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

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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 H a l l Law School, 1974 A THESIS SUBMITTED IN EARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS i n the Faculty of Law  We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA September, 1976 (75)  L o m eH o w a r d W o l f son,  1976  In presenting this thesis in partial  fulfilment of the requirements for  an advanced degree at the University of B r i t i s h 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 B r i t i s h 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 f o r new l e g i s l a t i o n to deal with young persons i n c o n f l i c t with the law and to replace the present Juvenile Delinquents Act.  Since  that date, consultations' with professionals involved i n the f i e l d of juvenile j u s t i c e , p r o v i n c i a l o f f i c i a l s and interested members of the public has yielded a wide range of reactions and suggestions. At the present time, i t i s expected that a B i l l based on that report w i l l be placed before Parliament i n the f a l l of  1976.  The purpose of t h i s paper i s to explore, from a number of perspectives, both the recent proposals and the l e g i s l a t i o n which they are meant to replace. two major Parts.  To that end, this paper i s divided into  Part I consists primarily of a retrospective  analysis of the f i r s t 100 years of the juvenile court movement i n Canada.  Chapter 1 traces i t s orgins from the inherent equitable  j u r i s d i c t i o n of the Courts of Chancery and from the e a r l i e s t l e g i s l a t i v e i n i t i a t i v e s i n the United States to the creation of this nation's f i r s t Juvenile Delinquents Act i n 1908, and concludes with a discussion of the e f f e c t that attacks based on c o n s t i t u t i o n a l and B i l l of Rights grounds have had upon i t s development and continued v i a b i l i t y .  Chapter 2 examines the demands for reform  that had arisen by mid-century and compares and contrasts i n d e t a i l the federal government's three major reform e f f o r t s to date: Department of Justice Report  the  (1965), B i l l C-192: The Young Offenders  Act (1970), and the Young Persons i n C o n f l i c t with the Law Act  (1975).  In evaluating any reform e f f o r t s i n this f i e l d a number of  — i i *d i s t i n c t areas of concern can be i d e n t i f i e d .  The scope of the l e g i s -  l a t i o n , diversion and other p r e - t r i a l procedures, practice and procedure i n the juvenile court, the d i s p o s i t i o n a l a l t e r n a t i v e s , appeal and other methods of d i s p o s i t i o n a l review, and the  consequences  of juvenile convictions are a l l 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 l e g i s l a t i o n and practice and procedure i n the juvenile court-considering i n d e t a i l the development  of the law to date, the issues that are currently facing  reformers, and the way i n which those issues have been dealt with i n each, of the three primary reform documents. Chapter 3 discusses the various j u r i s d i c t i o n a l issues that w i l l determine the future role of the juvenile court: geographical scope, minimum and maximum age l i m i t s , offence j u r i s d i c t i o n , and f i n a l l y , the complex problem of waiver.  Chapter 4 examines another area of prime concern to  lawyers, the rules governing practice and procedure i n the juvenile court.  Such topics as the right to counsel, p u b l i c i t y and private  hearings, notice and duty to attend, and the conduct of the proceeding i t s e l f are considered and both j u d i c i a l developments  and  the statutory reform proposals are described and evaluated. In Chapter 5 a number of other issues not discussed here but s t i l l requiring attention are i d e n t i f i e d .  F i n a l l y , i n the two  Appendices, the problems of l e g i s l a t i v e reform i n this f i e l d are considered from a d i f f e r e n t perspective, that of the i n d i v i d u a l provinces of B r i t i s h Columbia.  After b r i e f l y summarizing  the various  sections of p r o v i n c i a l l e g i s l a t i o n that a f f e c t the operation of the. federal Act, the major trends suggested by the recent federal report are compared to and contrasted with those found i n the recent  - iii reports of the B.C. Law.  Royal Commission on Family and  Children's  - iv In presenting  t h i s thesis i n p a r t i a l fulfilment of the  requirements for an advanced degree at the University of B r i t i s h Columbia, I agree that the Library s h a l l make i t f r e e l y available for reference  and study.  I further agree that permission f o r  extensive copying of this thesis for scholarly purposes may granted by the Head of my Department or by his  be  representatives.  It i s understood that copying or publication of t h i s thesis for f i n a n c i a l gain s h a l l not be allowed without my written permission.  Department of Law The University of B r i t i s h Columbia Vancouver 8, Canada  Date  - V -  TABLE OF CONTENTS  CHAPTER 1  CHAPTER 2  THE J.D.A. IN PERSPECTIVE A.  Background to Reform  2  B.  The F i r s t Juvenile Court  7  C.  The Juvenile Delinquents Act  D.  The Constitutional  E.  The Impact of the B i l l of Rights  . ...  Framework  12 19 31  THE SEARCH FOR A NEW ACT A.  Demands f o r Reform  42  R.  The Department of Justice Report  48  C.  B i l l C-192:  61  D.  The Young Persons i n C o n f l i c t with the Law Act  The Young Offenders Act  PART I I  TWO ASPECTS OF REFORM: JURISDICTION AND PROCEDURE IN THE JUVENILE COURT  CHAPTER 3  THE SCOPE OF THE LEGISLATION A.  Geographical Scope  B. .  Nomenclature  73  85 90  C.  Minimum Age J u r i s d i c t i o n  94  D.  Maximum Age J u r i s d i c t i o n  103  E.  Offence J u r i s d i c t i o n  F.  Waiver of J u r i s d i c t i o n  I l l 120  - vi CHAPTER 4  PRACTICE AND PROCEDURE IN THE JUVENILE COURT A.  General  140  B.  Counsel  145  C.  P u b l i c i t y 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  The Presentation of Evidence  197  (iv)  CHAPTER 5  CONCLUSIONS CA.  . .. .  207  Obstacles to Delinquency Law Reform  208  B.  Finances:  211  C.  Other Areas of Concern  The Forgotten Issue  FOOTNOTES  214  . ..  BIBLIOGRAPHY  .  218  .  299  APPENDICES Appendix A  Appendix B  A Summary of Relevant P r o v i n c i a l Legis l a t i o n  ^09  A Comparison of Recent Proposals by the B.C. Royal Commission on Family and Children's Law and the S o l i c i t o r General's Committee on Young Persons i n C o n f l i c t 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 i n the f i e l d  of juvenile delinquency requires a basic f a m i l i a r i t y with the history of the juvenile court i t s e l f .  As i s the case with so many  f i e l d s of Canadian law, our h i s t o r i c a l roots are closely i n t e r twined with and dependent on both English t r a d i t i o n and American legislative initiatives. The heritage begins with the English Court of Chancery which, from e a r l i e s t times, has exercised an undefined supervisory j u r i s d i c t i o n i n respect of infants.  In the 18th Century, the Court of  Chancery expanded this j u r i s d i c t i o n into a broad scheme of protection for the rights and interests of children.  Although the  o r i g i n of this equitable j u r i s d i c t i o n has not been c l e a r l y established, the prevailing modern opinion has i t that i t 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., i n The Queen v. Gyngall: ...the j u r i s d i c t i o n . . . a r i s i n g as i t does from the power of the Crown delegated to the Court of C h a n c e r y i s e s s e n t i a l l y a parental j u r i s d i c t i o n , and that description of i t involves that the main consideration to be acted upon in i t s exercise i s the benefit dr.. welfare of the Child.' Again, the term "welfare" i n this connection must be read i n i t s largest possible sense, that i s to say, as meaning that every circumstance must be taken into consideration, and the Court must do what under the circumstancesa wise parent acting for the true interests of the c h i l d would or ought to do. 4  - 3 More recently Ungoed-Thomas, J . , remarked: The j u r i s d i c t i o n regarding wards of court which i s now exercised by the Chancery D i v i s i o n i s an ancient j u r i s d i c t i o n deriving from the prerogative of the Crown as parens patriae. I t i s not based on the rights of parents, and i t s primary concern i s not to ensure their rights but to ensure the welfare of the children. Although i t i s an ancient j u r i s d i c t i o n i t serves a modern need, which has perhaps increased rather than diminished. There were, however, s i g n i f i c a n t l i m i t a t i o n s on the Court of Chancery's power to a i d children i n need. j u r i s d i c t i o n was  I n i t i a l l y , the Court's  exercised almost exclusively on behalf of infants  whose property rights were jeopardized, on the theory that i t lacked the means with which to provide for impoverished, neglected 6 infants. When the scope of the Court"' s a c t i v i t i e s was l a t e r broadened to include protection of infants i n danger of personal as well as property i n j u r y , although i t did apply to neglected, destitute and dependent children, i t s t i l l did not extend to 7 children accused of criminal law v i o l a t i o n s . Court was  In addition, the  s t i l l l i m i t e d by i t s lack of any means of investigating  the child's s o c i a l s i t u a t i o n . Even today, the debate over the scope of the equitable j u r i s d i c t i o n remains a contentious  inherent  issue.  As Pennycuick, 8  J.  commented i n the recent English case of In Re X: It may well be, and I have no doubt that i t i s so, that the courts, when exercising the parental power of the Crown, have, at any rate in l e g a l theory, an unrestricted j u r i s d i c t i o n to do whatever i t considered necessary for the welfare of a ward. I t i s however, obvious that far-reaching l i m i t a t i o n s i n p r i n c i p l e on the exercise of this j u r i s d i c t i o n must e x i s t . 9  While few would dispute the proposition that such l i m i t a t i o n s must e x i s t , the precise nature of those l i m i t a t i o n s s t i l l remains a matter of considerable  uncertainty.  5  - 4 At common law,  children under the age of seven were considered 10  incapable of possessing criminal intent. sumption, rebuttable  There was  by evidence that the c h i l d had  also a presufficient  moral d i s c r e t i o n and understanding to appreciate the wrongfulness of this act, that a c h i l d between the ages of seven and fourteen 11 incapable of committing a crime.  was  Subject to these two l i m i t a t i o n s ,  children were subjected to arrest, t r i a l , and i n theory to punishment l i k e adult offenders.  The absence of Chancery j u r i s d i c t i o n  over infants charged with criminal offences,  combined with the  harshness of the existing criminal j u s t i c e system allowed the criminal courts'harsh and cruel treatment of errant  children_to  continue unabated throughout most of the 19th Century. for example, a thirteen-year-old stealing a spoon.  In 1831  f i r e to a house, as was  boy was  another boy of the same age 12 cents.  1801,  p u b l i c l y hanged for  a nine-year-old boy was  stealing an object valued at two  In  hanged for setting i n 1833  for  These occurrences were  not rare, isolated incidents, but rather were t y p i c a l of a system i n which the fundamental aim of criminal jurisprudence was  punish-  ment, both as r e t r i b u t i o n 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 c i t i z e n s began to deplore p u b l i c l y the abominable prison conditions,  the indiscriminate intermingling  of  adults and infants i n the prisons, j a i l s , and criminal courts,  as  well as the frequent application of the criminal law and procedure 14 to children below the lawful age of criminal r e s p o n s i b i l i t y . i s not suprising, therefore, children were treated was  1 It  that reform of the ways i n which  an early goal of the r e s u l t i n g movement to  - 5 humanize the criminal law. Many other s o c i a l conditions prevalent  i n North America i n  the 19th Century gave impetus to the juvenile law reform movement. The rapid urbanization  caused by i n d u s t r i a l i z a t i o n and immigration  brought with i t , among other things, tremendous increases i n v i c e 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 f o r  s o c i a l j u s t i c e r e f l e c t e d an increasing concern over o f f i c i a l treatment of children.  Ultimately, philanthropists, feminists,  penologists, and other s o c i a l reformers joined forces and, aided by t h e i r recently gained knowledge of the behavioural  sciences,  succeeded i n obtaining public recognition of "the greater 15 a b i l i t y and salvageability of children",  vulner-  and l a t e r i n establishing  separate i n s t i t u t i o n s and separate probationary supervision f o r children,  foster homes f o r destitute, neglected and orphaned  children, and f i n a l l y , the right f o r children to be t r i e d and diagnosed i n 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 d i s t i n c t philosophy, one that placed  greaterfflempliasis-"on  achieving s o c i a l i z e d j u s t i c e and less on following the procedural 16 t e c h n i c a l i t i e s of the criminal law. Seen i n this context, the juvenile court movement was c l e a r l y more than just a stage i n the evolution of the criminal law. As one commentator wrote: [The reformers'] concern f o r children extended beyond the criminal and i n c o r r i g i b l e . They wished to protect and redeem those boys and g i r l s 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 f r a c t i o n of their whole crusade i n child-saving. The c a l l for change was but a part of a s o c i a l 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  - 7B.  The F i r s t Juvenile Court Although the f i r s t juvenile court i n the United States d i d  not come into existence u n t i l 1899, numerous i n d i v i d u a l reforms i n a number of states preceded and led to i t s creation.  Houses of  Refuge were established i n New York City ( i n 1825) and i n Pennsylvania (in!1826) to house children who were deemed i n c o r r i g i b l e or i n v i o l a t i o n of the criminal law and to provide them with care, 1 d i s c i p l i n e and training rather than punishment.  Although  these  i n s t i t u t i o n s s t i l l subjected children to what we would consider to be harshaand cruel treatment,  they d i d merit the d i s t i n c t i o n of  being the f i r s t to achieve the separation of children from adult criminals.  In 1847, Massachussetts established the f i r s t of many  state reform and i n d u s t r i a l schools for juveniles i n which attempts were made to teach young offenders d i s c i p l i n e as well as an honest 2 trade. In the c i t y of Chicago, the power to dispose of minor charges against juveniles by means of probation or reform school was given to a s p e c i a l l y appointed commissioner i n 1861, and to the 3 judges of the normal criminal courts s i x years l a t e r . In 1869, l e g i s l a t i o n was passed i n Massachusetts authorizing a " v i s i t i n g agent" to attend hearings and to advise the court regarding the d i s p o s i t i o n of juvenile offenders, as well as to arrange  foster  home placements and tormake subsequent home v i s i t s i n cases where 4 such treatment  seemed appropriate.  Further Massachusetts l e g i s l a -  tion i n 1870 and 1872 provided f o r the separation of juvenile t r i a l s and court records as well as the appointment of a State o f f i c i a l whose duties were to investigate juvenile cases, attend t r i a l s , 5 and protect children's i n t e r e s t s .  In 1892, New York followed suit  by establishing separate t r i a l s , dockets and records, as did Rhode  - 8 6 Island i n 1898.  In addition, throughout these l a t e r years, more and  more judges began to experiment with the use of probation, i n l i e u of imprisonment,  as a means of preventing further c r i m i n a l i t y .  Thus, by 1899, the concept of a separate court for juveniles had already received widespread recognition and acceptance i n many areas of the United States, and the stage was thereby set f o r what Dean Roscoe Pound of the Harvard Law School would l a t e r c a l l  "one  of the most s i g n i f i c a n t advances i n the administration of j u s t i c e since the Magna Carta": 7  the establishment of the f i r s t juvenile  court. The f i r s t o f f i c i a l l e g i s l a t i v e recognition of a separate state-wide court for children was contained i n the Juvenile Court "8 9 Act enacted by the State of I l l i n o i s i n A p r i l , 1899. The o r i g i n a l Act and the subsequent  amendments to i t gave the court j u r i s d i c t i o n  over cases of dependency, neglect and delinquency involving children under the age of sixteen.  The Act provided f o r informal, private  hearings, c o n f i d e n t i a l records, separate detention f a c i l i t i e s for children, as well as a separate probation s t a f f appointed to work 10 exclusively on juvenile matters.  In addition, the t r a d i t i o n a l  terminology of criminal procedure was reformed i n order to reflect. the c i v i l , rather than criminal, nature of the proceedings:  complaint  was replaced by p e t i t i o n , warrant became summons, arraignment was now i n i t i a l hearing, conviction was instead finding of involvement and sentence became d i s p o s i t i o n .  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. F i n a l l y , since the proceedings were viewed as c i v i l , rather  - 9 than criminal, and designed to be h e l p f u l and r e h a b i l i t a t i v e to the offender rather than punitive or aimed at r e t r i b u t i o n , i t was thought to be i n the interests of a l l children to define delinquency i n the broadest of terms.  Accordingly the d e f i n i t i o n of "delinquency"  i n the Act went ibeyond just criminal conduct to include any which suggested  behaviour  the need for the court's intervention i n order to  prevent the c h i l d developing further criminal t r a i t s i n his l a t e r 12 years. According to the terms of the I l l i n o i s Act, i t s objective was to ensure that "the care, custody and d i s c i p l i n e of a c h i l d s h a l l 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 c h i l d was  "guilty"  or "innocent", but should instead concentrate on determining "What i s he, how has he become what he i s , and what had best be done i n his interest and i n the interest of the state to save him from a 14 downward career". According to this view, the c h i l d was e s s e n t i a l l y good and should be made to f e e l that he i s the object of the state's "care and s o l i c i t u d e , " and not that he was under arrest or on 15 trial. The role of the court i n this context was  therefore one of  investigating, diagnosing and prescribing treatment, rather than 16 adjudicating g u i l t 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 s p e c i f i c  conduct  was important more as evidence of the need f o r the court's assistance than as a prerequisite to the court's exercise of j u r i s d i c t i o n . Since the sole objective of the court proceeding was  the determination  - 10 of the most suitable treatment plan f o r the c h i l d , the rules of criminal procedure were deemed inapplicable and lawyers and t h e i r adversarial techniques were considered to be unnecessary, i f not harmful.  Instead, the r e s p o n s i b i l i t y for guiding the court i n i t s  exercise of d i s p o s i t i o n and developing a suitable scheme for t r e a t ment was  assigned to the increasingly popular psychologists and  psychiatrists.  In fact, i t has been said that the e n t i r e scheme  of the juvenile court was was  largely based on the view that  delinquency  l i t t l e more than a disease,one that could be diagnosed and  treated adequately by s p e c i a l i s t s .  This philosophy  (today labelled  by many as too i d e a l i s t i c and s i m p l i s t i c ) i s apparent i n 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 l i f e of the c h i l d a l l of those aids and agencies that modern science and education have provided through the experts i n human conduct and behaviour; i n a word, to s p e c i a l i z e i n the causess of so-called bad things as doctors would i n the cause of disease. 17 At the same time that I l l i n o i s was  enacting this h i s t o r i c  statute, the state of Colorado was also i n the process of creating i t s own  l e g i s l a t i v e scheme to deal with the problem of juvenile  delinquency.  In 1899,  a new amendment to Colorado's  "school  law"  provided that: Any c h i l d between the ages of eight and fourteen years, and every c h i l d between the ages of fourteen and sixteen, who cannot read and write the English language or i s not engaged i n some regular employment who i s an habitual truant from school..., or who i s i n attendance at any school, and i s i n c o r r i g i b l e , v i c i o u s or immoral i n conduct, or one who h a b i t u a l l y wanders about the streets and public places during school hours, having no business or lawful occupation, s h a l l be deemed a juvenile  disorderly person and be subject to the provisions of this act." 18 The Act gave j u r i s d i c t i o n to the County Court over any cases a r i s i n g under these "truancy" provisions, although i t i s unclear whether or not juveniles who were suspected of committing s p e c i f i c crimes 19 were also dealt with by the Courts under this Act.  In 1901 the  administrative machinery for a juvenile court was set up i n Denver and by 1903 this juvenile court received l e g i s l a t i v e approval. Once given this i n i t i a l l e g i s l a t i v e recognition, the juvenile court concept spread with tremendous speed.  By 1910, twenty-two  states had followed I l l i n o i s ' example, and by 1925 there were juvenile courts i n every state but two.  As of 1967, there was a  Juvenile Court Act i n every American j u r i s d i c t i o n , with approximately 20 2,700 courts hearing children's cases..  - 12 C.  The Juvenile Delinquents  Act  Many of the same factors that gave r i s e to the juvenile court movement i n the United States were also present i n Canada i n the late 1800's. was  The f i r s t major l e g i s l a t i v e i n i t i a t i v e i n this country 1  the enactment of the Children's Protection Act  Legislature i n 1893.  by the Ontario  This Act provided for the establishment  of  children's aid s o c i e t i e s and for the commitment to them of dependent and neglected children.  In addition, the Act provided  measures i n r e l a t i o n to children who  specialized  v i o l a t e d p r o v i c i a l statutes.  The Act provided that where a complaint was made against any  boy  under the age of twelve years or any g i r l under the age of thirteen years for an offence against p r o v i n c i a l laws, the court having j u r i s d i c t i o n and was  to give notice of the charge to the l o c a l  children's aid society who would then investigate the background of the c h i l d and the circumstances  of the case and submit a report 2  containing that information to the judge.  I f , a f t e r a tria'l and'  conviction on the offence charged, i t appeared to the judge that "the public interest and the interest of the c h i l d w i l l be best subserved thereby," the judge was  authorized to make an order for the return  of the c h i l d to h i s parents or guardian, or an order d i r e c t i n g the children's aid society to place the c h i l d i n a foster home for any length of time u n t i l the c h i l d reaches the age of twenty-one, or 3 impose a f i n e , or suspend sentence for a d e f i n i t e or i n d e f i n i t e period. The judge was  also empowered, where the c h i l d was  found g u i l t y of the  offence charged or where the court found the c h i l d to be " w i l f u l l y wayward and unmanageable", to ecommdt the c h i l d to an i n d u s t r i a l 4 school or p r o v i n c i a l reformatory.  In addition, section 28 authorized  any judge, i n )lieu of committing to prison any c h i l d under the age of  - 13 fourteen years convicted before him of any p r o v i n c i a l offence, to hand over custody of such a c h i l d to a children's a i d society, home for destitute and neglected children, or i n d u s t r i a l school whereupon the o f f i c i a l s receiving such custody would have complete authority 5 to arrange f o r the child's adoption by some suitable person. The Act also dealt with the juvenile t r i a l i t s e l f as well as the care and custody of children both before and a f t e r t r i a l .  It  provided that no c h i l d under the age of sixteen being held f o r t r i a l or under sentence i n a j a i l or other place of confinement was to be placed or allowed to remain i n the same c e l l or room with 6 adult prisoners. I t also established certain conditions that were to apply only i n c i t i e s and towns with a population of more than ten thousand, incases where children under the age of sixteen years were charged with p r o v i n c i a l offences or were brought before a judge for examination under any provision of the Act.  These conditions 7  included separate f a c i l i t i e s f o r p r e - t r i a l detention,  a requirement  that the t r i a l or d i s p o s i t i o n of such a case be conducted, where 8 practicable, i n premises other than the ordinary p o l i c e court premises, and a d i r e c t i o n that the judge s h a l l exclude from the room where the t r i a l or ^.examination i s being held " a l l persons other than the counsel and witnesses i n the case, o f f i c e r s of the law or of any children's aid society and the immediate friends o r r e l a t i v e s of the c h i l d or 9 parent." The major inadequacy of the Children's Protection Act was that i t did not extend to cover the great number of cases of children v i o l a t i n g federal laws (for example, the Criminal Code).  The only 10 provision governing t r i was a l s of juveniles f oThe r federal offences n existence at that time section 550 of Criminal Code, i1892  - 14 which provided that: The t r i a l s of a l l persons apparently under the age of sixteen years s h a l l , so f a r as i t appears expedient and practicable, take place without p u b l i c i t y , 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 l e f t to the d i s c r e t i o n of the l o c a l authorities. This defect was remedied by the enactment by Parliament i n 1894 of 11 An Act Respecting A r r e s t , T r i a l and Imprisonment of Youthful Offenders: which made i t mandatory that a l l t r i a l s of young persons under the age of sixteen years for alleged v i o l a t i o n s of federal l e g i s l a t i o n be private and separate from those of adults (the words emphasized 12 i n the erex"c:eftp.tl quoted above were simply deleted) and also required ii  that p r i o r to the t r i a l , 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 l e g i s l a t i o n , the presiding judge would have a v a i l able to him powers of d i s p o s i t i o n almost i d e n t i c a l to those a v a i l able to the judge under the Children's Protection Act, 1893 i n the 14 case of offences against p r o v i n c i a l l e g i s l a t i o n .  I t i s noteworthy  that no mention was made a>n the Act of any provision of such special powers of d i s p o s i t i o n i n t r i a l s of federal offences i n provinces other than Ontario. was  One can only speculate as to whether Parliament  content to keep juvenile offenders i n such cases subject to the  same punishments imposed i n adult court, or whether the provinces other than Ontario were simply not yet prepared to provide the additional f a c i l i t i e s and support services necessary to make an expanded range of dispositions of this nature practicable.  - 15 On July 20th, 1908, Parliament enacted Canada's f i r s t Juvenile 15 Delinquents Act.  Subsequent amendments were made i n 1912, 1914,  1921 and 1924 and, f i n a l l y i n 1928, the Minister of Justice c a l l e d a conference i n Ottawa, to which interested persons from a l l over Canada were i n v i t e d , to discuss the p r a c t i c a l experience under the 16 Act  and to make recommendations as to possible changes i n the statute.  F i f t y persons (including representatives from every province except Prince Edward Island) attended the conference and, a f t e r three days of  discussion, a draft b i l l was endorsed and submitted to the Minister  of  Justice.  This b i l l was subsequently adopted by Parliament and 17 brought into force on June 14th, 1929. The r e s u l t i n g l e g i s l a t i o n , 18 known as The Juvenile Delinquents Act, 1929, i s substantially the same as the Juvenile Delinquents Act currently i n force i n Canada 19 today. Although there have been several minor amendments of the 20 Act since 1929 (most of which have been merely improvements i n d e t a i l ) , the p r i n c i p l e s and major provisions of the 1929 Act have remained unchanged.  For this reason, we s h a l l not deal separately  here with the Acts of 1908 and 1929 (Sxcept when differences from the present Act are p a r t i c u l a r l y worthy of comment) but w i l l r e s t r i c t 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. i s b a s i c a l l y the product of, a merger of the e a r l i e r Canadian and American l e g i s l a t i v e i n i t i a t i v e s .  In f a c t ,  most of the comments made e a r l i e r regarding the philosophy and objectives underlying the Juvenile Court Act of I l l n o i s , 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 w i l l involve a detailed consideration of the J.D.A., i t s weaknesses and i t s proposed successors, we w i l l not at this point embark upon a detailed review of i t s provisions.  Instead, we  shall  confine ourselves to highlighting b r i e f l y what some consider to be 22 the J.D.A.'s four major features. The J.D.A.'s f i r s t and most important feature i s undoubtedly the separation of c h i l d offenders from adult offenders at a l l stages i n the criminal process.  Subject to the court's d i s c r e t i o n to raise  certain cases to the adult courts, the j u v e n i l e court i s given 23 exclusive j u r i s d i c t i o n over offences committed by j u v e n i l e s . S i m i l a r l y , the J.D.A. provides that juvenile offenders awaiting 24 t r i a l are to be detained separately from adults awaiting t r i a l . The second major feature i s the very wide d e f i n i t i o n 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 i n the child's best i n t e r e s t s , a court appearance came to be regarded as a good thing for i t s own suggested  sake whenever  that a c h i l d might be i n moral danger.  circumstances As a r e s u l t ,  the offence of delinquency was defined i n very broad and general terms and the.juvenile court was age range.  given j u r i s d i c t i o n over a very wide  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 l i a b i l i t y under the J,D.A. i s seven and the maximum age i s 16 (although each Province has the option of r a i s i n g the maximum as 28 high as eighteen)), although j u r i s d i c t i o n , once obtained, can continue 29 u n t i l the child's twenty-first birthday. The J.D.A.'s philosophy of intervention, a r t i c u l a t e d i n 2 7  - 17 sections 3(2) and 38, i s i t s t h i r d major feature.  A c h i l d who  has  committed a delinquency i s to be dealt with "not as an offender, but as one i n 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 d i s c i p l i n e of a juvenile delinquent s h a l l approximate as nearly as may be that which should be given by h i s parents, and that as f a r as practicable every juvenile delinquent s h a l l be treated, not as a criminal, but as a misdirected and misguided c h i l d , and one needing a i d , encouragement, help and assitance. 31 A c h i l d who has committed a delinquency i s therefore not to be treated merely as a young criminal, but rather as one being " i n a condition of delinquency."  Implicit i n the passages quoted and i n other  provisions contained i n the J.D.A. i s the b e l i e f that delinquency can be best considered and treated as a manifestation of some psychological i l l n e s s suffered by the c h i l d .  Once one accepts the  concept of "delinquency as i l l n e s s " , i t seems unreasonable for a c h i l d to be held l e g a l l y or morally responsible f o r h i s behaviour, and accordingly.the J.D.A. places l i t t l e or no emphasis on the 32 concept of r e s p o n s i b i l i t y or accountability for one's actions. S i m i l a r l y , given this view and tb/e^ce'va'dgliag^wi'ewtoTfk-tfae^fjWen-ile court acting as "parens patriae", i t would have appeared  desirable,  i n the eyes of the draftsmen, to place as few r e s t r i c t i o n s as possible on the court's power to intervene i n the l i f e of the c h i l d in order to do what i t deems necessary for the child's best i n t e r e s t s . It i s therefore understandable why the J.D.A. allows proceedings to 33 34 be conducted i n private, i n an informal manner, i n the absence of  the child's parents or of counsel, and without most of the  procedural protections available to an accused i n the adult courts.  - 18 The fourth and f i n a l feature of the present J.D.A. i s the provision of a wide range of reformative sentencing dispositions 35 focussed primarily on the welfare of the i n d i v i d u a l offender. The juvenile court judge's powers of d i s p o s i t i o n include suspension of f i n a l d i s p o s i t i o n ; adjournment of the hearing or d i s p o s i t i o n ; imposition of a modest f i n e ; committal to a probation o f f i c e r ; supervision by a probation o f f i c e r while c h i l d i s i n i t s own home or i n a foster home; committal to the Superintendent of Child 36 Welfare; and committal to an i n d u s t r i a l or training school.  The  judge i s given v i r t u a l l y unlimited power to impose any one or combination of these dispositions, subject only to a single r e s t r i c tion i n section 25 regarding committal to training schools and to the general requirement  that "the action taken s h a l l , i n every  case, be that which the court i s of opinion the child's own good 37 and the best interests of the community require."  - 19 D.  The Constitutional Framework I t has been no secret that copies of most of the juvenile court acts at  the time i n force i n the United States and  the Children's Act then before the  B r i t i s h House of Commons, were examined p r i o r to the drafting of the J.D.A. 1 of 1908.  In f a c t , a c a r e f u l examination of the present J.D.A. reveals  the  s i g n i f i c a n t influences the early I l l i n o i s and Colorado statutes had upon the Canadian draftsmen.  For example, the statement of the philosophy of the J.D.A.  contained i n section 38 i s i n part an exact duplication of section 21 of the 2 I l l i n o i s Act of 1899.  However, differences between the American and  Canadian c o n s t i t u t i o n a l structures prevented the Canadian l e g i s l a t o r s from completely adopting any of the early American statutes.  Unlike the American  c o n s t i t u t i o n a l structure, wherein the i n d i v i d u a l states have power to enact both s o c i a l welfare and criminal l e g i s l a t i o n and can therefore both act as "parens p&triSie" and  treat acts of delinquency as non-criminal matters, the  Canadian c o n s t i t u t i o n a l system allocates exclusive l e g i s l a t i v e power i n r e l a t i o n to criminal(law(excluding  the creation of courts of criminal j u r i s -  d i c t i o n , but including the procedure i n criminal matters') to the federal 3 Parliament  but gives to the p r o v i n c i a l l e g i s l a t u r e s exclusive j u r i s d i c t i o n  i n r e l a t i o n to the administration  of j u s t i c e within the  province.(including  the constitution, maintenance and organization of p r o v i n c i a l courts of criminal j u r i s d i c t i o n * ) , c i v i l r i g h t s within the province, a l l matters of a purely l o c a l or private nature, as well as the enforcement of p r o v i n c i a l 4 legislation. delinquency and  Therefore, although Parliament has the power to define the dispositions available to a judge upon a finding of  delinquency, the p r o v i n c i a l l e g i s l a t u r e s have sole r e s p o n s i b i l i t y for the actual administration  of j u s t i c e , which includes the p o l i c e , the juvenile  courts, and general s o c i a l welfare services.  As a r e s u l t , the "parens  patriae"  - 20 of children i n any province i s the Crown i n r i g h t . of that province rather than the Crown i n right of the f e d e r a l government.  Furthermore, since the power to  l e g i s l a t e regarding welfare matters i s within exclusive p r o v i n c i a l j u r i s d i c t i o n , the f e d e r a l government i s therefore, i f i t i s to l e g i s l a t e at a l l within this 5 f i e l d , forced to deal with delinquency i n the J.D.A., delinquency  i n a criminal-law format.  Accordingly,  i s defined not as a state or condition (as was  the  case i n most of the early American statutes), but rather as a d i s t i n c t act, 6 and i s i n many respects treated as a criminalsorquasi-criminal offence. The attempt to apply the American juvenile court concept i n the context of the Canadian c o n s t i t u t i o n a l system has resulted i n at least two unusual features of the present pattern of the J.D;A.  One of these features i s 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 f e d e r a l , p r o v i n c i a l , or municipal statutes or regulations) and certain types of non-criminal behaviour are c l a s s i f i e d as acts of 7 delinquency and can r e s u l t i n the imposition of various degrees of r e s t r a i n t 8 on the offender's l i b e r t y . At the same time, however, the J.D.A. s t i l l 9 purports to embrace the same benevolent and non-punitive  philosophy  that  was o r i g i n a l l y developed by American l e g i s l a t o r s for use i n a b a s i c a l l y noncriminal, c i v i l proceeding,  i n which the court was  to act more as a mere  adjunct of the s o c i a l welfare system, not doing things t£ the c h i l d but rather for  the c h i l d .  Another unusual feature resulting from the d i v i s i o n of  c o n s t i t u t i o n a l j u r i s d i c t i o n i s that the J.D.A., although f e d e r a l l e g i s l a t i o n , depends almost exclusively on p r o v i n c i a l p a r t i c i p a t i o n and resources for i t s e f f e c t i v e a p p l i c a t i o n . For example, the J.D.A. i t s e l f can only be with respect to those provinces that have already established their  proclaimed own  juvenile courts and detention f a c i l i t i e s f o r children"^(subject to c e r t a i n  - 21 exceptions i n 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 f a c i l i t i e s upon which the court r e l i e s (e.g. diagnostic services, child welfare services, probation services, and numerous types of i n s t i t u t i o n s f o r children) are 11 controlled and usually financed by the provinces.  These two features - the  c o n f l i c t between an e s s e n t i a l l y non-criminal philosophy and i t s criminal-law context and the dependance of f e d e r a l l e g i s l a t i o n on p r o v i n c i a l f a c i l i t i e s and resources - have resulted i n many of the problems that have arisen i n practice under the J.D.A. and also give r i s e to many c r u c i a l issues that must be resolved before any attempt at juvenile law reform can be successful. As a r e s u l t , we s h a l l have occasion to return to these two topics at various stages during the course of t h i s paper. After half of a century of operation without a single attack on i t s 12 v a l i d i t y , i t i s rather surprising to note that i n recent years  proceedings  under the J.D.A. have suddenly given r i s e to a number of important c o n s t i t u t i o n a l issues.  One of the f i r s t cases to deal with the issue of the c o n s t i t u 13  t i o n a l 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 f o r the payment of money towards the support and maintenance of a c h i l d adjudged to be a juvenile delinquent may be made against the parents of such c h i l d or upon the municipality to which i t belongs (whereupon the l a t t e r could recover the same from the parents), i s i n t r a v i r e s the Parliament of Canada.  The  court held that such l e g i s l a t i o n , although i t may a f f e c t p r o v i n c i a l r i g h t s i n respect of municipal i n s t i t u t i o n s and property and c i v i l r i g h t s , i s not l e g i s l a t i o n i n r e l a t i o n to such r i g h t s , but rather, i s v a l i d as being a n c i l l a r y and necessarily i n c i d e n t a l to the carrying out of the provisions of the J.D.A. under the criminal law powers of the f e d e r a l government.  - 22 There seems to have been l i t t l e doubt that Parliament can, on the basis of the f e d e r a l 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 f e d e r a l authority extends to the supervision of juveniles on the broader basis of v i o l a t i o n of p r o v i n c i a l or municipal l e g i s l a t i o n , or of immoral conduct 15 16 that i s not i n i t s e l f i l l e g a l . In Regina v. Kelleher this question was raised and answered i n favour of the federal claim. magistrate's  The court, i n quashing a  conviction of a juvenile under p r o v i n c i a l motor v e h i c l e l e g i s l a t i o n  on the grounds that such an offence constituted a delinquency over which the juvenile court had exclusive j u r i s d i c t i o n , gave obiter approval to Re Dunne and to the view that the J.D.A. f e l l within Parliament's criminal law 17 jurisdiction. 18 This c o n s t i t u t i o n a l issue arose again i n A.-G.  B.C.  v. Smith  context of a f a c t s i t u a t i o n v i r t u a l l y i d e n t i c a l to that i n Kelleher.  i n the The  accused Smith, a juvenile, had been convicted i n Magistrate's Court pursuant 19 to the provisions of the p r o v i n c i a l Summary Convictions Act for the offence 20 of speeding contrary to the Motor-Vehicle Act. On an application for a writ of certorarj.,the t r i a l judge, r e l y i n g on the obiter i n Kelleher, ordered the ewrit to issue and quashed the conviction.  This decision was  subsequently  affirmed by a three to two majority judgment of the B r i t i s h Columbia Court of 21 Appeal. the J.D.A.  Before the Supreme Court of Canada, the major argument was not that per se was u l t r a v i r e s  Parliament, but rather that sections  2(1)(h), 3(1), and 4 were u l t r a v i r e s to the extent that they purport apply to children who  to  have v i o l a t e d "any.y p r o v i n c i a l statute, or ... any 22 by-law or ordinance of any municipality." The problem before the court 23 could be stated i n the form of two questions:  - 23 1.  2.  Is the J.D.A. i n t r a v i r e s Parliament under S.91(27) of the B.N.A. Act ( i . e . l e g i s l a t i o n i n r e l a t i o n to the criminal law), or i s i t u l t r a v i r e s on the ground, (a)  that i t i s l e g i s l a t i o n r e l a t i n g to the welfare of children, within the scope of the Reference Re Adoption Act case, 24 or  (b)  that c o l l e c t i v e l y ss. 2 ( l ) ( h ) , 3(1), and 4 i n f r i n g e the p r o v i n c i a l j u r i s d i c t i o n under the B.N.A. Act, S.92(15) to impose punishment f o r enforcing any law made i n the province i n r e l a t i o n to any matter within the scope of i t s l e g i s l a t i v e competence?  Assuming that the J.D.A. i s held to be i n t r a v i r e s , does S.4 of the J.D.A. operate to prevent a j u v e n i l e from being prosecuted under the provisions of the Summary Convictions Act f o r an offence under the Motor-Vehicle Act or any other offences v a l i d l y created i n the province?  In his judgment on behalf of a unanimous seven-man court, Mr. J u s t i c e Fauteux held, with respect to question  (1), that the impugned sections of the  J.D^A. were i n t r a v i r e s Parliament under S.91(27) of the B.N.A. Act.  Although  he conceded that the primary l e g a l e f f e c t of the J.D.A. was the e f f e c t i v e s u b s t i t u t i o n , . i n the case of juveniles, of the provisions of the J.D.A. f o r the enforcement provisions of the Criminal Code or of any other f e d e r a l or p r o v i n c i a l 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 l e g a l e f f e c t .  On the contrary, he stated, the preamble  (appended to the o r i g i n a l 1908 J.D.A.), the i n t e r p r e t a t i o n section, and the main operative provisions of the J.D.A. c l e a r l y demonstrate that the substitution of the provisions of the J.D.A. f o r the enforcement provisions of other laws was merely a means adopted by Parliament i n order to achieve "an end, a purpose or object^wMch, i n i t s s true nature and character, i d e n t i f i e s this Act as being genuine l e g i s l a t i o n i n r e l a t i o n to criminal 26 law," that "end,.purpose or object" being to prevent juveniles from  - 24 becoming prospective criminals and to a s s i s t them i n being law-abiding . 27 citizens. Nor does i t matter that there i s a lack.of uniformity i n the application or operation of the J.D.A.;  i n the court's view, desirable as  uniformity may be i n criminal law, i t i s 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' i n i t s r e l a t i o n to crime and crime prevention, a human, s o c i a l and l i v i n g problem of public i n t e r e s t , in the constituent elements, a l l e v i a t i o n and solution of which j u r i s d i c t i o n a l d i s t i n c t i o n s 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, i t was held that a c h i l d 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 f a r as they purport»to r e l a t e to such a c h i l d , 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 f o r the protection or benefit of children within the meaning of S.39 of the J.D.A. and was not, as a r e s u l t , thereby excepted from the operation of the s u b s t i t u t i o n a l provisions 32 of the J.D.A. Smith has been followed i n 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. I t was argued before him that the J.D.A. was u l t r a v i r e s as i t r e l a t e s to section 126A i n that this section merely provided  the procedure  for the operation of a point system to regulate the posession of a driver's licence i n that province, and d i d not, i n 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 f o r those v i o l a t i o n s of p r o v i n c i a l or municipal  l e g i s l a t i o n that expose the offender  to the p o s s i b i l i t y of criminal sanctions.  Instead, i t held that the Smith  decision, l i k e the J.D.A. i t s e l f , i s to be interpreted broadly, and, based on that view, ruled that the J.D.A. was i n t r a v i r e s and was applicable i n the 35 present case.  Smith was also  we s h a l l refer at a l a t e r  rappJIiedid  i n Regina v. M.,  a case to which  stage.  The reasoning  and the r e s u l t i n the Smith case have been questioned 36 by a number of writers. I t has been argued that i f one focuses on the subject-matter of the l e g i s l a t i o n , as opposed to i t s alleged object or 37 purpose (which Fauteux, J . seized on), the finding that the J.D.A. i s , i n pith  i substance, i n r e l a t i o n to criminal law, becomes more d i f f i c u l t to 38 justify. For example, aside from the single reference to delinquency as 39 a n £  constituting an "offence",  there i s no statement i n any other sections,  either e x p l i c i t l y or i m p l i c i t l y , 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 i s to befcr-.eafcea"not as an offender" and "not as a 41 criminal" ) seems to disclaim quite c l e a r l y any intention to deal with 42 the problem of delinquency i n a criminal law context.  In addition, there  are numerous features of the J.D.A. which depart from the t r a d i t i o n a l elements of criminal law and which, although when considered i n d i v i d u a l l y are not of great s i g n i f i c a n c e , when viewed c o l l e c t i v e l y give weight to the argument that the actual character of the statute i s other than criminal law.  These include the facts that the J.D.A. i s not a law of general 43 application, either i n terms of t e r r i t o r i a l operation, acts or conduct 44 45 proscribed, or categories of persons dealt with; that delinquency i t s e l f was not a crime known to the common law; and that many of the types of conduct covered by the d e f i n t i o n of delinquency involve not only no mens rea  - 26 or moral turpitude.but also only a very remote connection with " c r i m i n a l " 46 conduct. I t i s worth noting that a l l of the above arguments were accepted as v a l i d i n the two dissenting judgments i n the B r i t i s h Columbia Court 47 of Appeal. S i m i l a r l y , the Supreme Court's conclusion that the J.D.A. relates more to the federal criminal law power than to either of the competing p r o v i n c i a l heads of power (namely, the j u r i s d i c t i o n over welfare matters and the power to impose sanctions for the v i o l a t i o n of p r o v i n c i a l l e g i s l a t i o n ) can be subjected to some thought-provoking c r i t i c i s m .  There i s no doubt that the f i e l d of  welfare l e g i s l a t i o n i s committed to p r o v i n c i a l j u r i s d i c t i o n by the combined operation of sections 92(13), (14) and (16) of the B.N.A. A Act, or even that such p r o v i n c i a l l e g i s l a t i o n may have as one of i t s objects that of " c o n t r o l l i n g 48 s o c i a l conditions that have a tendency to encourage v i c e or crime."  In  l i g h t of the tenuous r e l a t i o n s h i p between the types of conduct that can bring the J.D.A. into operation and the reasonable scope of the criminal law power, i s i t not, one might argue,more consistent with common sense to conclude that, i n f a c t , the subject-matter 49 matters of welfare concern?  of the J.D.A. i s more c l o s e l y related to  S i m i l a r i l y , can i t not be argued that i f  S.92(15) i s to have any substantial meaning i t must have the e f f e c t of l i m i t i n g the scope of S.91(27) so as to preclude  the federal government from  imposing i t s own set of sanctions for the v i o l a t i o n of p r o v i n c i a l l y prescribed standards of conduct?  Surely the fact that Parliament has, i n the context  of this l e g i s l a t i o n , merely attached  i t s own tag of "delinquency" to such  v i o l a t i o n s and has r e s t r i c t e d i t s intervention to a limited class of case cannot strength the claim that S.91(27) j u s t i f i e s the J.D.A.'s imposition of s p e c i a l penalties for the v i o l a t i o n of p r o v i n c i a l or municipal laws 50 by j u v e n i l e s .  - 27 51 F i n a l l y , i t has been suggested  that i f one adopts the view of.the  paramountcy doctrine that when the doctrine i s invoked, p r o v i n c i a l competence with respect to matters dealt with i n the federal l e g i s l a t i o n i s completely suspended (rather than just temporarily  suspended), i t can be argued that the  r e f e r e n t i a l incorporation adopted i n the d e f i n t i o n of delinquency i n the 52 J.D.A. i s unconstitutional to the extent that i t i s ambulatory.  The argument  i s that, based on this view of the paramountcy doctrine (a view which, one might note, i s not widely accepted),  any amendments to the p r o v i n c i a l or  municipal provisions a f t e r the i n i t i a l incorporation by the J.D.A., so far as they purport  to apply to juveniles, w i l l be without support from any  p e r s i s t i n g head of p r o v i n c i a l competence, since the J.D.A. must be assumed to have occupied  the relevant f i e l d .  According  to this view, the independent  l e g a l v a l i d i t y of the incorporated l e g i s l a t i o n i s a condition precedent to the v a l i d i t y of an ambulatory r e f e r e n t i a l incorporation.  Consequently, i t has  been argued, the J.D.A. must be held to be u l t r a v i r e s i n that i t attempts to incorporate i n i t s scope p r o v i n c i a l l e g i s l a t i v e changes i n matters i n respect of which the provinces have l o s t their competence by the very enact53 ment of the incorporating l e g i s l a t i o n .  This rather esoteric argument  was  not considered by any of the courts din. the Smith case, and i t i s submitted here that i t s u t i l i t y i s rather questionable  i n l i g h t of the many doubtful  premisses on which i t i s based. In l i g h t of the f a c t that the Smith case has resolved the issue of c o n s t i t u t i o n a l v a l i d i t y , at least with respect to the basic scheme of the J.D.A., i t would seem that further consideration of the soundness of the Supreme Court of Canada's decision and i t s e f f e c t on the l i m i t s of Parliament's criminal law power would best be l e f t to the c o n s t i t u t i o n a l law commentators. Furthermore, as we s h a l l soon see, the proposed l e g i s l a t i o n to replace J.D.A. no longer purports  to incorporate v i o l a t i o n s ofc  p r o v i n c i a l or  the  - 28 municipal  l e g i s l a t i o n or the commission of "status offences" within the scope  of the f e d e r a l Act; as a r e s u l t , i f these proposals  become law, the s p e c i f i c  issue i n Smith w i l l then have l i t t l e p r a c t i c a l relevance.  However, our  examination of the c o n s t i t u t i o n a l issues i n this case has not been a useless exercise, for i t has served to h i g h l i g h t i n a most p r a c t i c a l context  the  continuing c o n f l i c t inherent i n the Canadian approach to the problem of delinquency.  The point that i s amply i l l u s t r a t e d by the dissenting judgments  i n the Court of Appeal and the c r i t i c i s m s of the Supreme Court's decision that we have discussed i s that the issue of the basic character of the J.D.A. i s not as c l e a r l y defined as the judgment of Fauteux J . might suggest.  The  r e a l i t y of the matter, i t is'submitted, i s that regardless of whether one focuses on i t s subject-matter  or i t s object and purpose, the true character  of the J.D.A., i n p i t h and substance, i s equally concerned with and directed towards matters of criminal law and c h i l d welfare.  As was  our discussion of i t s h i s t o r i c a l heritage, the J.D.A. was  shown e a r l i e r , i n the product of the  attempt to reproduce the American juvenile court i n the context of the Canadian c o n s t i t u t i o n a l system.  As a r e s u l t , the J.D.A. does take the form  of a comprehensive criminal code f o r children - one which covers a l l breaches of statute or bylaw as well as any form of immoral behaviour - but one  that  prescribes humanee and compassionate treatment and r e h a b i l i t a t i o n , based on the needs of the i n d i v i d u a l offender, rather than punishment and r e t r i b u t i o n geared to the severity of the offence.  To the extent that the J.D.A. follows  the format of the Criminal Code, i t i s undoubtedly criminal i n nature: creation of the "offence" of delinquency, the establishment  the  of a separate  court and procedure f o r the prosecution of such offences, and the provision of a series of dispositions ranging from f i n e s and probation to i n d e f i n i t e i n s t i t u t i o n a l incarceration are a l l elements that contribute to the criminal law character of the l e g i s l a t i o n .  