Brief Review of Relevant Literature

Historical Approach in Canada

Canada has long recognized the need for a distinct approach to children and youth who commit offences. The Juvenile Delinquents Act (1908-1984) took a welfare-oriented approachFootnote 5 to juvenile offenders. The minimum and maximum age jurisdiction varied by province, with the minimum age ranging from seven to fourteen years of age, and the maximum from fifteen to seventeen years (Bala, 2003). The Young Offenders Act (1984-2003) standardized the age jurisdiction across Canada (twelve through seventeen) and the Youth Criminal Justice Act (YCJA) (2003 to present) retained this age jurisdiction. The YCJA includes principles of “diminished moral blameworthiness or culpability” and recognizes the “greater dependency of young persons and their reduced level of maturity” (s 3(1)(b)).

Canadian criminal legislation does not differentiate between young adults and older adults, although there is historical precedent for managing sentenced young adults differently. For example, from 1967 until 1985, British Columbia operated a correctional camp specifically for male offenders ages seventeen through twenty-one years, with a strong focus on outdoor/wilderness skills and rehabilitation.Footnote 6

Emerging Adults – The Developing Brain & Societal Changes

Neuroscientific research in the last two decades has provided increased knowledge about adolescent brain development. Several articles provide extensive summaries of the research literature (see, for example, Jim Casey, Moody, Prior et al).

The stages of human development have historically been described to include adolescence (12-18 years) and young adulthood (19-40 years).Footnote 7 Neuroscience now recognizes an interim period between adolescence and adulthood, referred to as emerging adulthood, covering the period from 18 to 25 years of age.Footnote 8 This period describes a gradual transition from adolescence to adulthood, evidenced in part by the gradual development of the prefrontal cortex which governs reasoning, decision-making, judgement, and impulse control. The prefrontal cortex is the last part of the brain to fully develop, continuing through the mid-20s.Footnote 9 (Giedd, 1999).

Research into brain development also identifies gender differences in brain development. According to Dr. Jay Giedd, neuroscientist at the National Institute of Mental Health, “…nearly everything that we look at as child psychiatrists is different between boys and girls – different ages of onset, different symptoms, different prevalences and outcomes. Almost everything in childhood is more common in boys – autism, dyslexia, learning disabilities, ADHD, Tourette’s syndrome – are all more common in boys. Only anorexia nervosa is more common in girls.” Dr. Giedd notes differences in the size of male vs. female brains and specific structures within the brain, including the frontal lobe, and that girls’ brains mature earlier than boys’.Footnote 10 Other research also supports the current understanding of gender differences in brain development.Footnote 11

Contrary to earlier belief that development of the human brain was mostly complete by age three, newer research indicates the brain can be ‘rewired’. It is well recognized that most youth in conflict with the law have experienced significant trauma during their developmental years.Footnote 12Footnote 13 “The exposure to trauma during childhood can interrupt the developmental processes and cause life-long physical, mental, and emotional deficiencies.”Footnote 14 The ability of the brain to develop new neural pathways (neuroplasticity) into adolescence and adulthood creates opportunities for emerging adults to learn and develop new skills and responses.Footnote 15

The literature also distinguishes between cold and hot cognition. Cold cognition describes a situation where an individual is not hurried and can consult with others in making a decision; hot cognition describes a person’s judgement when emotionally aroused, under time pressure and/or where social coercion or peer-pressure is present. In a situation of cold cognition, adolescents may be fully mature by age 16, whereas in situations of hot cognition full maturity may not be reached until their 20s.Footnote 16

Several articles reviewed for this report further consider emerging adulthood in the context of societal changes which have implications for the criminal justice system. Criminological theory refers to the age-crime curve, noting the onset of most criminal activity begins in early adolescence, and most offenders desist from offending by their mid-twenties. Factors identified as contributing to desistance from crime include entering the workforce, leaving home, getting married and/or starting a family. Many of these life transitions are happening later than in previous generations, correlating with a shift in the age-crime curve.Footnote 17 Canada has experienced these same societal changes, evidenced, for example, by census data indicating more than a third of those aged 20-34 years old continue to reside with at least one parent.Footnote 18

Implications for the Justice System

The current understanding of brain development summarized above has significant implications for how the justice system responds to young adults. For example, from a prosecution perspective, the still-developing prefrontal cortex, affecting reasoning and impulse control, may be a factor in assessing an individual’s culpability and moral-blameworthiness. For lawyers and the judiciary, there are implications for trial and sentencing procedures. For correctional service providers, an understanding of brain development, including neuroplasticity and gender differences, is critical to the design and implementation of effective programming and services.

During the March 2020 meeting in Ottawa, participants identified several factors related to young adults relevant to the justice system, including: