INTRODUCTION In recent years, in Canada, we have seen a gradual reduction in the crime-rate. However, every day on the radio and on TV, we see and hear of another armed robbery, another sexual assault, another drug bust, or another brutal murder. This is scary because it affects us all. We are all potential victims; we are all susceptible to these horrible crimes. Even scarier is that more and more of these crimes, the violent ones, involve young offenders. We are hearing more and more about young offenders, youth between the ages of twelve and eighteen, who are stabbing people on school grounds, sexually assaulting others, and murdering their peers. Recently, we heard the story of a young boy, only six years old, who murdered a fellow classmate in a Michigan elementary school.
A few years ago, we heard of the two young boys in England who murdered a boy who was under the age of three years. The dealing of narcotics on the school ground, be it elementary or high school, is increasing. Gradually, it seems that people from every age group are becoming victims, and people from every age group are becoming offenders. Because of space limitations, this paper will deal only with a few young offenders’ issues. In addition, only a few aspects of the Young Offenders Act will be dealt with. LEGISLATION The Young Offenders Act is the federal law for young people charged with crimes. Prior to April 2, 1984, the Young Offenders Act did not exist in Canada.
Instead, the Juvenile Delinquents Act (which had been used since 1908) was used to deal with young offenders. The main philosophy of this latter Act was to deal with the welfare of the child. In April 1984, the Young Offenders Act was enacted and one of the major changes that took place was in the philosophy used to deal with young offenders. The Young Offenders Act recognizes that in some situations, a young offender may be deemed (by the trial judge) to be beyond rehabilitation, and a lengthy period of incarceration may result, as opposed to further attempts to rehabilitate. Therefore, the Young Offenders Act deals not only with the welfare of the child, but also, with the welfare of society. Thus, with the change in approach, from the old legislation to the new, it can be argued that it is now easier to imprison a young offender, and for longer periods of time.
The Crown Prosecutor must only convince the trial judge that it would be in the best interests of society and that there is no other alternative way of dealing with the young offender. And, of course, a young offender is subject to longer periods of imprisonment if tried in adult court, as opposed to being tried in youth court. For children who are under the age of twelve years, an offense is dealt with under the provinces’ child welfare laws. Under the former Juvenile Delinquents Act, only children under seven were considered too young to be held criminally responsible for their actions. The Young Offenders Act does not apply to offenses involving provincial statutes, such as driving without a license, hunting out of season, drinking liquor while underage, and speeding.
AN ALTERNATIVE TO COURT Not all young offenders who commit an offense wind up in court. If a young person has never before been in trouble with the law, a chance to participate in an Alternative Measures program may be considered, rather than a charge being laid and the young offender having to deal with it in court. The young person must accept responsibility for the offense that has been committed and be prepared to make up for the harm caused. As one example of an Alternative Measures program, a young offender might be required to attend an educational program to gain a better understanding of the wrong doing and how it has affected others. In the alternative, he/she might agree to perform community service. Frequently, as part of an Alternative Measures’ resolution, a young offender will be ordered to apologize to the victim and possibly do some work, such as raking leaves or shoveling snow, for the victim.
COURT DISPOSITIONS There are numerous sentencing choices open to youth court judges, following a guilty plea by an accused, or a finding of guilt by the judge following trial. These choices are listed in section 20 of the Young offenders Act and include: A) Absolute Discharge B) Conditional discharge C) A Fine (not greater than 100 dollars) D) An Order of Compensation, in favor of a crime victim. E) Probation Order, with conditions, not to exceed 2 years. F) Open Custody G) Secure custody A youth court judge may order a young offender to serve a sentence of probation or to perform community service such as working for a non-profit organization. Youth workers from the Correctional Services Division supervise and provide guidance to young offenders involved in these community-oriented sentences. With respect to fines, a young offender may choose the Fine Option Program if he or she does not have the money to pay a fine ordered by the court.
The young offender is given a chance to work in the community in lieu of payment of fine. An example of this kind of work is helping the disabled. With respect to custody orders, a youth court judge may decide that a young offender should be placed in either a group home or a foster home and kept under supervision (open custody), or be confined in a special center for young offenders (secure custody), comparable to jail for adults. Even though the Department of the Solicitor General administers the disposition of open custody, facilities for open custody are operated by the Department of Health and Community Services through non-profit organizations. The facilities include group homes and specialized foster homes. Educational and recreational programs and counseling services are available to young offenders in open or secure custody.
TRANSFER OF YOUNG OFFENDERS TO ADULT COURT In certain circumstances, a young offender may be transferred to, and be dealt with, in adult court. According to the Young Offenders Act, there are six factors which a court must consider when deciding whether to make the transfer. They are listed in Section 16(2) of the Act and are as follows (in summary): (a) The seriousness of the alleged offense and the circumstances in which it was allegedly committed; (b) The age, maturity, character and background of the young person including his/her criminal record; (c) The sufficienty of any Act that would apply in respect of the young person if an order were made under this section to meet the circumstances of the case; (d) The availability of treatment or correctional resources; (e) Any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; (f) Any other factors that the court considers relevant. Once a judge has considered these factors, he must decide whether or not to transfer the case to adult court. A few years ago, Parliament enacted changes to the Young Offenders Act that, in effect made it easier for judges to transfer young offenders to adult court.
Following are some highlights of these amendments, which were contained in Bill C-37. TRANSFER: Onus on youth to justify why she/he should be tried in youth system where: The accused is 16 or 17 years old Charged with – Murder – Attempted Murder – Manslaughter – Aggravated Sexual Assault PROCESS: Youth app …