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Commentary on the Young Offenders Act

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Preface

The British Columbia Civil Liberties Association (the “BCCLA” or “the Association”) is a registered charitable society, active in promotion of the civil liberties and human rights of individuals throughout British Columbia and Canada for over 30 years. The Association’s voluntary Board of Directors includes academics and professionals from a variety of disciplines, supported by a small paid staff.

The BCCLA assists individuals in a number of ways, including advice on civil liberties concerns, direct advocacy on behalf of individuals or groups in relations with governments agencies or private sector firms, and (occasionally) legal action. The Association works with public and private sector agencies to protect civil liberties and human rights in such areas as freedom of expression, privacy, discrimination, administrative fairness, criminal justice, and many others.

Of particular relevance to this submission is the Association’s long history of working with accused and offenders to ensure fair treatment—either by assisting them on a case by case basis, or by preparing position papers and briefs to government on criminal justice issues. Through three decades of experience, we have become familiar with some of the issues regarding young offenders.

This is our second submission to the Standing Committee; we refer you to our previous submission made on 4 October 1995.

Maximum Age in the Young Offenders Act

Currently, the Young Offenders Act (the “YOA“) applies to youths twelve years or older, but under the age of eighteen. Given the incidence of youth crime involving 16 and 17 year olds, some groups and individuals have recommended that we lower the maximum age, requiring more teenage offenders to be treated as adults by the criminal justice system.

The BCCLA opposes this proposal.

We believe that lowering the maximum age would be contrary to our society’s traditional approach to dealing with 16 and 17 year olds not as adults but as youth. 16 and 17 year olds are traditionally treated as youths rather than adults on such issues as voting, civil status, drinking age and compulsory school attendance. This is for sound reasons: typically, youths lack the maturity and experience to foresee the future consequences of their present actions. As a society, we have created a YOA to deal with youth. We should continue to treat them as such.

We also would view this reform as counterproductive to promoting the rehabilitation of young offenders, one of the YOA’s chief objectives. Clearly, 16 or 17 year olds who are charged with less serious offences not involving violence or even those first time offenders charged with violent crimes will not necessarily have the same opportunities for rehabilitation if dealt with in the adult justice system. We have argued in a prior submission to the Standing Committee that youth who are exposed to the criminal justice system tend to have a greater chance of repeating offences. We speculate that there is also an element of learned behaviour—the longer that a person in their formative years is exposed to, and influenced by, individuals who are of a criminal mind set, the greater is the chance of emulating the anti-social behaviour.

We also note that the adult criminal system is already overburdened; we do not see it as having the additional capacity to deal with young offenders.

Notwithstanding our position, the Association does recognize that society must have effective means to ensure that the public are protected from those persons, whether youth or adult, who pose a significant threat to public safety. To that extent, the Association supports YOA’s provisions for transferring youth to adult court if it is in the interests of society, subject to our recommendations regarding transfer below.

By keeping the maximum age as it is, young offenders who are approaching adulthood, particularly for minor or first offences, have the greatest chance of not acquiring ongoing deviant traits. For non-violent, non-serious crimes, they will have the greatest chance of avoiding the adoption of a criminal mentality.

Minimum age in the Young Offenders Act

The BCCLA is opposed to lowering the minimum age of application of the YOA.

The “call” to lower the minimum age for applying the YOA comes from a public which believes there is a significant amount of crime committed by youngsters under the age of twelve. As the YOA does not apply, there is a perception that children are managing to commit horrendous crimes without consequences, including punishment. However, statistics indicate that there is not a significant increase in the criminal activity of youth under 12. For example, according to a 1983 Canadian Centre for Justice Statistics report, 1.4% of all reported youth crimes in Canada were committed by children aged ten and 11. By 1992, the Canadian Centre for Justice Statistics reported that the amount of youth crime committed by youth under 12 was 2%. While statistics do not always paint the real picture, the Association is concerned that sensationalistic media coverage of youth crime, including crime involving children under 12, skews our society’s perceptions.

