested that in the final analysis they must yield to greater countervailing considerations. To begin with, although there is, admittedly, a danger that some counsel may tend to adopt the same rigidly adversarial approach to juvenile matters that they have developed for use in adult criminal trials, one would expect that the majority of judges would be able to control even the most dilatory, repetitious and 43. argumentative lawyer. In addition, where one draws the dividing line between "pettifoggery and technical obstructionism" and responsible representation obviously depends to a large extent on one's perspective of the juvenile process. As the U.S. President's Task Force noted: Effective representation of the rights and interests of the offender inevitably appears to those accustomed to complete freedom of decisionmaking as needless obstreperousness and dilatoriness. Of course law is an irksome restraint upon the free exercise of discretion. But its virtue resides precisely in the restraints it imposes on the freedom of the probation officer and the judge to follow their own course without having to demonstrate its legitimacy or even the legitimacy of their intervention. 44. - 152 -Contrary to the view held by some, it seems clear that there ts_ a need for lawyers at both the adjudication and disposition stages of the proceedings. As the Justice Committee and numerous others have suggested, many of the responsibilities traditionally delegated to judges and probation officers can 45. only be adequately performed by independent legal counsel. Although it is true that a vast majority of children tend to plead guilty to the charge 46. against them, it is not unlikely that in many cases such a plea can be a result of a child's misapprehension of the facts or of the law, or of subtle 47. situational pressures on him to confess. In addition, there is considerable evidence that, aside from his obvious role in the adjudication stage, the lawyer can often be instrumental at both intake and disposition, clarifying the facts upon which decisions can be based, critically analyzing the opinions and reports of probation officers and other witnesses, and offering 48. alternative plans for either diversion or disposition. As the New York Family Court Act states: "Counsel is often indispensable to a practical realization of due process of law and may be helpful in making reasoned determinations of 49. fact and proper orders of disposition. Similarly, the view that prosecutors will likely respond to the increased participation of defence counsel by adopting less than benevolent objectives has been rightly deemed "unwarranted 50. and uncharitable" by one commentator, and has been discredited by recent 51. empirical evidence. To the extent that there may be a tendency to respond to the presence of counsel with stronger prosecutorial representation, it has been suggested that a proper delineation of : the prosecutor's role.would adequately protect against any threat to the court's rehabilitative aims and 52. functions. Finally, we disagree with the proposition that an increase in the use of lawyers would have the effect of increasing significantly the trauma and stigma which the informality of the juvenile court was designed to avoid, - 153 -53. thereby subverting the goals of the entire process. As we have noted earlier, there is evidence to suggest that even under the present system, considerable 54. stigma and trauma is associated with the juvenile court process. Furthermore, given the proposed increase in the use of pre-trial diversion, it is not unreasonable to assume that under the new legislation only those offenders who have already been stigmatized and found delinquent on previous occasions 55. will be dealt with by the court. Nor does the evidence from those jurisdictions where defence counsel have appeared in juvenile court on a regular basis seem to substantiate any of the gross distortions of the juvenile justice system that have been predicted as a result of the participation of counsel. On the contrary, the experience under the New York 56. 57. law guardian and California public defender systems, in a number of American 58 juvenile courts after Gault, and in the few Canadian courts operating with 59. legal aid duty counsel present on a regular basis, tends to disprove the theory \ that the introduction of defence counsel would inevitably hinder the court's welfare functions or import into the juvenile court process disruptive and 60. detrimental influences. Having concluded that the presence of legal counsel in juvenile court is both justified and desirable, a second question must then be faced: do the most recent Canadian reform proposals go far enough? As we have seen, the Y.P.I.C.W.T.L. Draft Act provides only that a young person is to be notified of his right to the assistance of counsel (or, in lieu of counsel, to that of some other responsible person, subject to certain restrictions) during any proceedings pursuant to that legislation. Such a proposal is clearly quite conservative compared to that enunciated by the U.S. Supreme Court in Gault, whereby free legal counsel was to be supplied to any child unable to retain his own. Should any new legislation attempt to duplicate - 154 -this aspect of Gault? Even prior to the publication of the Y.P.I.C.W.T.L. Report, some commentators were arguing that this question must be answered in the affirmative. MacDonald, for example, suggested that in the light of the fact that most young persons appearing in juvenile court come from low income families unable to afford a lawyer, no legislative attempt to protect the legal rights of children could be meaningful unless it guaranteed legal 61. counsel at public expense. Others, such as Grygier, were quick to point out the dangers inherent in allowing other persons, such as a child's parent or 