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Here are some Key Issues and Conclusions as identified by the moderator, Stephen Biss:
The name "Young Offenders Act" is a mistake. Use of the term "young offender" is pejorative because it violates the presumption of innocence and principles of fundamental justice when used to describe a "young person" who has not yet been found guilty.
Adults throughout Canada, the United States, Great Britain, and South Africa are angry about the alleged lack of respect that young persons show for adults. Adults in each of these countries blame their own juvenile justice systems. Some in Ontario point with favour to "tough" jurisdictions such as Florida, but others in Florida complain about their own system and the youth violence in their State.
Empirical data does not support the allegation that the rate of youth crime is rising.
Contrary to public perception, the Young Offenders Act does not create a separate justice system for youth. In Ontario, the same judges sit in both adult and youth court. Young persons in Canada are charged with exactly the same criminal offences and exactly the same substantive law applies.
Contrary to public perception, the Young Offenders Act does not create a significantly different sentencing system for youth. Both adults and young persons receive sentences of real jail, fines, probation, community service, and restitution payable to victims. It is usually the same judges who impose sentences on adults and young persons. For some offences, e.g. violation of Court orders, young person may receive stiffer sentences than adults.
Contrary to public perception, the Young Offenders Act does not create a significantly different jail system for youth. It is true that young persons are not sent to federal penitentiaries, however, a "secure custody" sentence for a young person in Ontario will probably be served in an institution which jails adults and young persons in different wings with similar facilities. Young persons serve real time while adults frequently serve only a portion of their jail time due to parole and remission. Young persons who "do the crime, serve the time".
If a young person, age 14 or over, commits a serious offence, the Crown Attorney has the option of seeking a transfer of the matter to adult court. This is rarely done in Ontario for a variety of reasons including the rarity of offences such as murder and manslaughter. Victims' Groups complaining should address their concerns to the Attorney General of their province, not to the authors of the Young Offenders Act.
Contrary to public perception young persons do not understand their rights. Children in pre and early adolecense lack the cognitive development to comprehend concepts like "rights", "counsel", and "waiver". Studies by Higgins-Biss in Ontario and Grisso in the United States show that youth have a great deal of difficulty dealing with the right (under YOA s. 56) to the presence and consultation of parents and lawyers prior to and during interrogation. Efforts already undertaken by Parliament to weaken section 56(2) (by permitting video waivers) were a mistake. Proposed sections in the new Act to permit Courts to override the re-drafted section entirely are an even more serious mistake.
Juvenile Justice legislation can take two forms:
Child Welfare Model - This was the approach of the Juvenile Delinquents Act in force in Canada until 1984. A juvenile is not dealt with as a criminal, but rather as a misguided or ill individual who can be helped by the State. Such a paternalistic or medical approach permits "Treatment", without the consent of the juvenile, by social workers, probation officers, psychiatrists, and psychologists because it is in the best interests of the individual and society.
Criminal Justice Model - This approach was introduced to Canada in 1984 by the Young Offenders Act. Juveniles now face exactly the same criminal charges as adults. They are tried, convicted, and sentenced with punishments proportional to the crimes committed.
Those individuals who remember the "good old" and "tough" days of the Juvenile Delinquents Act are mistaken. The Young Offenders Act is a much tougher piece of legislation than the JDA. The YOA resulted in many more charges being laid and young persons incarcerated than the JDA.
Those individuals who believe that the minimum age of prosecution under the Young Offenders Act should be lowered to 10 years are mistaken. A "Criminal Justice Model" is not appropriate for young persons ages 10 and 11 because they do not understand criminal justice procedure. It is much more appropriate that children under 12 be dealt with by a "Child Welfare Model" focussing on their needs, best interests, and rehabilitation rather than "serving the time for doing the crime." The Minister of Justice in Ottawa was right in resisting the temptation of lowering the minimum age in the proposed legislation. Child Welfare legislation is the responsibility of the provinces.
It has become apparent that the Young Offenders Act and adolescents in general have become easy targets for politicians. Pushing the "young offender" button gets media attention without any foundation in fact. Tory and Reform politicians encourage disrespect for the criminal law when they belittle the sentencing jurisdiction of Youth Court Judges.
Severe financial restrictions placed on probation officers and other helping agencies have resulted in less effective rehabilitation of offenders. Community Service Orders are being used less frequently because of shortages of supervisory staff.
Contrary to public perception, Youth Court and police records are NOT erased when young persons turn age 18. Previous records are frequently used by police for many years after individuals become adults. Youth Court records may result in denial of bail and tougher sentences for young adults.
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