One of the chief reasons we argued in our previous submission that the YOA should apply to exceptional cases is that in B.C., there are no legal means to ensure that children under 12 who commit offences and need help, get the help. The Child, Family and Community Services Act simply allows a police officer to return a child to his parents if the police officers thinks that the child has committed an offence. If the allegation includes killing, assaulting or endangering the life of another, then police must report this to the child welfare authorities and may do so in any other circumstances. Presumably then the welfare people will investigate. However, the way our child welfare law is drafted does not mean that the children who commit crimes will necessarily get the help they need or that society can be protected from them in exceptional cases. That is not adequate either from the child’s perspective or from society’s.

Interestingly, Quebec’s child protection law is more broad to allow for protection where the child’s security and development is or may be in danger. Importantly, the services available to young offenders are integrated with services for children in need of protections. Therefore, children who are need in protection are able to be placed in secure facilities to receive treatment if need be.

By reducing the minimum age, the net result will be the mixing of children with youth in the criminal justice system. Such a mixing will have results similar to the intermingling of young offenders with adult criminals, in that the children will further acquire the knowledge and attitudes of older teenagers already involved in criminal activity. Unless absolutely necessary for the protection of the general public, in order to ensure that children under 12 have the greatest opportunity to grow into responsible teenagers and adults, it is of great importance to create a system conducive to positive growth.

Ultimately, preventing crime in a pro-active manner will be much more effective than reacting to crime. The YOA of course involves the latter approach though it does provide some tools for identifying and working to prevent further criminal behaviour. It is within society’s grasp to identify those children under the age of 12 who are at risk of committing crime. As a society, we need to place our emphasis and resources in promoting cooperation among educational, child welfare, health, social assistance and law enforcement agencies to identify and work with children and families at risk. This will pay dividends down the road.

In spite of all our efforts at prevention, it is likely that some youth and children will commit crime. For those under 12, we recommend that they be dealt with in the context of child welfare system.

In sum, the Association recommends that the Standing Committee consider pursuing dialogue with the provinces to ensure that there are satisfactory means in child welfare laws to deal with the exceptional cases of children under 12 who commit serious crimes.

Public identification of convicted young offenders

The BCCLA is concerned with proposals for the weakening of privacy protections in the YOA to allow for publication of the identity of young offenders.

The Association recognizes that there may be exceptional circumstances where a violent youth is at large and needs to be identified in the name of public safety. Furthermore, Bill C-37’s amendments allow for discrete disclosure for a legitimate reason: to make sure professionals who have care of the young person and are responsible for others may assess and guard against the risk of re-offending.

However, the Association believes that general public identification of a young offender would undermine the objectives of the YOA from the perspectives of both protecting society and rehabilitating the young offender.

It is known that a good portion of youth crime is “one off” or just part of “youthful activity.” As well, most criminal charges relating to youth are property offences, and minor violent offences, such as common assault—often involving scuffles in the school ground or other places that youth congregate. This conduct rarely progresses into ongoing adult criminal activity. With youth crimes being rarely repeated, and only in the most unique circumstances progressing into more serious conduct, there is no public policy reason to justify publication for the majority of young offenders.

At the same time, it is important to recognize that youth, being at the most impressionable stage of their lives, tend to conform to roles through which they perceive others view them. Hence, if an otherwise law abiding youth has his or her identification publicly distributed as a result of a single offence, or series of minor offences, with the public perception that he or she is a “criminal,” the youth will develop the perception of being a criminal and act accordingly. This will increase the chances that a young person will enter adulthood with the self-perception of being a criminal, continuing to carry out conduct associated with such a “role.”

Diminishing privacy protections to allow the publication of the names of young offenders would be a regressive action. The BCCLA believes that increasing the opportunities for young offenders to be publicly viewed as criminals will have a negative impact on the rehabilitative process. By being both perceived publicly as, and in turn, perceiving themselves as criminals, the young person will have two points acting to their detriment in their development into “non-criminal” adults.

It is our understanding that one of the chief rationales put forward for publicly identifying young offenders is to enable parents of non-offending children to more adequately supervise their children’s associations. We disagree with the logic behind this argument.