62. guardian, to assist him in conducting his defence. Clearly, if we do agree with Fortas, J. that "the right to representation by counsel is not a 63. formality...it is the essence of justice," it can hardly be argued that any progress at all has been made in the attempt to provide "justice" for juveniles in this country until free legal counsel for all those unable to obtain their own has become a reality. Similarly, if the provisions in the preamble to the proposed Draft Act guaranteeing a -young person "a right to special safeguards and assistance in the preservation of [ their] rights and freedoms and in the application of the principles stated in the Canadian Bill of Rights and else where" and "a right to be heard in the course of, and to participate in, the processes that lead to decisions that effect them" are to be meaningful at all, it would seem that there must be some sort of statutory guarantee that all young persons, rich or poor, will be able to call on counsel to represent their interests in any proceeding under that Act. The current experience in most Canadian courts, whereby all children have the "right to retain counsel" yet few actually do, demonstrates how devoid of meaning that "right" is for those typically the subjects of juvenile court proceedings. In response to those who might suggest that the absence of lawyers merely reflects the lack of any real need for them, we would point to the experience in New York where the enactment of legislation allowing for the appointment of law guardians brought - 155 -a dramatic increase in the number of juveniles represented by counsel over the number that were so represented prior to the new Act, when all the juvenile 64. had was the mere "right" to retain counsel. In addition, the experience in numerous jurisdictions suggests that the provision of counsel should not be dependent on any request for counsel or waiver of that right by either a child 65. or his parents. With this point we heartily agree. For these reasons, we firmly endorse the recommendations of the U.S. President's Task Force that: "Counsel should be appointed as a matter of course wherever coercive action is 66. a possibility, without requiring any affirmative choice by child or parent." A difficult question is how and by whom such counsel is to be provided. Although certain commentators have urged that any new federal legislation should attempt to guarantee legal counsel as of right for all young persons 67. dealt with under that legislation, it is not clear how that could be done. Even if the federal government did agree with the suggestions in the Justice 68. 69. Report and elsewhere that a "law guardian" (ie - a government-funded public defender for juveniles) system comparable to that in New York State would be the best means of delivering free legal services to those in need, it is very doubtful whether the federal government would have any consitutional jurisdiction to establish and operate such a program. The Solicitor'General's Committee seems to have recognized this fact, for although it acknowledged having considered including in the Draft Act a section dealing with the provision of counsel, it ultimately decided against doing so on the ground that such a matter "concerns more the availability of legal services and funds and a provision in legislation would not alone be sufficient to ensure the 70. development or availability of these resources." For this reason, the Committee chose to leave the responsibility for the development of these "resources", be they permanent child advocates, law guardians, duty counsel or public defender services or merely broader availability of legal aid, to the - 156 -71. various provincial authorities. We have no quarrel with the Committee's decision to leave the development of these services to the provinces, for it seems that constitutional realities left it little otherchoice. Nor do we propose to decide which of the various suggested methods of delivery of legal services should be adopted by any or all of the provinces. Clearly such decisions must be based not only on the results of a comparison of a wide varity of existing and proposed programs, but also on considerations of 72. local demand and the most efficient means of utilizing available funds. However, there is reason for concern that unless the federal government establishes some commitment to or guarantee of the right to state-financed legal counsel, many provinces may be unable or unwilling to develop the needed resources. If this occurred, and there is reason to believe that it 73. might, not only would many young persons be effectively denied the benefits of their "right" to counsel, but, in addition, many of the same regional inequities and disparities that have long been deplored in regard to the application of the J.D.A. itself, to the availability of qualified judges and probation officers, and to access to needed treatment resources would be perpetuated in regard to the availability of legal counsel for the indigent. What can the federal government do? It is suggested that it can and should include in the new legislation a declaration that every young person dealt with under that legislation is not only entitled to be notified of his right to counsel but that he is to be provided with such counsel by the court or 74. otherwise if he is unable to retain his own. Notwithstanding the reservations 75. expressed by the Solicitor-General's Committee, it would seem that such a provision would undoubtedly put the necessary pressure on the provinces to develop schemes for the provision of the requisite resources. But such action alone would not be enough. Having taken such a step, the federal government - 157 -would then have a responsibility to assist in the development and operation of those services. To this end, we would endorse the recommendation that the federal government commit itself to the provision of funds for the development of such services, either through the expansion of the Canada Assistance Plan to include the provision of legal services to juveniles or by the creation of a separate federal-provincial cost-sharing plan-dealing solely with that 76. matter. Only in this way would the provision of needed legal services for all Canadian children that come in conflict with the law become a reality. As one Canadian juvenile court judge recently wrote: [u]ntil all courts have the services of a lawyer to appear on behalf of all young people appearing before our courts, justice will be left undone and many of Mr. Justice Fortas' criticisms [ in Gault ~\ will remain valid. 