However, other features including the  54 stated philosophy  and prescribed method of treatment,  that portion of the  d e f i n i t i o n of juvenile delinquent which goes beyond the mere v i o l a t i o n of federal statutes, the dependence on p r o v i n c i a l p a r t i c i p a t i o n and  resources,  as well as other features discussed e a r l i e r , r e f l e c t the J.D.A. 's and dedication to e s s e n t i a l l y welfare concerns.  preoccupation  As unsatisfactory- as i t may  be to the c o n s t i t u t i o n a l analyst,.the conclusion that the J.D.A., as i t has existed from 1908  to date, i s substantially based on,two d i s t i n c t heads of  power - one p r o v i n c i a l and one f e d e r a l - i s perhaps the one answer that best accords with r e a l i t y . Such a c o n s t i t u t i o n a l quagmire must obviously have implications for the future of juvenile law reform.  As Graham Parker noted i n  1969:  The remarks of Fauteux, J . to the e f f e c t that the Juvenile Delinquents Act i s a criminal statute may have simply been a c o n s t i t u t i o n a l skirmish but, on the other hand, this characterization of the act may well return to haunt the juvenile court. 55 As we s h a l l see i n later chapters, i n recent years there have been growing demands f o r a further decriminalization of the juvenile j u s t i c e system. What lessons can be learned from the above by the draftsman who today, with such a goal i n mind, to write our new He would undoubtedly agr,ee that new ,;  s i t s down  delinquency l e g i s l a t i o n ?  l e g i s l a t i o n should not, because of the  character and extent of the problem with which i t deals, and could not, because of the central r o l e that the f e d e r a l criminal law power must play, at least i n c e r t a i n cases, be established and administered provinces.  s o l e l y by the  However, the experience to date under the J.D.A. shows the  inevitable d i f f i c u l t i e s that Parliament would face i n dealing with this problem^ i n anything  but a s t r i c t l y criminal-law format.  the law i s clear that however sympathetic one may  At the same time,  be to the aims of the  - 30 draftsman and the theory of the l e g i s l a t i o n , the p r a c t i c a l necessities or inherent l o g i c of a comprehensive  base of regulation cannot be used to allow 56  either l e v e l of government to exceed i t s sphere of l e g i s l a t i v e competence. lf"  r  as i t seems, such l e g i s l a t i v e objectives could not be accomplished by  either l e v e l of government without involving an i l l e g a l exercise of l e g i s l a t i v power, then perhaps the only answer l i e s i n a compromise:  complementary  l e g i s l a t i o n by both levels of government, each within i t s own 57 limits.  constitutional  As suggested by the Department of J u s t i c e Committee on Juvenile  Delinquency approximately ten years ago, i t seems that any attempt at delinquency law reform, i n order to be successful, w i l l require " 'co-operativ 58 federalism' of the highest order." At a later stage i n t h i s paper we s h a l l consider how successful to date attempts at such "co-operative 59 federalism" have been.  - 31 E.  The Impact of the Canadian B i l l of Rights A related issue that has also arisen before the courts i n recent years  i s the extent to which provisions contained i n and procedures conducted under the J.D.A. may lawfully infringe upon the c i v i l r i g h t s of juveniles.  We are  not concerned here with the d e t a i l s of the procedure of the juvenile court established by the J.D.A. : of  this paper.  that we propose to deal with i n a l a t e r chapter  Nor are we focusing f o r 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 w i l l be touched on l a t e r , t h i s 1 topic has been adequately dealt with elsewhere. What we s h a l l attempt to provide i s a brief review of the reported cases i n which the Canadian B i l l 2 of Rights  has been used to challenge the v a l i d i t y of s p e c i f i c provisions i n  the J.D.A. i n order to determine what issues have been raised i n the past and what issues we might expect to be raised i n the future. Furthermore,  since  this paper deals primarily with proposals f o r new l e g i s l a t i o n to replace the J.D.A., and since the Canadian B i l l of Rights can have s i g n i f i c a n t e f f e c t s on the interpretation or even v a l i d i t y of a federal enactment, i t may prove valuable at l a t e r stages i n our study to have determined  the r e s u l t s of the  application of the Canadian B i l l of Rights to Canadian delinquency l e g i s l a t i o n to  date. Before turning to the recent Canadian developments, l e t us look f o r a  moment at the comparable American experience.  The F i f t h and Fourteenth  Amendments to the Constitution of the United States provide that "no person s h a l l . . . be deprived of l i f e , l i b e r t y , or property without due process of law."  In the l a s t 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 v a l i d waiver of the exclusive j u r i s d i c t i o n of the Juvenile Court of the D i s t r i c t of Columbia  so that a juvenile could be t r i e d i n the  adult criminal court of the D i s t r i c t .  Although the court's decision turned  upon the language of the statute, i t emphasized the necessity that "the basic requirements of due process and f a i r n e s s " be s a t i s f i e d i n such 4 proceedings. 5 In the landmark case of In Re Gault matter one step further and attempted  the Supreme Court took the  to ascertain the precise impact of the  due process requirement onithe Mjuaieati^on stage of a delinquency hearing. 1  Gault concerned a 15-year-old, already on probation, committed i n Arizona as a delinquent after being apprehended upon a complaint of having made lewd telephone c a l l s .  I f Gault had been an adult convicted of the same  offence he could only have been fined $500 or imprisoned f o r two months; however, because he was a juvenile, he was committed to confinement i n Arizona's I n d u s t r i a l School u n t i l he reached the age of twenty-one. Reaffirming its view that "neither the Fourteenth Amendment nor the B i l l of Rights i s f o r 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 t h e i r right to counsel, either retained or appointed, and that the r i g h t to cross-examine and to be confronted with one's accuser had been denied.  The court also  held that the p r i v i l e g e against s e l f - i n c r i m i n a t i o n was available to a juvenile, but refrained from deciding whether a State must provide appellate review i n juvenile cases or a transcript or recording of the hearings.  - 33 7 In Re Winship  concerned a 12-year-old charged with delinquency f o r  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 f a c t necessary to constitute the crime  8  with which he i s charged,"  and then went on to hold that this standard  was 9  applicable, too, during the adjudicatory stage of a delinquency proceeding. F i n a l l y , i n the 1971 case of McKeiver v. Pennsylvania^the U.S. Supreme Court indicated the l i m i t a t i o n s on the extent of procedural r e v i s i o n i t was prepared to undertake i n holding that t r i a l by jury i n the juvenile court's adjudicative stage was not a c o n s t i t u t i o n a l r e q u i s i t e of due process of law. In Canada, the development of the law regarding c i v i l r i g h t s i n juvenile courts has not been as rapid or dramatic as i t has been i n the United States. years that may  However there have been a number of reported cases i n recent suggest the d i r e c t i o n i n which our courts are pointed .  Even prior to the enactment of the Canadian B i l l of Rights, i t was suggested i n 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 M i l l e r Disbery, J . , i n considering an application f o r leave to appeal under of  S.37  the J.D.A., stated that: It i s e s s e n t i a l f o r due administration of j u s t i c e that an accused be t r i e d according to law, and that he should have a f a i r t r i a l and not be deprived of any of his r i g h t s . 13  In R. v. T_?"^irlson, J . quashed a juvenile court conviction on the grounds of a series of procedural defects during the t r i a l and explained: I am not concerned with barren t r i v i a l i t i e s , but with fundamental rights - rights which we provide f o r the s o r r i e s t scoundrel t r i e d i n  - 34 our criminal courts, and should accord with double handed generosity to an immature l a d .  15  16 S i m i l a r l y , comments i n a number of other cases have reinforced the view that although young persons i n juvenile court may not be e n t i t l e d to a l l of the rights granted to adults i n the context of the adult criminal j u s t i c e system, the former should at least be e n t i t l e d to a t r i a l i n accordance with the p r i n c i p l e s of due process of law. What e f f e c t has the Canadian B i l l of Rights had on the J.D.A. or on proceedings thereunder?  To date, arguments based on the Canadian B i l l of  Rights have been raised i n only three reported cases under the J.D.A. as well as i n tone case dealing with an'analogous piece of l e g i s l a t i o n .  In each of  these cases the argument made was that a s p e c i f i c provision of the Act i n question had the e f f e c t of denying a l l juveniles or a certain group of juveniles the r i g h t to "equality before the law" as guaranteed  by S.l(b) of  the Canadian B i l l of Rights. 17 In Regina v. 0_. a juvenile, convicted under the J.D.A., sought leave to appeal that conviction notwithstanding the f a c t that the time period provided i n S.37(3) of the J.D.A; f o r an application f o r such leave had elapsed.  In rather brief reasons, Mclntyre, J . of the B r i t i s h Columbia  Supreme Court rejected the applicant's argument for extension of time, and held that there i s no denial of equality before the law contrary to the Canadian B i l l 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 i s to deny a l l juveniles a r i g h t guaranteed  by. the Criminal Code to a l l adults charged  with the same offence - namely, the r i g h t to apply for an extension of time f o r 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 j u s t i f i e d because the J.D.A. provides special benefits  - 35 and protection to juveniles and because i t "applies to a l l c i t i z e n s of Canada regardless of race, national o r i g i n , colour, r e l i g i o n or sex when they f u l f i l the condition of being a j u v e n i l e , a state into which a l l c i t i z e n s 18 are born but from, which a l l who  survive emerge at a f i x e d time."  One might  well question the v a l i d i t y of the l a t t e r statement as a rationale for upholding the presence of equality before the law i n this case, e s p e c i a l l y in l i g h t of the f a c t that the J.D.A. does not, i n f a c t , apply to " a l l c i t i z e n s of Canada." but only to those who  reside i n areas of the country where the  J.D.A. has been proclaimed, and that the " f i x e d time" at which a l l c i t i z e n s are said to emerge from the state of being a j u v e n i l e can, i n f a c t , vary  up  to two years depending on the province i n 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, and two based on allegations of rape.  entering and theft  In answer to the Crown's motion under  section 9 of the J.D.A. that the accused be proceeded against by in the ordinary courts, i t was B i l l of Rights and was  indictment  argued that section 9 v i o l a t e d the Canadian  therefore inoperative because i t created an inequality  in that i t did not apply to a l l juveniles but only to a l i m i t e d c l a s s , namely 20 those over the,age of fourteen. F e l s t i n e r , Prov. Ct. J . acknowledged that "equality before the law" i n S.l(b) means that no i n d i v i d u a l or group of 21 individuals i s to be treated more harshly than another under the law,  and  concluded that the waiver provision i n the J.D.A. does not permit a 14 or 15-year-old boy to be treated more harshly than others before the law, the p a r t i c u l a r standard  since  of treatment which i s relevant for such a comparison  i s that pertaining to adult criminals, and i f he i s transferred from the juvenile to the adult court, he i s not thereby treated more harshly than they. He went on to express grave concern that i f the impugned section was  held  to be invalid',',, numerous other provisions involving benevolent discimination  22  - 36 on the basis of age, both i n the J.D.A. and i n other l e g i s l a t i o n , would be 23 placed i n jeopardy. F i n a l l y , he held that since Parliament c l e a r l y had the power to a l l o c a t e j u r i s d i c t i o n over 14 and 15-year-olds to either the juvenile 24 or the adult courts and could have done so by an a l l i n c l u s i v e r u l e , i t cannot v a l i d l y be argued that by choosing instead to vest j u r i s d i c t i o n i n 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" l a i d down by 27 Ritchie J . i n the L a v e l l case  and held that the provisions of S.9(l) of the  J.D. A.ddo;an6t v i o l a t e the Canadian B i l l of Rights i n that they: do not deprive children between the ages of 14 and 16 of equality of treatment i n the enforcement and application of the Juvenile Delinquents Act before the law enforcement authorities i n the ordinary courts of the land. If Parliament can v a l i d l y divide adults from children f o r the purpose of criminal l e g i s l a t i o n , I can see no reason why i t cannot further subdivide the c l a s s i f i c a t i o n 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 F e l s t i n e r , Prov. Ct. J . was whether or not S.2(l) of the J.D.A., which permits the Governor General i n Council to r a i s e the age l i m i t for juveniles i n any province to 18 years from time to time, denies equality before the law. Such an issue subsequently 29 arose i n 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 i n that j u r i s d i c t i o n (the Northwest T e r r i t o r i e s ) .  I t was  - 37 argued on behalf of the accused that the f a i l u r e to treat the boy as a . " c h i l d " under the J.D.A. would constitute an infringement  of the Canadian B i l l of Rights  in that i t would be u n f a i r l y disciminating and improper to treat someone as subject to the f u l l rigours of the criminal law i n the Northwest T e r r i t o r i e s , when he would not necessarily be so treated i n at least some of the provinces.  other  De Weerdt, Magis. held that he had proper j u r i s d i c t i o n under the  Criminal Code and that the J.D.A. had no a p p l i c a t i o n here, since the accused was  assured of equality with a l l others i n his p o s i t i o n i n the same j u r i s d i c t i o n  and the court cannot substitute i t s d i s c r e t i o n for that of the Governor i n Council.  Although his decision was 30  d i f f e r e n t reasons  affirmed by Morrow, J . for s l i g h t l y  , i t i s worth noting that, i n h i s judgment, the learned  Magistrate placed considerable emphasis on the fact that, for h i s t o r i c a l and c o n s t i t u t i o n a l reasons, i t i s doubtful that "equality before the law"  requires  complete l e g a l p a r i t y between persons i n the provinces and persons i n the 31 T e r r i t o r i e s of Canada.  Accordingly, i n l i g h t of his judgment, one might  well wonder whether Regina v. Dubhile would have been decided  differently i f  the same f a c t s i t u a t i o n arose i n a province where the maximum age was  still  16, rather than i n the T e r r i t o r i e s . A f i n a l case of relevance i n our consideration of the e f f e c t of the Canadian B i l l of Rights on the J.D.A., although not dealing s p e c i f i c a l l y with 32 the J.D.A., i s Regina v. Burnshine• In this case a 17-year-old boy was convicted i n the adultccourts for causing a disturbance, for  which was  s i x months under the provisions of the Criminal Code.  a pre-sentence report, the accused was  the Prisons arid Reformatories Act,  Following  sentenced to a term of three months  d e f i n i t e and two years less one day indeterminate 33  indeterminate  the maximum sentence  pursuant to section 150 of  which permits such d e f i n i t e and  sentences f o r young offenders who  are under the age of 22 years  and are convicted i n B r i t i s h 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 B i l l of Rights and that the sentence was therefore i l l e g a l , was allowed by the B r i t i s h 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, i t was held by a s i x to three margin that the appeal should be allowed. In the Supreme Court of Canada the respondent argued that he had been denied the r i g h t to equality before the law i n that section 150 permits a B r i t i s h Columbia court to impose upon him a punishment greater than that which would have been imposed:  (i) by a court i n any other province of  Canada, except Ontario  (since there was also a comparable section i n the 34 Prisons and Reformatories Act applicable to Ontario); or ( i i ) upon a person not within the age group defined i n section 150 i n any province, including 35 B r i t i s h Columbia, other than Ontario.  Mart-land, J . speaking f o r the  majority, concluded that section 150 did not i n f r i n g e the respondent's r i g h t to equality before the law under section 1(b) of the Canadian B i l l of Rights and, inddoing so, he adopted a very narrow view of the meaning and scope of the Canadian B i l l of Rights. declares and continues  He held that the Canadian B i l l of Rights merely  e x i s t i n g rights and freedoms and that i n 1960, when i t  was enacted, the concept of equality before the law did not and could not include the r i g h t to i n s i s t that a l l statutes apply to everyone i n a l l areas of Canada.  After noting that the purpose of the l e g i s l a t i o n i s to reform  and benefit persons within a younger age group, and that i t s application was made limited because of the existence of the necessary i n s t i t u t i o n s and staff in the provinces, he concluded: In my opinion, i t i s not the function of this Court, under the B i l l Of Rights, to prevent the operation of a f e d e r a l enactment, designed f o r t h i s purpose, on the ground that i t applies only  to one class of persons, or to a p a r t i c u l a r area.  In my opinion, i n order to succeed'in the present case, i t would be necessary for the respondent, at l e a s t , to s a t i s f y t h i s Court that, i n enacting S.150, Parliament was not seeking to achieve a v a l i d 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 B r i t i s h Columbia Court of Appeal that so far as section 150 provided for the imposition of a greater punishment of the accused i n B r i t i s h Columbia then elsewhere i n Canada (except Ontario) 37 for  the same offence i t denied to him as an i n d i v i d u a l equality before the  law.  However, rather than hold that the Canadian B i l l 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 f i x e d and  indeterminate sentences are to be limited i n t h e i r t o t a l i t y to the maximum term of imprisonment prescribed for the offence - and thereby accommodate 38 section 150's  r e h a b i l i t a t i v e purposes within an equality of maximum sentence.  On this view, he concluded, "the age factor i n section 150 does not amount to a puhitivea element i n that provision but rather redounds to the advantage 39 of an accused who i s within the age group." t  I t has been suggested that three provisions of the J.D.A. might possibly c o n f l i c t with the Canadian B i l l of Rights and thereby be rendered inoperative, namely - the scheme whereby the same penalty may  be imposed for a l l wrongs,  the p o s s i b i l i t y of i n d e f i n i t e periods of incarceration, and the (under section 20(3)  ) of a former juvenile who  "resentencing" 40  has already been "punished".  According to t h i s view, a juvenile might argue that, as a r e s u l t of one more of the above provisions, he, as a juvenile, has been:  (a) deprived  or of  - 40 41 l i b e r t y 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, his  i n 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 s p e c i f i c a l l y with the f i r s t two arguments, but there have been a number of recent cases dealing with the t h i r d , namely the r i g h t to equality before the law, and these cases have consistently rejected the argument that this right i s v i o l a t e d by benevolent l e g i s l a t i o n such as the J.D.A. notwithstanding  the fact that i t  i s applicable only to t&se ,persons i n a p a r t i c u l a r class, as defined by their 1  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., i n that they deal only with r e s t r i c t e d aspects of i t s operation - namely, applications f o r leave to appeal, transfer applications, and proceedings i n the Northwest T e r r i t o r i e s , respectively i t w i l l be very d i f f i c u l t , i t i s submitted, f o r any j u v e n i l e attacking the J.D.A. on the grounds of v i o l a t i n g equality before the law, to overcome the 48 implications of the Burnshine decision.  Although Burnshine does deal with  a d i f f e r e n t piece of l e g i s l a t i o n , and perhaps can therefore be distinguished on that ground, the,majority's the Canadian B i l l of Rights  narrow and r e s t r i c t i v e view of the e f f e c t of  ( p a r t i c u l a r l y the requirement that i n order f o r  a statutory provision to be rendered inoperative i t must f i r s t be established 49 that i t was not enacted prusuant to a v a l i d f e d e r a l objective  ) on l e g i s l a t i o n  very similar i n intent and jfinformat to the J.D.A. would seem to render i t extremely u n l i k e l y 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 i n the preceding  paragraph,  could be successful. As f o r the two grounds f o r attack based on sections 1(a) and 2(b) of  - 41 the Canadian B i l l of Rights, i t would seem, although there i s no authority d i r e c t l y on point, that the narrow approach taken i i i Bufnshine and  other  recent Supreme Court of Canada decisions dealing with the Canadian B i l l of 50 Rights  w i l l i n the future have the e f f e c t of greatly l i m i t i n g the u t i l i t y  of the Canadian B i l l of Rights i n r e s t r i c t i n g or rending inoperative l e g i s l a t i v e provisions such as those contained  i n the J.D.A.  What significance does this current state of a f f a i r s have for proposed new  j u v e n i l e delinquency l e g i s l a t i o n ? In l i g h t of the f a c t that recent  j u d i c i a l interpretations have s i g n i f i c a n t l y weakened the once-hoped-for clout of the Canadian B i l l of Rights, i t would seem that the draftsman of  new  l e g i s l a t i o n , assuming that he can create an Act that i s c l e a r l y within  the  accepted range of v a l i d federal objectives, need have l i t t l e concern as to the possible l i m i t i n g e f f e c t s of the Canadian B i l l of Rights. i f - t h e draftsman'is  On the other hand,  desirous of protecting the c i v i l r i g h t s of juveniles, i t  w i l l be i n t e r e s t i n g to see whether he finds i t necessary to specify i n the l e g i s l a t i o n what c i v i l r i g h t s of juveniles are to be recognized  and how  they  are to be guaranteed, rather than r e l y on the device of j u d i c i a l interpretation, aided by equitable doctrines and the Canadian B i l l of Rights, to see that these rights are, i n f a c t ,  protected.  - 42 CHAPTER 2 - THE SEARCH FOR A NEW A.  ACT  Demands for Reform [T]he great hopes o r i g i n a l l y held for the juvenile court have not been f u l f i l l e d . I t has not succeeded s i g n i f i c a n t l y i n r e h a b i l i t a t i n g delinquent youth, i n reducing or even stemming the tide of juvenile crimi n a l i t y , or i n bringing j u s t i c e and compassion to the c h i l d offender. 1 With these words, the 1967  Report of the U.S.  President's Task Force  on Juvenile Delinquency launched into a c r i t i c a l reassessment of the experience of the juvenile court i n the half-century of i t s operation.  Such  o f f i c i a l c r i t i c i s m was not the f i r s t , nor the l a s t , to be heard during that decade.  In 1960,  a major report tabled i n the B r i t i s h House of Commons  reached s i m i l a r conclusions and recommended substantial reform of the English 2 delinquency l e g i s l a t i o n , greatly r e s t r i c t i n g the role of the juvenile court. In 1964,  a committee i n Scotland, reviewing  that country's juvenile l e g i s l a -  tion, chose to scrap the juvenile court altogether and proposed a completely 3 new  approach to the problem.  F i n a l l y , i n 1966,  a Committee of the Canadian  Department of Justice issued a major report e n t i t l e d Juvenile Delinquency i n Canada, containing a series of one hundred recommendations regarding both preventive and l e g a l aspects of juvenile delinquency, and including proposals 4 for s i g n i f i c a n t revisions i n the J.D.A.  What had led to these broad demands  for reform throughout the Anglo-American world?  How  had the juvenile court  f a i l e d to f u l f i l i t s objectives? In Canada, c r i t i c i s m of the J.D.A. did not emerge suddenly i n the 1960's, but had arisen over the years as experience was  gained with i t s administration.  It i s i n t e r e s t i n g to note that despite the t r a d i t i o n a l d i s i n t e r e s t of lawyers and l e g a l scholars i n the f i e l d of juvenile delinquency law, a number of these 5 c r i t i c i s m s were f i r s t formally voiced i n a r t i c l e s appearing i n l e g a l journals. Since many of these c r i t i c i s m s w i l l be discussed i n greater d e t a i l elsewhere, we w i l l not undertake a detailed analysis of them here.  Instead, we s h a l l only  - 43 note some of the major c r i t i c i s m s of the J.D.A. and of the Canadian juvenile j u s t i c e system most frequently heard i n the l a s t twenty years.  These can be  b r i e f l y summarized as follows: (1)  The juvenile j u s t i c e system has developed many of the very same character-  i s t i c s of the adult criminal process that the former was created to avoid.  Such  elements as deterrence, punishment, detention and the resulting stigma have surfaced i n the juvenile j u s t i c e process despite i n i t i a l intentions to the 6 contrary. (2)  As a result of a lack of f i n a n c i a l resources^the juvenile court and i t s  related support services have been frustrated i n t h e i r attempts  to f u l f i l the  treatment intent expressed i n the J.D.A. and the needs of many children have 7 continued to be unsatisfied. (3)  The scope of the l e g i s l a t i o n (and, therefore, the court's j u r i s d i c t i o n )  i s much too wide.  As a r e s u l t , 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 i n f r a c t i o n s , "unmanageability" and " i n c o r r i g i b i l i t y " ) and with offenders of widely varying ages (as young as seven and as o l d as seventeen years of age, i n some provinces) f o r which they are not designed or equipped to deal adequately.  Regarding the age j u r i s d i c t i o n , i t i s said that very  young offenders should not be prosecuted at a l l ; regarding the offence j u r i s d i c t i o n i t i s said that the young should not be prosecuted for conduct that i s not an offence i n the case of adults nor should the same range of d i s p o s i 8 tions be available for a l l types of prohibited C4)  conduct.  The absence of s u f f i c i e n t substantive and procedural safeguards in'-the  juvenile j u s t i c e process allows f o r many unjust infringements on the rights and l i b e r t i e s of young persons.  The absence of counsel, the lack of l e g a l l y -  trained judges and the r e s t r i c t i v e appeal provisions i n the J.D.A. only serve 9 to aggravate this serious problem.  - 44 (5)  The absence of any meaningful r e s t r i c t i o n s or guidelines applicable to  the judge's power of d i s p o s i t i o n has i n some instances allowed punitive sen10 tencing practices to develop. (6)  The rules r e s t r i c t i n g p u b l i c i t y of and attendance at juvenile court  proceedings have obstructed community input and p u b l i c awareness and understanding of the juvenile j u s t i c e system. (7)  The present  juvenile court philosophy  and the range of dispositions  available to the juvenile court judge do not have the e f f e c t of encouraging c h i l d ren to act responsibly nor of adequately protecting the community. Aside from these s p e c i f i c c r i t i c i s m s , many took the view that the fact that an Act so dependent on progress i n the behavioural  services had remained  substantially unchanged for over half a century was i t s e l f a persuasive 11  reason  for a reassessment of i t s objectives and performance. Why d i d the juvenile court f a i l ?  Although the professionals i n the juve-  n i l e j u s t i c e process - the judges, the lawyers, the s o c i a l workers, and so on might disagree as to the v a l i d i t y of one or more of. the above c r i t i c i s m s or as to which i s the most pressing ground for reform, i t i s l i k e l y that nearly a l l would agree that the juvenile court both i n Canada and elsewhere, has generally f a i l e d to achieve the l o f t y objectives o r i g i n a l l y held for i t .  Many of the  professionals - p a r t i c u l a r l y the s o c i a l workers and others involved i n the treatment side of the court's functions - have tended to place the blame f o r the juvenile court's f a i l u r e (to the extent that they w i l l admit that i t has f a i l e d ) c h i e f l y at the feet of the community arguing that i t has been the community's unwillingness  to provide the court with the necessary services -  the s t a f f , the f a c i l i t i e s , and the concern - that has prevented the court from r e a l i z i n g i t s x p o t e n t i a l and resulted i n i t taking on many of the undesirable features of the adult criminal courts. to this argument:  Undoubtedly, there i s some v a l i d i t y  the e f f o r t s of the juvenile court c e r t a i n l y 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 i n juvenile  matters, the lack of highly trained probation s t a f f s , the s c a r c i t y of assessment services, and the generally limited range of resources (both programs and f a c i l i t i e s ) available on disposition. clearly not the only explanation.  However, the lack of these resources i s  Rather, i t i s submitted that the primary  reason f o r the juvenile court's f a i l u r e to l i v e up to i t s r e h a b i l i t a t i v e and preventive goals was  the extremely u n r e a l i s t i c nature of those goals based as  they were upon the overoptimistic view of the court's e a r l i e s t proponents  as  to what was and what could be known about the phenomenon of juvenile c r i m i n a l i t y 12 and as to what even a f u l l y equipped juvenile court could do about i t .  There  i s no doubt that the problem of delinquency has proved i t s e l f to be i n f i n i t e l y more complicated than the 19tlx Century reformers thought. Not only has the attempt to develop e f f e c t i v e r e h a b i l i t a t i o n programmes met with only very 13 limited success,  but even the causes of delinquency i t s e l f 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 l i t e r a t u r e (mostly American) accumulated  over the past forty years,  i t i s clear that the development of a workable theory of delinquency, i f one i s possible at a l l , i s s t i l l many<iyears away.  Although most s o c i a l s c i e n t i s t s  w i l l agree that a myriad of s o c i o l o g i c a l , psychological, hereditary and other factors a l l play a part i n producing a n t i - s o c i a l behaviour, l i t t l e i s known about the importance  or weight that should be attached to each i n order to 15  understand and cope with juvenile delinquency. Force frankly concluded:  As the U.S. President's Task  "Study and research, tend increasingly to support the  view that delinquency i s not so much, an act of i n d i v i d u a l deviancy as a pattern of behaviour produced by a multitude of pervasive s o c i e t a l influences well beyond the reach of the actions of any judge, probation o f f i c e r , correctional 16 counsellor, or p s y c h i a t r i s t . "  - 46 The importance of this dichotomy between the i d e a l and the actual regarding both what i s known and what can be done about delinquency  cannot be over-  emphasized, for i t can be seen as the basis for many of the major c r i t i c i s m s of the juvenile court noted e a r l i e r .  I t can be argued that the early  f a i t h i n and reliance on o f f i c i a l action, both i n the juvenile court  reformers' proceeding  and i n the subsequent d i s p o s i t i o n , has tended u n t i l recent years to obscure the 17 dangers of l a b e l l i n g and stigma often inherent i n that action. Similarly, i t i s not surprising that, as a r e s u l t of the i n a b i l i t y of s t r i c t l y r e h a b i l i t a t i v e d i s p o s i t i o n a l e f f o r t s to stem the r i s i n g tide of juvenile crime, elements of r e t r i b u t i o n , condemnation, deterrence and incapacitation have gradually crept 18 into the juvenile d i s p o s i t i o n a l process. The f a i l u r e of the r e h a b i l i t a t i v e i d e a l i s also reflected i n the current objections to the broad j u r i s d i c t i o n given the juvenile court by the J.D.A; obviously j u d i c i a l intervention on the grounds of r e l a t i v e l y minor matters of morals and misbehaviour can only be j u s t i f i e d i f the court i s actually able to i d e n t i f y the seeds of future d e l i n 19 quency and then act e f f e c t i v e l y to prevent their growth. r e j e c t i o n of the conception of "delinquency  F i n a l l y , the  as i l l n e s s " (or, at least, as  one  that can be readily diagnosed and treated) has s u b s t a n t i a l l y weakened the j u s t i f i c a t i o n for informality and privacy of proceedings and has given r i s e to the current demands for the establishment  of procedural safeguards,  the  imposition of l i m i t a t i o n s on the j u d i c i a l power of d i s p o s i t i o n , and a rel a x a t i o n of the bars against public attendance at and p u b l i c i t y of juvenile 20 court proceedings.  I t was  obviously such considerations that prompted  Mr. Justice Fortas of the United States Supreme Court to comment, i n words that have since been repeatedly cited and adopted not only by American j u r i s t s and commentators but also by many i n this country as w e l l : There may be grounds for concern that the c h i l d receives the wiorst of both worlds: that he gets neither the protections accorded to adults nor the s o l i c i t o u s 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 i n i t s 1967  Report:  What emerges, then, i s t h i s : In theory the juvenile court was to be h e l p f u l and r e h a b i l i t a t i v e rather than punitive. In fact the d i s t i n c t i o n often disappears, not only because of the absence of f a c i l i t i e s and personnel but also because of the l i m i t s of knowledge and technique. In theory the court's action was to a f f i x no stigmatizing l a b e l . In fact a delinquent i s generally viewed by employers, schools, the armed s e r v i c e s — b y society g e n e r a l l y — a s a criminal. In theory the court was to treat children g u i l t y of criminal acts i n noncriminal ways. In fact i t labels truants and runaways as junior criminals. In theory the court's operations could j u s t i f i ably be informal, i t s findings and decisions made without observing ordinary procedural safeguards, because i t would act only i n the best i n t e r e s t of the c h i l d . In fact i t frequently does nothing more nor less than deprive a c h i l d of l i b e r t y without due process of law—knowing not what else to do and needing, whether admittedly or not, to act i n the community's i n t e r e s t even more imperat i v e l y than the c h i l d ' s . In theory i t was to exercise i t s protective powers to bring an errant c h i l d back into the f o l d . In fact there i s i n creasing reason to believe that i t s intervention reinforces the juvenile's unlawful impulses. In theory i t was to concentrate on each case the best of current s o c i a l science learning. In fact i t has often become a vested interest i n i t s turn, loathe to cooperate with innovative programs or a v a i l i t s e l f of forward-looking methods. It i s our submission that the above passage, harsh as i t may be, has come to be equally applicable to the Canadian juvenile j u s t i c e system.  The extent to  which the federal government of Canada has recognized the v a l i d i t y of these c r i t i c i s m s and the ways i n which, i t has, as a r e s u l t , attempted to revise and re-focus i t s approach to the problem of delinquency s h a l l be the central topic addressed i n the remainder of t h i s , 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 e x i s t i n g J.D.A. be overhauled and reorganized and that a new 1 quency be adopted.  integrated approach to d e l i n -  Accordingly, the following year, the Minister of Justice  announced the appointment of a departmental committee whose primary respons i b i l i t y would be "to make recommendations concerning steps that might be taken by the Parliament and Government of Canada to meet the problem of 2 juvenile delinquency i n Canada."  3 The five-member Justice Committee  com-  menced i t s study i n January, 1962, and completed i t s 377-page Report i n June, 1965.  In the 3 1/2 years i t took the Committee to research and prepare  i t s Report, i t v i s i t e d 27 juvenile training schools and seven detention centres across Canada, attended s i t t i n g s of the Juvenile and Family Court i n eight d i f f e r e n t c i t i e s , and received and considered a t o t a l of 77 b r i e f s 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 i t dealt, we do not propose to review here a l l 100 of i t s recommendations.  Instead, we s h a l l confine our discussion to  a general review of the philosophical and p r a c t i c a l approach i t adopted i n dealing with the problem of delinquency. In i t s Report, The Committee reviewed the nature and extent of d e l i n 5 quency i n Canada i n the years preceding 1962, and predicted a marked increase 6 i n the amount of juvenile crime i n coming years. Although i t too recognized the lack of agreement among the experts as to the causes of delinquency, i t c l e a r l y did not consider such a l i m i t a t i o n to be a s u f f i c i e n t ground f o r 7 avoiding the problem.  Instead, i t proposed a philosophy and design f o r a  new juvenile court which, although modelled substantially after the t r a d i t i o n a l juvenile court, at the same time also took into account many of the  - 49 philosophical and p r a c t i c a l l i m i t a t i o n s of the t r a d i t i o n a l approach that had become obvious i n recent years as well as most of the s p e c i f i c c r i t i c i s m s noted e a r l i e r i n this paper.  The Committee commenced i t s inquiry by rejecting  outright the argument that Parliament should leave the f i e l d of delinquency to be defined and dealt with by the provinces under c h i l d welfare l e g i s l a t i o n . Taking the view that delinquency i s only a welfare problem i n the same sense that adult crime i s , and that the benefits of a system of uniformity of l e g a l 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 l e g i s l a t i o n should merely be the counterpart of ordinary criminal l e g i s l a t i o n , but modified for a specialized group defined 9 by age.  In so doing, the Committee reaffirmed i t s commitment to the criminal-  law context followed i n the J.D.A. and i m p l i c i t l y rejected among other possible alternatives, the adoption of a non-criminal welfare approach of the sort that had been approved shortly before by s i m i l a r committees i n England and 10 Scotland. Having thus chosen the desired format f o r new l e g i s l a t i o n , the Committee then proceeded  to reduce the scope and soften the impact of that l e g i s l a t i o n .  C i t i n g such considerations as the desire to achieve uniformity, to avoid wherever possible the dangers of stigma and l a b e l l i n g , and to use quasi-criminal l e g i s l a t i o n to achieve welfare purposes only where those purposes achieved by non-criminal l e g i s l a t i o n , the Committee recommended: 11 new  l e g i s l a t i o n apply uniformly throughout Canada,  cannot be that the  that the federal govern-  ment establish standards of service and provide necessary f i n a n c i a l 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 j u r i s d i c t i o n be raised and that the variable maximum 15 age be abandoned i n favour of a uniform maximum age; that the offence  - 50 j u r i s d i c t i o n be substantially narrowed, abandoning the general offence of delinquency i n favour of s p e c i f i c offences and applying only to conduct that 16 also constitutes an offence f o r adults; that controls be introduced to 17 l i m i t the judge's d i s c r e t i o n regarding waiver; that d e f i n i t e l i m i t s be 18 placed on the length of i n s t i t u t i o n a l committal and other dispositions; 19 and that procedures for the periodic review of dispositions be adopted. Dealing with practice and procedure i n the j u v e n i l e court, the Committee expressed i t s agreement with the e s s e n t i a l philosophy  contained i n section 17  of the present Act - that i s , that proceedings should be as informal as the circumstances w i l l permit, provided  that they remain consistent with a due 20  regard for the proper administration of j u s t i c e .  However, i n i t s view, the  "proper administration of j u s t i c e " required a closer adherence to the t r a d i t i o n a l rules of criminal procedure, at least i n the adjudication stage of the proceedings, than had been the practice under the J.D.A.  Accordingly, i t  recommended:  r e s t r i c t i o n s on the a d m i s s i b i l i t y of statements by juveniles; 22 s t r i c t l i m i t a t i o n s on the use of detention before and during t r i a l ; tighter 23 rules regarding privacy and p u b l i c i t y 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 a f f e c t their child's l i b e r t y ; c l a r i f i c a t i o n of the law i n r e l a t i o n to the taking of pleas and to the p r i v i l e g e against s e l f 26 * 27 incrimination; l i m i t a t i o n s on the practices of informal d i s p o s i t i o n ; and 28 expansion of the rights of appeal from juvenile court decisions. The view taken by the Committee towards d i s p o s i t i o n also r e f l e c t e d the ways i n which modern c r i t i c i s m of the juvenile court has required modification of the o r i g i n a l juvenile court approach. continued  To a certain extent, the Committee  to adhere to t r a d i t i o n a l p r i n c i p l e s - namely, that the goal of the  juvenile court should be to ensure that the juvenile offender becomes a abiding c i t i z e n , that treatment, i n s t i t u t i o n a l or otherwise, should  be  law-  - 51 exclusively designed to further the juvenile's education  and readjustment,  and that the question of whether a p a r t i c u l a r measure i s to be applied should 29 depend not on what he has done but on what i s necessary and useful for him. At the same time, however, i t recognized  that the experience of the juvenile  court has shown that a s i g n i f i c a n t q u a l i f i c a t i o n has to be placed upon the t r a d i t i o n a l philosophy.  I t admitted that although r e h a b i l i t a t i o n may  be  the  primary goal of the juvenile j u s t i c e system, i t can't be i t s only goal: other values, such as deterence, must also be recognized 30 inevitable factors i n the d i s p o s i t i o n a l process.  as important and  The actual extent  to  which deterence i s presently involved i n the d i s p o s i t i o n a l process i s a moot point; not only i s i t often very d i f f i c u l t to determine whether a p a r t i c u l a r disposition i s designed as treatment or punishment by the judge (since h i s 31 intentions are often not revealed by his objective conduct),  but one i s also  faced with the r e a l i t y that i n the eyes of the juvenile (and, for that matter, those of his family and the community generally) most d i s p o s i t i o n s , regardless 32 of their intent, w i l l be seen as punishment. the Committee recognized  The important point i s that  that the d i s p o s i t i o n a l process does not, i n p r a c t i c e ,  nor could i t ever, involve s o l e l y r e h a b i l i t a t i v e considerations, but that other factors such as deterrence  (and, possibly, r e t r i b u t i o n and incapacitation)  must always enter into many of the court's decisions and that i t i s u n r e a l i s t i c to pretend that they do not.  In l i g h t of this conclusion, one may  be surprised  to note that the Committee then went on to indicate i t s agreement with the philosophy  of the J.D.A. as set out i n s.38,  a philosophy which, although  somewhat vague, c l e a r l y emphasizes r e h a b i l i t a t i o n over deterrence  or any  other factors, and to express the view that "the d i f f i c u l t y has not been i n the basic philosophy of the Act but i n the f a i l u r e of society to give to the juvenile court adequate resources with which to f u l f i l the aims of that p h i l o 33 sophy." Because of the brevity with which the Committee dealt with the  - 52 mattery i t i s very d i f f i c u l t  to ascertain whether or not this view i s con-  s i s t e n t with i t s e a r l i e r conclusions.  However, there does seem to be some  inconsistency between i t s recognition of the limitations of treatment and of the t r a d i t i o n a l r e h a b i l i t a t i v e approach and the l a t t e r view that, given the a v a i l a b i l i t y of adequate resources,  the o r i g i n a l juvenile court p h i l o -  sophy could s t i l l be successful and i t s goals attained.  This problem aside,  the Committee's actual recommendations regarding d i s p o s i t i o n refLected elements of a l l of these consideration's: s t a r t i n g 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 j u v e n i l e , the provision of a number of additional d i s p o s i t i o n a l a l t e r n a t i v e s , 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 i n certain cases, and disclosure of 35 their contents to the child's counsel; the creation of new d i s p o s i t i o n a l 36 37 alternatives including informal d i s p o s i t i o n , absolute discharge, adjust38 39 ment to allow short-term counselling, and restitution;, minor revisions 40 41 to the e x i s t i n g dispositions of f i n e , probation, foster home placement, 42 43 committal to a children's aid society, and t r a i n i n g school committal; and assorted other provisions r e l a t i n g to such matters as transfer to adult 44 45 46 47 institutions, after-care, orders for support, and other f a c i l i t i e s . The f i n a l three parts of the Justice Report dealt with matters beyond the scope of this paper.  Suffice i t to say that i n those three parts, the  Committee made a series of recommendations r e l a t i n g to the criminal l i a b i l i t y 48 of parents and other adults i n r e l a t i o n to juvenile matters, the f i e l d of 49 50 prevention, the need for research, and the possible roles of the federal 51 government i n prevention, research, s t a f f t r a i n i n g and resource development. Although the Justice Committee's Report was the government i n June, 1965,  i t was  completed and submitted to  not tabled i n Parliament and made public  - 53 u n t i l Fehruary, 1966.  In September, 1967,  a F i r s t Discussion Draft of a 52 proposed Children's and Young Persons' Act, prepared by the l e g a l s t a f f of the S o l i c i t o r G e n e r a l ' s Department and based s u b s t a n t i a l l y on the recomm53 endations i n the Department of Justice Report, was c i r c u l a t e d to various L  professional groups for comment, the Department's intention being that 54 l e g i s l a t i o n could be put before Parliament i n the spring of 1968. January, 1968,  In  a f e d e r a l - p r o v i n c i a l conference was held i n Ottawa to con-  sider the Discussion Draft.  In attendance at the conference were senior  o f f i c i a l s of the Solicitor-General's Department as well as senior  represen55  tatives of p r o v i n c i a l Corrections and Attorney-General's Departments. no public report was  ever issued concerning  Although  the results of the conference, i t  i s generally known that the p r o v i n c i a l 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 e x i s t i n g maximum age of juvenile court j u r i s d i c t i o n , 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 f i r s t major study of the entire f i e l d of delinquency since the adoption of the present J.D.A. i n 1929  - i t s timeliness - coming at a time of r e l a t i v e l y  high i n t e r e s t i n juvenile court reform - and the p o t e n t i a l importance of i t s recommendations for lawyers, s o c i a l workers, judges, criminologists, and numerous others, the Report drew s u r p r i s i n g l y l i t t l e formal response from these professionals.  Aside from two short a r t i c l e s written p r i o r to the  completion of the Report and concerned primarily with the establishment and 58 membership of the Committee, a b r i e f response by the Canadian Corrections 59 Association, and two a r t i c l e s directed at the Discussion Draft based  - 54 -  60 thereon,  the delinquency l i t e r a t u r e i n the f i v e years following i t s p u b l i -  cation i s t o t a l l y devoid of any serious attempt to analyze a l l or even part 61 of the Justice Report.  Not u n t i l the f l u r r y of a r t i c l e s following the  introduction, i n the f a l l of 1970,  of B i l l 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 i t s 62 conclusions.  Notwithstanding this paucity of c r i t i c a l comment, i t seems,  according to the view of at l e a s t one commentator, that the Report was a l l y well-received by most professionals involved i n this f i e l d and  gener-  that  most of these persons looked forward to l e g i s l a t i o n based on i t s recommendations. What has been the importance of the Justice Report i n the development of juvenile delinquency l e g i s l a t i o n i n Canada? 64 e a r l i e r discussion,  As one w i l l r e c a l l from our  i t seems that the 1960's represented  a major  cross-roads  in the h i s t o r y and development of Anglo-American juvenile j u s t i c e l e g i s l a t i o n . In 1961  the Inglehy Committee i n England recommended substantial r e s t r i c t i o n s  on the prosecutory  functions and corresponding increases i n the c h i l d welfare 65 functions of the juvenile courts; eight years l a t e r , the Children and Young 66 Persons Act, 1969 gave e f f e c t to those recommendations. In 1964, the Kilbrandori Committee i n Scotland recommended the a b o l i t i o n of the juvenile court and i t s replacement by a new  system of children's panels for those " i n 67 need of compulsory measures of care"; four years l a t e r , 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 i n 1967  that only the most serious cases of delinquency be referred to the  juvenile court and that a l l others be dealt with i n a welfare context by a 69 l o c a l Youth Services Bureau; i n that same year, the U.S. Supreme Court 70 handed down i t s h i s t o r i c decision In Re Gault. In l i g h t of the contrasting  - 55 directions taken by law reform bodies i n those countries, i t i s submitted that the most s i g n i f i c a n t aspect of the Justice Report, and i t s major cont r i b u t i o n towards the development of Canadian delinquency l e g i s l a t i o n , was i t s firm re-affirmation of the v a l i d i t y and v i a b i l i t y of the t r a d i t i o n a l juvenile court concept.  In the words of the Committee, i t concluded that  "the present juvenile court process, i n i t s essential features, 71  [ i s ] the  preferred approach to the problem of the juvenile offender."  Granted,  the Committee did recognize that experience under the J.D.A. had ated a number of d i f f i c u l t i e s that had  to be remedied:  substanti-  accordingly, i t  recommended a narrowing of the juvenile court's j u r i s d i c t i o n i n terms of age of the offender, and nature of the offence; safeguards to protect  the introduction of l e g a l  the rights of the young person exposed to the juvenile  j u s t i c e process; the recognition of other s o c i a l objectives, such as deterrence, that the juvenile court must also attempt to s a t i s f y while i t pursues i t s primary goal of r e h a b i l i t a t i o n ; and  the provision of greater and more  e f f e c t i v e resources for both prevention and treatment of delinquency.  However,  none of these recommendations were designed to have the e f f e c t of substantially modifying the role of the juvenile court nor i t s central position i n the t r a d i t i o n a l scheme of the juvenile j u s t i c e system. One might tend to downplay the significance of the Justice Report's re-affirmation of the t r a d i t i o n a l juvenile court by arguing that, as a result of the d i v i s i o n of l e g i s l a t i v e power under the B.N.A. Act the Committee could not possible have recommended any r a d i c a l change from the present criminallaw format for handling delinquent youth. that i f i t saw  We would argue, on the  contrary,  f i t the Committee could have endorsed any one of a number of  alternative approaches including, f o r example:  the establishment of a high  minimum age of criminal r e s p o n s i b i l i t y , above which offenders would be with under the Criminal  dealt  Code either i n the adult or juvenile court and below  - 56 which, they would be dealt with under p r o v i n c i a l l e g i s l a t i o n i n a non-criminal 72 context;  a procedure whereby a l l offenders with s p e c i a l needs, regardless  of age, could be given s p e c i a l 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 i n different courts or under d i f f e r e n t l e g i s l a t i o n ; or, perhaps, a scheme, obviously requiring the j o i n t action of both levels of government, for the handling of both protection and delinquency cases by lay welfare panels.  S i m i l a r l y , although one might be tempted, i n l i g h t of the paucity  of c r i t i c a l 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 a l l , or that whatever p o t e n t i a l impact i t had was l o s t when the Discussion Draft was abandoned, i t seems that such a conclusion i s not j u s t i f i e d by l a t e r developments.  As we s h a l l soon see, the two pieces of l e g i s -  l a t i o n proposed by the federal government on f i v e and ten years, respectively, after the completion of the Justice.Report, tend to follow i n many respects, both the philosophy and the actual recommendations of that Report.  I t does  not seem unreasonable to conclude that i n drafting these two proposed Acts the draftsmen i n the Solicitor-General's Department were substantially influenced by the approach taken by the Department of Justice Committee in i t s 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 i t s emphasis on the importance of and need f o r f e d e r a l - p r o v i n c i a l cooperation i n this f i e l d .  Recognizing the problems that have arisen out of the a l l o c a -  tion of l e g i s l a t i v e j u r i s d i c t i o n relevant to this f i e l d , the Committee refrained from making f i n a l recommendations regarding a number of important issues, choosing instead to leave the f i n a l decision to be made through  - 57 73 federal-provincial consultation.  