First, even if all young offenders’ names were published, a working parent would likely not have the time or ability to review all published offenders. Second, parents are rarely able to monitor who their children are associating with at all times, and so there could be no real enforcement mechanism. Third, even if a parent did suspect that his or her child was hanging around with the “wrong people” based on published lists of young offenders, it would be easy for the child to deny or avoid suspicion of any such association.

Hence, except in rare circumstances, it would be of little use for parents to be provided with the published names of young offenders.

In sum, the Association believes that the rationale for no public disclosure of the identities of convicted young offenders remains sound. Changes in the YOA created by Bill C-37 are adequate and no further weakening of privacy protections are necessary at this time.

Admissibility of statements

The Standing Committee will be asked by some individuals and groups to reduce the restrictions in the YOA regarding admissibility of statements.

The BCCLA opposes any changes to make it easier to extract confessions or statements from accused in young offender proceedings.

The YOAcurrently has stringent requirements as to when a statement, made by a young person to a peace officer or other person in authority, can be admitted into court against that young person. Essentially, under Section 56, the following criteria must be met:

  1. The statement must be voluntary,
  2. The young person must have clearly explained to them that
    1. they have no obligation to give a statement;
    2. any statement given may be used as evidence in proceedings against them;
    3. the young person has the right to consult another person in accordance with paragraph (c),
      and
    4. any statement made by the young person is required to be made in the presence of the person consulted, unless the young person desires otherwise;
  3. The young person, before the statement is made, be given a reasonable opportunity to consult with counsel or a parent, or in the absence of a parent, an adult relative, or in the absence of a parent and an adult relative, any other appropriate adult chosen by the young persons; and
  4. Where the young person consults any person pursuant to paragraph (c), the young person must be given a reasonable opportunity to make the statement in the presence of that person.

With respect to making Section 56 more lenient, the BCCLA has serious concerns. Young people, as a whole, tend to be a very vulnerable group. They rarely have any knowledge of their legal rights and rarely have the practical experience to make decisions in areas of which they have no experience. As well, they can be highly susceptible to the will of persons in authority. A young person may make statements out of fear of authority, or for the sole purpose of “pleasing” a police officer or parent.

For a thorough review of the literature and studies regarding statements made by young persons to police officers or persons in authority, the Association commends a McGill Law Journal article to the Standing Committee. After reviewing relevant material, the authors conclude that there are strong public policy reasons for creating stringent procedural protections for youth in respect of statements. In fact, the authors argue for legal rules even more stringent than already exist in the YOA.

Statements may also be made at the suggestion of a parent—a suggestion that may either be ill-advised, or made with objectives that are completely incompatible with protecting the best interests of the accused young person. These scenarios all can occur under the current wording of section 56, and may work to the detriment of the accused.

By making it easier to admit incriminating statements of youth, the law will also increase the opportunities to exploit young people. There is no particular benefit to be gained by decreasing the test, except to ensure there is more evidence to be used in obtaining convictions against young offenders. Given the dubious long term benefits of prosecuting first-time young offenders in the criminal justice system and concerns about the effects of stigmatizing a young person as a criminal, there is a problem with using a youth’s own admission as evidence of their guilt. If the admission is provided inadvertently or due to pressure, and is permitted to be used against them, it could have a severe impact on their rights against self-incrimination. A statement of guilt should only be admissible when the young person intentionally and knowingly provides it to authorities.

The BCCLA supports section 56 as worded. As the tactics of police or those of other persons in authority (e.g. school officials) can place youth in a significantly vulnerable position, we submit that a total ban on the admissibility of statements would provide the greatest protection to the young person. However, the current section 56 strikes a fair balance between protecting the rights of the young person who is accused with the interests of law enforcement agencies whose job it is to gather relevant evidence to enforce the criminal law for the protection of society.

Transfer to Adult Court

The BCCLA is opposed to amending the YOA to make it easier for a youth to be transferred to adult court.

Further, the BCCLA recommends amending the YOA so that the transfer hearing occurs after the criminal trial which would occur in youth court. We recommend an additional complimentary amendment that would allow any youth charged with murder, attempted murder, manslaughter and aggravated sexual assault to be given the option of requesting a trial by a superior court judge and jury and the opportunity of a preliminary inquiry.