77. The problem of the right to counsel in juvenile court is indeed a complex and multifaceted one. No sooner does one decide that a child is entitled to be represented in juvenile proceedings, than he is faced with a whole battery of accompanying questions: Who does the lawyer represent, the child or the parent? Should indigency be the sole test for the provision of government-supported counsel? Can the right to counsel ever be meaningfully waived, and if so, by whom and in what circumstances? Although the 78. experience in other jurisdictions suggests answers to each of these problems, there are innumerable others that have yet to be answered. One issue that has yet to be resolved is that of the proper role for counsel for the child in juvenile court proceedings. It seems that, particularly in the United States, in the rush to declare and implement the right of the juvenile to legal representation, most courts and legislatures either forgot or deliberately declined to define with any precision what the 79. role of the child's counsel was to be. In the years following Gault, some confusion has arisen in a number of American juvenile courts as increasing - 158 -numbers of lawyers, trained in the adversarial system, suddenly found themselves thrust into a new and unfamiliar setting. More than one study has demonstrated the difficulties experienced by some judges, probation 80. officers, and defence counsel in defining their respective roles. A series of recent empirical studies conducted in the juvenile courts in Toronto have revealed similar uncertainty and inconsistency regarding the role of 81. duty counsel and private defence counsel in Canadian courts as well. In 82. 83. addition, there is a rapidly growing body of Canadian and American literature dealing with this very issue from various different perspectives. However, despite the considerable amount of attention this problem has received, no clear, concise and practical guidelines for the uncertain defence counsel have found general acceptance in the legal profession. The stage of the proceedings wherein the defence lawyer's role seems most in doubt is that of adjudication. The basic question has been whether or not the lawyer should use tactics inherited from criminal court practice, and if so, to what extent? As stated by the McRuer Commission, the problem is that the juvenile courts judge's rehabilitative function: ...can not be properly performed if he is surrounded by too many legalistic trappings; nevertheless there must be some basic ones... It is most difficult to lay down specific rules ...which would adequately protect the civil rights of those appearing before [the court], without unduly limiting the court's social function. 84. Because of a lack of such "specific rules" or even general judicial or legislative guidelines, a lawyer undertaking juvenile court work has generally been left to his own devices to decide; - 159 -...is he an advocate in the traditional legal sense of the term, defending in every available ethical way, the rights of his juvenile client? Or is he a legal officer doing social work ... striving to conciliate conflicting parties in a manner that will serve the ultimate "best interests" of the juvenile? Or is his responsibility some kind of an amalgamation of the two roles, so that he is at times an unrelenting legal advocate for his client, and at other times a willing social disciplinarian of youth? 85. As is apparent from a review of the literature, "expert" opinion on this issue is quite divided. While many commentators feel that the lawyer should limit his use of "legal tactics" so as to avoid any possibility of obstructing the 86. rehabitative efforts of the court, others, including the U.S. Supreme Court, 87. have taken a more rigid, legalistic approach. A third body of opinion, rejecting the extreme positions taken by both the "rehabilitative group" and the "advocate group" (as they are some times called) argues that these two functions are not mutually exclusive. This group suggests that a defence lawyer should perform the tri-partite function of defending the juvenile client's legal rights, acting to further what he perceives to be the child's best interests, and fulfilling his obligation, as an officer of the court, "to interpret the court and its objectives to both parent and child, to prevent misrepresentation and perjury in the presentation of facts and.to disclose to the court all facts and circumstances which bear upon the proper 88. disposition of the matter." However, as even the supporters of this position admit, experience has shown how rarely all three of these functions can be 89. accommoda ted. Much less controversy has arisen regarding the role of defence counsel 90. at the dispositional stage. Although, as we have noted earlier, there are still some who insist that because this stage is more social in nature than 91. legal, it allows no role for the lawyer to play, most critics agree that there - 160 -are a number of functions arising out of the dispositional process that 92. independant counsel is best equipped to fulfil. Although there are differences