To this end, the. Committee recommended  that the federal government sponsor a series of f e d e r a l - p r o v i n c i a l conferences to discuss delinquency law reform, to which should be i n v i t e d representatives of  the major private agencies and p r o v i n c i a l and municipal government branches 7  concerned with the administration of j u s t i c e and with the welfare of children. S i m i l a r l y , emphasizing the c r u c i a l importance of p r o v i n c i a l services and res-. ources under the proposed new  l e g i s l a t i o n , the Committee recognized the federal  government's r e s p o n s i b i l i t y to ensure, by means of f i n a n c i a l assistance to the provinces, that a uniform standard of treatment and services are provided to 75 children regardless of where i n Canada they reside.  As the Committee stated,  "the remedy f o r the defects and deficiencies outlined i n many sections of our Report w i l l require what has been c a l l e d "co-operative federation" of the 76 highest orderrbefore a solution w i l l be found."  The federal-provincial con-  ference regarding the Discussion Draft obviously was an attempt at such cooperation; unfortunately, as we have seen, the experiment resulted i n f a i l u r e . When we turn to our consideration of B i l l C-192  and the most recent reform  proposals, i t w i l l be interesting to see the nature and extent of the role cooperative federation has played i n their.development. There i s no doubt that the Department of Justice Report, the f i r s t major study of i t s kind evep- i n Canada, was a document of major importance i n the evolution of new Canadian delinquency l e g i s l a t i o n . inferred that the Report i s beyond c r i t i c i s m .  However, i t should not be  On the contrary, a careful  reading of the Report suggests that one s i g n i f i c a n t deficiency was Its  perhaps  f a i l u r e to adequately explain and j u s t i f y a number of the basic p h i l o -  sophical and p r a c t i c a l premises upon which i t s recommendations were based. Given the c r i t i c a l atmosphere out of which the Report was borne and the divergent approaches being adopted at that time by the nations to which Canadian l e g i s l a t o r s normally look f o r guidance, one would have thought  that the Report would have i n i t i a l l y addressed and considered i n depth two principal  questions: (1)  Is the t r a d i t i o n a l juvenile court concept s t i l l viable today?  (2)  I f i t i s viable, i s i t the best approach to be adopted i n this country i n l i g h t of the extent and nature of the delinquency problem i n Canada and the e x i s t i n g state of s o c i a l science knowledge?  It i s unfortunate that the Committee did not deal s p e c i f i c a l l y with these two issues nor did i t give even a cursory examination or consideration of the alternatives to the t r a d i t i o n a l juvenile court being developed elsewhere. Indeed, one expecting  77  a thoughtful re-evaluation of the juvenile court con-  cept would have generally been rather disappointed; instead, the Committee 78 seems to have assumed, w i t h i ' l i t t l e or no question,  the continuation of the  t r a d i t i o n a l juvenile court process i n generally the same form as i t exists today, and concerned i t s e l f primarily with responding to s p e c i f i c c r i t i c i s m s of the J.D.A. and i n d i v i d u a l problems that had arisen i n practice?  As a  prominent o f f i c i a l i n the Solicitor-General's Department recently commented, i n reading the Justice Report "one i t t e e that i s trying to propose  can sense the pragmatic approach of a comm.solutions to concrete l e g i s l a t i v e problems 79  without challenging the basic orientation of Canadian juvenile courts." I t i s perhaps not unfair to say that the Report as a whole tends to avoid broad philosophical questions  and p o l i c y issues and that where such  issues are discussed they are usually dealt with i n the r e l a t i v e l y narrow context of a s p e c i f i c p r a c t i c a l problem.  The fact that out of a 377-page  Report less than twenty pages are addressed to basic questions 80 d i r e c t i o n tends to support such a comment.  of philosophical  S i m i l a r l y , although the Report  generally deals quite thoroughly with the l e g a l considerations bearing  on  most issues, i t tends to give rather short shrift to the relevance and i m p l i -  - 59 cations of s o c i a l science research.  As one expert has noted:  "Its  approach was  that of j u r i s t s interested i n l e g i s l a t i o n more than that of s o c i a l s c i e n t i s t s focusing their attention on how  s o c i a l organization works ...  [The Report] w i l l 81  never rank among the c l a s s i c works of the sociology of delinquency?" Although such conclusions may  he regrettable, i t 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 i t s approach as well as i t s ultimate conclusions.  In l i g h t of the fact that a l l f i v e members of  the Committee were senior s t a f f of the federal Department of J u s t i c e , i t should not be surprising that i t declined to endorse any scheme involving a substantial abdication of federal j u r i s d i c t i o n .  By the same token, the f act that none of the  Committee members had any previous experience i n juvenile matters, nor i n any related f i e l d s such as that of c h i l d welfare, could not help but have had  an  e f f e c t on the nature of their inquiry and their conclusions; the more time and e f f o r t that was  required merely to f a m i l i a r i z e the members of the Committee with  the operation and problems of the e x i s t i n g system, the less one would expect such a group to propose a r a d i c a l reorganization or restructuring of the e x i s t i n g 82 system. S i m i l a r l y , the professional background of the members (four were lawyers, one a p s y c h i a t r i s t ) cannot be ignored for i t helps to explain a number of the Report's features, including the Committee's great concern regarding  legal  rights and procedural safeguards, i t s decision to r e t a i n ultimate j u r i s d i c t i o n i n a quasi-criminal j u d i c i a l body, i t s tendency to place great reliance on the 83 b r i e f s presented to i t by certain professionals i n other d i s c i p l i n e s , as i t s general reluctance to consider new  as well  and d i f f e r e n t approaches to diversion  or treatment, or even to undertake a more detailed evaluation of the r e l a t i v e 84 success or f a i l u r e of e x i s t i n g programmes.  One might well wonder what e f f e c t  the choice of a Committee more representative of the various d i s c i p l i n e s involved i n the f i e l d of juvenile delinquency and more experienced i n delinquency  - 60 matters might have had on the nature '.of i t s eventual Report and recommendations.  - 61 C.  B i l l C-192;  The Young Offenders Act  On November 17, 1970,  a f u l l f i v e years after the publication of the  Justice Committee Report and two years a f t e r the demise of the proposed C h i l d ren's and Young Persons Act, then Solicitor-General George M c l l r a i t h i n t r o duced i n the House of Commons "An Act respecting young offenders and to repeal the Juvenile Delinquents Act," more commonly referred to as B i l l C-192 1 Young Offenders Act.  or the  The B i l l did not receive a warm reception, either i n  the House or i n the press.  In f a c t , by the time the B i l l was  second reading on January 13, 1971,  introduced for  i t had already been harshly c r i t i c i z e d by  judges, s o c i a l workers, psychologists, p s y c h i a t r i s t s , p r o v i n c i a l Ministers, and i n fact, j u s t about everyone except the Canadian Bar Association which 2 gave the B i l l i t s approval i n p r i n c i p l e . 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, i f the Minister thought that* the  B i l l could be quietly pushed through the House, he was  quite mistaken; instead,  opposition c r i t i c s joined forces to i n s i s t that the B i l l be withdrawn, a l l e g ing  that the B i l l was  "the most punitive, enslaving, vicious and tyrannical 4  piece of l e g i s l a t i o n that has ever come out of the l e g i s l a t i v e g r i s t m i l l , " and demanding to know who  was  responsible f o r "this criminal law  monstrosity,  this caveman's approach to young people, this b i l l of rights for s o c i a l wrongs, 5 this s i m p l i s t i c Spiro Agnew approach to young people's problems." Following 6 this extensive verbal barrage i n the House, the B i l l was referred to the Standing Committee on Justice and Legal A f f a i r s for more detailed study (and, 7 inevitably, more c r i t i c i s m ) for the balance of the year.  In November,  the Government announced that i t had decided to l e t the B i l l die on the paper.  1971, order  A month l a t e r , the Commons Justice Committee recommended that i t be 8  scrapped altogether.  As a r e s u l t , the federal government had, once again,  f a i l e d i n i t s b i d to revise the venerable J.D.A.  - 62 To this writer, the moat unusual aspect of the chronology described above i s the fact that, although, the B i l l was  almost unanimously condemned  by the so-called "experts" i n the delinquency f i e l d , neither i t s stated objectives nor i t s substantive provisions varied a l l that substantially from those endorsed i n the recommendations of the Justice Committee, recommendations which., as we have noted, received general 9 support from the same professional community.  (albeit largely t a c i t )  For example, i n addition to  the B i l l ' s continuation of the t r a d i t i o n a l juvenile court concept  first  embraced i n the J.D.A. and subsequently endorsed by the Justice Committee, the goals allegedly sought to be achieved  through the B i l l are a l l consistent  with recommendations i n the Justice Report.  As noted by one commentator, the  four major p o l i c y objectives underlying the B i l l , as revealed by.the Minister's second reading speech, were: (a) the r e d e f i n i t i o n of the grounds upon which a c h i l d may be t r i e d i n juvenile court; (b)  the modification of the age group over which a juvenile court has j u r i s d i c t i o n ;  (c)  the elimination of arbitrary treatment i n the t r i a l process; and  (d)  the continuation of emphasis on s o c i a l rehabil i t a t i o n of juvenile offenders. 10 11  As we have seen e a r l i e r ,  a l l of these objectives were advocated by  Juvenile Committee i n i t s Report.  the  But, one might argue, these objectives  are a l l very general i n nature; could not the two documents vary greatly i n the way  i n which each seeks to implement them?  Although they could, i t i s  submitted that they don't; on the contrary, the s p e c i f i c reforms i n B i l l C-192(with the exception of a few i s o l a t e d and c l e a r l y 12 provisions to be discussed l a t e r )  contained  severable  generally p a r a l l e l i d e n t i c a l or s i m i l a r  recommendations i n the e a r l i e r Report.  I t may  be h e l p f u l at this stage to  summarize the major reforms proposed by the B i l l .  According  to one  published  - 63 account, they were as follows:  the r a i s i n g of the minimum age to ten; the  change i n designation from "juvenile delinquent" to "young offender"; the exclusion of the status offences and the a b o l i t i o n of the general offence of delinquency; the a b o l i t i o n of the offence of contributing  to delinquency; the  provision of the right to counsel; the expansion of the r i g h t of appeal; the granting to the judge of limited diversionary powers; the creation of the  new  dispositions of absolute discharge, r e s t i t u t i o n 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  transfer power; the new procedures  guidelines f o r the exercise of the  f o r arrest by summons or warrant and f o r  release following arrest; the section making mandatory the attendance of parents i n juvenile court; and a s p e c i a l provision f o r the re-sentencing of delinquents 13 in adult court at age 21.  A careful review of the Justice Committee Report  w i l l show that, with the exception of the l a s t proposal (which, i t i s submitted, i s c l e a r l y severable from the remainder of the B i l l ) , each of these was  recommended therein.  reforms  I t i s not suggested that the statutory language  used to e f f e c t a l l of these reforms coincided i n a l l cases with that envisioned by the Justice Committee, nor i s i t suggested that a l l of the provisions i n the B i l l are also reflected i n the Report or vice-versa; c l e a r l y that i s not the case.  However, i t does seem f a i r to conclude that i n many respects the  B i l l did follow the general approach and indeed r e f l e c t the s p e c i f i c recomm14 endations contained i n the Justice Report.  In l i g h t of this conclusion, i t  i s hard to give much weight to many of the exaggerated the time, such as those of one p r o v i n c i a l  Minister who  c r i t i c i s m s popular at claimed that the Bill's  approach was "foreign to a l l accepted p r i n c i p l e s of c h i l d care" and that the B i l l i t s e l f "would set the treatment of children back to the beginning of the 15 century." Aside from the general s i m i l a r i t i e s between B i l l C-192 and the Justice  - 64 Report, i t i s also important not to forget that many of the major reforms in the B i l l were widely applauded at the time by various authorities i n the f i e l d , including some of the B i l l ' s most vocal c r i t i c s .  Among the reforms  receiving support from various commentators were the l i m i t a t i o n s on the powers 16 17 of arrest and p r e - t r i a l detention, the broader appeal provisions, the 18 r e s t r i c t i o n s on the dissemination of information from juvenile court records, 19 the a b o l i t i o n of the offence of "contributing to juvenile delinquency," the provision for t r i a l i n juvenile court of criminal offences primarily affecting 20 family members, the a b o l i t i o n of the general offence of delinquency i n favour 21 of charges based on s p e c i f i c offences, the r e s t r i c t i o n of the l e g i s l a t i o n 22 to only federal, offences, the requirement that a juvenile be n o t i f i e d 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 encourag25 ing informality of procedure, the adoption of l i m i t a t i o n periods s i m i l a r to 26. those applicable to adults, the c l a r i f i c a t i o n of the practices to be adopted 27 on arraignment and on the taking of pleas, the provisions r e s t r i c t i n g the a d m i s s i b i l i t y 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 r a i s i n g of the minimum and maximum age l i m i t s , 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 B i l l , i t i s important that one r e s i s t  the tendency to ignore the widespread support attracted  by many of the above proposals. If,  as we have suggested,  the. B i l l was generally consistent with the  Justice Report and many of i t s s p e c i f i c provisions were favourably received, why did i t f a i l ?  The answer to this, question involves many factors.  To begin  with, some c r i t i c s took the view that, for reasons unknown (although probably  - 65 the result of p r o v i n c i a l pressure) the B i l l f a i l e d to give f u l l e f f e c t to a 33 number of the Justice Report's more important recommendations. For example, although the B i l l attempted to follow the Justice Report by introducing a provision to o f f i c i a l l y authorize and regulate the disposal of cases without court hearings,  the r e s t r i c t i o n s the B i l l placed on that provision would  probably have had the e f f e c t of l i m i t i n g , rather than expanding, the already 34 existing informal diversionary p r a c t i c e .  Dealing with the use of juvenile  court convictions, the B i l l would have provided  that such a conviction i s not  to be considered a criminal conviction for the purposes of any criminal proceedings subsequently brought i n adult court; regret was expressed by a number of critics that the B i l l declined to go further to protect against any d i s c r i mination i n any form (e.g.- by p o t e n t i a l employers) on the basis of a juvenile 35 court record.  S i m i l a r l y , although at least four sections of the B i l l require 36 that a juvenile be given notice of his r i g h t to counsel, there i s no section that guarantees him the r i g h t of l e g a l representation at public expense, as 37 advocated by the Justice Committee.  F i n a l l y , dealing with t r a i n i n g school  committals, although the B i l l adopted the Report's recommendations that such, commitals be made only a f t e r consideration of a pre-disposition report and only for a maximum period of three years, i t f a i l e d to set f o r t h the requirement, found i n the Discussion Draft (in r e l a t i o n to a l l young offenders) and even the present J.D.A. (in r e l a t i o n to children under 12), that every e f f o r t f i r s t 38 be made to treat the child i n his own home. A second major c r i t i c i s m of the B i l l was that i t contained,  i n the words  of one commentator "punitive provisions which would have the e f f e c t of s t i g matizing juvenile offenders and undermining the t r a d i t i o n a l separation of 39 juvenile from adult offenders." isions?"  What were these so-called "punitive prov-  The most blatant and most publicized example was undoubtedly the  provision i n sections 30(l)(k) and 30(4) whereby a juvenile found to have  - 66 committed an offence for which, he might, i f he had been t r i e d on  indictment,  have been sentenced to death or to imprisonment for l i f e as a minimum sentence ( i . e . - c a p i t a l or non-capital murder) could be committed to a training school u n t i l age 21, whereupon he could then be taken before an  adult court for  further sentencing "as i f he had then and therebeen convicted of the offence... 40 and as i f he were thereupon l i a b l e to imprisonment for l i f e . "  Not only did  this provision f l y c l e a r l y i n the face of the Justice Committee's recommendation regarding a three year maximum for a l l training school committals as w e l l as i t s warnings as to the serious detrimental effects of long-term confinement on juvenile offenders, but i t also smacked of extreme harshness (in e f f e c t , permitting a ten-year-old c h i l d to be imprisoned ing  for l i f e ) and i n j u s t i c e (allow-  what would c l e a r l y have been prohibited as double jeopardy  i n the case of  adults) and was,  as a r e s u l t , unanimously (and r i g h t l y , i t i s submitted) de41 plored by v i r t u a l l y every c r i t i c of the B i l l . A second such provision was that allowing a juvenile court judge to order that a juvenile may be f i n g e r 42 printed and photographed.Although there has been and continues to be con43 siderable controversy over whether or not the I d e n t i f i c a t i o n of Criminals Act 44 applies to charges under the J.D.A., many c r i t i c s , f e a r f u l of the l i k e l y stigmatizing effects of such a process, have opposed granting the p o l i c e such 45 powers at a l l or except for limited purposes and under s t r i c t l y controlled 46 conditions. F i n a l l y , objections on similar grounds were also made to the provisions allowing the transfer of juvenile offenders from training schools 47 to adult correctional i n s t i t u t i o n s and the detention of c h i l d witnesses 48 who  refuse to be sworn or to t e s t i f y . Closely related to the previous c r i t i c i s m , although much broader i n  i t s implications, was  the argument that the proposed legislation,through i t s  s p e c i f i c provisions and general format, rejected the  treatment-oriented  philosophy of the J.D.A. i n favour of a more punitive criminal-law approach.  - 67 This was  the view expressed by the Canadian Mental Health. Association i n i t s  l e t t e r and pamphlet to the members of Parliament wherein i t stated:  "The  B i l l i s , i n f a c t , a criminal code for children, which, i s d i s t a s t e f u l i n i t s  49 terminology, l e g a l i s t i c i n i t s approach, and punitive i n i t s e f f e c t .  Although  the phrase "Criminal Code for Children" became a r a l l y i n g cry of sorts for c r i t i c s of the B i l l , few took the opportunity to analyze what was meant by this phrase.  In i t s b r i e f , the C.M.H.A. c i t e d the provisions allowing for  re-sentencing of juvenile offenders at age 21, allowing the court to permit fingerprinting and photographing,  l i m i t i n g the term of probation orders to two  years and training school committals  to three years, abolishing the general  offence of "delinquency" i n favour of s p e c i f i c changes based on s p e c i f i c offences, as well as the l e g a l i s t i c format of the B i l l as proof that the proposed new Act treated juveniles as l i t t l e 50 ren i n need of treatment.  criminals, rather than as c h i l d -  Leaving aside the f i r s t  two provisions, inserted  as a result of pressure from p r o v i n c i a l law enforcement departments and e a s i l y severable from the remainder of the B i l l , i t i s clear that the  remaining  three provisions were a l l deliberately inserted by the l e g i s l a t o r s as an expression of their concern to eliminate arbitrary treatment of juveniles i n the t r i a l process and reduce the juvenile court's scope for interference i n their l i v e s .  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 a l l come i n for substantial c r i t i c i s m at the hands of lawyers, 51 judges, and others.  Clearly, i n the eyes of this l a t t e r group of c r i t i c s  these reforms were v a l i d and desirable;;in fact i t i s reasonable to assume that they would not have objected to the comparison made between the proposed Act and the Criminal Code.  In summary, i t seems that the debate over the  d e s i r a b i l i t y of a "Criminal Code f o r children" comes back to the basic controversy between the "parens patriae" and "due process" approaches.  In l i g h t  - 68 of the support given to the views expressed i n the C.M.H.A. b r i e f , i t i s clear that i n the case of this p a r t i c u l a r issue the "parens p a t r i a e " view (as advocated by the C.M.H.A.) prevailed over the argument f o r "due  process" (as  supported by the Canadian Bar Association). A fourth major factor i n the demise of the B i l l was the same factor that i s generally believed to have led to the death of i t s predecessor, the Children and Young Persons Act, two years e a r l i e r , namely, the enormous pot52 e n t i a l costs to the provinces of implementing the proposed l e g i s l a t i o n .  Much  p u b l i c i t y was given to the complaint by Ontario Minister of Correctional Services A l l a n Grossman that increasing the maximum age from 16 to 17 would mean that his Department would have to provide four~or f i v e more t r a i n i n g schools at a c a p i t a l cost of around $20 m i l l i o n and an annual operating 53 of about $3 m i l l i o n .  S i m i l a r l y , many provinces  the increased pressures  on p r o v i n c i a l services and f a c i l i t i e s that would  complained b i t t e r l y that  result from the revised minimum age and the narrowing of the Act's j u r i s d i c t i o n would be impossible  cost  offence  to bear without additional federal f i n a n c i a l  assistance which, contrary to the urging of many, the proposed new l e g i s l a t i o n f a i l e d to provide.  The b r i e f of the Canadian Association of S o c i a l Workers,  t y p i c a l of many presented to the House Committee on Justice and Legal A f f a i r s , c r i t i c i z e d the government's f a i l u r e to deal with the problem of the lack of resources Bill.  and, i n p a r t i c u l a r , the absence of cost-sharing provisions i n the  As one commentator concluded:  "Thus, i n the end,  the r e a l complaint  to be lodged against the Young Offenders B i l l relates not to what i s included but to what i s 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 i n the Justice Committee's deliberations and whose comments were  - 69 sought regarding the 1967 Discussion Draft, that they were not consulted i n 55 r e l a t i o n to B i l l C-192. officials  This attitude extended to p r o v i n c i a l government  as w e l l as to professionals i n the c h i l d care f i e l d , since, con-  trary to the suggestions was  of some government representatives that the B i l l  the result of extensive consultations, &nd  contrary to the Justice Comm-  i t t e e ' s emphasis on the need for "co-operative federalism of the highest order") i t seems that there were no f e d e r a l - p r o v i n c i a l discussions r e l a t i n g 56 to the B i l l before i t s introduction i n the House.  Secondly, there  was  general agreement among both lawyers and non-lawyers that, aside from the question of l e g a l i s t i c versus informal approach, the B i l l was  i n many areas  poorly drafted, containing much unnecessary d e t a i l and obscure and technical language, and that the wording of many sections, p a r t i c u l a r l y the Forms 57 appended to the B i l l , could have been s u b s t a n t i a l l y improved. s i g n i f i c a n t factor was  the b r i e f , referred to e a r l i e r , presented by  C.M.H.A. to members of Parliament House.  Another the  p r i o r to the B i l l ' s second reading i n the  This document, although not i n i t s e l f a p a r t i c u l a r l y thorough or  sound analysis, proved i t s e l f to be, as a result of i t s timely presentation and i t s rather quotable r h e t o r i c , a handy tool for Opposition M.P.s criticizing  the B i l l , p a r t i c u l a r l y those who  bent on  did not have the timeeor i n t e r e s t  to a c t u a l l y read the B i l l and consider i t s contents before j o i n i n g the debate. F i n a l l y , i n dealing with the contribution of the Opposition c r i t i c s who  spoke  on the matter during the debates i n the House and subsequently i n Committee, we would be remiss i f we did not state the obvious factor apparent from even the b r i e f e s t consideration of the transcripts of those debates - namely, that the majority of these M.P.s  appear to have been more interested i n e x p l o i t i n g  the B i l l as an opportunity to embarrass the Government and to attract personal p u b l i c i t y than i n suggesting workable alternatives to the l e g i s l a t i o n proposed. In answer to the question "why  did B i l l C-192  f a i l ? " one must acknowledge  that a l l of the factors and considerations cited above played a r o l e .  A more  complex question i s what implications the B i l l ' s f a i l u r e had for the development of delinquency l e g i s l a t i o n i n Canada.  Clearly a number of the  difficulties  the Government encountered i n this i l l - f a t e d law reform attempt could have been avoided.  The f a i l u r e to consult with p r o v i n c i a l o f f i c i a l s  or with the  professionals i n the delinquency f i e l d before introducing the B i l l i n P a r l i a ment simply r e f l e c t e d poor p o l i t i c a l strategy; rather than silence the p o t e n t i a l c r i t i c s i n these two groups, such an approach merely fanned the flames of their discontent.  Secondly, as suggested e a r l i e r , the B i l l ' s poor drafting immediately  alienated many individuals who  otherwise might have been more sympathetic to i t s  aims; there i s no reason why  the B i l l ' s objectives could not have been achieved  through the use of less confusing, technical, obscure, and at times threatening language than that found i n the B i l l .  