- Clause 12, amending section 19
This clause could have the effect of increasing applications for transfer of a youth from youth court to trial in adult court. Clause 12 prevents the youth court judge from making a finding following a plea of guilty or a trial of the young person without first inquiring whether either the crown or young person wish to apply for a transfer to adult (ordinary) court.
In our opinion, this clause alters the present philosophy of the Young Offenders Act, which emphasizes transfer to adult court as an exceptional procedure to be pursued only in very serious cases for the protection of society. It could result in delays processing cases and invite more transfer applications. The BCCLA, therefore, recommends deleting this amendment, especially because the protection of the public is adequately dealt with by the discretion presently afforded the crown to apply to the court for transfer in appropriate cases.
- Clause 16, repealing section 24(11), creating new section 24(3)
This clause permits a judge, with the consent of the prosecutor and young person or his or her counsel, to dispense with consideration of a pre-disposition report as presently required by section 24(11), as a pre-condition for sentencing a young person to custody, providing “the youth court is satisfied that the report is unnecessary or it is not in the best interest of the young person to require one”.
This clause weakens an important safeguard designed to prevent unwise or arbitrary committals to secure custody. The amendment is probably intended for offenders who have previously been sentenced to custody. However, an updated pre-disposition report is even more essential in the case of recidivists to allow the court to give careful consideration to sentencing after exploring the reasons for past failure. Society must not, by discarding the P.D.R. as a safeguard against arbitrary custodial committals, contribute to a cynical rejection of recidivist offenders, thereby enhancing the likelihood of future criminal careers. The requirement that the court should in all cases consider a pre-disposition report prior t sentencing a young person to custody should be retained in the Young Offenders Act.
- Clause 16, creating new section 24.1(3) and (4)
This clause empowers a judge to commit to secure custody for a period of up to 6 months a young person, 12 years of age or more, who has been found guilty of willful failure to comply with the terms of a probation order. The offence in question does not distinguish a breach of probation by way of a new offence from a breach by way of failure to comply with the formal terms of a probation order—e.g., failure to report to a probation officer. This seems a severe punishment for young persons who fail to comply with probation orders, subjecting them potentially to close association with older and more confirmed offenders in secure custody. In this connection it should be noted that the Young Offenders Act permits 12 year olds to be confined in the same custodial facilities as 17 year olds.
The BCCLA recommends this clause be revised to provide that the maximum sentence for a person convicted of a willful failure to adhere to the formal terms of a probation order not exceed 30 days. We also recommend that the Young Offenders Act be further amended to require that young persons under age 14 years convicted of this summary conviction offence and sentenced to custody, be confined in separate facilities from older offenders, except for good cause acceptable to a judge of the youth court.
- Clause 28, amending section 38, which at present prohibits publication of identity of accused or convicted young offenders
One of the proposed exceptions to this prohibition provides that proscription on disclosure does not apply—”in respect of the disclosure of information in the course of the administration of justice where it is not the primary purpose of the disclosure to make the information generally known in the community”.
It strikes us that the wording of this exception to the non-disclosure requirement is far too loose to prevent widespread abuse of this norm. To avoid committing an offence in respect of disclosing the identity of an offender, it is only necessary for the police detachment to state that the primary purpose of disclosure was for law enforcement purposes and not to spread the information in the community for any other purpose. In these circumstances the non-disclosure rule is unlikely to be taken seriously.
The BCCLA recommends that proposed section 38(1.1) be reworded to restrict the disclosure of identifying information on young offender to communications between law enforcement officers and other agents of the justice system engaging in the administration of justice directly related to allied criminal behaviour by the young offender or young offenders in question.
- Clause dealing with keeping of court records, etc., amending section 40
Section 40(1) of the present Young Offenders Act requires the clerk of every youth court to keep a complete record of every case arising under the legislation. A proposed amendment to section 40(1) would allow, rather than require, the keeping of records, both in relation to youth court and review board proceedings.
In our opinion this amendment limits the ability of appeal courts to review and scrutinize decisions of a youth court judge. It also renders less effective the services of defence counsel.
The BCCLA recommends that the original mandatory requirement for keeping of records be retained and that the proposed amendment be deleted.
- Clause 33, amending section 44 by creating a new section 44.1 dealing with disclosure of court records
This section provides a detailed list of persons who may inspect police or government records dealing with a young offender. Under the proposed amendment persons entitled to inspect such records include:
Section 44.1 (1h) any person, or persons within a class of persons, designated by the Governor in Council (federal cabinet) or the Lieutenant Governor in Council of a province, for a purpose and to the extent specified by the Governor in Council or the Lieutenant Governor in Council, as the case may be.
We submit that this clause gives federal and provincial cabinets unrestricted power to make available information on young offenders to whomever they choose. Such decision also would be made in secret. These powers are sweeping, vague, and could be exercised at the whim of politicians and for reasons that are not made public. The BCCLA, therefore, recommends deletion of this proposed amendment.
- Clause 34 dealing with destruction of records of young offenders
This clause provides for amendment of section 45 of the Young Offenders Act, inter alia, by increasing the period that must elapse before destruction of records of a young offender who has been convicted of a summary conviction offence (proposed section 45(1)(e). The present section requires destruction of such records two years after completion of all dispositions in respect of the offences(s). The proposed amendment would require records destruction five years after the young person has been found guilty.
The result of this proposed amendment would be to stigmatize young persons convicted of relatively minor offences for a period extending well into adulthood. It also extends the period of potential police surveillance for what appears to be an unnecessarily lengthy period. No rationale is given for this proposed change in the explanatory notes to the Bill. The BCCLA urges that this proposed amendment be deleted from Bill C-106 and the current provision be retained.
- Clause 37 proposing an amendment of section 56 dealing with statements made by young persons while in police custody
The present Young Offenders Act in section 56 (4) provides that a young person may waive his or her rights to consult or have an adult present during the making of any statement or confession while in police custody. The waiver, however, must be in writing. The proposed amendment would make provision for a young person to orally as well as in writing, waive his or her rights under section 56.
This proposed amendment is obviously designed to make it easier for police officers to obtain confessions from young persons in their custody. We suggest, however, that it could be used in ways designed to prevent young persons having parents or legal counsel available during critical encounters with police at the police station. The present provisions of section 56 (4) appear to strike a reasonable balance between the powers of police to question and elicit statements from young persons and the latter’s right to consult with an adult during a period of great stress. The proposed change confers excessive and potentially intimidating power on police officers. It is our recommendation that the proposed amendment be deleted and the present provision be retained.
Professor Jack MacDonald
B.C. Civil Liberties Association