in the manner in which those in the "advocate" and those in the "rehabilitative" schools regard the lawyer's exercise of these functions (the former encouraging, the latter at times only tolerating them) most would agree that the lawyer can assist the court in making a thoroughly informed disposition by volunteering information on the child's personality, home life, associates, and other mitigating factors as well as by making suggestions about the 93. method of treatment. If the intake process involves a system of pre-judicial dispositions, obviously many of those functions would be equally applicable 94. at that stage, too. Because of the complexity of the problem of the role of counsel in juvenile court, we do not propose to attempt to resolve it here. Although we are firmly of the belief that the lawyer in juvenile court, no less than in any other court, must stand as the ardent defender of his client's legal rights, it is impossible to ignore the fact that at the same time his role must also include that of "counsellor" and "officer of the court". Which of these three roles should take priority when one or more of them conflict, as they inevitably will, is a question that would not seem answerable by means of 95. a hard and fast rule. What effect can one expect the Y.P.I.C.W.T.L. Proposals to have on this debate? It would seem that, through its emphasis on procedural and substantive. legal safeguards, the Y.P.I.C.W.T.L. Proposals strongly support the "advocate" view of the defence lawyer's proper functions, at least as far 96. as the adjudicatory stage of delinquency proceedings are concerned. To begin with, the declaration of the child's right to counsel during all proceedings (including pre-trial and post-dispositional proceedings) would obviously - 161 -preclude any remaining doubts that the lawyer has a role to play in each and 97. every stage of a delinquency proceeding. Secondly, the recommendations for the abandonment of the general offence of delinquency in favour of specific statutory offences clearly suggests that the juvenile court is no longer to have the broad, wide-ranging mandate for intervention that it did under the J.D.A., and as a result the rationale underlying the "rehabilitative" position loses much of its force. Similarly, by separating more clearly the adjudicatory and dispositional stages of the hearing, the proposed Draft Act would appear to weaken those arguments that the court's rehabilitative goals should require limitations on the role of defence counsel at the adjudicatory stage. Other significant proposed reforms include the deletion of those provisions of the J.D.A. that declared that proceedings were to be "as 98 informal as the circumstances will permit" and that no decision was to be set aside "because of any informality or irregularity where it appears that the 99. disposition of the case was in the best interests of the child", as well as the expansion of the child's rights of appeal. Not only do these reforms encourage the development of procedure more analogous to that in the adult criminal courts but they also seem to reverse the J.D.A.'s preference of the "best interests of the child" over the interest of procedural regularity. These changes, too, reinforce the argument that the role of the lawyer under the new legislation should be one closely akin to that of defence counsel in the adult criminal courts. Finally, there are a number of principles articulated in the preamble to the Draft Act that also 'tend to support this view. Clearly if a young person is to have "basic rights and fundamental freedoms no less than those of adults" and "a right to special safeguards and assistance in the preservation of those rights and freedoms and in the application of the principles stated in the Canadian Bill of Rights and - 162 -elsewhere", he would seem to be entitled to have counsel act on his behalf in a legalistic and adversarial manner, just as he would be if he were on trial in adult criminal proceedings. Similarly," the right to be heard in the course of, and to participate in, the processes that lead to decisions that affect [him]", [emphasis added] would seem to necessarily imply the right to instruct counsel and to have that counsel put forward the client's views, and not merely his own personal views as to what decision would be in the client's best interests. In this context, the conception of lawyer as amicus curiae or as social worker seems quite inconsistant with the intent of the legislation. By the same token, the right not to be brought to court unless one's "acts or omissions can not be adequately dealt with otherwise" and the right "to the least invasion of privacy and interference with freedom that is compatible with their own interests and those of their families and society" would seem to expand and clarify the adversarial aspects of the defence counsel's role 100. at the intake and dispositional stages, respectively. In a study published after the demise of Bill C-192 but prior to the issuance of the most recent legislative proposals, P. Erickson concluded: Whether Canadian juvenile courts are to be guided in the future by some form of cooperative, conflict or non-interventionist model awaits legislative decision. Certain assumptions regarding the child's rights and the justifiable bases for intervention in his life will underly the ultimate choice. As Staple ton and Teitelbaum succinctly pose the question: "Is the distance between the child and the state the same as that between the adult and the state?"... These are fundamental issues of political philosophy that cannot be easily resolved. Clarification of defence counsel's role must await answers to these basic questions. 