Post #219

1000 words; 4 minutes to read

Audio summary by volunteer law student Hannah Lee.

Summary: The Youth Criminal Justice Act led to many improvements but some substantial challenges remain.

By Emily Stewart, Associate Editor

John Howard Society Week in February included a panel on The Youth Criminal Justice Act (YCJA).  It discussed the Act’s success and some recent trends that are troublesome.  The Act governs the prosecution of youth (ages 12-18) for criminal offences. In effect since 2003, it has brought significant reform.

The panel included Dr. Nicole Myers, a professor at Queen’s University, Mr. Justice David Cole, a judge with over 30 years of experience in the Ontario courts, and Richard Barnhorst, a lawyer and former Department of Justice policy analyst who played a significant role in shaping the YCJA and calls it “a fundamental reorientation for a much more restrained approach.”.

The full recording of the panel is here.

What has worked well?

Police charging and diversion: Barnhorst argues that while the Criminal Code allows alternatives to judicial proceedings, these provisions are too vague. In contrast, the YCJA clearly outlines various judicial measures available to the police and prosecutors, emphasizes the importance of community conferences, and permits the repeated use of judicial measures with the same youth. Barnhorst notes that not only has there been a 76% drop in the number of charges for youth since the Act, along with a similar decline in the youth crime rate, but that the courts have also witnessed a 71% reduction in the number of cases that reach youth court.

This experience demonstrates that reducing the number of charges, increasing the use of diversion, and decreasing the use of youth court has not resulted in more crime.

Sentencing: The YCJA aimed to prioritize rehabilitation and long-term societal protection. It imposes strict criteria for custodial sentences and establishes specific sentencing principles. For example, Barnhorst noted, in the YCJA, “a sentence must be as least restrictive as possible to achieve the purpose of sentencing, whereas the Code states that an offender should (instead of must) not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”. Under the YCJA, Barnhorst notes that the youth custody rate has dropped by more than 90%.

Bail: The YCJA introduced stricter requirements for denying release. Unlike the Criminal Code, the YCJA restricts the court from detaining a youth unless they are charged with a serious offense (punishable by five years or more for an adult) or have a criminal history. Additionally, the YCJA allows detention only if there is a substantial likelihood of a serious offence if the youth is released. In contrast, the Criminal Code permits denial of release if there is any substantial likelihood of any offense or interference with the administration of justice. This has led to a dramatic drop in numbers of youth detained on remand.

Some youth still face obstacles

Despite the success of these changes, some recent trends raise concerns. Dr. Myers notes that while there has been a steady decline in the number of youths in remand over time, we are starting to witness a gradual shift towards more cases ending up in “limbo”. These are individuals who have been arrested and detained, but the court has yet to address the question of bail. These youth have not been found guilty of a crime and the courts have not yet determined that they are unsuitable for release on bail. They are often required to attend multiple court dates and remain in custody for weeks or months at a time until a decision is made.

Myers notes that many of these young people are later granted bail or have their charges withdrawn, raising the question as to why they were detained, especially for prolonged periods of time, in the first place.

Too many conditions

Despite the YCJA, many youth who are granted bail are required to adhere to numerous conditions –  6-9 conditions being quite typical – as part of their release order. As noted in a recent John Howard Society of Ontario report, these conditions are frequently restrictive, unrelated to the legislative purposes, and can often lead to new criminal charges even when the original charges that created the conditions are dropped. The result is that some young people end up cycling back through the system repeatedly due to the violation of a previous bail conditions rather than because of committing a new crime.

As noted in a previous blog post, the Supreme Court has found that the imposition of many bail conditions is related to a greater likelihood of a guilty plea.

Disproportional impact on marginalized youth

As in the adult system, Indigenous, Black, and other marginalized youth are still disproportionately held in remand and negatively affected by the criminal justice system. In fact, Indigenous and Black youth in remand are 4 to 5 times their proportion in the youth population.

Many youths who are arrested are also facing other challenges such as mental health issues or homelessness or are Crown wards because of being taken into care due to serious family issues. Young people who are living in foster care or situations other than family homes are among the most vulnerable yet they are also most likely to be jailed because they do not have a home or other place to go to if bailed.

Being jailed on remand can have long-lasting and devastating effects for young people, including increased risk of suicide and substance abuse. Being jailed interferes with schooling and work and can disrupt family relationships. Unwarranted guilty pleas can produce serious lifetime effects of a criminal record.

Despite some significant progress, there is still room for improvement in the youth justice system.

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