L a s t l y , i t must be admitted that a number  of the B i l l s provisions were v a l i d l y open to the c r i t i c i s m e i t h e r that they f a i l e d to give f u l l e f f e c t to desirable reforms proposed by the Justice Commi t t e e 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 b r i e f s from interested professionals or government groups would surely have sensitized the o f f i c i a l s  i n the S o l i c i t o r -  General's Department as to which provisions might be re-thought and which ought to be discarded altogether.  By following such an approach (in e f f e c t ,  the same procedure t r i e d i n the case of the Discussion Draft a few years e a r l i e r ) the Government might have avoided a large number of the objections subsequently raised.  Because i t chose to act otherwise, a r e l a t i v e l y small  number of objectionable provisions attracted an inordinate amount of c r i t i c a l attention and p u b l i c i t y , obscured the many progressive reforms i n the B i l l , and ultimately led to the B i l l ' s withdrawal.  Although, i t would have been convenient to end our consideration of theo B i l l on that note, and leave the impression that, had the Government avoided these three p r a c t i c a l and p o l i t i c a l p i t f a l l s , the B i l l would have been warmly received and readily adopted, such a conclusion would be very misleading, f o r i t seems that even i f the problems noted above had been avoided, a much broader and more c r i t i c a l one would s t i l l have remained.  It i s submitted that the most  s i g n i f i c a n t result of the entire Bill-C-192 fiasco may well have been i t s revelation that there currently exists i n Canada two c o n f l i c t i n g views, each with a large, a r t i c u l a t e , and q u a l i f i e d group of supporters, as to the proper role of the juvenile court i n the juvenile j u s t i c e system.  On the one hand,  there appears to be a large number of professionals i n the c h i l d welfare f i e l d , including judges, s o c i a l workers, probation o f f i c e r s , academics and others, who  s t i l l favour the broadly-defined, treatment-oriented, p a t e r n a l i s t i c approach  of  the J.D.A. and who  staunchly oppose such proposed reforms as the a b o l i t i o n  of  indeterminate sentences, the replacement  of the general offence of delinq-  uency with charges based on s p e c i f i c offences, the r e s t r i c t i o n of the broad discretionary powers of the juvenile court judge, and the introduction of more formalized procedural safeguards t r a d i t i o n a l l y associated with the adult criminal j u s t i c e process. r.On the other hand, there are many who  are  prepared to argue that the t r a d i t i o n a l p a t e r n a l i s t i c view advocated by the 19th century child-savers i s no longer ( i f i t ever was)  j u s t i f i a b l e , and  advocate instead a system more akin to the adult criminal process, involving narrowly-defined offences, adjudication based on the p r i n c i p l e s of due process, and determinate d i s p o s i t i o n a l alternatives.  This group (in which the l e g a l  profession would be very well represented) would suggest that the expertise in assessment and disposition upon which the p a t e r n a l i s t i c approach i s based has f a i l e d to develop i n practice, and that even i f such expertise could be developed, society now  recognizes that juveniles are individuals e n t i t l e d to  - 72 rights and l i b e r t i e s no less than those, accorded to adults, central among which are the rights to substantive and procedural safeguards i n any adjudication process and, i n the course of the d i s p o s i t i o n process, to be subjected only to the l e a s t r e s t r i c t i v e treatment consistent with their own and the protection of the community. was recognized by one commentator who,  interests  The c o n f l i c t between these two views i n concluding his analysis of B i l l  C-192, noted: The o v e r a l l pattern of c r i t i c a l response... symbolizes the gulf which separates those who contend that, i n dealing with juvenile delinquency, the state should assume and maintain coercive power over the misbehaving c h i l d , primarily by reference to h i s or her apparent need f o r care, protection or treat-, ment, and those, on the other hand, who would l i m i t the state's criminal j u r i s d i c t i o n over children to cases i n which the commission of a substantive criminal offence can be demonstrated. 58 It seems, therefore, that underlying the entire debate over B i l l  C-192  there was a c r u c i a l and fundamental difference i n philosophy that would have prevented unanimity over the B i l l ' s provisions even i f the p r a c t i c a l and p o l i t i c a l problems we have noted had been overcome or avoided.  Unfortunately,  however, because of these other problems, attention tended to be focussed on r e l a t i v e l y minor issues, and as a r e s u l t , the B i l l came and went without a meaningful and thorough discussion, either by the Members of Parliament or by the professional community, of the r e l a t i v e merits of these two views or of  the possible grounds for compromise between them.  - 73 D.  The Young Persons In C o n f l i c t With, the Law Act In December, 1973, following the withdrawal of B i l l C-192,. two  were formed.  committees  One, dubbed the Federal-Provincial Joint Review Group, was estab-  lished at the Conference of Corrections Ministers i n Ottawa to study the p o s i 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  l a t t e r body was composed of ten members, s i x of whom were j u r i s t s , three persons trained i n the s o c i a l sciences, and one from the f i e l d of administration.  In  September, 1975, this Committee issued i t s Report e n t i t l e d Young Persons i n 1 C o n f l i c t With the Law, for  i n which i t presented a series of 108 recommendations  the reform of Canada's existing juvenile delinquency law, both i n the form  of a lengthy discussion of issues, alternatives and recommendations and i n the form of a draft piece of l e g i s l a t i o n to be known as the Young Persons i n C o n f l i c t 2 with the Law Act. Like the Justice Report and B i l l C-192 before i t , the Solicitor-General's Committee endorsed the continued v a l i d i t y and v i a b i l i t y of the t r a d i t i o n a l juvenile court concept. the  Rather than turn to r a d i c a l l y d i f f e r e n t models f o r  juvenile j u s t i c e system, the Committee, l i k e i t s two predecessors, chose  instead to d i r e c t i t s e f f o r t s towards remedying the various weaknesses of the 3 present system pointed out by the c r i t i c s i n recent years. Accordingly, one can f i n d many s i m i l a r i t i e s between this Report and the two e a r l i e r documents. 4 In cal  fact, nearly a l l of the eight "main thrusts" of the Report  reflect identi-  or s i m i l a r trends found both i n the Justice Report and B i l l C-192.  For  example, four of the eight main goals a r t i c u l a t e d i n the YPICWTL Report are nearly i d e n t i c a l , both i n theory and i n actual implementation 5 policy objectives we noted e a r l i e r  underlying B i l l C-192:  t o  t n e  f°u  r  major  the proposal to  abolish the concept of delinquency and to l i m i t the juvenile court's offence j u r i s d i c t i o n solely to federal offences i s v i r t u a l l y the same as that found  - 74 i n B i l l 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 B i l l C-192, and further developed by B i l l C-192's c r i t i c s ; the proposed safeguards to protect the rights of young persons i n the juvenile court process mirror substantially s i m i l a r reforms found i n B i l l C-192; and f i n a l l y , the emphasis on s o c i a l r e h a b i l i t a t i o n f i r s t adopted i n the J.D.A., continued i n the Justice Report and B i l l C-192, i s re-affirmed once again i n the new Draft Act.  Similarly,  three of the four remaining "main thrusts" i n the Report - those provisions requiring mandatory assessments i n cases where open or secure custody or probation i s being considered, those promoting more active p a r t i c i p a t i o n of the young person i n the juvenile process, and those establishing a j u d i c i a l and administrative review procedure - r e f l e c t themes discussed and supported i n the Justice Report, although developed to a somewhat lesser extent i n B i l l C-192.. Only the proposals f o r the establishment and operation of a formal screening agency designed to divert juveniles from formal j u d i c i a l proceedings represent a t o t a l l y new step, one not foreshadowed by either the Justice Report or for  B i l l C-192.  However, even i n the case of the screening agency, recommendations  s i m i l a r reform could be found i n at least one paper written i n response 6  to B i l l C-192.  As a r e s u l t , i t seems f a i r to say that n.onti of the major  reforms i n the Solicitor-General's Report constitute r a d i c a l l y new or unprecedented innovations i n the f i e l d .  The majority of the proposals represent  an extension of views and trends reflected both i n the Justice Report and in B i l l C-192, and even the most innovative of the proposals has some precedent i n recent years. Despite the s i m i l a r i t y of many of the objectives a r t i c u l a t e d by the Solicitor-General's Committee to those advocated e a r l i e r by the Justice Committee and by the supporters of B i l l C-192, some confusion has been expressed regarding the philosophical, s o c i o l o g i c a l , and psychological premises under-  lying the proposed new l e g i s l a t i o n .  While some professionals i n the f i e l d  have viewed the Draft Act as reinforcing the J.D.A.'s emphasis on treatment and r e h a b i l i t a t i o n , others have seen i t as a step i n the d i r e c t i o n of the adult criminal process because of i t s references to "the age of criminal 7 r e s p o n s i b i l i t y " and to the concept of "accountability." the  In i t s Report,  Solicitor-General's Committee recommended that the new l e g i s l a t i o n incor-  porate a preamble "as a declaration of the philosophy, s p i r i t , and intent of 8 the  l e g i s l a t i o n and as a guide to i t s administration."  Accordingly, the  Draft Act included i n the Report contains a preamble consisting of some seven paragraphs. the  We s h a l l now examine the preamble and the commentary regarding  same contained i n the YPICWTL Report, and thereby attempt to ascertain  more clearly the "philosophy, s p i r i t , and intent" underlying the proposed new Act, p a r t i c u l a r l y i n comparison to that of the J.D.A.  At the same time,  we s h a l l attempt to b r i e f l y summarize the major reforms proposed i n the Draft Act.  For purposes of convenience, we s h a l l deal with the preamble under a  series of headings, each representing a major p r i n c i p l e a r t i c u l a t e d therein, (a)  Specialized treatment for children  In i t s Report the Committee states that:  "We believe the preamble should  state that young people who are i n c o n f l i c t with the law should ... be dealt 9 with separate from and i n a manner d i f f e r e n t than adults".  Although nowhere  i n the preamble does i t i n fact state that young people should be dealt with separate from adults (perhaps i t was thought to be too obvious a p r i n c i p l e to require s t a t i n g ) , i t i s s p e c i f i c a l l y declared i n the f i r s t paragraph of the preamble that they should "not be held accountable ... i n the same manner, or 10 suffer the same consequences to such s p e c i a l treatment?  ... as adults".  Why  are young persons e n t i t l e d  According to the preamble,  the reason i s that  "because of their state of dependency and l e v e l of development [young persons] have s p e c i a l needs."  and maturity,  This p r i n c i p l e - that young people,  - 76 because of their age and l e v e l of maturity, should be treated d i f f e r e n t l y than adults - i s by no means novel. albeit implicitly.  The J.D.A. follows the same philosophy,  For example, the J.D.A. states that "where a c h i l d i s  adjudged to have committed a delinquency he s h a l l be dealt with, not as an 11 offender, but as one i n a condition of delinquency", and further, that "as far as practicable every juvenile delinquent s h a l l be treated, not as a criminal, 12 but as a misdirected and misguided c h i l d . " J.D.A.'s  p r i n c i p l e of s p e c i a l i z e d treatment of c h i l d offenders has been  continued unchanged i n the proposed new (b) One  I t seems, therefore, that the  Responsibility for one's  legislation,  contraventions  clause that i s somewhat novel i s that found i n the opening words of  the preamble:  "Young persons i n c o n f l i c t with the law should bear responsi-  b i l i t y for their contraventions."  Although this view i s immediately q u a l i f i e d  by the words "but should not be held accountable therefor i n the same manner, or s u f f e r the same consequences thereof, as adults," i t i s s t i l l worth noting i n that i t introduces into the proposed l e g i s l a t i o n a concept that had  no  e x p l i c i t recognition i n the juvenile j u s t i c e scheme created by the J.D.A.that i s , the concept of a c h i l d being responsible for his actions.  In the  scheme of the J.D.A., wherein the c h i l d was found to be " i n a condition of 13 delinquency" and delinquency was considered to be a psychological or s o c i a l 14 illness, for his own  l i t t l e s i g n i f i c a n c e was actions.  attached to the child's r e s p o n s i b i l i t y  Instead, the J.D.A. concentrated  on removing or counter-  acting those a n t i - s o c i a l or destructive influences that led the c h i l d to demonstrate the behaviour he had shown (by punishing  the parent who  or allowed the behaviour, by removing the c h i l d from the pernicious  encouraged environ-  ment i n the home, by allowing a probation o f f i c e r to become involved with the child, etc.).  The reoccurrence  of the concept of r e s p o n s i b i l i t y , a l b e i t i n  this limited and q u a l i f i e d form, may  be the result of a number of influences.  - 77 I t may r e f l e c t current disenchantment with, the behaviourist psychology and p o s i t i v i s t philosophy  that had become so widely popular at the turn of the  century when the o r i g i n a l juvenile courts were formed.  Alternatively, i t  may represent an attempt by the draftsman to appease those c r i t i c s who have i n recent years deplored  the f a i l u r e of the J.D.A. and of the present juvenile  j u s t i c e system to i n s t i l a sense of r e s p o n s i b i l i t y i n those children that 15 come i n contact with them.  S i m i l a r l y , i t may be a r e f l e c t i o n of the recent  renaissance, both i n professional and lay c i r c l e s , of the c l a s s i c a l ( i . e . punishment and deterrence) school of thought, which has come about not because of any recent evidence that punishment i s , i n f a c t , an e f f e c t i v e deterrent, but rather because the treatment-rehabilitation i d e a l of the juvenile correctional system has been viewed as f a i l i n g .  Whatever the reasons the draftsman  had for i t s i n c l u s i o n , the ultimate e f f e c t and significance of the p r i n c i p l e of r e s p o n s i b i l i t y for one's contraventions  i n theory and i n practice under  the proposed l e g i s l a t i o n s t i l l remains to be seen, (c)  Individualized treatment  We have established that offenders under the Draft Act are to be held responsible f o r t h e i r a n t i - s o c i a l conduct, but i n a d i f f e r e n t way and with d i f f e r e n t consequences than adults. with by the juvenile court?  But how, i n f a c t , are they to be dealt  According  to the preamble, they are to be given  "aid, encouragement and guidance and, where appropriate, supervision, d i s c i p l i n e s  and control."  These words are nearly i d e n t i c a l to those i n 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 " a i d , encouragement, help and 17 assistance."  In fact, the range of dispositions available to the juvenile  court under the Draft Act i s , with certain notable exceptions, very s i m i l a r to that available under the J.D.A.  The dispositions proposed, with the com-  parable dispostion, i f any, under the J.D.A. appearing i n brackets, are as  - 78 18 f o r up to eight days (adjournment f o r any d e f i n i t e 19 20 21 or i n d e f i n i t e period); absolute discharge (suspension of f i n a l d i s p o s i t i o n ) ; 22 23 24 fine of up to $200 (fine of up to $25); community service order (no 25 comparable d i s p o s i t i o n ) ; compensation o r r e s t i t u t i o n (no comparable d i s 26 27 28 p o s i t i o n ) ; probation (same); committal to open or secure custody (place29 30 ment i n foster home, committal to children's a i d society or Superintendent, 31 32 or committal to i n d u s t r i a l school); and imposition of a n c i l l a r y conditions 33 follows:  (same).  adjournment  Other proposed provisions contain l i m i t a t i o n s or r e s t r i c t i o n s on  the Court's d i s p o s i t i o n power.  B r i e f l y , these include the requirement of an  assessment report whenever the imposition of a r e s t r i c t i v e disposition such 34 as probation or open or secure custody i s being considered; a maximum term 35 of three years for any d i s p o s i t i o n ; and the creation of a comprehensive 36 procedure f o r j u d i c i a l and administrative review of a l l dispositions, (d)  Prosecution as a l a s t resort  According to the preamble, prosecution of young persons should only be u t i l i z e d "when t h e i r acts or omissions cannot be adequately dealt with other37 wise", or, as stated elsewhere i n the Report, "when other a l t e r n a t i v e s , 38 whether s o c i a l or l e g a l are inappropriate."  These statements suggest a  s i g n i f i c a n t r e d e f i n i t i o n of the role of the juvenile court from that established by the J.D.A.  They echo the view f i r s t suggested i n the 1965 Depart-  ment of Justice Report that the court should only be used as a l a s t 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 i t s e l f was the central feature of the entire juvenile j u s t i c e 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 e a r l i e r i n Section A of this Chapter.  Many of the new  reforms proposed i n the Draft Act r e f l e c t this r e s t r i c t e d and less optimistic  - 79 (some would say more r e a l i s t i c ) view of the role of the formal court proceedings. For example, the narrowing of the offence j u r i s d i c t i o n and the r a i s i n g of the minimum age are r a t i o n a l i z e d on the grounds that status offences, offences against p r o v i n c i a l and municipal l e g i s l a t i o n , and those offences committed by children under the age of fourteen years can best be handled, not i n the context of quasi-criminal l e g i s l a t i o n of this nature, but rather under the provisions of p r o v i n c i a l c h i l d welfare, youth protection and juvenile 40 correctional l e g i s l a t i o n . S i m i l a r l y , the rationale for the creation of a 41 formal screening process i s based on the view that young persons should, i f possible, be spared the "stigmatizing e f f e c t s " that are c h a r a c t e r i s t i c of the 42 present j u d i c i a l system, and that the use of various community resources i n l i e u of that system would i n many cases be more b e n e f i c i a l to the young 43 person, his family and society. While discussing the screening process, i t i s 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 i n deciding whether or not to recommend to the Attorney-General  that an  information should be l a i d , i s the p r i n c i p l e that no information should be l a i d 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 f a c i l i t i e s that are available to 44 the court." F i n a l l y , the exclusion of offences or t r i a l s for adults i n 45 the juvenile courts  constitutes further recognition of the limited role  envisioned for the juvenile court under the proposed new (e)  system,  Rights and freedoms of young persons  Unlike the draftsmen of the J.D.A., who  believed that informal proceed-  ings were i n the best interests of young persons and that there was no need for the procedural and substantive safeguards  c h a r a c t e r i s t i c of the adult  criminal j u s t i c e system, the Solicitor-General's Committee has agreed with  - 80 the modern "due process" view that the State shouldn t intervene i n a young 1  person's l i f e as a result of an offence u n t i l i t i s proved, beyond a reasonable doubt and within proper legal safeguards, that the young person has, i n f a c t , committed the offence.  According  to the preamble, young persons are  to have a l l of the rights and freedoms available to adults, including the right to s p e c i a l safeguards and assistance i n the preservation of those rights and freedoms; a r i g h t to be heard and to p a r t i c i p a t e i n the proceedings; that affect them; a right to be informed as to what their rights and freedoms are; and f i n a l l y , and perhaps most importantly,  "a r i g h t to the least invasion of  privacy and interference with freedom that i s compatible with their own i n t e r 46 ests and those of their families and of society. How has this so-called "due process" approach been incorporated into the proposed l e g i s l a t i o n ? The Draft Act contains provisions declaring a young 47 person's r i g h t to representation by counsel or by a responsible person ( a l though i t does not go so f a r as to require that l e g a l services be made a v a i l able to young persons unable to make their own arrangements for such assistance); 48 r e s t r i c t i o n s on the a d m i s s i b i l i t y of statements made by young persons; r e s 49 t r i c t i o n s on the court's power to accept admissions of g u i l t ; l i m i t a t i o n s on 50 the use of detention; r e s t r i c t i o n s on the taking and use of fingerprints and 51 52 photos; provisions o u t l i n i n g the assignment and duties of youth workers; provisions r e l a t i n g to the creation, maintenance, and access of youth court 53 54 records; l i m i t a t i o n s on the length of adjournments permitted; requirements 55 of notice to parents upon arrest or detention and p r i o r to appearance i n court; the requirement that written reasons be given by the judge i n cases where a 56 disposition of probation or of committal to open or secure custody i s ordered; 57 and f i n a l l y , expanded rights of appeal. One p a r t i c u l a r r i g h t quoted above from the preamble deserves s p e c i a l comment.  The recognition of the right of young persons to "the l e a s t invasion  of privacy and interference with freedom that i s compatible with t h e i r own  - 81 interests and those of their families and of society" i s c l e a r l y a s i g n i f i c a n t departure from the p a t e r n a l i s t i c "parens patriae" approach of the J.D.A.  This  statement i m p l i c i t l y recognizes that the process of the juvenile court i n variably does constitute an "invasion of privacy and interference with freedom." S i m i l a r l y , i t suggests what has long been recognized by many of those involved i n the c h i l d welfare f i e l d :  that notwithstanding the noble and l o f t y goals of  the juvenile court, i n practice the intervention of the court i s not always compatible with the interests of the young persons i t attempts  to serve.  F i n a l l y , i t acknowledges the r e a l i t y that there are three separate.and, i n many cases, c o n f l i c t i n g interests which the court must ultimately  attempt  to serve—namely, the interests of the young.person, of h i s family and of society. (f)  Limitations on removal from the home  The l a s t p r i n c i p l e set out i n the preamble represents the l o g i c a l extension of the "least invasion of privacy and interference" p r i n c i p l e .  It  provides that young persons should only be removed from the care of their parents when a l l other measures are inappropriate. Furthermore,  i n those cases  where i t i s necessary for their removal from their home, the State i s given the r e s p o n s i b i l i t y to see that they are dealt with "as i f they were under the care and protection of wise and conscientious parents."  The best examples of  this p r i n c i p l e are the r e s t r i c t i o n s the Draft Act imposes upon the use of open and secure custody.  According to section 16(9), open custody may only be  ordered i f the judge i s s a t i s f i e d that i t i s necessary i n l i g h t of the factors l i s t e d i n section 9(4).  S i m i l a r l y , section 16(10) provides that secure custody  may only be ordered i f the judge i s s a t i s f i e d that i t i s necessary i n l i g h t of section 9(4), or i s necessary to prevent the young person from doing harm to himself or another, or because he would be l i k e l y to escape i f placed i n a place of care and open custody.  - 82 Turning from the s p e c i f i c provisions of the preamble to a broader consideration of the l e g i s l a t i o n as a whole, there are two other philosophical 58 considerations  that should be noted.  As suggested e a r l i e r ,  central to the  development of the o r i g i n a l juvenile j u s t i c e system and the reform attempts of recent years has been the continuing tension between two contrasting views that of a p a t e r n a l i s t i c , 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 t y p i f i e d by the J.D.A.) and the "Criminal Code for Children" (as r e f l e c t e d i n B i l l C-192)»respectively.  We also noted at the outset of this discussion  the c o n f l i c t i n g views that have been expressed as to which of those two 59 approaches have been adopted i n the Draft Act.  Having reviewed the p r i n -  ciples enunciated i n the preamble as well as the "main thrusts" of the l e g i s l a t i o n , i t i s our submission that the focus found i n the Draft Act r e f l e c t s features of both of these two philosophies.  Although many provis-  ions i n the proposed l e g i s l a t i o n (for example, the t i t l e of the Draft Act, the a b o l i t i o n of the offence of delinquency, the references i n the preamble to "accountability", the procedural safeguards added to the adjudication process,  the l i m i t a t i o n s imposed an the court's powers of disposition', the  expanded rights of appeal, and the provision for j u d i c i a l and administrative reviews of disposition) tend to suggest a swing towards a quasi-criminal, due process philosophy, treatment philosophy  other provisions (for example, the statement of the  i n the preamble, the procedure and c r i t e r i a involved i n  decisions regarding screening, transfer to adult court, d i s p o s i t i o n , and review of d i s p o s i t i o n s , etc.) continue to place considerable emphasis on the "state" and " s p e c i a l needs" of the young person. clusion that one can draw i s that the philosophy  As a r e s u l t , the only conunderlying the Draft Act i s  s t i l l a somewhat schizophrenic one, involving elements of both of the'se two  t  - 83 60 approaches. A second consideration that should be noted i s the Committee's recognition of the fact that the c o n f l i c t a r i s i n g out of a young person's c o n f l i c t with the law often involves the interests of parties other than just the young person and the State.  In the past, the entire juvenile  j u s t i c e system, l i k e the adult j u s t i c e system, has been geared towards the punishment or treatment of the offender and l i t t l e attention was paid to the needs of the v i c t i m or of the community i n terms of reparative measures.  The YPICWTL Report, fhrough i t s introduction of such dispositions 61 62 as community service orders and compensation or r e s t i t u t i o n orders,  has taken a f i r s t step towards recognizing the needs and interests of the community i n the treatment of young persons i n c o n f l i c t with the law.  - 84 -  PART II - Two Aspects of Reform:  Jurisdiction  and Procedure i n the Juvenile Court  - 85 CHAPTER 3 A.  THE SCOPE OF THE LEGISLATION  Geographical Scope As mentioned, e a r l i e r , the J.D.A. does not, by i t s terms,  automatically apply throughout  Canada.  Instead, i t contains a scheme  whereby i t can be put i n force by proclamation of the Governorr-iri Council, provided that either of two conditions precedent are s a t i s f i e d . It can be put i n force i n any province or part  tjhe.rie.Gff  provided that  that province has previously enacted l e g i s l a t i o n establishing a 1 system of juvenile courts and detention homes.  Alternatively, i n  the absence of such p r o v i n c i a l l e g i s l a t i o n , i t can be proclaimed i n any c i t y , town or other portion of a province -if the Governor i n Council i s s a t i s f i e d that s u f f i c i e n t f a c i l i t i e s are available i n 2 that area. The reasons why this piecemeal system was incorporated into the o r i g i n a l J.D.A. of 1908 are threefold.  F i r s t of a l l , because  the establishment of juvenile courts was c l e a r l y a matter of p r o v i n c i a l 3 j u r i s d i c t i o n , i t was considered necessary that appropriate p r o v i n c i a l l e g i s l a t i o n be enacted before the J.D.A. was put into force i n any 4 province. Secondly, the d i s p o s i t i o n of probation, the "keystone i n  5  the arch of the modern juvenile court"  was p r a c t i c a l l y unknown i n  most areas of Canada i n 1908, and i t was therefore thought that i f the J.D.A. were immediately made operative throughout  the country i t  might have been ignored or condemned as a f a i l u r e without having been 6 given a f a i r t r i a l . F i n a l l y , because of the shortage of f a c i l i t i e s and personnel at the time, i t was believed that a gradual introduction of the J.D.A. would be more p r a c t i c a l than i t s immediate universal 7 application. At the present time the J.D.A. i s i n force i n a l l 8 major metropolitan areas of Canada. I t i s not, however, i n force i n  - 86 Newfoundland, as a result of the terms of union between that province 9 and Canada. In i t s 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 a l l Canadian children.  The  Committee took the view that the shortage of f a c i l i t i e s and  personnel  should not r e s t r i c t the Act's operation, on the ground that such l e g i s l a t i o n shouldn't be available only for t h o s e l i v i n g i n the more affluent areas of the country; that the problem of the provision of court services i n remote areas could be solved by the adoption of a c i r c u i t court system; and that i f the provinces were unable to finance the establishment  of detention f a c i l i t i e s and other a n c i l l a r y  services.in remote areas, then the federal government should consider 11 providing subsidies for this purpose. There have been cases i n which courts have experienced d i f f i c u l t y i n determining whether or 12 not the J.D.A. has been brought into force i n a p a r t i c u l a r area; such a problem obviously could not arise i f the Act were made a p p l i c able throughout Canada. The proposed Young Offenders Act ( B i l l C-192) did not s p e c i f i c a l l y deal with the issue of i t s geographical scope.  The two sections  of the B i l l 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 j u r i s d i c t i o n .  Section  2(1) defines "juvenile court" as: a court established or designated by or under an Act of the l e g i s l a t u r e . o f the appropriate province or designated by the Governor i n Council or by the Lieutenant Governor i n Council of the appropriate province for the purposes of this Act.  - 87 Section 5(1) provides, i n part that: Notwithstanding any other Act, every young person who i s alleged to have committed an offence...shall be dealt with as hereinafter provided and...a juvenile court has exclusive j u r i s d i c t i o n i n respect of every such offence. Based on these two provisions, i t seems reasonable to i n f e r that the B i l l was  intended  to apply throughout Canada, or at l e a s t wherever  a juvenile court, has already been, or shall.be, established. The Draft Act proposed i n the.Report of the S o l i c i t o r General's Committee follows the very same approach taken i n B i l l C-192. In f a c t , the d e f i n i t i o n of the juvenile court (renamed the "youth 13 court")  and the delineation of i t s exclusive j u r i s d i c t i o n are  described i n sections 2 and 4(1) respectively i n v i r t u a l l y i d e n t i c a l language (aside from the differences i n the court's age l i m i t s ) to that found i n B i l l C-192  and quoted above.  There would appear to be l i t t l e reason for disagreement with the view that federal l e g i s l a t i o n of this nature should apply equally throughout Canada.  Regardless of whether one characterizes such l e g i s l a t i o n  as criminal law or as.more related to c h i l d welfare concerns, i t i s c l e a r l y undesiraM'ee that a c h i l d should be defied, the resources  and  specialized treatment of the juvenile court because the Act has yet to be proclaimed i n the p a r t i c u l a r area i n which the offence allegedly committed.  was  Furthermore, i t 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 framed.  However, while i t may  be commonly agreedi that new  first  legislation  should attempt to e s t a b l i s h uniformity i n the treatment, of juvenile offenders, i t i s 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 j u r i s d i c t i o n over a l l "offences" (as defined i n the Act) committed by "young persons" (as defined i n the Act), i t does not require that youth courts be established i n areas where they do not presently e x i s t .  I f , for example, a province refuses to  establish a youth court i n a given area for f i n a n c i a l or other reasons, the federal government could, through the Governor i n Council designate an existing court to be a "youth court" for the purposes 14 of the Act. powers extend.  However, that i s as far as the federal government's The other powers necessary  to put the Act into e f f e c t  - those of appointing youth court judges, designating places of detention and of open and secure custody, appointing or designating a person as a p r o v i n c i a l d i r e c t o r or as a youth worker - a l l rest with either (or, i n some cases, both) the l e g i s l a t u r e or the Lieutenant Governori±nCouncil of the province i n question.  C l e a r l y , this i s not  an example of poor l e g i s l a t i v e d r a f t i n g , but rather a r e f l e c t i o n of the province's exclusive l e g i s l a t i v e power under the B.N.A. Act 15 i n r e l a t i o n to the administration of j u s t i c e within the province. But what i s the effect of the Draft Act on those areas i n which the p r o v i n c i a l authorities do not choose to e s t a b l i s h youth courts?  It  would seem that, i n such cases, not only could young offenders not be prosecuted  i n a youth court (since such a court would not exist)  but they also could not be dealt with i n adult court (because of the exclusive j u r i s d i c t i o n given to the youth court by section 4), and, as a r e s u l t , the only route for treatment of any sort would be under p r o v i n c i a l c h i l d protection l e g i s l a t i o n .  C l e a r l y , such treatment  would be very inappropriate i n many cases, p a r t i c u l a r l y 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 f r u s t r a t e the goal of uniformity i n the application of the Act, by doing so i t  runs the  r i s k of seriously l i m i t i n g i t s own powers to deal with young offenders. One additional matter deserves b r i e f comment.  As mentioned  e a r l i e r , as a r e s u l t of the terms of the union between Canada and Newfoundland, the J.D.A. has never been brought into force i n that 16 province. However, as we noted above,- the e f f e c t of section 4(1) of the Draft Act would be to Vest exclusive j u r i s d i c t i o n over offences and offenders within the scope of the Act i n the "youth court" f o r the p a r t i c u l a r area i n which the offence allegedly occured.  I t would seem that the e f f e c t of section 4(1) would be to  preclude the operation of Newfoundland's e x i s t i n g juvenile court 17 system  and to force that province either to e s t a b l i s h a "youth  court" and thereby come under the scope of the Draft Act or to deal with a l l such offences and offenders under i t s c h i l d legislation.  Quaere whether i t was intended  welfare  that Newfoundland be  affected by the provisions of the Draft Act and i f so, whether that 18 province has agreed to be subject to the federal l e g i s l a t i o n ?  - 90 B.  Nomenclature  As the t i t l e of this paper suggests, the selection of an appropriate term to designate those young persons who  contravene  criminal or quasieeriminal l e g i s l a t i o n has not been without versy.  contro-  S i m i l a r l y , considerable debate has arisen concerning the  s u i t a b i l i t y of various alternative t i t l e s proposed for any new legislation.  In i t s Report, The Department of Justice Committee  considered some of the major objections that have been voiced regarding the use of the term "juvenile delinquent" i n the context of l e g i s l a t i o n e n t i t l e d the Juvenile Delinquents Act. One of the most frequently heard c r i t i c i s m s of the terminology found i n the J.D.A. i s that the use of the term "juvenile delinquent" tends to "stigmatize" or " l a b e l " the c h i l d , a process which often leads to harmful results to the c h i l d .  I t i s argued, for example,  that because of the strong emotional connotation that the term has acquired, many p o l i c e o f f i c e r s w i l l be reluctant to brand a c h i l d as a "juvenile delinquent" i n order to enforce the law and therefore w i l l never lay charges against children for minor offences; secondly, that by " l a b e l l i n g " a c h i l d as a"juvenile delinquent", society i s generating pressures that push the offender further i n the d i r e c t i o n of a n t i - s o c i a l behaviour  ( i e . the " s e l f - f u l f i l l i n g prophesy"); and  that, i n certain cases, the " l a b e l " i s worn by the c h i l d "not as a 1 derogatory l a b e l , but as a badge of merit".  Although the "stigma"  argument has been made by many c r i t i c s of the system i n recent years, there s t i l l i s ,however, l i t t l e i n the way of s o c i a l science research ( p a r t i c u l a r l y i n Canada) to prove conclusively that such a thing as "stigma" e x i s t s , or i f i t does e x i s t , that i t arises i n the context of our j u v e n i l e j u s t i c e system and that i t thereby has a detrimental  2 e f f e c t on young persons who  are dealt with by the system.  Further-  more, i t can be argued that changes i n terminology w i l l not have a s i g n i f i c a n t b e n e f i c i a l e f f e c t because whatever stigma there i s attaches not to the term "juvenile delinquent", but rather to the juvenile court proceeding i t s e l f ,  being as i t i s a formal response  to a n t i - s o c i a l conduct, and because any new designation "can become as infamous as "delinquent", a term that was  itself,  after a l l , 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 that have, over the years, attached to therterm.  connotations  It has been said  that the true meaning of the term has been obscured by the tendency o.f doctors and behavioural s c i e n t i s t s to use the term i n a descriptive sense (wherein the delinquent act i s viewed merely as a symptom of s p e c i f i c underlying behavioural problems) rather than according to the meaning given i t by lawyers  (concerned more with the s p e c i f i c 4  conduct that gives r i s e 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 i n fact the c h i l d  may  hase committed only one such unae'sifcabUre act and has no : habit or ;  pattern of a n t i - s o c i a l behaviour;in such a case there i s the danger 5 that the c h i l d may be "pre-judged  by t i t l e " .  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 l e g a l designation i n favour of the terms " c h i l d offender" and "young dffender"; and  (2) that the t i t l e of the  6 J.D.A. be changed to the "Children and Young Persons Act". B i l l C-192 attempted to follow the general approach, although  not the precise terminology, recommended by the Department of Justice Committee.  The B i l l changed the designation of the offending  child  from "juvenile delinquent" to "young offender" and changed the t i t l e of the l e g i s l a t i o n to the"Young Offenders Act".  However,  c r i t i c s of the B i l l argued ( j u s t i f i a b l y , i t i s submitted) that the nomenclature chosen was no better than and was objections as that i n the. J.D.A.. I t was  open to the same  suggested by some that 7  the "Youth Offences Act" or " S o c i a l Work Act" would be. preferable. As might be expected, the Solicitor-General's Committee was not s a t i s f i e d with any of the names proposed above.  I t agreed with  the view expressed e a r l i e r that the term "juvenile deliquent"  has,  as a result of misuse and misinterpretation, became a l a b e l with serious negative e f f e c t s and that therefore the terms "juvenile delinquent"and "Juvenile Delinquents Act" should not be used i n the new  legislation.  However, i t f e l t that a l l of the t i t l e s that  had been considered previously were undesirable either because they tended ( as did the J.D.A.) to create a s p e c i f i c class of offender and to stigmatize that offender by means of a l a b e l or because they f a i l e d to provide a clear d e f i n i t i o n of the persons and the kinds  8 of offences to which i t applies. new  Instead, i t recommended that the  l e g i s l a t i o n be e n t i t l e d the "Young Persons i n C o n f l i c t with  the Law Act" and that the persons to whom the l e g i s l a t i o n applies 9 be designated accordingly. In the absence of convincing s o c i a l science research on the point, i t i s very d i f f i c u l t to evaluate or to comment constructively on the pros and cons of the nomenclature debate. w i l l be those who  Undoubtedly there  w i l l maintain that the proposed changes i n termin-  ology w i l l remove a l l traces of stigma from the juvenile j u s t i c e  system.  On the other hand, there w i l l be others who w i l l argue that, just  as "a rose by any other name would smell as sweet", a c h i l d who has broken the law, whether he be called a "juvenile delinquent", a "young offender", or a "young person i n c o n f l i c t with the law", W i l l i i n e v i t a b l y experience some degree of stigma by v i r t u e of h i s contact with the juvenile j u s t i c e system.  Perhaps the most s a t i s f a c t o r y blend of optimism and realism l i e s  i n a middle ground between the two extremes.  I t i s submitted that i f , i n  fact, there i s no s p e c i a l significance to the term "juvenile delinquent", then there should be no strong reason i n favour of retaining such a designation, p a r t i c u l a r l y since i t was o r g i n a l l y the product of American l e g i s l a t i o n over three-quarters of a century ago. Secondly, although i t i s possible that, i n time, the proposed new terminology w i l l also take on certain elements of stigma, at least at the outset i t has the advantage of being more objective and less emotionally charged than many of the terms formerly proposed.  F i n a l l y , the view that we are suggesting i s not d i s s i m i l a r to  that expressed i n the following passage from the Department of Justice Report: Undoubtedly an element of stigma w i l l continue to accompany an appearance i n juvenile court, regardless of any change i n descriptive language that i s made. It i s perhaps not unreasonable to hope, however, that terminology less open to confusion, or burdened by acquired meanings, w i l l hot a t t r a c t quite the same degree of stigma as has come to be associated with the words 'juvenile delinquent'. 10  - 94 C.  Minimum Age J u r i s d i c t i o n At common law and today under the Criminal Code a c h i l d under the 1  age of seven years i s not criminally responsible f o r h i s conduct,  nor can  a c h i l d be convicted f o r an offence committed between the ages of seven and fourteen, unless i t i s proven that he or she had the capacity to know the nature and consequences of the conduct and to appreciate that i t was 2 wrong. These minimum age l i m i t a t i o n s apply not only to proceedings under the Criminal Code, but also to charges under other federal l e g i s l a t i o n 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 p r o v i n c i a l c h i l d welfare or youth protection l e g i s l a t i o n . In recent years i t has often been suggested that Parliament should leave the matter of delinquency i n the very young to be dealt with by the provinces under their c h i l d welfare l e g i s l a t i o n .  In i t s Report, the Justice  Committee discussed the various arguments that have been put forward i n favour of r a i s i n g the minimum age l i m i t : (1) The .juvenile court procedure i s not appropriate f o r the very young offender because: (a) the c h i l d i s unable to p a r t i c i p a t e a c t i v e l y i n the adversarial process envisioned by the J.D.A., and (b) the court proceedings themselves tend to confuse the c h i l d 5 and have no positive value i n terms of h i s behavioural problem. Although the Committee acknowledged that the problem of a young child's p a r t i c i p a t i o n i n a delinquency hearing i s a very r e a l one, i t doubted whether dealing with the matter under p r o v i n c i a l protection l e g i s l a tion would substantially improve the s i t u a t i o n .  S i m i l a r l y , i t noted that  there has been no research to show whether or not juvenile court proceedings have a positive value i n terms of a child's behaviour problems nor i s there any reason to believe that proceedings under p r o v i n c i a l welfare 6 l e g i s l a t i o n would be any more b e n e f i c i a l , or less confusing, to the c h i l d .  - 95 The Committee was also unsympathetic  to the suggestion that court proceedings  could be avoided altogether by the r e f e r r a l of very young offenders and their families to c h i l d welfare agencies.  Its view was that i n those  cases where the public interest might require an interference with parental rights or the l i b e r t y of the c h i l d , the agency should always be required 7 to j u s t i f y i t s acts i n 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 i n need (because of the desire to avoid the stigma of a court appearance and the i n a b i l i t y of the prosecution to meet the high standard of proof), (b) the harmful " l a b e l l i n g " effect of a finding of delinquency, and 8 (c) a tendency towards puni.feivenesssinntheemakMggdfadispositions. Dealing with each of these points i n turn, the Committee took the view that the denial of services i s more a result of the lack of f a c i l i t i e s and personnel i n the juvenile court, a lack which exists equally i n protection proceedings under p r o v i n c i a l l e g i s l a t i o n ; that stigma attaches not only because of the form of the proceeding, but also because of the possible consequences that flow from i t , 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 j u r i s d i c t i o n ; and f i n a l l y , that the tendency to use the available dispositions as "punishment" could and should be prevented by the appointment of properly q u a l i f i e d judges together with the d i r e c t i o n i n 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 o r i g i n a l offence, and as an unduly harsh one where the offence i s not very serious, thereby resulting i n confusion and feelings of i n j u s t i c e . 10 The Justice Committee acknowledged not only that this d i f f i c u l t y exists, but also  that i t i s inherent i n any l e g i s l a t i o n that combines the  - 96 requirement of proof of a specified event or condition with a general d i r e c t i o n to have regard to the child's welfare.  in-  I t doubted that a  change i n the nature of the procedure would have a s i g n i f i c a n t p o s i t i v e e f f e c t ; even i f proceedings were brought under p r o v i n c i a l protection l e g i s l a t i o n , the c h i l d and h i s parents would s t i l l 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 i n a c i v i l proceeding than under the present system wherein i t s j u r i s d i c t i o n over parents i s dependent upon proof of f a u l t onfch'eMxpart. 13 The Committee agreed that i t i s desirable to involve a child's parents as f u l l y as possible i n proceedings a f f e c t i n g the c h i l d but f e l t that this can adequately be done i n the context of quasi-criminal 14 proceedings, although some element of compulsion may be required. (5) The d i s t i n c t i o n between a "neglected" and a "delinquent" c h i l d i s often an a r t i f i c i a l one and r a i s i n g the minimum age would p a r t i a l l y eliminate this source of unfairness. 15 Although i t conceded that i t i s often a matter of chance whether a c h i l d i s dealt with under the J.D.A. or under p r o v i n c i a l c h i l d welfare l e g i s l a t i o n , the Committee defended "delinquency" and "neglect".  the l e g a l d i s t i n c t i o n between  I t argued that maintaining the d i s t i n c t i o n  allows one to choose the appropriate proceeding to achieve a result.  4§§i X&d ,  In addition, i n some cases the d i s t i n c t i o n i s quite v a l i d ; f o r  example, where a c h i l d engages i n a n t i - s o c i a l a c t i v i t i e s which are not the 16 result of any parental neglect. The main argument against r a i s i n g the minimum age involves the problem of providing appropriate welfare services for those juveniles who would no longer be dealt with under federal l e g i s l a t i o n .  I t has been said  that p r o v i n c i a l welfare departments and children's a i d societies do not have s u f f i c i e n t f a c i l i t i e s to deal with some problem children under  - 97 the age of ten, nor do they have s u f f i c i e n t personnel or other resources to cope with increased numbers of problem children.  Accordingly, p r o v i n c i a l  welfare authorities have argued that a higher minimum age should not be established unless provision i s made for a substantial increase i n f i n a n c i a l 17 grants for welfare services.  Although i t admitted that r a i s i n g the  minimum age would have some effect upon existing child welfare arrangements i n each province, the Committee f e l t that this argument did not carry great weight.  Since, at the present time nearly a l l services rendered under the  J.D.A. are financed by the provinces and the m u n i c i p a l i t i e s , what difference would i t make, the Committee asked, i f these same services are provided under p r o v i n c i a l c h i l d welfare l e g i s l a t i o n rather than under the J.D.A.? The Committee ultimately concluded that the minimum age f o r juvenile court j u r i s d i c t i o n should be raised, primarily because i t could not see how a very young c h i l d could be held responsible at a l l "on any 19  reasonable  conception of the purpose and function of the criminal law".  Having  made this decision, however, the Committee then experienced d i f f i c u l t y i n reaching agreement on what the actual minimum age should be.  In i t s view,  the age chosen should s a t i s f y two major c r i t e r i a : at that age a child's comprehension of events should be such that the adversary system can function e f f e c t i v e l y and more serious offences should occur with s u f f i c i e n t 20 frequency to require that criminal-type procedure be a v a i l a b l e .  Based  on these considerations i t recommended: (1)  that the minimum age of criminal r e s p o n s i b i l i t y under Canadian "law -lis and the minimum age of juvenile court j u r i s d i c t i o n under the Act - should be raised to ten or, at most, twelve;  (2)  that although i t i s preferable that a uniform age be adopted  throughout  Canada, the p o s s i b i l i t y of a variable or f l e x i b l e age should not be excluded; and  - 98 (3)  that the minimum age to be selected should be the subject of f e d e r a l 21 p r o v i n c i a l discussions before a f i n a l decision i s made.  The Committee also considered  a number of p r a c t i c a l and t h e o r e t i c a l  problems that have arisen regarding the rule - known as the d o l i incapax rule - that requires the prosecution, i n the case of a c h i l d between the ages of seven and fourteen, to rebut a presumption that the c h i l d i s incapable of committing a crime by showing that the c h i l d had s u f f i c i e n t moral d i s c r e t i o n and understanding to appreciate the wrongfulness of h i s 22 act. Based on these considerations i t concluded: 23 (4)  that the d o l i incapax rule should now be abolished. B i l l C-192 proposed the amendment of section 12 of the Criminal Code  so as to r a i s e the minimum age of criminal r e s p o n s i b i l i t y 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 B i l l , Solicitor-General Goyer gave no i n d i c a t i o n of the policy reasons behind the r a i s i n g of the minimum age or why the age of ten was chosen.  I t i s reasonable to suspect  that i n doing so, the Government 25  was merely adopting the Justice Committee's recommendations; however, i f that i s the case, i t i s hard to understand the reasons f o r the retention, contrary to the Committee's recommendations, of the d o l i incapax r u l e . The Draft Act proposed by the Solicitor-General's Committee defines 26 the minimum age of juvenile court j u r i s d i c t i o n as fourteen years,  amends  section 12 of the Criminal Code by substituting the age of fourteen 27 years f o r that of seven as the minimum age of criminal r e s p o n s i b i l i t y , 28 and abolishes the d o l i incapax r u l e . In the commentary accompanying the Draft Act, the Committee conceded that the s e l e c t i o n of an appropriate age i s a very d i f f i c u l t problem, one that cannot be solved by a purely 29 objective analysis of an empirical nature. I t recognized the simple  - 99 fact that children develop at d i f f e r e n t rates and that there i s no single point i n a child's l i f e when he automatically becomes capable of adhering 30 to society's behavioural standards. Notwithstanding these l i m i t a t i o n s , however, the Committee agreed that i t was  s t i l l necessary, as a p r a c t i c a l  matter, to specify a minimum age i n the l e g i s l a t i o n i n order to allow for 31 uniform and consistent application of the law. What, according to the Committee, i s the proper c r i t e r i a for choosing such an age?  In i t s view,  the proper age i s that at which " i t can be assumed that most children have matured s u f f i c i e n t l y 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 a l t e r n a t i v e s , 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 p r o v i n c i a l c h i l d welfare, youth protection or juvenile 33 correctional l e g i s l a t i o n . It seems that the general consensus i n recent years has been that very young children, for many of the reasons discussed above, should 34 be treated under criminal l e g i s l a t i o n such as the J.D.A.  not  If one examines  recommendations made recently i n other j u r i s d i c t i o n s , one can see a general trend i n favour of r a i s i n g the minimum age of criminal r e s p o n s i b i l i t y . The major issue has, and continues  to be, what i s the proper minimum age? 36  Many d i f f e r e n t c r i t e r i a have been used to j u s t i f y various choices of age. 37 These include the age of puberty, the age at which a c h i l d begins high 38 39 school, the age at which compulsory schooling ends, or the age at 40 which a youth i s regarded as able to marry and earn money; s t i l l others stress i n t e l l e c t u a l d i s c r e t i o n , knowledge of right from wrong, and other 41 motivational factors.  