101. Although the Y.P.I.C.W.T.L. Report certainly does contain a new set of such "assumptions" and, as we have suggested, one is able to deduce from them a - 163 -preference of one particular characterization of defence counsel's role, the ultimate effect the proposed legislation will have on role expectations for the lawyer will only become apparent if and when the proposed legislation becomes law and experience is gained in its implementation. Until we are more familiar with the theoretical and practical dynamics of the new system (and, particularly, the manner in which the principles articulated in the preamble will be interpreted in practice by the courts) it will be premature to try to delineate in any great detail the roles and functions appropriate to any of the characters in that system. Perhaps, even at that stage, it will be expecting too much to look to the legislation for a simple answer to the question: what should be the role of defence counsel in juvenile court? 102. Indeed, as the Justice Report implied, perhaps the question is not a proper one for the legislators at all, but rather one that the legal profession it self must grapple with and attempt to resolve as it expands i:ts understanding of and experience in juvenile matters. - 164 -C. Publicity arid Private Hearings Although less critical an issue than that of the presence of counsel, the topic of the publicity and privacy of juvenile court hearings has given rise to nearly as wide a diversity of opinion. It will be recalled that a major criticism of the J.D.A. in recent years has been that the restric tions on publicity of and attendance at juvenile hearings have obstructed community input to and public awareness of the juvenile justice system."*" Similarly, it has often been argued that the dange,r-s posed to the rights and liabilities of young persons arising from the lack of procedural safe guards are substantially increased by the fact that proceedings in juvenile 2 court are generally not subjected to the critical eye of public scrutiny. Some commentators have attempted to analyze the subject of publicity and privacy in terms of three separate issues: (i) Should there be limitations, and if so, what limitations on the publicity of juvenile court proceedings? (ii) Should juvenile court hearings be open to the public or should they be conducted in camera? (iii) Should the juvenile court judge have the power to admit or exclude certain persons on special grounds? While we agree that each of these questions are important and merit careful consideration, it would seem impossible, because of the interrelation between the three, to consider any one of them in isolation from the other two. For this reason, we shall in this section deal collectively with these three interlocking issues, considering first the pertinent existing law, secondly the recommendations of the three law reform bodies and the policy considerations on which they were based, and finally, certain problems arising from the most recent proposals. - 165 -As noted on a number of occasions during the course of this paper, proceedings under the J.D.A. are usually held in camera and without the publicity usually accompanying proceedings in the adult courts. Surpri singly, however, while the practice of in camera juvenile hearings may be commonplace, the authority for such exclusion of the public is still rather uncertain. The only two sections in the J.D.A. relevant to the issues of publicity and private hearings are sections 12 and 24. Section 12 provides that trials shall take place without publicity and separately and apart from the trials of other accused persons, that trials may be held in the private office of the judge or in some other private room 4 in the court house, and that no report of a delinquency etc. in which a child's name or identity is disclosed or indicated shall be published without leave of the court.Section 24 provides that, subject to certain exceptions, no child shall be permitted to be present in court during a trial unless his presence is required. In addition, two sections of the Criminal Code may be applicable to juvenile proceedings.7 Section 441 provides that "[w]here an accused is or appears to be under the age of sixteen years, his trial shall take place without publicity," and section 442 provides: The trial of an accussed . . . who is or appears to be sixteen years of age or more shall be held in open court, but where the . . . judge ... is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the court room, he may so order. What is the effect of the above provisions? According to Adamson, C.J.M., section 12 does not constitute authority for conducting hearings in private: - 166 -. . . [N]o power is given by the Juvenile Delinquents Act to exclude the general public or to hold trials in camera. The only authority that a juvenile court judge has to hold trials in camera is the general one, seldom used, provided in the Criminal Code to exclude the public or certain classes or age groups in the interests of public morality .... The salutory practice of public trials should not be departed from to any greater extent than the sta tute specifically requires. 9 However, the opposite conclusion was reached by Manson, J. in v. H.and H. Although he acknowledged the principle that an exception to the general rule that trials are to be held in open court "is not to be countenanced unless ... as a result of clear and unmistakeable statutory enactment""'""'" as well as the fact that his interpretation of section 12(1) resulted in an inconsistency between that sub-section and subsections (3) and (4) of 12 section 12, Manson, J. held that the words "without publicity" in section 12(1) are to be read as synonymous with "in camera". In his view, section 12(1) "constitutes a statutory exception to the general 13 1A rule that trials shall be held in public." Turning to the section dealing with the right of members of the juvenile court committee to attend juvenile court hearings, he commented: A fair inference therefrom is that the court is to be held in camera except for members of the Juvenile Court Committee, and, of course, such persons as are entitled to be present at a trial in camera. 