Presently, youths who are 16 and 17 must be tried in adult court if they are accused of murder or attempted murder, manslaughter and aggravated sexual assault unless they can prove that the interests of society (including the protection of the public and rehabilitation of the accused) can be reconciled in youth court. If these objectives can’t be reconciled, then the protection of the public is paramount (meaning transfer to adult court). The Crown can apply to transfer youths older than 14 and children 16 or 17 not accused of one of the offences listed above if the same test is met. The purpose behind transfer is to either (a) punish more severely youth who commit heinous crimes and/or (b) allow for longer sentences if rehabilitation requires this.

The Association has serious concerns about the present transfer process and its negative impact on civil liberties of youth within the system. First, we are concerned about the lengthy delays caused by transfer process. Second, we believe that the transfer process itself undermines a fundamental principle of justice: innocent until proven guilty. We shall now articulate these concerns in more detail.

It is the Association’s understanding that the process of transferring a youth to adult court is a lengthy one. It can take upwards of 6 months, and in some cases over a year, to process the youth through the hearing and appeals on the issue of transfer before a trial on the allegations is conducted. Meanwhile, the accused youth typically remains incarcerated in pretrial detention and thus exposed to criminal elements. Thus, the Association is concerned about access to justice and the delay the transfer hearing causes in achieving justice. We believe this delay significantly undermines one of the primary rationale for a youth justice system: speedier access to justice.

The Association’s second concerns lies in the nature of the transfer hearing. Rather than being a typically formal criminal process, it has been characterized as an “administrative” procedure in which the rules of evidence are significantly relaxed. Indeed, the court is to assume the facts as alleged by the Crown are true and that the accused is guilty of the crime in order to assess whether sentencing can satisfy the interests of society (as judged in the context of protection of the public and rehabilitation of the offender). Often, this assessment involves evidence that would clearly not be admissible at trial yet is highly prejudicial to the accused. The Court of Appeal in Alberta summed up its criticism of the transfer process with the following statement:

Such an inquiry&151;one commencing with sentence to be followed by judgment&151;is no longer the private precinct of Alice and the Queen of Hearts.

In sum, the transfer hearing offends the principle of innocent until presumed guilty.

There is a further practical unfairness that the transfer hearing process creates to the detriment of the accused. In order to assess rehabilitative potential, an important factor is whether the accused accepts responsibility for the crime. However, even if the statement is inadmissible at trial, it will be difficult for an accused to in essence “plead guilty” for the purposes of a transfer hearing then plead not guilty at the actual adjudication whether it is in adult or youth court. This is indeed a “catch 22” scenario for the accused.In the view of the Association, if the object of the transfer hearing is to assess the Crown’s contention that the interest of society would auger for a lengthier sentence to protect society and/or facilitate rehabilitation, the transfer hearing should occur after the actual trial on the merits of the case. This would provide some integrity to a youth justice system yet provide a safeguard for those exceptional cases that may require transfer.

If the transfer hearing would occur after the actual adjudication, as we argue it should, the accused may be faced with a sentence under the provision under the Criminal Code without some of the due process options and advantages of adult court such as a trial by judge and jury and a preliminary inquiry. Therefore, the Association recommends that the election available to the accused youth in section 19 be extended to other offences where a transfer hearing may occur, specifically attempted murder, manslaughter and aggravated sexual assault. This would provide the accused with the procedural options he would have if he were tried in adult court. If society is going to place the young offender within the hands of the adult justice system at sentencing, it follows that the accused youth should be able to avail himself of some of procedural due process options even if the trial occurs in youth court.

Under our proposal, changes in Bill C-37 which automatically transferred certain young offenders to adult court could remain. If a youth is convicted in youth court of murder, attempted murder, manslaughter or aggravated sexual assault, then the youth could be sentenced according to the Criminal Code unless the youth can convince a court it’s not in the interests of society for him to sentenced there but rather in youth court. Similarly, the Crown could apply for transfer if a conviction occurs for 15-16 year olds.

In conclusion, our proposal would place sentencing considerations for the youth where they belong—after a conviction. It would avoid some of the significant problems with the transfer process that presently exist.