It i s submitted, however, that generalizations  of this nature are of l i t t l e u t i l i t y , since "maturity  i s not a concept for  35  100  -  which a universally v a l i d or precise d e f i n i t i o n can be formulated.  It  42 i s a derivative of age, but i s not synonymous with i t . "  Indeed, as  the  Justice Committee Report acknowledged, there i s no age that can be said  43 to be the " r i g h t " age of criminal r e s p o n s i b i l i t y . Kilbrandon Committee noted, the "age  Rather, as  the  of criminal r e s p o n s i b i l i t y " i s i t s e l f  an e n t i r e l y a r t i f i c i a l concept, i n that i t " i s not  a r e f l e c t i o n of  any  44 observable f a c t , but simply an expression of p u b l i c policyU. Table No. 1 - Minimum Age Provisions  J.D.A.  Provision  Minimum age for criminal responsibility  A p p l i c a b i l i t y of d o l i incapax rule  7  Justice Committee Report 10 (or possibly  12)  Bill C-192  Draft Act  10  , 14  la  Abolished  7 to 14  io£'Eo i4 i  Abolished  I f , as we. have, suggested, the choice, of a minimum age i s b a s i c a l l y a public p o l i c y issue, what p o l i c y considerations  or other influences  account for the variations i n the minimum age recommendations contained i n the Justice Committee Report, B i l l C-192 (see Table No. 13)?  Regarding B i l l C-192  and the recent Draft Act  we can only speculate  since, as  mentioned e a r l i e r , i n introducing the B i l l the Government gave no i n d i c a t i o n of the objectives sought to be attained i n r a i s i n g the lower limits.  The Justice Committee c l e a r l y saw  the issue as one of weighing the  effectiveness of the criminal law against other methods of s o c i a l control, as a means of dealing with the problem of a n t i - s o c i a l behaviour presented by d i f f e r e n t age groups.  Indeed, as we have seen e a r l i e r , i t was  even  able to specify certain minimum requirements that any age chosen would 45 have to s a t i s f y . But how i n fact did the application of these c r i t e r i a  - 101 r e s u l t i n the ultimate recommendations that were made?  To the  extent  that the Committee preferred that the decision be l e f t to f e d e r a l p r o v i n c i a l negotiations, i t tended to avoid dealing with the issue. even i n i t s suggestion  that the minimum age be raisedtto ten (or, at most,  to twelve), the Committee f a i l e d to explain why, of ten was  But  i n i t s opinion, the  age  found to be the most suitable answer to the question, as framed.  Clearly, no reasons were given as to why or eight-year-old's)  a ten-year-old's  (but not a nine-  comprehension of events i s such that the adversary 46  system could function e f f e c t i v e l y .  Nor were any s t a t i s t i c s c i t e d ,  (although i t i s reasonable to assume that a l l e x i s t i n g s t a t i s t i c s were made available to the Committee) to support i t s i m p l i c i t conclusion that ten was  the age at which more serious offences occurred with s u f f i c i e n t 47 frequency to require that criminal-type procedure be a v a i l a b l e . In f a c t , i t has been argued that based on the actual numbers that would be excluded by this proposal, the r a i s i n g of the age to ten would have a n e g l i g i b l e 48 practical effect.  In l i g h t of the above, one i s led to conclude either  that the Committee took into account other considerations.which  it  f a i l e d to a r t i c u l a t e or that, having stated what i t considered  to be  the  relevant considerations, merely made a rough guess, based more on hunch than l o g i c , as to what age would best s a t i s f y those, same considerations. The report of the Solicitor-General's Committee i s equally inadequate i n that i t f a i l s to a r t i c u l a t e the reasons why that i t did.  i t chose the minimum age  Although i t does propose one c r i t e r i a - namely ,the age at  which most children have matured s u f f i c i e n t l y to be responsible accountable for bh§.iiaca£'tsfcp.ns,there i s no suggestion as to why fourteen was  chosen to be the most suitable.  and  the age of  Presumably, i t merely r e f l e c t s  the subjective views - perhaps an average of the suggested ages - of the members of the Committee.  Perhaps i t merely r e f l e c t s the Committee's  - 102 s e n s i t i v i t y to numerous c r i t i c i s m s that the age proposed i n B i l l C-192 49 was too low or i t s desire to follow provisions adopted on recent years  50 i n other "progressive" j u r i s d i c t i o n s .  In l i g h t of the Report's emphasis  on r e s p o n s i b i l i t y and accountability, i t may be f a i r to say that the Committee chose the high age i t did i n order to ensure that any error i n drawing the l i n e would more l i k e l y be on the side of excluding  sufficiently  mature children, rather than including immature children, within the scope of federal criminal l e g i s l a t i o n . In making the above c r i t i c i s m s , we are not suggesting  that the  f a i l u r e of the two Committees to explain i n s u f f i c i e n t d e t a i l the reasons behind their decisions implies a lack of expertise or candour i n either case. Gd#.enntheebbevi'ty of the Solicitor-General's Committee's Report, one could not expect a more detailed discussion i n that case.  Rather, i t  i s suggested that the c r i t i c i s m reflected above may be of broader application and might, i n f a c t , be directed against many of the decisions made i n the cqur-seof delinquency law reform: that because of the lack of s o c i a l science research i n those areas where research could be of value, and i n 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 i s inherent M  any process of;*law reform), but  also, once they are made, they are hard to explain and support i n a l o g i c a l and convincing manner and, as well, equally d i f f i c u l t to c r i t i c i z e i n a meaningful and constructive way.  - 103 D.  Maximum Age J u r i s d i c t i o n 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 i n any province by the Governor i n Council. As a r e s u l t of the f l e x i b l e age provision, there i s no uniform age across Canada.  At present,  the maximum age i n Saskatchewan, Ontario, New Brunswick, Nova Scotia, Prince Edward Island, the Yukon, and the Northwest T e r r i t o r i e s remains unchanged at sixteen years;  Manitoba and Quebec have opted for the maximum of eighteen  years; B r i t i s h Columbia (as noted e a r l i e r ) has recently lowered i t s l i m i t 2. from eighteen to seventeen; and Alberta has set i t s l i m i t at sixteen for boys and eighteen for g i r l s . In Newfoundland, where the J.D.A. doesn't apply, 3. the maximum age under provincial l e g i s l a t i o n i s seventeen. A similar 4. d i v e r s i t y can be found i n the juvenile l e g i s l a t i o n of other countries. The Justice Committee dealt i n depth with the various issues that arose out of proposals to i t to raise the maximum age of juvenile court jurisdiction.  The three main arguments that were made against r a i s i n g 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 i n terms of treatment resources and 5. programming; that the minimal resources available should be used with the younger juvenile offenders ( i e - those under sixteen) where i t i s thought that there i s the greatest chance of success; and that many of the types of conduct caught by the broad d e f i n i t i o n of delinquency i n the J.D.A. (ie 6. the "status offences") were p a r t i c u l a r l y inapplicable to older juveniles. On the other hand, those i n favour of r a i s i n g the maximum age argued that since adolescents aren't given the benefits of adulthood i t would be unjust  - 104 to hold them responsible  -  for their actions i n the same way  as adults;  that  teenagers have become an i d e n t i f i a b l e group i n society and  therefore  be dealt with together  that the benefits  i n a single specialized court;  and  should  of the juvenile court approach (especially separation from adult j a i l s  and 7.  adult criminals) should be extended to as wide a group of offenders as possible. After considering'these (1) (2)  (3)  arguments the Committee recommended:  8. that the juvenile age should be uniform throughout Canada; that the maximum juvenile age should be seventeen (that i s , the juvenile court's exclusive o r i g i n a l j u r i s d i c t i o n would extend to a l l offenders sixteen years of age and under); 9. and 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 i t s decision to raise the maximum age  to seventeen.  To begin with, i t accepted the reasons set out  above i n favour of r a i s i n g the age, p a r t i c u l a r l y that dealing with the d e s i r a b i l i t y of keeping as many sixteen-year-olds as possible out of adult 11. penal i n s t i t u t i o n s . Secondly, i t emphasized the p r a c t i c a l consideration that an increase to seventeen would involve less administrative changes or adjust12. ment from province  to province  than would an age of sixteen or  eighteen.  F i n a l l y , although i t acknowledged that the age of seventeen i s i n some respects a compromise, the Report went on to state quite c a t e g o r i c a l l y 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 a r t i f i c i a l 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, i t is our conclusion that seventeensihould mark the upper l i m i t for the operation of the juvenile court process. 13.  - 105 B i l l C-192 followed  the Justice Committee recommendations i n part. 14. Although i t adopted the suggested age of seventeen, i t s t i l l preserved the 15. provinces' powers to increase that age to eighteen years.  As i n the case of  minimum age j u r i s d i c t i o n , the government did not state i t s reasons for choosing the age i t did and, as a r e s u l t , one must assume that for reasons of convenience i t merely adopted the recommendation of the Justice Committee Report.  Its decision to r e t a i n the p r o v i n c i a l option to raise that age  l i m i t by one year i s more d i f f i c u l t to j u s t i f y , not only because i t constituted a r e j e c t i o n of the Justice Committee's recommendation as to uniformity, but also i n l i g h t of c e r t a i n comments made by the S o l i c i t o r General while introducing the B i l l i n the House of Commons.  After  announcing that one of the B i l l ' s major objectives was to redefine the age j u r i s d i c t i o n of the juvenile court i n order  to obtain uniformity  across  Canada, he stated that: ...since the d e f i n i t i o n of a juvenile i s not uniform i n a l l the provinces of Canada, a delinquent who i s considered a juvenile according to law i n one province may be tried as an adult i n the neighbouring province, where the J.D.A. applies only to those under sixteen years of age. I t i s obvious that such inconsistencies are unacceptable and contrary to the concept of j u s t i c e . 16. Given such a p o l i c y , i t i s hard to understand why the government bowed to what were undoubtedly vociferous p r o v i n c i a l demands that i t continue to allow them the r i g h t to raise the maximum age.  By so doing, the government was  c l e a r l y f r u s t r a t i n g , rather than f a c i l i t a t i n g , the goal of uniformity, and the inconsistencies which the Solicitor-General called "unacceptable and contrary to the concept of j u s t i c e " were allowed to continue, a l b e i t within a narrower range for d i s p a r i t y .  - 106 Aside from the uniformity problem, a number of commentators attacked the B i l l ' 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 l i m i t of eighteen would-.'then be forced to abandon special f a c i l i t i e s which they had established, while those that s t i l l had the l i m i t of sixteen would be forced to deal with older offenders for which they lacked 18. adequate f a c i l i t i e s , 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 i n most provinces i t was  thought to be  a more l o g i c a l l i m i t , one which could achieve consistency with other 20. l e g i s l a t i o n as well as uniformity across the country under this Act. These c r i t i c i s m s were answered i n the Draft Act proposed by the Solicitor-General's Committee.  Not only did the Draft Act reiterate the  view of the Justice Committee that i n order to achieve consistency and avoid 21. discrimination a uniform maximum age should be adopted, but i t also r e f l e c t e d the c r i t i c i s m s of B i l l C-192 by rejecting the choice of seventeen as the 22. most suitable maximum age. As i n the case of minimum age j u r i s d i c t i o n , the Committee acknowledged that the choice of a proper age i s a very question which does not allow for a completely  difficult  objective assessment.  Citing  similar considerations to those that were taken into account i n i t s 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 a l t e r n a t i v e . Other related proposals dealt with the juvenile court's j u r i s d i c t i o n over persons who have committed offences and 25. subsequently reached their eighteenth birthday, the provision of services 26. u n t i l 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 a p p l i c a b i l i t y of l i m i t a t i o n 28. periods i n other l e g i s l a t i o n . We find ourselves i n general agreement with the Draft Act's regarding maximum age j u r i s d i c t i o n .  proposals  Dealing with the issue of uniformity,  i t i s submitted  that although a lack of uniformity i n the a p p l i c a t i o n of a 29 federal criminal statute does not render i t unconstitutional, considerations  of fairness s t i l l require that, except i n very unusual circumstances, the 30. application of the criminal law should be uniform across the nation. Similarly, although  the choice of a maximum age l i m i t of eighteen i s  admittedly somewhat arbitrary and (as i n the case of the minimum age) based on many subjective (and, therefore, vague and undefinable) considerations, 31. i t i s consistent with that adopted i n many other "progressive" nations, and is supported by recommendations i n a number of recent studies including the 32. CELDIC Report and the Report of the B r i t i s h Columbia Royal Commission on 33. Family and Children's Law. Assuming that Parliament adopts the proposals of the S o l i c i t o r General's  Committee, two major problems w i l l s t i l l have to be faced. The  f i r s t involves the additional burden that the r a i s i n g of the maximum age w i l l place on p r o v i n c i a l services and resources, and, i n p a r t i c u l a r , on those provincial c o r r e c t i o n a l authorities responsible for i n s t i t u t i o n a l care for juvenile offenders.  There i s no doubt that the proposed change would  s i g n i f i c a n t l y increase the number of young persons l i k e l y to come into contact with the juvenile court. is  In those provinces where the maximum age  currently eighteen, those i n the sixteen to seventeen-year range 34.  constitute approximately  207» of a l l delinquencies, and there i s no reason  to doubt that similar figures would apply across the country once the age was  lifted.  In November, 1970, much p u b l i c i t y was given to a statement by  - 108 the Ontario Minister of Correctional Services that the r a i s i n g of the maximum age  to seventeen would require the building of four or five  training schools, at a c a p i t a l cost of around $20-million and an cost of some $3-million a year, as well as the establishment 35. new  training programs for sixteen-year-old offenders.  would be to-day for a maximum age of eighteen?  new  operating  of completely  Quaere what the figure  Although the precise impact  of the proposed changes on p r o v i n c i a l budgets w i l l vary from province  to  province, depending not only on what f a c i l i t i e s (such as training schools) are already i n existence, but also on what e f f e c t proposed diversionary procedures have and what a l t e r n a t i v e , community-based f a c i l i t i e s can be developed to r e l i e v e the pressure  on costly training school f a c i l i t i e s , i t i s  clear that these changes w i l l undoubtedly have serious f i n a n c i a l and  resource  implications for the provinces. In this context, the b r i e f passing reference i n the Report of the Solicitor-General's Committee to the resource implication 36. of i t s proposals  i s c l e a r l y not an adequate response on the part of the  federal government.  The demand for federal f i n a n c i a l assistance for the  development of necessary resources  has become one of the key issues i n this  f i e l d and one of the major obstacles The second unresolved  to sound delinquency law reform.  problem, one  Committee's Report but not i n B i l l C-192  that was  discussed i n the Justice  or i n the Report of the S o l i c i t o r -  General's Committee, i s that of the treatment of those offenders whose age is s l i g h t l y above the upper l i m i t of juvenile court j u r i s d i c t i o n . of reports, both i n this country and elsewhere, have recognized needs of offenders  i n this category and have made various  A number  the s p e c i a l  proposals  regarding special l e g i s l a t i o n and correctional services (possibly including the creation of a new  "young adult court") for those i n between the proper 37. 38 . realms of the juvenile and adult courts. As we noted e a r l i e r , 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 i t rejected the concept of a separate court for these offenders, i t did  urge the development of d i v e r s i f i e d and adequate treatment resources for 39.  this age group.  However, once again, money i s the great l i m i t i n g factor.  l i g h t of the fact that finances and resources are inadequate  In  for the needs of  the juvenile court - the place where we purport to be concentrating our greatest e f f o r t s and resources - i t would seem that, at least for the reasonably foreseeable future, or u n t i l there i s a r a d i c a l s h i f t i n government spending p r i o r i t i e s , l i t t l e  funds w i l l be available for the development of  special services for those young offenders i n this intermediate age group.  Table No.2  Maximum age for juvenile court jurisdiction  A f i n a l comment.  Maximum Age Provisions  J.D.A.  Provision  Provincial power to raise maximum age ?  -  Jus tice Committee Repor t  B i l l C-192  Draft Act  17  17  18  No  Yes (to 18)  No  16 Yes (to 18)  The development of the current proposals  regarding maximum age j u r i s d i c t i o n are interesting also from the point of view of a student of the science of law reform.  I f one compares the  existing law and the various recommendations made by the three bodies that have considered the matter i n the l a s t ten years (see Table No.2), i t seems f a i r to say that law reform i n this area appears to a large extent to be just a " h i t and miss" process.  One notes, for example, the s t r i k i n g contrast  between the most recent age proposal (eighteen) and the very firm conclusion 40. of the Justice Committee quoted e a r l i e r that the upper l i m i t should not exceed  - 110 seventeen.  I t i s hard to believe that such a marked change i n policy  r e f l e c t s a s i g n i f i c a n t change i n s o c i a l science thinking over the past ten years.  Similarly, onesearches i n vain for a rationale behind the  inconsistent p o l i c i e s towards the issue of p r o v i n c i a l power to raise the age. Secondly, on reading the explanations given (either by Minister's statement or i n commentary accompanying the proposals) for the recommendations made by the various law-making groups, one often notices the absence of any attempt to j u s t i f y the conclusions drawn i n l i g h t of previous inconsistent proposals. From t h i s , perhaps one can conclude  that law reformers i n this country, or  at least those i n the f i e l d of delinquency law reform, tend not to place much weight or accord much respect to the reasoning and conclusions of their predecessors. apparent  Perhaps both of these reasons account, i n part, for the  tendency of many of those involved i n the f i e l d , whether i n a  p r a c t i c a l or theoretical capacity, to approach new proposals with a great deal of skepticism and h o s t i l i t y , often even before the details of the proposals have been given a f a i r hearing.  - Ill E.  Offence J u r i s d i c t i o n The J.D.A.'s offence j u r i s d i c t i o n i s established i n sections 2 and  Section 2(1). defines "juvenile delinquent"  3,  as:  any c h i l d who v i o l a t e s any provisions of the Criminal Code or of any federal or p r o v i n c i a l statute, or of any by-law or ordinance of any municipality, or who i s g u i l t y of sexual immorality or any s i m i l a r form of v i c e , or who i s l i a b l e by reason of any other act to be committed to an i n d u s t r i a l school or a juvenile reformatory under any federal or p r o v i n c i a l statute. Section 3(1) provides that the commission by a c h i l d of any of the abovementioned acts "constitutes an offence to be known as delinquency" and section 3(2) states that such a c h i l d " s h a l l be dealt with, not as an offender, but as one i n 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 j u r i s 1 d i c t i o n were discussed i n our introductory chapter. It was noted that the J.D.A. creates an omnibus offence, known as "delinquency", which covers a l l forms of prohibited conduct by children, that the d e f i n i t i o n of such prohibited conduct i s both very broad and rather imprecise, that the same d e f i n i t i o n includes conduct that i s n ' t prohibited i n the case of an adult, and that the offence provisions are directed more towards the 2 state or condition than towards his prohibited conduct. attempted to explain the reasons why offence j u r i s d i c t i o n was  We have also  this p a r t i c u l a r approach towards  adopted i n the J.D.A. of 1908.  that the present offence j u r i s d i c t i o n was adopt the philosophy  offender's  We  suggested  the r e s u l t of the attempt to  of the early American juvenile courts despite the 3  constitutional l i m i t a t i o n s -under the B.N.A. Act. In recent years the e x i s t i n g offence j u r i s d i c t i o n under the J.D.A. has been the subject of growing c r i t i c i s m .  It has been argued that the  terminology i n section 2(1) i s very subjective, thereby making the finding  - 112 of delinquency depend to a large extent on the judge's subjective and moral views; that i t v i o l a t e s the p r i n c i p l e that criminal or quasi-criminal 4 l e g i s l a t i o n should not be vague or ambiguous i n scope; that i t allows for the oppressive substitution of minor offences where more serious conduct i s suspected but can't be proved; and that i t results i n a wide 5 expansion of the scope of police powers. Other c r i t i c s , noting that 6 " i n c o r r i g i b i l i t y " 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 r e s u l t from acts which are generally regarded as normal expressions of childhood c u r i o s i t y and  immaturity,  have suggested that such types of behaviour should not be dealt with under 7 criminal l e g i s l a t i o n at a l l .  Furthermore,  there i s evidence of discrim-  ination i n the application of the "sexual immorality" clause: s t a t i s t i c s suggest that i t tends to be applied more frequently to children i n lower socio-economic classes, and much more often i n the case of g i r l s than with  8  boys.  F i n a l l y , many have objected to the entire approach of the J.D.A.  whereby the single finding of "delinquency" applies to a l l forms of prohibited conduct by children; they argue that i t i s unjust that every c h i l d who  i s found delinquent i s l i a b l e to the same range of dispositions  and that i n s t i t u t i o n a l commitment i s 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 l e g i s l a t i o n should not be used to achieve welfare purposes 10 i f those purposes can be achieved by non-criminal l e g i s l a t i o n , " it concluded that children should only be charged with s p e c i f i c offences as 11 i s the case i n proceedings against adults.  It noted that much of the  conduct covered by the J.D.A. i s not a n t i - s o c i a l i n nature nor does i t  - 113 lead to a n t i - s o c i a l adult behaviour and, furthermore, that other, less stigmatizing, non-criminal means are i n many cases available to protect 12 children from possible detrimental influences. Although i t acknowledged the h i s t o r i c a l and p h i l o s p h i c a l reasons why  the J.D.A. directed i t s  attention towards the underlying behavioural problem of the offender rather than on the offence i t s e l f and therefore adopted the a l l - i n c l u s i v e offence of "delinquency",  i t took the view that today "a competing interest of  public p o l i c y , namely, the protection of the i n d i v i d u a l against undue interference by the state requires some l i m i t a t i o n upon the unrestricted 13 application of this p r i n c i p l e " and, as a r e s u l t , recommended the a b o l i t i o n of the corcep't of  "delinquency".  The Committee rejected suggestions that lesser offences be excluded from the federal Act and be l e f t for treatment under p r o v i n c i a l 14 legislation. Instead, i t recommended that a d i s t i n c t i o n be made under the federal l e g i s l a t i o n between more serious and less serious offences. They suggestadthat any offence against the Criminal Code or cf such provisions of other federal or p r o v i n c i a l statutes as are from time to time designated by the Governor i n Council should give r>i=se to a finding that a young person i s an "offender" and thereby bring into operation a l l of the provisions of the Act.  Any other offence-, ( i e . - against a federal or p r o v i n c i a l  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 "violation . 1  1  A  person charged with a " v i o l a t i o n " would be dealt with i n generally the same manner as those charged with "offences", with the notable exception that i t would not be permitted to commit him to a training school or, i n the absence 15 of parental consent, remove him from the parental home.  In addition to  the above, the Committee also recommended: that most j u v e n i l e t r a f f i c cases should continue to be heard i n the juvenile court, with the court  - 114 being given broader powers regarding transfer, d i s p o s i t i o n , and procedure 16 i n such areas;  that conduct within the non-offence categories (eg.  i n c o r r i g i b i l i t y , 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 i t clear that a finding that a person f?is*. a "young offender" i s not to be regarded as a 18 ?OTLVi tionfor a "criminal offence". ic  B i l l . C-192 showed a more r a d i c a l response to the c r i t i c i s m s of the J.D.A.'s offence j u r i s d i c t i o n .  According to the Solicitor-General, one  of the aims of the l e g i s l a t i o n was "to cease SjCi'gmat iz"in'gcJdeviaiit,, >but nonr  criminal behaviour i n young persons and to recognize only offences f o r 19 which penalties are imposed when committed by adults.  The B i l l ' s attempt  to decriminalize and destigmatize such "deviant but non-criminal" behaviour went even further i n the d i r e c t i o n of narrowing theAciVs scope than did the 20 Justice Committee recommendations.  Like the Justice Committee, i t  excluded the non-offence categories from the scope of the Act and abandoned the concept of a single offence of delinquency i n favour ofas system based on separate s p e c i f i c offences.  However, instead of dealing with