15 16 As has been suggested elsewhere, it is doubtful whether, on a strict reading of section 12(1), Manson, J.'s interpretation is correct. As Adamson, C.J.M., points out, there is a distinction between "without publicity" and "in private," and it is significant that the well-known and understood legal phrase "in camera" was not used."*"^ Similarly, although section 12(2) allows a trial to be held in "a private office - 167 -of the judge or some other private room," it would seem that this sub section is more concerned with the place of the trial than with who is 18 or is not to have access to that proceeding. In fact, the implication to be drawn from the very existence of sub-sections 12(2), 12(3) and section 24 is that the public and press have not been excluded by sub-section 12(1). 20i At the very least, a due process advocate would argue, 'so fundamental and historical a right as the right to a fair and open trial cannot be 21 cut down by inference." 22 Although the matter is not free from uncertainty, it is suggested that the view of Adamson, C.J.M. is the correct statement of the law. Accepting this view, section 12(1) would not authorize the conducting of juvenile court proceedings in private. However, assuming its appli-23 cability to juvenile matters, section 442 of the Code would still give a juvenile court judge the discretion to conduct proceedings in camera where the accused is over the age of sixteen and where it would be in the interest of public morals, the maintenance of order, or the proper adminis tration of justice to so order. But what about cases where the juvenile is under the age of sixteen? If the interpretation we have given to section 12(1) is correct, one would expect section 441 of the Code to be given a similar construction; accordingly, although it would bar publicity of the trials of such persons, it would not limit access to 24 the public. Although one might argue that the common law exception (in the case of wards of the court) to the rule prescribing publicity of and free access- to judicial proceedings still applies to those under 25 sixteen, there is little doubt that such a discretionary provision would not be applicable in juvenile court proceedings wherein neither 26 2 7 the judge nor the governing legislation is clothed with a parens - 168 -patriae jurisdiction. We can conclude therefore, that while a juvenile over the age of sixteen years can be deprived of an open trial in the circumstances listed in section 442, the corresponding right of a juvenile under sixteen is inviolable, except, possibly, in certain very exceptional 28 circumstances. How was the issue of publicity and privacy dealt with in the recent Canadian law reform documents? In its Reports the Department of Justice Committee affirmed the philosophy expressed in section 12 that publicity 29 in regard to juvenile proceedings is to be avoided. Regarding the question of publicity, it recommended that the identification ban in section 12(3) should extend, not only to newspapers and similar publica tions, but also to radio and television, that it should apply also to children involved in criminal proceedings in adult court where the offence involves conduct contrary to decency or morality, and that it 30 should be reinforced by an adequate penalty provision. Regarding the question of privacy, the Committee dealt separately with access to the press and to members of the general public. Recognizing the importance of the press' "public watchdog" function, it recommended that representatives of the news media should be permitted to attend juvenile court hearings as of rightand except where expressly prohibited by the judge, should be permitted to report the evidence .adduced at the hearing, subject always 31 to the aforementioned identification ban. Finally, it recommended that the legislation should specifically provide that members of the public are not permitted to attend juvenile court proceedings, subject to the judge's discretion to permit any member of the public to attend where he is satis-32 fied that such a person has a bona fide reason to be present. - 169 -Both Bill C-192 and the YPICWTL Draft Act adopted the recommendations of the Justice Report and, as a result, the relevant provisions in each one are virtually identical. Both provide that juvenile court proceedings are to take place without publicity and in the absence of the general public, but that the judge may admit to the proceedings "any person who, in his 33 opinion, has a valid interest in the case or in the work of the court." Both allow a designated number of representatives of the media to appear in juvenile court as of right, plus additional representatives in the discretion 34 of the judge. Finally, both continue and expand the scope of the ban on identification contained in section 12(2) of the J.D.A. , the Draft Act providing that no person may, without the permission of the juvenile court judge, publish any proceedings of the juvenile court which would have the effect of identifying a juvenile who is charged in the proceedings, or 35 appears as a victim or as a witness. Violation of the identification 36 ban would now constitute an offence punishable on summary conviction. The interlocking questions of publicity and privacy involve similar considerations to those that we have found operative in other areas of delinquency law reform. There seems to be two very distinct arguments in favour of greater publicity of and access to juvenile court proceedings. One is that the "fear engendered by public noteriety" will act as a deter rent to the juvenile or as a warning to parents of delinquency-prone 37 youn